Duke Law Professors Speak about September 11

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With the nation pausing Wednesday to look back on last September 11, mourn those lost and consider the future, four Duke Law professors with expertise ranging from comparative and international law to national security and public policy gathered to discuss some of the complicated legal issues to arise from the terrorist attacks.

Chris Schroeder, Charles S. Murphy Professor of Law and faculty director of the Duke Program in Public Law, moderated the panel discussion of such crucial questions as the legality of an invasion of Iraq, the classification and detention of "enemy combatants," and options for the international prosecution of terrorists.

Panelist Michael Byers, associate professor of law, said the United States clearly had the force of international law behind it during the fighting in Afghanistan under the well-recognized right of nations to defend themselves against attacks or imminent attacks. However, the same probably cannot be said for an invasion of Iraq, he said.

For a strong coalition to form behind the idea of an assault on Iraq, that country likely would have to be given one more opportunity to allow for comprehensive weapons inspections. If Iraq refuses, Byers said, the United States should seek support in the United Nations' Security Council for any military action. "To go it alone would fragment that support," he said.

Panelist Madeline Morris, professor of law and advisor to the prosecutor of the Special Court for Sierra Leone, noted that the political nature of terrorism creates a unique tension that complicates efforts to prosecute terrorists - efforts that even now are playing out across the globe.

"The contours of national and international authority over law enforcement in the field of terrorism is an issue that is going to develop in important ways in the near future," Morris said. "The new permanent International Criminal Court - which is coming into existence even as we speak - is planning to take up the question of whether its jurisdiction should be extended to encompass crimes of terrorism."

Professor Scott Silliman, executive director of the Law School's Center on Law, Ethics and National Security, said the United States' treatment of many captives taken in the last year violates provisions of the Geneva Convention as well as U.S. domestic law. Among the most troubling cases are those of Yaser Hamdi and Jose Padilla, two U.S. citizens who have been detained for months without benefit of counsel and without any specific charges lodged against them.

Further, he said, the United States, although claiming to be a nation under the rule of law, is seemingly not satisfying its commitments under international law. "I am troubled by our continued refusal to adhere to the Geneva Convention," Silliman said.

The event was sponsored by the Program in Public Law, of which Professor Schroeder is faculty director, and the Center on Law, Ethics and National Security.

Please visit to view a webcast of the September 11 panel discussion.