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9/11, 5 Years On: A Look at the Global War on Terrorism

               by Shana Bachman, Symposium Editor

The nation’s leading scholars in national security and emergency powers law gathered at the Law School on Friday, October 13, for the Minnesota Law Review and Minnesota Center for Legal Studies Symposium, “9/11, 5 Years On: A Look at the Global Response to Terrorism.” Panelists included Mark Tushnet of Harvard University, Sanford Levinson of the University of Texas, Mariano-Florentino Cuellar of Stanford University, William Banks of Syracuse University, Jules Lobel of the University of Pittsburgh, Bernard Trujillo of the University of Wisconsin, Patrick Gudridge of the University of Miami, and Oren Gross, Heidi Kitrosser, Fionnuala Ni Aolain, and David Weissbrodt of the University of Minnesota.

One panelist commented on the “Preventive Paradigm,” which has been invoked to justify the coercive use of state power to preventively detain suspected terrorists, to engage in extraordinary rendition of aliens to foreign states, to coercively interrogate detainees, and to go to war against Iraq. Another paper discussed the effects of 9/11 on immigration law, particularly on the Mexico-U.S. border.

A panel about the Executive Branch and Secrecy included a paper focusing on the best method for reconciling the need for government transparency and the necessity of some government secrecy following 9/11.  Another analyzed the issues by comparing the frame works of our government and political networks employing terrorist methods and concluded that, despite deep ideological differences between the two, both face similar dilemmas involving accountability, surveillance of discretionary activity, and the pluralist inclusion of dissenting views. One panelist called his presentation a “requiem for FISA, and a plea for our Government to restore the constitutional values that FISA wisely straddled – promoting national security while safeguarding civil liberties.”

A focal point of the symposium was a discussion on Hamdan v. Rumsfeld. One panelist considered the legislative response to Hamdan in conjunction with the editorial reactions to that decision, and argued that people have mistakenly taken the decision as providing a purely legal solution to what is more fundamentally a political problem. One speaker characterized Justice Stevens’ majority opinion in the case as “casual constitutional analysis, focusing mostly on statutes, treaties and standard practices, and depicting those legal materials, even if sometimes seemingly intricate, as at bottom straightforward.”