War Without End | Professional Education Group

War Without End

Has Ill-advised Law Doomed America To Endless War?

Lt. General Richard C. Harding (USAF, Retired)

In his role as Air Force Judge Advocate General, Lt. General Richard C. Harding (USAF, Retired) served as the legal advisor to the Secretary of the Air Force and professionally supervised over 4000 attorneys and legal support personnel. His presentation is enriched by his having witnessed policy makers’ decisions on 9/11, his service in combat theaters, his involvement in decision-making in the Pentagon regarding application of the law of war and his 34+ years on active duty.

General Harding’s presentation offers a fresh and surprising perspective on complex contemporary legal issues associated with the post-9/11 use of military power—how aggressive legal analyses : • facilitated an expansion of Executive power to wage war against unlimited enemies without Congressional authorization and publicly vetted strategies. • authorized targeted killing and signature strikes outside the traditional battlefield. He explains how military commissions work and how the courts have given expansive habeas rights to terrorists. Harding delivers a compelling explanation of how law, history, cultural bias, the lack of transparency, and fear about future attacks on the homeland give rise to ill-advised changes in domestic law and policy, which in turn endangers our national security

Highlights

  • A view from the bunker on 9/11 – unique insights from one of the U.S. military’s leading lawyers
  • Is the “war on terrorism” legal, or even smart?
  • Evolution of international and domestic law
  • Enemy combatants – POWs, detainees, or criminals?

Program Agenda (6 hours, including 1 ethics)

[Part 1 90 Minutes]

A View from the Bunker on 9/11

  • U.S. response to commercial aircraft as weapons.
  • Is this law enforcement or war? An important distinction.
  • Is declaring “war on terrorism” legal, or even smart?
  • Why they hate us.
  • The enemy’s strategy.
  • U.S. strategy — do we have one?

15 Minute Break
[Part II 90 Minutes]

Domestic vs. International War Authorities

  • Domestic authority – commander-in-chief vs. Congress’ authority to declare war.
  • 2001 and 2002 Congressional authorizations for war?
  • The War Powers Act – is it still relevant?
  • International law – When is self-defense authorized?
  • International law – principles governing our conduct in war.
  • Targeted killing… lawful conduct in war or a new version of lawful homicide?

Lunch
[Part III 90 Minutes]

What do we do with the captured enemy combatants?

  • Impact of international law on detention of enemy combatants.
  • Enhanced interrogation techniques … legal and practical considerations.
  • Habeas petitions and post-9/11 judicial detention decisions.
  • Practical considerations of indefinite detention.
  • Choice of jurisdiction: detention, trial by Military Commission, or Federal District Court.
  • Will we ever close Guantanamo?

15 Minute Break
[Part IV 30 Minutes]

Final thoughts

  • Fighting Insurgencies — lessons from Iraq and Afghanistan.
  • CIA’s evolution into a warfighter.
  • Impediments to a national dialogue on strategy.

[Part V 60 Minutes]

Practical Ethics Lessons from a Command Position

  • Who is the client – the official or the institution?
  • Is the attorney’s advice confidential?
  • The importance of speaking truth to power.
  • Is legal creativity in the country’s best interest?
  • The ethics of creating “secret law” in warfighting
  • The ethics of managing and marginalizing others’ legal advice.
  • The ethics of issuing “controlling legal advice”.

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Adjourn