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Friday September 10th, 2010

Lawfare! Panel Five – Lawfare and the War on Terror


Jonathan Adler, Case Western Reserve University School of Law


Melissa Waters, Washington University School of Law (St. Louis)

Sandy Hodgkinson, former Deputy Assistant Secretary of Defense for Detainee Affairs, U.S. Dept. of

David Frakt, former Lead Defense Counsel, Military Commissions, Guantanamo Bay, Barry
University School of Law

Michael Lebowitz, Prosecutor, Office of Military Commissions, Guantanamo Bay

Friday September 10, 2010, 9:00 a.m.-5:00 p.m.

Sponsored by the Frederick K. Cox International Law Center at Case Western Reserve University School of Law

Co-sponsored by: Inamori International Center for Ethics and Excellence & Institute for Global Security Law and Policy and American Society of International Law American Bar Association, International Education Committee International Association of Penal Law, American National Section International Law Association, American Branch Public International Law and Policy Group and Made possible by a generous grant from the Wolf Family Foundation

Please join us for the first major academic symposia dedicated to exploring the concept of “Lawfare.” Traditionally “Lawfare” was defined as “a strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.” But lately, commentators and governments have applied the concept to International Criminal Tribunals, the defense counsel’s tactics challenging the detention of al Qaeda suspects in Guantanamo Bay, and as indicated in the quote above to the controversial Goldstone Commission Report. This symposium and Experts Meeting, featuring two-dozen leading academics, practitioners, and former government officials from all sides of the political spectrum, will examine the usefulness and appropriate application of the “Lawfare” concept.

Additional Information About Our Guests…

Jonathan Adler is one of the most widely cited academics in environmental law. Prof. Adler is the author or editor of three books on environmental policy, including Environmentalism at the Crossroads (1995), and several book chapters, and his articles have appeared in publications ranging from the Harvard Environmental Law Review and Supreme Court Economic Review to The Wall Street Journal and The Washington Post. A regular commentator on environmental and legal issues, he has appeared on
numerous radio and television programs, including “Newshour with Jim Lehrer” (PBS), “Talk of the Nation” (NPR), “O’Reilly Factor” (Fox News) and Entertainment Tonight. Prof. Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, “The Volokh Conspiracy.”

Prof. Adler teaches courses in environmental, regulatory, and constitutional law. In 2004, he received the Paul M. Bator Award, given annually by the Federalist Society for Law and Policy Studies to an academic under 40 for
excellence in teaching, scholarship, and commitment to students. In 2007, Case Western Reserve University Law Alumni Association awarded him its annual “Distinguished Teacher Award.” Prof. Adler serves on the Board of
Trustees of the Foundation for Research on Economics and the environment, the advisory board of the NFIB Small Business Legal Center, the academic advisory board of the Cato Supreme Court Review, and the Environmental Law Reporter and ELI Press Advisory Board of the Environmental Law Institute.

Prior to joining the faculty, he clerked for the Hon. David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit. From 1991 to 2000, Prof. Adler worked at the Competitive Enterprise Institute, a free market research and advocacy group in Washington, D.C., where he directed the environmental studies program. He received his B.A. in 1991 from Yale University and his J.D. in 2000 from George Mason.

Melissa Waters’ research and teaching interests include foreign relations law, international law, international human rights law and international criminal law, comparative law, conflicts of law, civil procedure, and complex civil litigation. Her scholarly work focuses on the incorporation of international law into domestic legal regimes, and in particular on the role of transnational judicial dialogue in developing international legal norms and in transforming U.S. and other domestic courts into key mediators between domestic and international law. She has written extensively on the debate in Congress and in the media over the use of foreign and international law in interpreting the U.S. Constitution. Her work has been published in the
Columbia, Georgetown, and North Carolina law reviews, and in the Yale Journal of International Law. In 2006, her work was one of three U.S. entries selected by peer review by the American Society of International Law for presentation at the inaugural Four Societies Symposium. Her scholarship on transnational judicial dialogue has been cited by U.S. Supreme Court Justice Antonin Scalia.

Earlier, Prof. Waters was Senior Advisor to Harold Hongju Koh, Assistant Secretary of State for Democracy, Human Rights & Labor. She was a litigator at Williams & Connolly in Washington, DC, where she was a member of President Clinton’s legal defense team. She has also been a consultant to the Soros Foundation Open Society Institute, specializing in rule of law and human rights capacity building projects. Prof. Waters was a law clerk to the Honorable Morris S. Arnold of the Eighth Circuit Court of Appeals in Little Rock. In addition to her scholarly work, Prof. Waters specializes in developing and conducting human rights and rule of law training programs for legal professionals in transitional democracies, most recently partnering with the International Bar Association and ABA/CEELI to train judges and government officials from Iraq and Central Asia

Sandy Hodgkinson was Deputy Assistant Secretary of Defense for Detainee Affairs, Deputy to the Ambassador-at-Large for War Crimes Issues at the State Department, and Director for International Justice at the National Security Council at the White House. Prior to that, Ms. Hodgkinson was Senior Advisor on Human Rights for the Office of Reconstruction and Humanitarian Assistance (ORHA) and the Coalition
Provisional Authority (CPA) in Iraq and Kuwait. She was a Middle East and North Africa Foreign Affairs Officer in the State Department’s Bureau of Democracy, Human Rights and Labor. Prior to entering civil service, Ms. Hodgkinson was in the U.S. Navy Judge Advocate General (JAG) Corps. Her assignments included: Prosecutor and Foreign Criminal Jurisdiction Officer for Europe and Southwest Asia; Court Commissioner for the Navy and Marine Corps Court of Criminal Appeals; and Country Program Manager for the Defense Institute for International Legal Studies. She is currently a Commander in the Navy Reserve JAG Corps and Acting Executive Officer of the Navy Reserve’s International and Operational Law Unit.

Ms. Hodgkinson earned her B.A. at Tulane University (1992); her M.A. at the University of Denver Graduate School of International Studies (1995); and her J.D. at the University of Denver College of Law (1995). She has studied at l’Institut d’Etudes Politiques in Paris and the Hague Academy of International Law. Licensed to practice law in Washington, D.C. and Colorado, she has taught National Security Law at Catholic University’s Columbus School of Law and published articles on international and preventive law.

David Frakt is a Lieutenant Colonel in the U.S. Air Force Judge Advocate General Corps Reserve. He graduated summa cum laude from the University of California, Irvine and cum laude from Harvard Law School (1994). He clerked for the Hon. Monroe G. McKay, former Chief Judge of the U.S. Court of Appeals for the Tenth Circuit, then entered active duty with the U.S. Air Force JAG Corps (1995-2005). In 2003, the Federal Bar
Association gave him the Younger Federal Lawyer Award. He joined the faculty of Western State University College of Law (Fullerton, California) in 2005 where he was Associate Professor of Law and Director of the Criminal Law Practice Center.

Prof. Frakt took a leave from teaching to serve as lead defense counsel at the Office of Military Commissions-Defense (2008-09), where he represented two Guantanamo detainees. His defense of juvenile Mohammed Jawad earned him widespread acclaim as a champion of human rights and the rule of law. In July 2009, he became the first defense
counsel to win the dismissal of military commission charges that had been referred to trial and to win the release, through habeas corpus, of a detainee that faced war crimes charges. Prof. Frakt has written extensively about military commissions and related subjects in scholarly journals and the popular press, including Harvard Human Rights Journal, the American Journal of Criminal Law,, and the Huffington Post.

Michael Lebowitz is tasked with prosecuting various high-value terrorism suspects being held at Guantanamo Bay, Cuba. He is assigned to several active cases, and is lead military prosecutor in a case relating to an accused “white collar war criminal” that is implicated in al Qaeda’s purported “second wave” of post-9/11 attacks against the United States.

Prior to this, Mr. Lebowitz participated in numerous military defense cases as both a private practice attorney and as a Judge Advocate in the Virginia Army National Guard. He is recognized as an authority on the subject of military expression, and has been quoted in the Washington Post, Associated Press, USA Today, CNN, Kansas City Star and the Cleveland Plain Dealer. He also has testified at U.S. House and Senate hearings as a legal expert on the subject of military expression and military whistleblower reform. In addition, Mr. Lebowitz has experience in domestic and international litigation with the Washington, DC law firm of Greenberg & Lieberman. Previously, he was a reporter and columnist with the Jerusalem Post. In 2005-2006, Mr. Lebowitz served in Iraq as a paratrooper with the elite Pathfinder Company of the 101st Airborne Division. He was
recognized by the command for his direct role in capturing high-value individuals throughout Iraq, including foreign fighters, insurgents, terrorist masterminds and financiers. Mr. Lebowitz earned a J.D. from Case Western Reserve University School of Law and a B.A. from Kent State University.