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U.Va. Law Symposium Will Address Whether Detention Of ‘Enemy Combatants’ Is Constitutional

March 16, 2004 -- Is President Bush acting within his constitutional authority as commander in chief in ordering the indefinite detention of those designated as “enemy combatants”? This is a question that will be considered by the U.S. Supreme Court next month in Al Odah v. United States.

And it’s a question that a panel of experts will grapple with at the University of Virginia School of Law on March 20 at the annual symposium on International Law and Practice in American Constitutionalism, sponsored by the John Bassett Moore Society of International Law. The symposium will feature panel sessions on the following four topics, each held in the Law School’s Withers-Brown Hall, Room 102.

Executive Power

The symposium’s opening session on executive power starts at 9:15 a.m. It features Brad Berenson, associate White House Counsel from 2001 to 2003, who will file a brief before the Supreme Court on behalf of Citizens for the Common Defense, arguing that the traditional rule barring enemy fighters captured and held abroad from challenging their detention in the U.S. legal system should stand for the prisoners of war currently being held at Guantanamo Bay Naval Base.

Berenson will be opposed by Stanford Law Professor Jenny Martinez, a member of the defense team for Jose Padilla, one of three detainees designated as an “enemy combatant” by the administration. Martinez, who has not been allowed to meet with her client, challenges the enemy-combatant designation and says the executive decree is “unprecedented.”

Berenson and Martinez will be joined by Ingrid Wuerth of the University of Cincinnati and Joe Margulies of the MacArthur Justice Center at the University of Chicago Law School. Margulies is lead counsel in Rasul et al. v. Bush et al., a companion case to Al Odah v. United States. Wuerth will provide historical perspective by looking at decisions of the Supreme Court in cases that arose during past military conflicts.

Cruel and Unusual Punishment

The 11 a.m. session, on cruel and unusual punishment, considers the sharp disagreement over whether international law should matter in Eighth Amendment cases. Capital punishment, eliminated by many developed countries, is prohibited under international legal covenants. However, in the United States, it remains widely believed that U.S. standards of justice alone should determine how courts interpret the Constitution. Because criminal justice is an area traditionally reserved to the states, the issue is confused even further.

The panel includes Richard J. Wilson, Washington College of Law; Paolo Carozza, Notre Dame Law School; David Sloss, St. Louis University Law School; and Sandra Babcock, Mexican Death Penalty Project.

Federalism and the Separation of Powers

While the national government has broad constitutional authority over foreign relations, a thorough understanding of the federal system and its precedents is necessary to understand the role of international law in the United States. Pressing issues include the question of what role federal courts should play in limiting state authority when there is no clear guidance from the political branches and how international law and international agreements will bind the states in the future.

Held at 2:30 p.m., the third panel session includes Vicki Jackson, Georgetown University Law Center; Peter Spiro, Hofstra University; Ed Swaine, Wharton School, University of Pennsylvania; and Ernest Young, University of Texas Law School.

National Perspectives on International Law

The final panel, held at 4:15 p.m., looks at how international law informs constitutional interpretation in other countries, including Canadian solutions to accommodating a bicultural society, the controversial building of a new constitutional system in Iraq, and the post World War II creation of a new Japanese constitution.

This panel includes Mark Tushnet, Georgetown University Law Center; Sujit Choudhry, faculty of law, University of Toronto; Abdulaziz A. Sachedina, University of Virginia; and Naoyuki Agawa, Embassy of Japan.

For a full schedule of events, see: http://www.student.virginia.edu/~jbmoore

The symposium is open to the public.

Contact: Ted Kiem, (434) 760-0502

FOR ADDITIONAL INFORMATION: Contact the Office of University Relations at (434) 924-7116. Television reporters should contact the TV News Office at (434) 924-7550.

SOURCE: U.Va. News Services

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