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The Way Forward: Post-9/11 Principles

JURIST Contributing Editor Mary Ellen O'Connell of Notre Dame Law School and panel colleagues at a recent Washburn University School of Law symposium on ?The Rule of Law and the Global War on Terrorism? offer their consensus on the appropriate way forward on critical issues in international law and policy that will confront President Barack Obama?s Administration when it takes office on January 20, 2009...

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Within hours of the attacks of 9/11 the Bush Administration decided to treat the attacks as part of a worldwide war?a new kind of war that would free the Administration to re-write the rules. A ?global war on terrorism? was declared and new rules for the targeting, detention and trials of persons suspected of acts of terrorism or membership in terrorist organizations were created. Seven years later, upon the election of a new president, there is an intense debate under way in the United States as to what to do about the ?global war? and the laws and institutions resulting from it.

Attorney General Michael Mukasey expressed his views at a meeting of the Federalist Society November 20 and had this to say about the future:

The next Administration will have the opportunity to review the institutions and the legal structures that this Administration has relied upon in keeping the nation safe over the past seven years. I am neither so proud as to think that the next Administration will be unable to make improvements, nor so naïve as to think that the policy choices, or even the legal judgments, that they make will be identical to ours.

What I do hope, however, is that the next Administration understands the threat that we continue to face and that it shares the priority we have placed on remaining on the offense to prevent future terrorist attacks. Remaining on the offense includes not simply relying on the tools that we have established, but also encouraging a climate in which both legal and policy issues are debated responsibly, in a way that does not chill the intelligence community and deter national security lawyers from making the decisions necessary to protect us.

And I am hopeful that some time from now, after the next Administration has had the chance to review the decisions made and the legal advice provided, it will acknowledge that despite any policy differences, the national security lawyers in this Administration acted professionally and in good faith and that the country was safer as a result.

Three of us, all specialists in international law, especially International Humanitarian Law, take a very different view, which we expressed at a recent Washburn University School of Law symposium on ?The Rule of Law and the Global War on Terrorism?. The members of the Symposium?s final panel on ?The Way Forward?[1], considering important legal issues that will confront President Obama?s Administration when it takes office on January 20, 2009, have framed the following:

Washburn Consensus on Post-9/11 Principles

1. The phrase ?Global War on Terrorism? should no longer be used in the sense of an on-going ?war? or ?armed conflict? being waged against ?terrorism?. Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism.

2. The Administration should announce that it is taking immediate steps to close the interrogation and detention facility at Guantanamo Bay, Cuba, with a view to removing all remaining detainees by July 1, 2009.

3. The Military Commissions Act of 2006 should be repealed in its entirety, and all activities currently being conducted under the Military Commission process constituted by the Act should be terminated.

4. Persons accused of committing acts of terrorism, war crimes or other serious human rights violations should be tried, as appropriate, before Article III courts or, as provided for in the Uniform Code of Military Justice, by courts-martial or military commission.

5. The Detainee Treatment Act of 2005 should be amended to ensure the application of one standard of treatment and interrogation to all detainees held in U.S. custody or control.

6. The single standard for the treatment and interrogation of all detainees held in U.S. custody or control should be that reflected in Army Field Manual 2-22.3, Human Intelligence Collector Operations.

7. Any presidential findings, statements, Executive Orders, or other forms of authorization related to detainee treatment and interrogation that sanction or authorize methods inconsistent with Field Manual 2-22.3 should be withdrawn.

8. A comprehensive investigation of alleged post-9/11 U.S.-held detainee abuse should be undertaken by an independent, expert commission with the goal of producing a 2009 report detailing both the findings and recommendations of this commission.

   
   David E. Graham, Colonel (ret?d)
   Executive Director, The Judge Advocate General?s
   Legal Center and School, U.S. Army [2]

   Professor Mary Ellen O?Connell
   Robert and Marion Short Chair in Law
   University of Notre Dame

   Professor Philippe Sands QC
   University College London
   Barrister, Matrix Chambers

   1. The Panel was chaired by Dean of the Washburn Law School and former Judge Advocate General of the Army, Thomas J. Romig

   2. These views are expressed in Mr. Graham?s private capacity.

Mary Ellen O?Connell is the Robert and Marion Short Chair in Law at the University of Notre Dame. She is the author of The Power and Purpose of International Law (OUP 2008); International Law and the Use of Force (Foundation 2005, 2008). For the ILA Use of Force Committee initial report on ?The Meaning of Armed Conflict in International Law? (2008), see http://www.ila-hq.org/en/committees/index.cfm/cid/1022

Full post as published by JURIST - Forum on November 25, 2008 (boomark / email).