Interrogation, Detention and the Powers of the Executive - A Series of Roundtables
The Sixth Annual Conference of the Duke Program in Public Law
September 17, 2004
Room 3043 Duke Law School
This summer, internal legal memoranda prepared by several federal departments, addressing permissible interrogation techniques in the war on terrorism, once again focused attention on the complex legal and policy questions that have arisen after September 11, 2001 regarding the appropriate ways to conduct the war on terrorism. The memoranda themselves raise a number of questions. Some arise within the “four corners” of the memoranda, and concern the legal effect of international agreements, the effect of the presence or absence of U.S. legislation implementing provisions of international agreements, the role of specific intent in defining impermissible conduct, the interpretation and applicability of the defenses of self-defense and necessity and the scope of the commander-in-chief power to override legal constraints that might otherwise be applicable.
Additional questions arise when the specific documents are placed within larger institutional contexts. In public statements and legal briefs, the Administration has articulated an expansive view of executive power consistent with the stance taken expressed in the memoranda regarding the commander-in-chief power. That view has been subjected to considerable criticism, most recently in the aftermath of the Supreme Court’s detention decisions granting a due process hearing to Yaser Hamdi and habeas review to the Guantanamo detainees despite Administration arguments that the question of detention was one to be resolved by the President alone. Additionally, the orientation of the legal memoranda has been criticized by some as inconsistent with long-standing traditions of advice-giving within the Office of Legal Counsel, the division within the Department of Justice most responsible for providing constitutional and other legal advice to the President.
These issues have already been the subject of considerable public discussion, commentary and debate, but so far there have been few opportunities for extended exchanges of views among people knowledgeable about the issue and in a setting where deliberation is encouraged. On September 17, Duke Law School will host a one-day gathering of such knowledgeable individuals, representing a range of viewpoints. The day will consist of a series of moderated discussions, each one concentrating on one dimension of the issues. Each discussion will be initiated by a group of four panelists, and will also include ample opportunity for other attendees to participate in the deliberations. This conference is one in a series of events at Duke University this fall, evaluating where the country stands three years into the post-911 world.