Washburn Law Journal
Editor's Note
Volume 48, No. 2 (Winter 2009)
The United States' reputation has taken a serious hit internationally. Deserved or not, this is a fact that cannot be ignored. Long revered for its commitment to the rule of law, the United States has come under severe criticism for its treatment of detainees. Many have attributed the United States' decline in international standing to the policies and actions of the Bush Administration. The recent change in presidential administrations, however, will not in and of itself solve this problem. The problem has many facets and reaches beyond Guantanamo Bay.
To facilitate discussion of the scope of this problem, consider the validity of the criticisms, and brainstorm potential solutions for the incoming administration, the Washburn Law Journal co-sponsored a symposium entitled The Rule of Law and the Global War on Terrorism: Detainees, Interrogations, and Military Commissions. Many of the presenters agreed to publish articles with the Law Journal, and because of the overwhelming response, we will be dedicating two issues to the symposium topic.
This issue begins with a transcription of a presentation by Pulitzer Prize-winning journalist, Charlie Savage. Savage's presentation, entitled Takeover: Return of the Imperial Presidency, based on his book, describes the systematic efforts of the Bush Administration to expand the power of the president and the executive branch.
Next, in an article entitled The Dual U.S. Standard for the Treatment and Interrogation of Detainees: Unlawful and Unworkable, retired Colonel David E. Graham, Executive Director of The Judge Advocate General's Legal Center and School, examines the standards of treatment applied to detainees and questions the creation of a separate standard for those designated "unlawful enemy combatants."
Professor Philippe Sands, in Torture Team: Abuse, Lawyers, and Criminal Responsibility, describes his efforts to determine how it was that new techniques of interrogation came to be authorized for use on detainees at Guantanamo Bay. Sands' article concludes with his suggestion for steps the Obama Administration can take to remedy the damage caused by the policies of the Bush Administration and to restore the United States' international reputation as a defender of the rule of law.
In his article The Difficulty of Defending Detainees, Major David J.R. Frakt details his experience serving as defense counsel for two detainees at Guantanamo Bay. Frakt provides insight into the process and the many challenges faced by those lawyers who choose to represent detainees. Finally, Professor George P. Fletcher questions the applicability of the "Just War Theory" to the law of war in his article Is Justice Relevant to the Law of War?, arguing that the theory is a remnant of religiously-justified wars and is outdated.
Video of the entire symposium, including the presentations reprinted here, is available on the symposium website.
In addition to the symposium articles, this issue contains several student-written pieces on a variety of subjects. In A Federal Framework for Regulating the Growing International Presence of the Several States, Jeremy Schrag addresses current doctrines that limit the role of the fifty domestic states on the international plane, and suggests the need for the states to have a more significant presence. Ashley Hawkinson, in The Right of Self-Representation Revisited: A Return to the Star Chamber's Disrespect for Defendant Autonomy?, critiques a recent United States Supreme Court decision which held that some individuals may be competent enough to stand trial but not competent enough to represent themselves. Darin McCollum considers the effect of a recent Kansas Supreme Court decision that all juveniles have the right to a jury trial in The Kansas Supreme Court Sounds the Death Knell of the "Civil" Juvenile Court Proceeding, proposing modifications to the juvenile system which he believes would be in the best interests of the juveniles. And in The United States Supreme Court Eliminates the "Class-of-One" Equal Protection Claim in Public Employment, Ryan Meyer contends that millions of public employees have lost an important avenue of constitutional redress of discriminatory treatment.
T.M.B.
