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THEY AGREE! TO WRITE AN ARTICLE Two learned Boalt Hall professors, John Yoo and Jesse Choper, collegially discussed on Thursday night one of today’s most divisive legal questions � whether enemy combatants held at Guantanamo Bay deserve the right to challenge their imprisonment in a federal court. Yoo is best known for his time working at the U.S. Department of Justice under the Bush administration, during which he wrote a memo advising that the Geneva Conventions don’t necessarily apply to enemy combatants interrogated in the international fight against terrorism. He and Choper, an advocate for the right of habeas corpus for combatants, more or less tag-teamed each other at the podium during Thursday’s debate in San Francisco, put on by the local chapter of the Federalist Society. “I know you were all thinking of going to the John Kerry and Teresa Heinz Kerry lecture tonight,” Yoo said, opening the discussion and garnering big laughs from the 30 or so audience members. The former democratic presidential candidate and his wife were in town discussing their new book on the environment. Yoo briefly outlined how in the last couple of years, Congress and the Supreme Court have traded figurative blows over whether federal courts have jurisdiction over enemy combatants, many of whom have been imprisoned at Guantanamo for more than five years without charges or trials. As of last October, a then-Republican controlled Congress had decreed that federal courts do not have jurisdiction over the detainees’ fates, and codified a system of military tribunals for them. “I think it’s perfectly within the Congress’ powers to correct mistakes by the Supreme Court,” Yoo said. Choper, a former dean of Boalt Hall, responded, “It is not that the court needed any correction. The court made the tiny move to � find that Guantanamo was the functional equivalent � of a U.S. territory.” Yoo and Choper then took on some of the key questions of the habeas-for-detainees debate, such as whether Guantanamo is indeed U.S. soil, the difference between a detainee and a prisoner of war under the Geneva Conventions, and whether the rules should be different for the war on terror than for previous wars. Yoo and Choper of course disagreed on all these points. Still, things didn’t get too heated � though at one point Yoo jokingly accused Choper of framing his arguments in terms of “due process, the last refuge of academic scoundrels.” The two professors are working on a journal article that mimics their debate, which they said began as faculty-room discussions that simply wouldn’t die. Sheppard, Mullin, Richter & Hampton special counsel David DeGroot, president of the Federalist Society’s local chapter, said he hoped to post a downloadable recording of the debate soon on the group’s blog, http://sffederalist.blogspot.com.

Jessie Seyfer

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