Dispatch from the ASIL Conference III

Some wrap-up notes from the ASIL conference that concluded on Saturday:

1. The second panel I attended Thursday covered the very timely “Civil Liberties in Times of Crisis.” Air Force Colonel Morris Davis — who resigned as chief prosecutor at Guantanamo — opened with a criticism of the military tribunals as unworkable; he agreed that terrorism detainees held in Gitmo (let alone Iraq) don’t have constitutional rights, but the politicization of the process has delegitimized what should be an open, transparent, and efficient processing of enemy combatants. Covington & Burling partner David Remes, who has represented many of the detainees, called for simply applying the criminal justice paradigm to international terrorists (as with the blind sheik after the first WTC bombing and with Timothy McVeigh). Hofstra’s Julian Ku continued that line by supporting the extension of constitutional rights to foreigners and applying international law domestically. Human Rights First’s Elisa Massimino called for the U.S. to be a shining city upon a hill (my characterization, certainly not her words) in terms of being an example on human rights — and linked American political power to its respect for international law.

Then came Q & A, which as it happened centered mostly on a very short question that I asked: Is there a difference between national security and law enforcement, and if there is what are the consequences for the handling of detainees suspected of being terrorists? Col. Davis said that national security is the correct paradigm but that the military commissions have been poorly executed by political appointees. David Remes, to his credit, explained that the real difference between national security and criminal justice is one of policy, and it is not up to the courts to make those kinds of decisions.

My view: I agree with Davis that national security courts (along the lines proposed by Jack Goldsmith and Neal Katyal) are the only way to go in this world of post-modern asymmetrical warfare. National security and law enforcement are different governmental functions, and to conflate the two (like John Kerry did in 2004) or to suggest that constitutional rights apply to everyone everywhere (but international law is supreme in the U.S.) is to throw out the most basic understandings of political theory.

2. On Friday I attended a very interesting panel on the Economic Security and the Committee on Foreign Investment in the U.S. (the latest reform of which I wrote about here). On CFIUS, everyone seems satisfied with the latest reform (which increased openness and aims to prevent political blow-ups like Dubai PortsWorld) and is comfortable with handling of Sovereign Wealth Funds, which Dan Ikenson and Jim Dorn have written about recently. [Also, note that last week Canada’s equivalent of CFIUS blocked a foreign acquisition for the first time time ever. The purchasing company was from… the US! The Canadian company is a leading satellite reconnaissance developer (e.g., sees through clouds and ice, apparently finding oil/mineral deposits in the Arctic).

3. I also attended a hugely overcrowded — people spilled out into the hallway, and I ended up sitting on the floor beside the panelists’ table — panel on “Restoring Rule of Law in Post-Conflict and Stabilization Operations.” I’ve written about these issues before in the context of Iraq, and this panel mainly provided anecdotes about Liberia, Sierra Leone, and Bosnia. A young British researcher also proposed international trusteeships as a useful mechanism (a la the old — or not so old, see Kosovo — UN protectorates). A difficult set of issues, not least because of questions over the legitimacy of outside intervention, how to achieve post-conflict justice and social reconciliation, and how to advise a legal system without being seen as imposing foreign values.

4. The final events I attended were a roundtable discussion by various foreign ministries’ legal advisers and an address by Zalmay Khalilzad, the U.S. ambassador to the U.N. Both of these were disappointing in that all these people are learned and experienced but didn’t really have anything new to say. If only John Bolton were up there…

[Cross-posted at Cato's blog.]