Annual Meeting 2011

With a Show of Hands, Lawyers Endorse Military Commissions over Civilian Trials


If there is significant opposition to the U.S. war on terror, it wasn’t apparent in a roomful of lawyers on Friday.

Salli Swartz, chair of the ABA Section of International Law, mentioned xenophobia and a “mass intrusion on privacy” as she moderated an ABA Annual Meeting program on the impact of Sept. 11. But panelists didn’t take the bait.

Civil liberties can’t be preserved “if there is chaos and deep-seated fear,” said Jamie Gorelick, a WilmerHale partner who served in the Clinton administration as deputy attorney general and as general counsel of the U.S. Defense Department.

Ivan Fong, general counsel of the U.S. Department of Homeland Security, echoed that view. Security is needed to protect American values, ideals and way of life, he said. His personal view is that terrorism will be eventually defeated. But he warned that Americans still need to be prepared for another terrorist attack, and need to be resilient in its aftermath.

The audience was no less supportive of U.S. policies in response to a question by John Bellinger III, the former top legal adviser for the U.S. State Department. His query: If the U.S. military captures a terrorist fighter on the battlefield in Afghanistan, should the detainee be tried in civilian courts in the United States?

Out of more than 150 people attending the program, just one raised a hand to indicate a yes answer. “There are two of us,” Swartz said, as she raised her hand, too.

Bellinger, currently a partner at Arnold & Porter, used the question to illustrate his point that traditional domestic laws don’t apply when the United States is battling terrorist outsiders. “We can’t send our military into Afghanistan armed with arrest warrants,” he observed.

Bellinger said the law needs to be revised to take account of new realities. The Geneva Conventions were enacted to govern conflicts between standing armies. A 10-year-old law authorized “necessary and appropriate force” to battle Sept. 11 attackers and their supporters, but it’s outdated and left too much to the courts to decide.

Swartz responded with a question, which also appeared to be a suggestion. Should the ABA convene a national group of experts, she asked, to think about a new Geneva Convention? None of the panelists objected to the idea.

The ABA Section of International Law was primary sponsor of the program, “9/11—A Decade Later and a World Apart.”

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