First Monday - November 6, 2006

In this issue:

• Bellwood Programs Illuminate National Security Issues
• "Constitution Day" Program Highlights Judicial Selection Controversy
• Law Students Shine in McNichols and ABA Negotiation Competitions

Bellwood Programs Illuminate National Security Issues

The 2006 Sherman J. Bellwood Memorial Lecture provided a capstone to one of the most ambitious sets of programs ever undertaken in the Bellwood series. The Lecture itself, presented in the afternoon of October 12 to an audience of nearly 1,000 people in the UI Student Union Ballroom (plus viewers of streaming video on the College of Law website), featured former U.S. Senators Gary Hart of Colorado and Alan Simpson of Wyoming. Their dialogue was moderated by UI law professor and associate dean Richard Seamon. Senators Hart and Simpson demonstrated how lawyers and high public officials could be collegial while vigorously expressing different viewpoints.

Senator Hart advocated maintaining due process and fundamental rights for detainees in the war on terrorism, arguing that national security is strengthened by occupying the legal and moral high ground. Senator Simpson questioned whether nongovernmental and “uncivilized” adversaries should be entitled to law-of-war protections which they, the terrorists, are unwilling to accord to anyone else. The senators agreed that the war on terrorism has created problems for the separation of powers in our constitutional system, and that Congress has not asserted its authority as fully as it could have.

The Lecture was preceded in the morning of October 12 by a panel of experts examining “The Idaho Connection: The Church Committee and Its Relevance Today.” The topic, rich in history and in current policy implications, focused on the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by the late Senator Frank Church of Idaho in 1975-76. Speaking to a capacity audience in the College of Law courtroom, Loch Johnson, professor of public and international affairs at the University of Georgia, noted that the Church Committee “ushered in a whole new era of [Congressional] oversight of intelligence activities.” LeRoy Ashby, professor of history at Washington State University, described the work of the Select Committee as a “luminous” and “truth-telling” episode in American public life. He disputed the contention that the Select Committee had undertaken to “gut” the CIA, noting that Senator Church himself was a former Army intelligence officer who had served in Asia during World War II. Frederick “Fritz” Schwarz, a partner in the New York law firm of Cravath, Swaine & Moore, and former counsel to the Select Committee, said it was “amazing that the Church Committee happened at all.” He recalled that the bipartisan committee had occasional disagreements on issues such as confidentiality of committee information but that committee members shared a common goal of serving their country and were never divided on partisan grounds. Katherine Aiken, professor of history and interim dean of the UI College of Letters, Arts & Social Sciences, presented a summary of correspondence from Idahoans to Senator Church, some letters lauding his leadership of the committee, but others complaining that he should “stop being Mr. Clean” and that “the communists play every dirty game in the book, so why shouldn’t we?” Senator Hart, a member of the Select Committee, recounted the Committee’s achievements, including the passage of the Foreign Intelligence Surveillance Act (and establishment of the “FISA Court”), as well as a legislative mandate of specific Presidential findings to authorize major covert operations, including assassination.

The programs on October 12 followed yet another panel discussion, conducted on October 11, in which contrasting perspectives were offered on the broad subject of “Democracy and National Security: Contemporary Issues.” Professor David Adler of Idaho State University drew a contrast between the restrained “George Washington” view and the expansive “Oliver Cromwell” view of executive power, especially in regard to the issue of waging “preventive war.” UI law professor Alan Williams, a former military (U.S. Marine Corps) judge, noted the generality of statutes commonly (and problematically) employed in the war on terrorism. He advocated the enactment of a federal statute that would prohibit particular uses of the Internet with the specific intent to advance terrorism. UI law professor Monica Schurtman focused on the Freedom of Information Act (FOIA), arguing that the current administration has been trimming the Act’s application while attempting to enlarge its exceptions. UI law library professor Michael Greenlee discussed the administration’s use of “national security letters” to obtain information on American citizens, without court orders, from various public and private institutions. UI law professor (and associate dean for faculty affairs) Elizabeth Brandt discussed the First Amendment doctrine of freedom of association in relation to issues created by broad use of communications technology to connect individuals with organizations that are under investigation. Professor Russell Miller drew attention to a debate in Germany over the concept of “militant constitutionalism” – using the law to prohibit antidemocratic actions and expression in order to prevent antidemocratic forces from exploiting the openness of a democratic society in order to destroy it. Finally, Senator Simpson, addressing a question relating to detainees in the war on terror, urged his listeners to read the actual executive order on detention at Guantanamo rather than making assumptions about its coverage or about the conditions of confinement at that facility. In the same vein, he urged thoughtful rather than angry debate on national security questions. “Hatred corrodes the container it is carried in,” he observed. Nonetheless, he championed debate on matters of the public interest, declaring that “an unquestioned answer is more dangerous than an unanswered question.”

Papers based on the Bellwood Lecture and panel presentations will be developed and published under the direction of Professor Miller, who was the primary force in planning the 2006 Bellwood programs.

“Constitution Day” Program Highlights Judicial Selection Controversy

On September 18, the College of Law and the student chapter of the Federalist Society hosted a “Constitution Day” dialogue on whether state judges should be elected or appointed. The dialogue, moderated by Professor Elizabeth Brandt, was preceded by a videotaped program on judicial independence, featuring Justice Stephen Breyer and retired Justice Sandra Day O’Connor. In the dialogue portion of the program, the Honorable Daniel Eismann, Justice of the Idaho Supreme Court, spoke in favor of an elective system for choosing state judges, declaring that elections are an important safeguard for the people against the potential excesses of an otherwise unchecked judiciary. Dean and former Idaho Court of Appeals Judge Don Burnett spoke in favor of merit-selection appointments coupled with retention elections, arguing that judicial impartiality is increasingly threatened by contested elections in which candidates raise money and announce positions on issues likely to come before them as judges. In a question-and-answer session with law students, Justice Eismann and Dean Burnett agreed that no system is perfect, and that the question may come down to which system is the “least flawed.” The College of Law is grateful to Justice Eismann for traveling to Moscow and volunteering his time. Information on annual “Constitution Day” programs is available from Dean Burnett at dburnett@uidaho.edu.

Law Students Shine in McNichols and ABA Negotiation Competitions

Saturday, November 4, marked the final day of the 18th Annual Raymond C. McNichols Moot Court Competition, the preeminent internal competition at the College of Law. 2L student Jason Flaig, who did his undergraduate work at Brigham Young University, was declared the winner; 2L Kristina Wilson (Albertson College of Idaho) earned runner-up honors. Other semifinalists were 2L’s Ross Brown (Walla Walla College) and Erin Wallace (University of Washington). The best brief award went to 2L Lindsey Simon (Walla Walla College), with John Withers (University of Idaho) receiving the second-place brief award. The final round of the competition was judged by the Hon. Richard Tallman, U.S. Court of Appeals for the Ninth Circuit; Hon. Roger Burdick, Justice, Idaho Supreme Court; Hon. Cheri Copsey, District Judge, Fourth Judicial District of Idaho; Hon. John Stegner, District Judge, Second Judicial District of Idaho; and Michael E. McNichols, Attorney at Law, Lewiston, Idaho. The College of Law is grateful for their volunteer participation.

Meanwhile, in the same week, at the University of Missouri/Columbia, another set of UI law students earned distinction in the American Bar Association Negotiation Competition. The 3L team of David Fogg (undergraduate study at Brigham Young University) and Mark Cornelison (Utah State University) won second place out of twenty teams competing from the northwest United States and from Canada. They were assisted in their preparation by numerous professional volunteers and UI law faculty including Professors Maureen Laflin, Pat Costello, and Lee Dillion.