The Bush administration was correct in assessing the U.S. fight against al-Qaeda as a "war on terror" but should have sought Congressional backing for its policies in executing the war, Northwestern University School of Law professor  John O. McGinnis, told a crowd at Georgia State University Law on Thursday, Oct. 23.

McGinnis, the Stanford Clinton Sr. Professor of Law at Northwestern, is a former Justice Department lawyer and an expert in international and constitutional law. He delivered the College of Law's 43rd Henry J. Miller Distinguished Lecture in the State Ballroom of the university's Student Center.

In what he characterized as a "letter" to the next president, he discussed the Bush administration's flawed legal strategy in the war and why it should have worked with Congress at the outset of the conflict to establish framework legislation for surveillance and the detention and interrogation of terror suspects.

"I think the legal performance on the war on terror is really much like the Bush administration's performance in prosecuting the war in Iraq," said McGinnis. "In both cases in my view, unlike some other critics, it had plausible objectives but employed a mistaken, often counter-productive and occasionally foolish strategy."

McGinnis, who supports the Bush administration's overall objectives in the conflict, said the administration was so focused on bolstering executive power, it failed to try to win public and judicial acceptance for its policies. He said the administration's failure to strengthen its position through legislation early in the conflict, especially in light of the Republican Party's command for Congress for most of the last eight years, was "extremely imprudent."

McGinnis, who was deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice from 1987 to 1991, noted that the government's use of the Guantanamo Bay detention facility made the administration appear as if it intended snub the rule of law.

"Because Guantanamo is not part of the United States and yet controlled by it, these legal strategists believed it was the perfect place to hold the prisoners more easily because they would be within our control and yet immune from the reach of the United States law. Of course that is really depending on a kind of legal fiction," he said.

While the move was clever and had some basis in case law, McGinnis said "it suggested to the outside world that the United States was playing legal games rather than following any principles of law."

McGinnis also called a 2002 request by the administration for a Justice Department opinion on interrogation techniques and the president's powers under the torture convention a "bureaucratic blunder." He said the White House should've foreseen that a memo, which said the president had the authority to disregard the limitations of the torture convention, would be leaked at the most inopportune time.

"Anyone would've predicted a political firestorm--that it would undermine support for harsh interrogation methods even in the limited circumstances when they may prove to be necessary," McGinnis said.

Contact: Michael Davis
University Relations
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