Interrogation, Detention and the Power of the President post 9/11
Program in Public Law Conference explores
Interrogation, Detention and the Power of the President post 9/11
A veritable brain trust of experts assembled for the Sixth Annual Conference of the Duke Program in Public Law on September 17, offering insight and opinion on what Duke Law Professor Jeff Powell aptly described as the “moral and political…and only secondarily legal” issues raised by the war on terror. Academics and practitioners with a wealth of experience in the military and federal courts, as well as government, took part in a series of round table discussions on issues of detention, interrogation, executive power, and the role of lawyers as advisors to the executive branch. Chris Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies and director of the Program in Public Law, organized the conference.
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Beginning with an analysis of the trio of decisions on detainees handed down by the Supreme Court in late June–the first to address questions of civil liberties in the war on terror–and continuing through the subsequent panels, it was evident that few of the questions raised by this war have clear-cut answers. Alston & Bird Professor of Law Erwin Chemerinsky, who moderated the detention panel, noted that in spite of their rulings on the detention of Americans as “enemy combatants” in the cases of Hamdi et al v. Rumsfeld and Rumsfeld v. Padilla et al, and detainees held at Guantanamo Bay, Cuba, in Rasul v. Bush, it is striking how many issues were left open by the Court, including the questions of whether American citizens apprehended in the United States, as was Jose Padilla, can ever be held as enemy combatants, and the exact nature of the process to which the various detainees may be entitled.
For his part, Duke Law Professor Neil Siegel, a panelist who clerked for Justice Ruth Bader Ginsburg at the time the detainee cases were heard, observed that “the longer I struggle with these issues, the clearer they become. The Court doesn’t have that luxury.”
The memoranda relating to permissible interrogation techniques and the meaning of torture–the so-called “torture memos”–authored by the Office of Legal Counsel (OLC) in August 2002, came up for repeated discussion. Addressing them in the context of interrogation, Scott Silliman, Director of Duke’s Center for Law, Ethics and National Security, said they highlighted publicly, for the first time, the tension between military attorneys and their civilian counterparts in government; the military attorneys were “not heard,” he said, when the OLC opined that when the President is acting under his Commander-in-Chief power he can’t be constrained by international law because he is essentially making tactical decisions on the battlefield.
“They worry about the long-term precedent set by crafting ways to avoid the War Crimes Act. It sets a dangerous precedent for our captured servicemen for the future.”
As a panelist considering executive power during times of war, Powell observed that in these matters “the rubber hits the road…not in overt, clear conflicts where the executive branch says we have the authority to do this in the teeth of Congressional commands to the contrary, but rather when the executive branch says, as in the Torture Act memos, ‘If we have construed Congress’s language…to do what it otherwise might have been thought to do, this would cause a grave and serious Constitutional problem; therefore, in order to avoid Constitutional difficulties, we will construe Congress’s language to say that x means not x,’ or close to it.
“One of the central issues for this generation of Constitutional lawyers is to address the problem of executive branch interpretation that in fact makes ‘Mickey Mouse’ of Congress.”
The role of OLC lawyers, as well as other legal advisors to the president, came under particular scrutiny during the final round-table discussion; the panelists were all veterans of the office under both Republican and Democratic administrations, and all were generally critical of the torture memos.
Few areas are more challenging for a lawyer than giving advice on national security issues, given the high stakes involved, said Randy Moss, a partner in the Washington, D.C. firm of Wilmer, Cutler and Pickering.
"Presidents who think they are served by getting the advice they want are almost always wrong."
- Professor Walter Dellinger“I’m confident that the authors of the torture memos really felt that what they were doing could well affect the lives of potential future victims of terrorist attack.” Still, he went on, it was a mistake for them to offer or agree to answer questions regarding interrogation and torture in the absence of specifics.
“If you write a broad opinion like this in the abstract, there’s the danger of trying to leave all the doors open because you really don’t know what’s going to come up. I think it’s particularly important in this context to come down and say ‘tell me what you want to do here’…rather than providing a general memorandum that in the end comes off reading like there aren’t any limits.”
Northwestern Law Professor John McGinnis lamented a general lack of diversity of opinion at the OLC, due to the fact that most of its lawyers at any given time hail from the same party as the president.
Walter Dellinger, Douglas B. Maggs Professor of Law at Duke Law School, agreed, adding that it highlights the importance of encouraging career people to stay on at the OLC, as is common in other branches of the Justice Department.
“You have to have people who are not all caught up in the program of the administration, and who retain their skepticism,” he said, also noting that lawyers have to be willing to say “no” to the president. “Presidents who think they are served by getting the advice they want are almost always wrong.”
Cornell Law Professor Brad Wendel ’94, who attended the conference, deemed it “fabulous.”
“This is having the discussion in the way it should be had, which is to integrate all of the different elements–the separation of powers and the actual substantive law, domestic international law on torture, and these institutional questions about separation of powers and the role of lawyers within the system of checks and balances. You have to deal with all of these to say something intelligent about any of the questions we’re dealing with, so this is great.”
“What makes these issues so hard is it seems like the law is ‘running out’ all over the place,” said Siegel at the end of the day. “These are once-a-decade, or once-a-generation type issues, and they seem to be coming up with a lot more frequency now after 9/11. Public law doesn’t get any more important and more challenging.”
A webcast of "Interrogation, Detention and the Powers of the Executive-A Series of Roundtables" is available from our webcast page.