Critical and important debates. We have one of the senior members working in the back. We want to think jack for being here and all the support that you have given, not only in the book but our committee since you have joined the bar association. Appreciated. I speak on behalf of all of our committee. We are pleased to say that we have a number of positive responses. The former National Counterintelligence executive, the director, bob bryant, one of the best of the key issues of the National Security arena. What makes a stand that is the bipartisan dialogue, intellectual rigor, timeliness, and readability. A must read for practitioners and policy makers and the general public. I take with of would like to do that this point is sort of explain how the book came about. The person going task to do that is bernie horowitz. As briefly explain the process by which he decided to come about to write this book. Good afternoon. I would like to thank the committee on law and National Security for giving me the opportunity to work on this book project. If he told a couple of years ago , i was still at college that soon thereafter are be working gun National Security policy book, would have told you were crazy. I have been to a number of Committee Events in the past and i often hear panelists described that only now we seem nationalsecurity will really come into its own separate field and seeing Enterprises Like welfare in National Security loan center will reviews and journals popple ball over the place. Speaking as somebody who represents the yen is generation to directly experience the september 11th to attack, this was true of my own life. And never had the chance to study National Security policy in his school were in college which is what i wrote my undergraduate senior thesis on the patriot act. It was during that time i encountered the predecessor to our book called patriot debate which came out in 2005. What distinguished patriot did debate is this wonderful structure with the operational debate this is focused very much on policy rather than personalities. Many of the other books i encountered at the time around two dozen 89 really just were regurgitated platitudes about security. The wall between intelligence and law enforcement, and i mention that i felt that patriot debate served an allpurpose. He said to welcome it happen something abut doing a new addition. Ask jim moran case plant that he wanted to pretend the same structure, the oppositional debate essays, and he wanted to bring back as many of the authors as they could. Hawaiian 25 he was considering a up three visitation of the patriot act after ten years. I thought it might be interesting if we apply the rubric of patriot debate to the purpose of explicating the ten most interesting and pressing National Security policy topics that are currently on the docket which is what we ended up doing. Here we are year and a couple of months later. We feel that we have accomplished our goal, which is to provide substance analysis to these issues which is also accessible and we feel that the book appeals to a much wider demographic than just the National Security policy crowd. A think anybody interested in politics and government will find patriots debate worth their time. Thank you all for coming. I would like to thank our authors or contributed essays and to a get to debate these topics extemporaneously in public square. The structure, the first hour will be conducting the debates on a relatively formal basis. First several war and then we can put questions and the note cards on your seat spirit of will take the committee for the event and turn things back over to my friend and coeditor. A living example of will we love to see which is that someone interested in National Security law is undergraduate and the committee that will produce documents better able to be used for teaching purposes and then we hope one day we will end up in law school perhaps with an attorney. Thank you for everything youve done. The logic, the framework as follows, the first part of the book deals with the war on terrorism demand utility second power which has a debate. Homegrown terrorism which is a debate. In the interrogation issue which is a debate for abrams. And been moved to an area we thought, part two, very big issue. Data, technology, and privacy. Broca number of debates which include thirdparty information issues this is a debate. National security of all other issues which is between richardson and couponing. And then we have the einstein. We thought it will be interesting to have a debate about what the new technology is moving forward with his between gen dempsey and paul rosenzweig. And then the Communications System lawenforcement act. Whats next, susan land out. We are starting with the framework of a weekold Legal Frameworks for projecting force. We will have to of those debates. To they were going to do cyber warrant attention policies and start off with the tension policies. Dry to start off with craig jacobs. And both individuals are quite well known to be, but not to you and the audience. Served in several highprofile positions in the government including at the white house to the other partner justice, the department of labor. Most recently great served as the third ranking official of the part of labor. In this position he saw over some within six ripleys include forward 25 attorneys, broadly man is the department of litigation he has also served to the Senior Adviser to the secretary of labor and attorney advised the department of Justice Office of Legal Counsel. He helped with stability in toward reform. What we want him to participate. On my left professor assisted team for scholarship that america innercity los them college of law. We all agree is a nationally recognized expert to also part of the legal team that successfully challenged the bush of ministration use of military tribunals in Guantanamo Bay, cuba. This coeditor. He has written a number of reports on a broad range of issues spill. He has won awards for scholarship and his service. He has been a Senior Editor at the peer review journal of Foreign Policy and the senior contributor to the. [indiscernible] which many of us, the first things we looked at in the morning. After . After. And a member of the Court Association of america. The clerk for the hon. Warship berge john and barquette. And while a law student he was an editor from the yale law journal. I believe that is accredited. So as you can see, at two very talented. Their debate is entitled to, detention policies. The way we set it up was we have in the book we will do it as live. Steven will start and then will have great respond. Great. Thank you. Its a pleasure to be here. Seven the fortitude to invite me to participate. I am a Firm Believer that the best they we can do as academics is raise the level debate. Projects like this can only help in that regard with folks actually engaging with each other as opposed to talking past each other. Let me offer couple of brief remarks that i lost a consistent with what i said in the book. I want to suggest that of all the myriad questions one could ask about the future of u. S. Detention policy in the war on terrorism, the governments ability to detain without trial individuals suspected of involvement in terrorism, it seems that the one that dominates all others is the extent to which future u. S. To some policy will and should be subject to judicial review. Why is this not settled . Well, if you the citizens and noncitizens, i think its both sold and moved that these dissensions will be subject to review, settled because we have a series of cases in the early part of the last decade or the courts actually rejected arguments offered by the bush and restoration that such cases raised a political question settled because these individuals clearly have rights of the constitution including the right tit review and neat because dss has not picked up anyone hitting this category and subject subjected them to end of military tension says it doesnt three. There have only been three cases in custody their detention in austin years now, and i think thats partly going to stay for a while. It settled at guantanamo as well. The court held that the suspension claus has full affect at guantanamo. The result of which is there will be, has been, shall be judicial review Going Forward for the now 160 selloff detainees still held at guantanamo. The reason why the guantanamo concept is less interesting is because these arent all legacy cases. There have been no knew detainees says to a dozen sixth, and there are fairly compelling reasons why they wont be inclined to add tt is a steadily reduced to eating po. Instead, this matters for noncitizens elsewhere, picked up outside the United States, will feature u. S. Detention policy be subject to judicial review . If not because all were doing is putting a policy and non law. It seems like that is the question that comes first. After the decision in april 2009 the judicial judge held in the case that the suspension claus actually does also run to bagram at least in cases where the individual in question is not a citizen of afghanistan and was not arrested and afghanistan, was not picked up on the battlefield. For individuals who are citizens of countries other than afghanistan picked up outside of afghanistan the holding of the District Court was there should be a judicial review at least in those cases under permit the. In 2010 the d. C. Circuit reversed and the opinion by chief judge sentelle held that it seemed like the suspense in clause should not run, even in the context of individuals or another from our picked up in afghanistan. The central animating principle behind the d. C. Circuit reasoning was that these detainees could not show that they were held for the sole purpose of evading judicial review. What they could discuss at the l. A. And lest they should, and we accept that as a challenge, so that was actually resolved this morning. You knew we were having this panel. Another ruling holding that even with the new evidence submitted is still was enough. If that decision is affirmed on appeal it will mean practically speaking that there will not be a judicial review of any detention about citizens were picked up outside the u. S. And not sent to guantanamo which is an enormous steel. Thats totally would change the dynamics of this conversation. Briefly, but i want to do, cue this up for greg to should be done and suggest that there are three methods behind it. You may know if he did not already from the social network, our family has the statute of three lives. I want to talk about the three minutes, almost the same thing. And here is number one. Behind the reasoning of the d. C. Circuit was a very important distinction, at least to them, between bagram and guantanamo. The United States is only exercising a form of joint control over the detention facility, over the pension operations that we were actually involved in this joint attention relationship with the government of afghanistan. In fact, that does not appear to be true. The more time has gone wrong, the more statements that have been released by the government, including the president himself, the Afghan Government has said, no, actually, we dont want to detain these people. We dont have an interest in detaining non afghans who were not picked up in afghanistan. This is entirely your problem. You have to fix it. Indeed, the point has made it somewhat harder for the obama of ministration to wind down the detention operations than they had initially predicted. Myth number one, joint control. At least for non afghan citizens who are not in afghanistan it looks like guantanamo. Myth number two, there are bullets flying. I dont here to say that it is a myth that there are bullets flying in afghanistan. Of course there are. Still active combat operations, still violence every day, assaults on u. S. Troops, but with the d. C. Circuit said was it would be preposterous to think that the government would intentionally in danger these detainees by holding them somewhere where they were subjected to violence and that we really should not be thinking about the role of the court into fair with active combat operations. The problem with that statement is that it lies the extent to which the detainees in question were not picked up by the military. There were not picked up on the battlefield. Two of them were captured in europe, when north africa, and there were transported into harms way, not out of harms way. So theres a danger to the detainees, one entirely of the governments conduct a detainees making. Instead, the hardest part of this and the claim that you hear repeated the most often include about my colleague is that the real reason why judicial review in that context does not make sense is because it poses a threat to military operation, a threat that the courts will actively interfere with military operations and that the courts should not do that. Let me be clear, a point that if that threat were provable, thats interference were there it would be a serious problem. We now have four years of jurisprudence and the d. C. Courts involving guantanamo detainees were the government had this very same argument about the extent to which judicial review would interfere with military operations, interfere with the ability of the government to conduct the war and terrorism in the to do with intelligence gathering. For the most part theres been a suggestion that has actually happened. To the d. C. Circuit jurisprudence has been remarkably progovernment on the devonshire site, remarkably progovernment on the protection of the information side, and to my knowledge there is no allegation, not one, that any protective information, Sensitive Information has gotten out in the habeas cases of that the litigation since the in the d. C. District court has, in fact, impactive u. S. Military operations in iran the world. I just want to suggest, of those myths are mythical then, in fact, todays decision only further causes a problem and actually make up the wrong way when it comes to, should future attention be subject to judicial review, and ill stop there. Perfect. Well, and i want to start up by thinking harvey and stored in bernie for putting this project together. These are issues that are worthy of a good debate and consideration, and this is a great format in which to really ts at the a true test of what is going on. I want to take a step back before i get down and talk a little bit more about the broader point that i think steven has written. The underlying notion that the d. C. Circuit is somehow undermining the Supreme Court decision and is actively in the process of opposing it. And if he is entirely correct that there have been some statements. I was a judge sitting of the d. C. Circuit that would never have made that have come from judge randolph, silverman, and brown where they have essentially said, thanks a lot of a Supreme Court, for dumping this burden on us. You said that liberty and security, its easy to balance these things. Now, go forth to do it. We will give you any of the underlying standards. We are sure you can work it out as you go along. You can see why they are little bit upset about that. One of the biggest surprises to me actually of this presence of restoration is how closely the obama of lustration is skewed to the bush of the illustrations cover terrorism policies. I think a lot of that dynamic is what goes on, you come in and assume an office and seven realized that the responsibility of keeping the American People live and say it is now on your shoulders. And its very easy when youre sitting back to armchair quarterback the decisions of a previous set restoration here and there, but when youre sitting in the chair and realizing you are responsible and that is what these judges are essentially saying. Thank you for making as is possible for having to go in and in detail figure out and each of these decisions. Essentially what he said this, i dont think anybody on this court, if they think their is a reasonable chance that somebody is actually an associate, if released will try once again to kill u. S. Citizens as some people to have been released have showed up again, i dont think anyone will vote to bring them. For all of the harping about whether the d. C. Circuit is undermining what the Supreme Court said there have been lots of circuit petitions filed in the Supreme Court has shown any inclination to way back into the fray. Justice kennedy seems to perfectly happy having pronounced that liberty and security should be balanced. Go forth to mccourts, and do it. I dont want to get into the details of how to do that in each individual case. Out this let the circuits work it out and we will step back into the breach. I think this circuit has done a pretty good job. Steven went through a number of the ways in which they have of on an evidenciary bases in the cases they have considered coming out of guantanamo try to accommodate the needs of the military. They have said that unlike in normal proceedings hearsay evidence will be admitted. You can see why. What are you supposed to do . If the evidence was initially given by some person out on the field in afghanistan, we going to pull all those soldiers back to back a we going to said that the United States is required to produce all the witnesses that spoke to our Intelligence Officers and figured this person. While those back to washington d. C. The testify in court . Is just not doable. I think that he is quite right that within the unique concepts context of Guantanamo Bay where we half for a handful of detainees left and have engaged essentially in a war of choice, although with respect to the war on terror, more broadly and obviously we have to fight back against terror