ProfNet Experts Round-Up: Detention of Terror Suspects
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**1. MICHAEL KELLY, international law professor at CREIGHTON UNIVERSITY: "Taken together, the decisions amount to a hit, a strike and a ball for both sides. The cases acknowledge the president's power to detain people while he is prosecuting America's war on terror. However, this power is not unchecked. The Guantanamo Bay case brings the military installation under U.S. federal court jurisdiction and accords the prisoners their basic human rights recognized by international law. The Padilla case sidestepped by the court on a jurisdictional technicality amounts to an endorsement of forum-shopping by the government."
**2. ROBERT E. PRECHT, assistant dean of public service at the UNIVERSITY OF MICHIGAN Law School, and author of "Defending Mohammad: Justice on Trial, A Defense Lawyer's Account of the 1993 World Trade Center Bombing Trial": "Is the Constitution a tool to help the president fight terrorism, or is it a system of values to give individual justice to those accused of wrongdoing? The bigger the perceived danger of terrorism, the more leeway the Supreme Court will give the president. What the detention cases really boil down to is whether the Supreme Court agrees with the administration's portrayal of terrorism as an unprecedented threat to American security."
**3. CHRISTOPHER H. PYLE, professor of politics at MOUNT HOLYOKE COLLEGE: "I would expect the Supreme Court to uphold the military detention of genuine battlefield detainees from Afghanistan as if they were prisoners of war, extending the Ninth Circuit's decision in Territo to non-POWs with American citizenship. (Territo upheld the indefinite detention, by the Army, of an American citizen who had served in Italy's army during World War II.) Where battlefield detainees are concerned, I would expect the court to defer to the military and its claims of necessity, with a warning that it will reconsider the due process issue (requiring screening) if detentions (without screening) go on much longer."
**4. MICHAEL MELLO, professor at VERMONT LAW SCHOOL and constitutional and criminal law scholar, is an expert regarding Fourth Amendment "search and seizure" and capital punishment, with over 20 years experience as a civil rights litigator: "It's a wide open question as to whether the administration can indefinitely detain suspected terrorists. There is precedent in support of the administration's position arising out of World War II, but since then there has been a revolution in constitutional criminal procedure. Today, there is a powerful argument in support of active judicial involvement in cases like Hamdi and Padilla, and regarding the Guantanamo detainees. This trilogy of cases before the Supreme Court will probably be the most significant separation of powers cases to be decided since World War II, even more so than U.S. vs. Nixon."
**5. DANIEL JOYNER, senior research fellow at the UNIVERSITY OF GEORGIA's Center for International Trade and Security: "The U.S. is obligated under the 1949 Geneva Convention III to afford prisoners captured during armed conflict the protections of the treaty even if their identity as POW's is in doubt. The situation is aggravated by the failure of U.S. federal courts to recognize jurisdiction, leaving detainees in de facto U.S. custody, but without the legal protections envisioned by the Constitution. The sum of these instances of violence to both U.S. constitutional law and international law is an unacceptable additive that should be rectified immediately."
**6. MICHAEL P. SCHARF, director of the Frederick K. Cox International Law Center at CASE WESTERN RESERVE UNIVERSITY: "The Bush administration argues that the Supreme Court case of Johnson v. Eisentrager has the authority to indefinitely detain so-called enemies at Guantanamo Bay, without charges or access to a lawyer or the opportunity to establish their innocence. Noting in Gherebi v. Bush, the Ninth Circuit Federal Court of Appeals said 'there is no lawful policy or precedent that supports such a counter-intuitive and undemocratic procedure and, contrary to the government's contention, Johnson v. Eisentrager neither requires nor authorizes it.' Congress enacted the 'Non-Detention Act' to avoid a repeat of the widely condemned detention of Japanese Americans during WWII, and it specifically prohibits the detention of any persons of U.S. nationality."
**7. HAROLD J. KRENT, dean and professor at the CHICAGO-KENT COLLEGE OF LAW: "Although the president is commander-in-chief of the Armed Forces, the Constitution does not grant him carte blanche to ensure the security of the nation. The president's constitutional authority to protect the nation must be accommodated both with Congressional primacy in policymaking, and with the civil liberties of citizens. At a minimum, the Constitution vests the president with no inherent authority to detain citizens suspected of terrorism indefinitely without recourse to the legal system." A constitutional scholar, Krent has written extensively on executive privilege aspects of individuals' interaction with the government.
**8. TED BOLEMA, assistant professor at CENTRAL MICHIGAN UNIVERSITY: "The Fourth Amendment prohibition against 'unreasonable search and seizures' sets forth a balancing test between protecting liberty interests and allowing legitimate government actions. The language recognizes that certain government actions may be considered 'reasonable' during times of war even though those same actions would be unreasonable at other times. But this standard does not give the government a carte blanche for 'any' government action during wartime. Unless new developments occur to create heightened security concerns, these detention measures become less reasonable as more time passes."
**9. SCOTT SILLIMAN, director of the DUKE UNIVERSITY's Center for Law, Ethics and National Security, is a former colonel in the U.S. Air Force who provided legal support to U.S.A.F. commanders during the Persian Gulf War: "The Bush administration has said in both Yaser Hamdi's and Jose Padilla's cases that attorney privilege is being done out of discretion rather than because either domestic or international law compels it. What is striking is that the decision to allow Hamdi and Padilla to interact with their attorneys was not made until the administration was facing a difficult challenge in the U.S. Supreme Court."
**10. JOHN D. HUTSON, dean and president of the FRANKLIN PIERCE LAW CENTER: "The U.S. Constitution clearly does not empower the U.S. to confine detainees indefinitely without representation. Due process requires some sort of process. If the detainees are located in U.S. territory, as I would argue Guantanamo Bay is, then the Constitution provides them with certain protections. If Gitmo is not U.S. territory, then the Geneva Convention kicks in. That also requires some level of due process in the form of a 'competent hearing' to determine their status. If they are determined to be POWs, they may be detained until the 'cessation of hostilities' at which time they may be repatriated. If they are not POWs, we are then in essentially uncharted waters."
**11. EDWARD P. LAZARUS, senior counsel at AKIN GUMP STRAUSS HAUER & FELD: "In a recent decision, the U.S. Court of Appeals held that the president may not unilaterally arrest a U.S. citizen on American soil and hold him indefinitely in military detention as an 'enemy combatant.' That is, he may not do so without Congress's prior authorization for such detention. Far from being a definitive or radical statement of any kind, the ruling in fact reflects a profoundly restrained approach. The opinion does not prevent military detention of suspected citizen-terrorists. Instead, it merely requires a Specific legislative mandate for such a deep intrusion into the liberties customarily afforded every American."
**12. KIM LANE SCHEPPELE, professor of law at the UNIVERSITY OF PENNSYLVANIA, can discuss terrorism and democracy, and rights in times of national crisis. Scheppele says the government's decision in February to allow Yaser Esam Hamdi to see an attorney for the first time after being detained for more than two years is a significant breakthrough: "It matters that this guy knows he has a case and knows he has legal representation. Even if it was in front of an audience of 10,000 people, it's an improvement over solitary confinement." Scheppeles teaches a course on terrorism and the law.
**13. ROBERT SCOTT, constitutional lawyer and partner at SCOTT & SCOTT, LLP, believes that the United States Supreme Court's upcoming review of the Bush administration's actions will demonstrate that many of the anti-terrorism policies are unconstitutional: "The Constitution prohibits the administration from detaining suspected terrorists indefinitely if they are United States citizens or if they are being detained within the United States."
**14. ROBERT DAVIS, professor at the STETSON UNIVERSITY College of Law in Gulfport, Fla., is an expert on national security issues, the Patriot Act, military intelligence and constitutional law. An officer in the U.S. Naval Reserves, Davis is well versed in military and national security law. He recently served with the Joint Intelligence Directorate in the Operations and Plans division at MacDill Air Force Base in Tampa. President George W. Bush has nominated Davis for the position of judge for the United States Court of Appeals for Veterans Claims.
**15. FRANK RAZZANO, partner at DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP and former U.S. Attorney and SEC trial attorney, has closely been following the Jose Padilla and Yaser Esam Hammdi cases, which involve the rights of U.S. citizens declared unlawful combatants by the president. Razzano teaches classes such as "Business Crimes," "Federal Securities Fraud Litigation," "International Criminal Law" and "Regulation of Securities Markets" at the University of Maryland.
**16. EDWARD F. SHERMAN, professor of military law and former dean of the TULANE UNIVERSITY Law School, served in the U.S. Army Judge Advocate General's Corp and has practiced and published in the area of military law. He is available to comment on the detention of suspected terrorists.