Update:

Update:

Judge Richard Wesley's introduction noted that the afternoon panels and debates will be framed by September 11, 2001, one of the three moments in history (with Fort Sumter and Pearl Harbor) that demonstrate "what a difference one day makes in the United States").

Further illustration the attention that judges tend to pay to formalities, by correcting the bio in front of him to specify that it is Chief Judge Ginsburg of the D.C. Circuit

Dr. Levy begins by recounting the saga of Jose Padilla. He projects that the DOJ will reach a deal with Padilla because the logic of the Hamdi case makes it appear that the alternative to a deal is his release.

The link between these cases, he argues, is based on four principles:
1. The Hamdi case suggests that detention is only justified as long as hostilities continue in Afghanistan; hostilities are ended.

2. "Battlefield" detentions are permissible, according to Hamdi; O'Hare is not a battlefield.

3. The 1971 Non-Detention Acts require congressional authorization of detentions; but if the post-9/11 congressional acts are such organizations, they cannot extend to a U.S. citizen, in the United States, far from a military zone of combat.

4. Nose-counting: Scalia, in Hamdi, makes clear there are three choices for a U.S. citizen: charge them with a crime (or treason); suspend habeas corpus, or release. Add in the four dissenters from PAdilla, who dissented on the merits, claiming that Padilla's detention was a form of torture and that he should be released.

Dr. Levy contests the governments' characterization of recent cases in terrorism as "victories," and that the latest statements by the government, which say that Padilla fought on the battledfield in Afghanistan, are a cynical ploy to justify his continued detention for a few months, until a court can dismiss his case on the merits.

In particular, he asks "why did it take three years of incommunicado detention" to conclude that Hamdi posed no threat, and release him to Saudi Arabia, when two years ago, the government argued that merely allowing him to see a lawyer would be dangerous to the United States.

Dr. Levy acknowledges that while the problems of returning a terrorist to the battlefield may pose greater potential harm than releasing a criminal for insufficient evidence, and so we might tilt the rules further towards detention. But Congress must act - American citizens cannot be detained on a continuing basis by executive authority alone. Padilla may well represent a threat, he concludes, and if so, Congress should act.


Prof. Goldsmith begins by outlining the simple distinction between enemy combatants, who can expect to have their civil liberties diminished in wartime; and civilian non-combatants, who should not, and traces this distinction to the laws of war and to the WWII Supreme Court decisions. The combatant/civilian distinction was critical in all the Supreme Court wartime cases (Ex Parte Milligan, Ex Parte Endo, Duncan, Quirin, and Youngstown) save one (Korematsu).

All of these cases recognized implicitly or explicitly that the decisions would have been different if taken against combatants, as opposed to non-combatants. This leaves Korematsu: and Goldsmith notes that we have rejected Korematsu, but not the imprisonment of POWs in WW2.

Then, Goldsmith argues that international authorities justify the idea that armed conflicts with terrorists can trigger the operation of the laws of war; and we should see the 9/18 Act by Congress as recognizing that the 9/11 attacks triggered the laws of war.

As a result, those connected to the 9/11 attacks are enemy combatants, and thus have a diminished expectation of freedom — and so those captured can be detained until the end of hostilities. But this conclusion, based on traditional presidential power, must be qualified because of the pressures of the combatant/civilian distinction.

In particular, the flouting of the civilian/combatant distinction by the enemy ensures a heightened likelihood of mistake (since they are all out of uniform). Moreover, the cost of a mistaken distinction is heightened, because we're not sure how this conflict will ever end.

Goldsmith then predicts we will see two changes in procedure. The first, to reduce mistakes, will be to implement heightened procedural protections. This is the change in procedural protections embraced in Hamdi and Rasul.

Second, since we can't conceptualize when the end of hostilities will be, we must look to when hostilities have ceased with the individual, combatant, enemy detainess. Why? Because you do not have to charge an enemy during combat in order to detain them until the end of hostilities. This is an old rule, and we should not change it. As Goldsmith points out, this is easier said then done, but there are many models from other places (e.g. administrative detention) that we can look to.

Professor Strossen reads from the Federalist Society's founding principles, that the state "exists to preserve freedom." Her position will be that "too many post-9/11 freedoms have been sacrificed to provide too little security."

She notes that the ACLU only has a few objections, to about 12 of the 160 elements of the Patriot Act, unlike "radical Al Gore" that the whole Act should be repealed.

Prof. Strossen then says the true extremist position is the adamant, unyielding position that nothing in the Act should be altered, and that the sunset provisions should be prevented, and she links this to "too many" post-9/11 assertions of unlimited executive branch positions.

Next, she cites examples of "conservative" Republicans such as John Sununu of New Hampshire and Don Young of Alaska who oppose various provisions of the Patriot Act. This is her approach - quoting critics of limits on civil liberties, and she lists quite a lot of critics to quite a lot of limits.

She concludes: The war on terrorism is unlikely to ever be over, so we cannot afford to give away our liberties for the duration.

Dr. Pipes begins by asking: "are we at war, or are we not," pointing out that since WWII, almost no one has ever declared war, and that we are engaged in ad hoc legal activities, rather than implementing the legal mechanisms of war.

As he notes, this has caused a tremendous division between liberals and conservatives, distinguishing Sen. Kerry's remarks that the war on terrorism is primarily about law enforcement, and Richard Holbrooke's "the war on terrorism is a metaphor" like the "war on poverty" and President Bush's rhetoric that the enemies' goal is a "war to destroy America," and that "anyone who thinks we're fighting a metaphor" has it wrong.

He raises the timely case of Abu Hali, the Virginian valedictorian indicted for planning to assassinate President Bush on behalf of Al Qaeda. He notes that Hali attended the Islamic Saudi Academy of Northern Virginia, (which he calls "A small piece of Saudi Arabia in America), and recounts the facts (including his defense by CAIR), and says that he takes the threat seriously, and that he is very glad he has been apprehended.

Pipes then criticizes the editorials in the MSM, focusing on procedural matters. For example, the NYT editorial criticizing the administration's failure to immediately prosecute him, makes no comment about the vast implication of a terrorist trained in the United States with Saudi funds as part of their extraordinary religious outreach program. (The Washington Post, Baltimore Sun, the Guardian, etc. all take their shots for editorials "dripping with irony" - in particular the Sun, which claims that the indictment "portrays him as something other than a victim of torture").

Neither his citizenship nor his class rank are at stake here. Rather, we must face up to the fact that the terrorist enemy is not faceless and nameless, but it has a specific name: radical Islam, the ideology. We must focus on the Islamists "who have declared war on us," and it is a fact that radical Islamists come from the rank of Muslims.

Strossen takes a few minutes to respond to Dr. Pipes, claiming that while "John Kerry" may, as charged, underestimate the threat of terrorism, she and the ACLU does not - and that's why she is focused on the fact that the Patriot Act does not protect us. With regard to the NYT, she suggests that the concern is that it's more likely he will be released, because he can't be prosecuted after torture.

Pipes and Strossen clash on the question of whether one of her staff members appeared to disrupt Dr. Pipes' speech.

Update:

Update:

Judge Ginsburg's introduction of Jim Lindgren - "a star with statistics — hopefully he'll demonstrate some of that for us." How often do you hear someone on a legal panel say that?

Amy Wax opened by discussing the phenomenon that has made "blaming the victim" generally off-limits in our political discourse, and suggested that it's based on the essential confusion of "justice" with "progress." Justice requires that the culprit right the wrong, as we know from our study of Remedies, but there are some wrongs in which the culprit cannot efficaciously solve the problem. In these situations, as in our society of victimhood, we need to expect that victims will do what's necessary for them to help themselves.

She argues summarily that the power of government to right the wrongs of individual irresponsibility is limited, and that this has implications for our discussionso f race and racial equality; specifically, that while blaming victims does not exonerate wrongdoers, true racial justice may not be achievable and victims must change their mentality to recognize that they remain free moral agents.

Judge Ginsburg then notes the old Washington chestnut applies here: "It seems no one on this panel is concerned about confirmability."

Richard Parker's remarks then take the contrarian approach of arguing that democratic political freedom, meaning the summoning of energy to engage in and conflict with others about ideas, is fundamentally advanced by identity politics. Specifically, he argues that:

1. All democratic politics is identity politics - animated by efforts to define who we are internally, externally, in the present and in the future, and redefining ourselves over and over again.

2. Only some types of identity politics are pathological to democratic political freedom

3. The three common diagnoses of the problems with identity politics are mistaken - that stereotyping is bad (vs. 'good' individuality); that emphasizing differences rather than shared connections is bad; and that victimhood is bad. Rather, all three of these are essential to identity politics and its role in energizing the polity and promoting political freedom.

4. There are true identity politics pathologies, however: including
- The use of leaders to "speak on behalf" of entire groups
- Social pressure to refrain fromcriticizing groups
- And the overriding "poison" - the celebration of "Minorities," which is antithetical to majority rule. He explains that the celebration of minorities has reified them and solidified an idea that minority status is permanent, eroding the concept of shifting majorities as the goal of our democracy, and the idea that minorities should seek to take part and have their interests promoted in shifting majorities. Thus, he argues, majority rule and voting have been denigrated.

5. Most controversially, he proposes we should replace our silhouette of Madison with Lenin — as a warning against smothering real identity politics with the pathological identity politics of the "New Man."

Update: Division corrected. Thanks to readers who pointed this out!

Panel 1, on Friday night, featured (from left) Moderator Gary Lawson, Professor Charles Fried, Professor Michael S. Moore, Mr. Kevin Hasson, and Professor Michael Sandel.

Photo credit: Danny Booth

Update:
Opinions were varied about how well Pres. Summers performed in his [limited] role at the Federalist Society Student Symposium as he opened the event. His welcome was certainly warm, as he entered the room to a grand round of applause. The applause even extended to the overflow rooms, two floors away, where another two hundred attendees watched his speech and the following panel on video screens. After he was introduced, applause again broke out on both levels, and as audience members began to rise to their feet, he motioned them back to their seats: "Thank you very much, I think," he began. "Let me remind you, I am a Democrat."

I wonder whether any Democrats or former Democrats in the room took offense at that. Most Democrat Federalists are probably used to the assumption that they are Republicans, but it foreshadowed a general theme in his remarks, that his expectation is of a monolithic body of conservative thinkers, and he's always "surprised" when reality doesn't conform.

Nonetheless, it was a good opening: recognizing the irony of the strong support he's received from conservatives (and others), despite a perception by many, at least when he was Secretary of the Treasury, that he was "the enemy."

His introduction continued by alluding to the recent controversy: . He noted that "The kind of discussions, arguments, and controversy" embodied by the Federalist Society is very important to our intellectual life, as ideas must be vigorously debated, advocated, and, sometimes withdrawn [pause for effect]... under force of better arguments. [Chuckles all around].

His remarks continued by discussing the paradox of "using law to keep you free," and he highlighted what will be some of the key issues discussed at this conference - the cleavage among conservatives over what protections to extend to civil liberties in a time of grave danger.

It took almost a decade after the [1989] Velvet Revolution for democracy to fully take root in this country. And the democratic revolutions that swept this region over 15 years ago are now reaching Georgia and Ukraine," he said to applause.

In a link that appeared aimed more at domestic audiences than at the shivering crowd, he went on to suggest that last month's election in Iraq was in the tradition of the East European revolutions over the past 15 years.

"In recent times we have witnessed landmark events in the history of liberty - a Rose Revolution in Georgia, an Orange Revolution in Ukraine and now a Purple Revolution in Iraq," he said, in a reference to the Iraqis who dipped their index fingers into purple ink to show they had voted.

[S]ome professors said that any measure of this kind would be unlikely to pass and others privately said that the language of this specific motion is too controversial to garner widespread support. Many faculty members have spent hours this week discussing other ideas for resolving the crisis of confidence in Summers...

J. Lorand Matory, professor of anthropology and African and African American studies, said he has secured a spot for his motion on the agenda of the March 15 meeting, although he said he hasn't finalized the language because he is still consulting with colleagues.

The draft also has three paragraphs of explanation that refer to several Summers controversies: the memo he signed while working at the World Bank in 1991 suggesting that Third World countries were underpolluted; his support for the Reserve Officers Training Corps on campus, despite a ban on gays serving openly in the military; and his criticism of signers of a petition for divestment from Israel as ''taking actions that are anti-Semitic in their effect, if not their intent."

It criticizes Summers's "apparently ongoing convictions about the capacities and rights not only of women but also of minority populations, third-world nations, gay people, and colonized peoples," the explanation says.

Such specific complaints, and especially language such as ''colonized peoples" -- a reference to Palestinians -- make many of Summers's critics uncomfortable, although several declined to be quoted yesterday about Matory's statement.