Professor Michael W. Lewis, a leading authority on national security and the law of war, appeared at the Elon University School of Law on April 23 for a discussion with Elon Law Professor Victor Streib, entitled "9/11 Revisited, An Act of War or An Act of Organized Crime." The event was sponsored by the Elon Law chapter of the Federalist Society.
At the forum, Lewis, a member of the faculty at Ohio Northern University, and Streib discussed the latter’s premise that terrorist attacks such as those on 9/11 were domestic homicides on a massive scale, which should be prosecuted through the domestic criminal justice system, rather than acts of war against foreign nations, such as Iraq, the invasion of which Professor Streib described as ‘searching the wrong house for the bad guy.’
Lewis explained that the current conflict with al Qaeda has aspects of both the criminal law enforcement model and the war/military response model. He agreed that it was appropriate to try some al Qaeda agents who have been captured in the U.S. in an Article 3 court with full constitutional protections. He further explained that treaty obligations create relationships between nations which determine what other nations can do in such situations. He noted that the Afghan government’s sponsorship of al Qaeda prior to 9/11 made the terrorist group’s action imputable to its government, arguing that if the Afghan government did nothing to meet its international treaty obligations against terrorism and harbored terrorists, then the U.S. and its allies were justified in acting militarily.
The professors also discussed the legality of the use of torture. Lewis pointed out that there are many international treaties and documents which prohibit torture, but they have varying definitions, commonly based around “severe pain and suffering.” He noted former Vice President Cheney and the American Civil Liberties Union would likely never agree on what constituted “severe pain and suffering.” He also noted that international law is based on self-enforcement, thus signatories to treaties must pass and interpret their own domestic laws against torture. Lewis proposed that the U.S. only use interrogation methods that the U.S. military is willing to use on its own trainees, noting that U.S. servicemen sometimes undergo waterboarding in survival training. Streib pointed out that it is a very different situation when someone is waterboarded by their fellow soldiers whom the trainee knows will not let him drown as opposed to waterboarding by enemy soldiers.
A DVD of the discussion will be available in the law library for those who might have had a conflicting class or were otherwise unable to attend.
Lewis is a former Navy pilot and graduate of the Top Gun program. He later attended Harvard Law School, graduating cum laude. Lewis currently teaches international law and the law of war at Ohio Northern University, where Streib is also on the faculty. Streib, who studied law at Indiana University, is a noted authority on criminal law and the death penalty. He has represented clients before the U.S. Supreme Court.
This article was authored by Edwarrd Branscomb, a member of the class of 2009 at Elon University School of Law and the 2008-2009 Chair of the Elon Law Federalist Society.