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(Editor’s note: This story originally ran in the May 19, 2011, issue of the Briefly Legal PDX e-newsletter)

Not one to back down from a challenge, Steven Wax couldn鈥檛 resist the Alaska Bar Association鈥檚 invitation to debate John Yoo. Wax, Oregon鈥檚 federal public defender, has represented terror suspects such as Brandon Mayfield, detainees at Guantanamo Bay and, most recently, Mohamed O. Mohamud, the Pioneer Courthouse Square bombing suspect. Yoo is the author of the 鈥渢orture memos鈥� under President George W. Bush.

The May 6 debate lasted longer than three hours. As the dust settled, Wax took time to share his perspective on the debate and his outlook on the 鈥渨ar on terror鈥� now that Osama bin Laden is dead. His responses have been edited for clarity and brevity.

Briefly Legal: Why did you choose to participate in the debate?

Steven Wax: I believe in the free marketplace of ideas and the importance of education, formal and otherwise. John Yoo is often quoted on issues related to terrorism and torture. I do not agree with many of his positions either as law or policy, and appreciated the opportunity to provide a different perspective and correct the record on several points.

BL: What were the key points you made during the debate?

Wax: Among the critical areas of disagreement are John’s and my perspectives on the scope of executive power under our constitutional scheme. I pointed out that even a proponent of strong executive power like Alexander Hamilton warned against giving our executive the type of power Mr. Yoo believes our presidents should have. With respect to torture, I pointed out that the memos written by Mr. Yoo and others back in 2001-2003 failed to mention that we had prosecuted Japanese for waterboarding during WWII and our own soldiers for waterboarding during Vietnam, and that there have been domestic prosecutions as well.

Another point was the importance of what I call 鈥渟orting,” that is not treating everyone and every situation alike. Not all people in Guantanamo are guilty; we need to have mechanisms for figuring out who is legitimately there. And, it may be appropriate to treat some acts of terrorism as part of a military campaign, but others should be treated as criminal acts and we should respond with our criminal justice system. Finally, we need to be conscious of the effect on our society of attempting to legitimize torture by creative efforts at redefining it.

BL: What was the debate experience like as a whole?

Wax: Positive. The audience was fully engaged and appreciated the debate, responding with a standing ovation. The bookstore that was there selling my book, Kafka Comes To America, nearly sold out.

BL: How much, if at all, have conditions improved for the Guantanamo detainees?

Wax: The Obama administration started off with wonderful pronouncements about
closing Guantanamo, rescinding the Bush administration torture memos, and figuring out who in Guantanamo needed to be there. They have made positive strides in rationalizing the decision on removing men from the prison and negotiating for the release of 60 to 70 men. But Congress has tied their hands and refused to allow any men to be brought to the United States as free men or for trial. In court, the positions the Obama team has taken have been difficult to distinguish from the Bush positions on Guantanamo and on the state secrets doctrine.

BL: What do you foresee happening with the “war on terror” and the detainees now that Osama bin Laden is dead?

Wax: I hope that (U.S. Secretary of Defense Robert) Gates鈥� statement that bin Laden’s death could be a game changer in Afghanistan signals the administration’s realization that we are supporting a corrupt government that controls only a small part of the country, and that they have the courage to declare that we have accomplished what we set out to do and give the Afghans an ultimatum to clean up or we go home.

Steven Wax photo courtesy of Jeff Lee.