As the 3rd anniversary of the Military Commissions Act approached and a few months after the 60th anniversary of the Geneva Conventions, national security experts, human rights advocates, and other critical stakeholders continued to debate issues of detainee treatment. In the early months of a new presidential administration, it appears that while some progress has been made, many issues remain unresolved. This ACS event examines two such issues. The first panel explored the formation of a detention policy that serves both national security and human rights obligations. The second panel examined the state secrets privilege, a common law doctrine whose application has arguably impeded access to justice for those claiming harm while being detained or in other custody of our government.

The October 15, 2009 event featured two panels, the first from 10 - 11:30 am and the second from 1 - 2:30 pm, as well as a lunchtime keynote speaker.

The first panel, Justice for Detainees: A Work in Progress?, focused on the following: While the announced closing of Guantanamo was celebrated by human rights advocates, many of these same advocates and policy experts have been disheartened by issues that remain unresolved. Human rights advocates, national security experts, and military justice analysts continue to vigorously discuss what would constitute meaningful detention policy going forward. Can the present federal court system and traditional military courts suffice to deal with those engaged in acts of terrorism against the nation? Are special courts necessary or will these erode basic principles of justice that are fundamental to our nation? What meaningful lessons can be drawn about civilian and military justice models, and what can we learn from the ongoing work of the Commission on Military Justice, which is reviewing the administration of justice under the Uniform Code of Military Justice? Do there exist any circumstances under which detention without trial could be acceptable?

Participants for the 10 am panel, Justice for Detainees: A Work in Progress?, included:

• Moderator, Deborah Pearlstein, Visiting Faculty Fellow, University of Pennsylvania Law School
• Jameel Jaffer, Director, ACLU National Security Program
• Richard D. Klingler, Partner, Sidley Austin LLP; formerly General Counsel & Legal Advisor to the National Security Council (2006-2007)
• Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch
• Hope Metcalf, Lecturer and Project Director, National Litigation Project of the Lowenstein International Human Rights Clinic, Yale Law School

Lunch was provided at 11:30 am, with a noon keynote address from David S. Kris, Assistant Attorney General for National Security.

The second panel, The State Secrets Privilege: A Case for Reform?, focused on the following: Over the past eight years, there has been much discussion about reforming the state secrets privilege. The privilege allows the government to prevent the disclosure of certain information in legal proceedings, whether or not a federal agency or employee is a party to the proceeding. While the privilege’s rationale has been to avoid disclosures damaging to national security, invocations of the state secrets privilege in court by both the Bush and Obama Administrations have left some observers to claim that the doctrine is being abused by the executive branch. As bipartisan reform legislation such as the State Secrets Protection Act stalled in both the Senate and House in 2008, many legal and policy questions remain. Is the state secrets privilege being improperly invoked? How can national security concerns be balanced with the need to preserve meaningful access to justice in our nation’s courts? Is a legislative solution in order?

The 1 pm panel, The State Secrets Privilege: A Case for Reform, featured:

• Moderator, David Cole, Professor of Law, Georgetown University Law Center
• Amanda Frost, Associate Professor of Law, American University Washington College of Law
• David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism
• Vincent Warren, Executive Director, Center for Constitutional Rights
• Ben Wizner, Staff Attorney, ACLU

Thursday, October 15, 2009
10:00 am - 2:30 pm
The National Press Club, Holeman Lounge
529 14th Street, NW, 13th Floor
Washington, DC 20045