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CERL launch event convenes experts to examine key trends, questions in national security law

September 12, 2012

By Evi Heilbrunn ‘11

On the eleventh anniversary of the September 11th attacks, Penn Law hosted the inaugural event for the Center for Ethics and the Rule of Law (CERL) in Fitts Auditorium. A panel of experts, including Ambassadors Peter Galbraith and Thomas Graham, Jr., New York University Law School Professor Nadine Strossen, Ambassador and Chief Washington Correspondent for the New York Times David Sanger, joined Penn faculty and students to discuss key trends in national security law. In opening the event, Professor William Burke-White, Deputy Dean of the Law School, explained that the center will serve to bring together “scholarship and thinking and public engagement [regarding] questions about where ethics fits into national security debate and discourse.”

Claire Finkelstein, the Law School’s Algernon Biddle Professor of Law and CERL founding Director, moderated the panel and noted the Center was borne out of “the conflict between adherence to [rule of law] values and the need for strength in national security as potentially requiring us to bend or stretch our legal commitments,” referencing as examples the 9/11 attacks as well as the 2004 release of photographs from Abu Ghraib prison in Iraq.

First to speak from the panel was Ambassador Graham, the chairman of the board of the Life Bridge Corporation, one of the leading authorities in arms controls agreements. “Let’s hope the past doesn’t come back,” he began, and said “we must do our utmost to ensure that something like 9/11 never happens again.” Yet Graham also emphasized that while “devising protections against, as well as implementing any response,” to major national security threats,  he asserted we must be “certain that we do not diminish our values, our values are what distinguish us.”

Graham highlighted the policies set forth by John Yoo, a law professor and former Bush administration official who championed “the legal justification for the so-called ‘war on terror’” and who Graham said advocated policies that provided “expansive view of the war powers of the president” as to completely eliminate the rights of those suspected of terrorism. Yoo, Graham asserted, “was wrong,” the U.S. government officials likewise “were wrong, not just wrong, but deeply flawed, not just flawed, but destructive of American ideals,” and, he added, of “governmental competence, as well.”

Professor Strossen, formerly president of the American Civil Liberties Union, centered her remarks around the failure of the Obama administration to bring about any form of policy change relating to the rights of torture victims.  She said “the Obama administration has carried forward, and in some ways, even worsened violations of…rule of law and egregious abuses of human rights.” Strossen asserted the administration is “not just detaining without due process, but killing without due process.” She concluded by emphasizing the current “threat we are facing,” which takes place in the “courts failure to provide even civil remedies, for even the most egregious abuses of human rights and executive overreaching post-9/11.”

Ambassador Galbraith addressed the financial and judicial burdens which the “expansive powers,” discussed by both Graham and Strassen, have placed upon the country. He asked, “post-September 11th, has our reaction been proportional?”

As a result of the war on terror, Galbraith reiterated that “we wanted to be sure that Saddam Hussein didn’t have weapons of mass destruction, and he doesn’t,” but “it cost a trillion dollars,” he said. In addition, he observed, “we spent half a trillion dollars in Afghanistan.” Yet, he further asked, “what about the extraordinary cost of all the security measures,” adding, “what is the actual economic cost of that and is it proportional to the actual threat that we face?”

Galbraith noted that terrorists have “spent a few million dollars” leaving their enemy, the United States, “risking bankruptcy,” he asserted. “From their point of view,” he surmised, the terrorists “have to look at this as some sort of success.”

The final speaker of the panel, David Sanger, postulated about the package in which a future terrorist attack may come, namely in the form of anonymous cyber disruption. He argued that the problem with cyber terrorism lies in the fact that no one is discussing the real threat of such a catastrophe. The first reason, Sanger said, is that “there has been no acknowledgement from the United States government that the United States uses cyber weapons on such a large scale.”

Second, he noted, “you don’t hear any justification for it, for the programs have been so secretive that no one has managed to put together a justification for them.” Sanger concluded his remarks by noting his worry “that the most recent leak furies,” such as those by Wikileaks, “will actually cut down on that very important channel of conversation” in the media. “The moment has come now,” Sanger stated, “to have [discussions] about cyber and you’re not going to have it about cyber until there is a broad acknowledgement that we have them, we use them and we need a structure around them.”