Guantanamo Bay Seminar 23 July 2008

Justice Sandra Day O'Connor , “Guantanamo Bay: Legal Black Hole?”
It was standing room only to listen to former United States Supreme Court Justice Sandra Day O'Connor on Wednesday 23 July 2008.
The Justice’s address on “Guantanamo Bay: Legal Black Hole?” attracted large numbers from the VUW Law School, law practitioners, and many others from differing walks of life.
Two lecture rooms were packed and there was apparently a third with an audiovisual, arrangement.
Justice O’Connor is accustomed to large audiences – I have been told she has addressed 20,000.
This was a public seminar arranged by the Victoria University of Wellington Faculty of Law. Justice Sandra Day O'Connor’s two week visit to New Zealand was through the Law School of the University of Canterbury and, in particular, Professor Stephen Todd.
Professor Tony Smith, the Dean of Law, was among those who welcomed Justice Sandra Day O'Connor. In his welcome Professor Smith referred to the Justice’s distinguished career, which has included 25 years on the Supreme Court during which time she delivered many significant decisions.
Justice Sandra Day O'Connor commenced by commenting that she knows that the treatment in Guantanamo Bay is of interest throughout the world.
The theme of the Justice’s address was how the United States Supreme Court has dealt with these issues, and on other cases around the world.
Historical context
The Judge provided historical context and referred back to the 1860s when there was a conflict between the Executive and the Judiciary. President Lincoln was determined defendants would be tried by the military courts, but the Supreme Court rejected this and found that military courts had no jurisdiction over non-military people. President Lincoln said during wartime habeas corpus could be suspended. The Supreme Court disagreed.
Justice O’Connor commented that looking at the past, she does not think that the United States has always struck the right balance between national security and human liberty. She commented, though, that President Lincoln was probably justified in all the circumstances.
Establishment of Detention Centre at Guantanamo Bay
Justice O’Connor then spoke on how the US Congress provided the President with the powers enabling him to set up a detention centre at Guantanamo Bay. These actions have produced four US Supreme Court decisions so far, which the Judge deftly took us through with reference to international human rights.
Separation of Powers
Justice O’Connor observed that it is a major concern when a court is acting contrary to other branches of government (the President and the Congress) as these are the elected representatives, and we have a situation of one branch overruling the other two branches.
Courts of other countries
Justice O’Connor also traversed the decisions of the Canadian Supreme Court, and discussed the situation in other jurisdictions such as Germany, the United Kingdom and Australia.
In response to a question from the floor, Justice O’Connor commented that she cannot speak for the Court as a whole, but she likes to know what other nations are doing in addressing similar issues, and she finds what other nations are doing very interesting. The Judge herself is happy to look at articles and academic writing. Justice O’Connor commented in answer to another question, that there are members of the US Supreme Court who take the position that the decisions of foreign courts should not be considered when considering US constitutional law, but the Court is not of one mind on that.
Justice Sandra Day O’Connor authoritatively and decisively provided her address and replied to questions. The audiences in all the packed lecture rooms were most appreciative to have this valuable opportunity.