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The theme of Saturday afternoon, focusing on law and freedom in the context of the war on terrorism, gathers steam with the first of two debates. This debate, Panel 5, is entitled "Debate - Freedom and Intelligence: The Role of International Treaties and Federal Law in the Interrogation of Detainees."

Debating this topic are:
* Professor Philip Heymann, Harvard Law School
* Professor Michael S. Paulsen, University of Minnesota Law School
* MODERATOR: Judge Frank H. Easterbrook, U.S. Court of Appeals for the Seventh Circuit

The subject of this panel is officially described as: This panel will debate the legal merits of two controversial Justice Department memoranda. First, the panelists will examine the August 1, 2002 memo from Jay S. Bybee to Alberto Gonzales regarding the definition of torture under the 1984 Torture Convention and its applicability to interrogations outside of the United States. The "Bybee memo" concludes that federal law implementing the Torture Convention "proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical" but "[t]hose acts must be of an extreme nature to rise to the level of torture" and "that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [the] proscription against torture." Second, the panelists will examine the January 9, 2002 memo by John Yoo and Robert J. Delahunty regarding the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. The "Yoo/Delahunty memo" concludes that "[a]ny customary law of armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces concerning the detention or trial of members of al Qaeda and the Taliban" even though "the President may still use his constitutional warmaking authority to subject members of al Qaeda or the Taliban militia to the laws of war." Both memoranda raise fundamental issues regarding the President's power in interpreting and terminating treaties and Congress's power in limiting and (perhaps) interfering with the Commander-in-Chief power under Article II.
Prof. Paulsen also raises the Levin Memo in his remarks.

In the past, Prof. Heymann has argued that most coercive interrogation techniques simply don't work, a position which tends to minimize the relevance of the legal debate. Many attendees are undoubtedly more familiar with Prof. Paulsen's work on religion in the public sphere than his thoughts on international law, although I also know he's written extensively about constitutional structure. In fact, he scores highly among my list of best law-review article titles, for his piece on presidential impeachment: "I'm Even Smarter than Bruce Ackerman."

I've linked the Yoo memo above; Prof. Paulsen has helpfully distributed a handout to attendees documenting the contents of the Yoo-Delahunty memo as well:

A. Third Geneva Convention does not apply to al Qaeda as a matter of law
- not a "High Contracting Party" but an international terrorist organization
- al Qaeda does not itself comply
- Common Article 3 issue - does not apply to international conflicts

B. Third Geneva Convention does not apply to Taliban as a matter of law
- Alter ego of al Qaeda, not a true government; cf. Somalia
- "failed state" - no true government
- Even if a government, Taliban forces did not abide by it
- POTUS could terminate/suspend the Convention (more controversial)

C. Customary International Law - CIL is not USA law; or at least, not that trumps other American law

D. President's CinC power

Update:

Semi-live blogging begins.

Judge Easterbrook notes that he is the author of the al-Mauri case from the 7th Circuit (the third unlawful combatant case); points out that cert was denied, and "draw your own inferences."

Professor Heymann begins, first approaching the questions in this debate as a former government prosecutor. His observation is that the memoranda address the question of whether someone could be subject to a prosecution under a treaty, or whether there is too much doubt, especially after issuance of these legal opinions.

He stipulates that U.S. prosecutors are extremely unlikely to bring such a prosecution, and that, after the memos were written, it may be impossible to do so.

Then he asks: what is a plausible understanding of what we've promised through our treaties — approaching it from a substantive perspective, rather than a formalist one; in other words, what do we have to do in order to be able to uphold these treaties against other countries?

Heymann makes the case for why we need these treaties - to protect our soldiers; to gain cooperation and extradition from allies; to penalize other countries for violations; to create support at home; to prevent creating terrorists by violating the treaties; to promote our self-image as a law-abiding nation.

Then, he suggests that these memos contain arguments that are unilateral and unconvincing, and that the handling and syle are defensive and implausible. He emphasizes that each of the arguments made by the memos are not supported by any precedent, and specifically criticizes the argument that customary international law is not federal law, on the basis that we plan to apply it in Guantanamo Bay and subject our serving military members to it.

Similarly, by pointing out that Afghanistan essentially functioned as a state, and the Taliban government intended to operate it as a state, he refutes the "failed state" argument.

Characterizing the textual analysis of these treaties based on dictionary definitions as "juvenile," he suggests that "severe physical pain" is easy enough to interpret.

From a precedential standpoint, he suggests as precedent the fact that the U.S. has complied with the Geneva Conventions in all previous conflicts in which it's been involved.

On balance, he concludes: we should not strip away these protections and leave ourselves without a plausible argument as far as compliance for the minor benefits of "avoiding prosecution," or even interrogating terrorists.

Professor Paulsen then emphasizes that he will make a sharp distinction between his legal arguments and what he sees as a policy argument by Prof. Heymann: that it's bad policy to make these legal arguments.

Paulsen takes the position, first, that the Yoo/Delahunty memo is correct on every point of law, and that the only way to disagree is as a policy matter. Second, he argues that while he can quibble with some points in the Bybee "torture" memo, the overall conclusion is correct.

Paulsen describes the Yoo/Delahunty memo as a "statutory interpretation" of a criminal statute, during the Afghanistan war, and outlines its points, as reproduced above in this post.

- "No one" disputes that al Qaeda does not get protection from the 3rd Geneva Convention, and no reasonable person should conclude otherwise.

- He characterizes the argument that the President could suspend the treaty as "the best argument" in the memo - pointing out that Washington suspended the operation of our Revolutionary War treaty with France; likewise, the Carter administration terminated our military assistance with Taiwan. The President, under Article II, does have this power — but the question is - can he do it under international law?

- Paulsen then argues that international law is relevant as a policy concern, but not as a genuine, hard legal restriction as a matter of domestic law. This argument applies equally to treaty law and customary international law.

- Next, Prof. Paulsen discusses the big question: "How great is the constitutional CinC power of the President?", and takes the position that it's a broad power. If it is, that creates a broad area in which Congress cannot by statute interfere with the constitutional power of the President.

Turning to the Bybee Memo, he does criticize it for failing to engage in a policy-driven analysis, as Prof. Heymann does. But he suggests that the appropriate area of expertise for OLC is what was done here - defining where the line between torture and "other conduct" is.

What is that line?

According to the memo, "only the most extreme conduct."

He criticizes the analogy of "Severe pain" in the memo to "severe pain" in areas of the U.S. Code dealing with health care, but suggests it "is churlish to condemn it as juvenile," as it employs every imaginable mode of statutory interpretation to determine what constitutes torture.

Next, Paulsen considers the language of the Levin Memo of 12/30/04; the revised OLC memo, and concludes that none of the changes make a substantive difference.

Finally, Paulsen blasts the "irresponsible, over-the-top, and defamatory" nature of many of the critiques of these memos, although he concedes that Heymann and a few others have made thoughtful critiques of them as a "policy" matter.
He argues that "disorganized thinking" leads many liberals in the legal academy to conflate the policy nature of their attacks with the legal arguments, hinting that it goes to their general ideological approach to legal scholarship. If you believe that "Correct legal results" must be those with correct policy results, you'll end up with these criticisms.
He offers several other explanations: ignorance (getting facts from the MSM rather than from the memos); partisanship; and at least one other, and concludes by condemning the linkage made in the media between the memos and the events at Abu Ghraib, pointing out that the memos explicitly prohibited torture.