“War on Terror” a Misnomer

f1-1Your fall 2004 article “Law in a Time of Terror” discusses in all seriousness the so-called “war on terror.” In it, four professors consider whether the “laws of war” (or “rules on warfare”) apply. But it is not a war, and as Professor Philip Heymann says in the next article, “it’s not wise to think of it as a war.” Nor is it “on terror,” nor “on terrorism,” nor even “on terrorists.” It is on certain terrorists, and that’s all.

The U.S. would do best to deal with these terrorists as the British have dealt with IRA terrorists and the Israelis deal with Palestinian terrorists, i.e., with police work, informants and military strikes that fall well short of war. In addition, we need comprehensive international cooperation because, like the Mafia and some drug cartels, Al Qaeda works outside the laws of nations. Even if they nuke Times Square or the Capitol, they will remain what they are, a gang of fanatically violent criminals who should be dealt with as such.

But instead, President Bush has declared a “war on terror” and used this amorphous misnomer to wage a real war on Afghanistan before diplomatic and military strike options were exhausted; to wage a falsely hyped war of aggression on Iraq, killing and maiming uncounted thousands; to fabricate a rationale for torture that is illegal (not to mention barbaric) of prisoners of war or people suspected of violent crimes; to trample legal and human rights; deplete our military and treasury; build enormous anti-U.S. animosity; scare the public; leave bin Laden at large and win re-election.

Words matter, and Bush’s beguiling confection “war on terror” has mattered a lot. The flimflam may have hoodwinked 51 percent of the voters, but why the Harvard Law Bulletin?

Appalled and Disheartened

I was appalled by what I read in the fall Bulletin about the extent to which Harvard Law professors are facilitating and enabling violations of human rights. The voices of reason were my old Professor Detlev Vagts–bless him–and Professor Philip Heymann. The notion of one student that “civil liberties become meaningless if you’re dead” (“Getting Real“) seems a far cry from “Give me liberty or give me death.” I was disheartened that a student was proud to be writing a policy paper on transparency in coercive interrogation practices (though only the legal ones and not torture, of course–please provide a list of the legal ones to Alberto Gonzales). Amazing–and apparently you are proud of this.

Terror Threat Calls for Pragmatism

Many thanks to the editors for devoting much of the fall Bulletin to the legal issues pertaining to the war against terrorism. It was thought-provoking.

I found most of the views attributed to Professors Goldsmith and Dershowitz in the Dick Dahl article (“Law in a Time of Terror“) responsive to the realities of the threat imposed. These professors seem to get it.

Unfortunately, I found some of the views expressed in that story by Professor Vagts unrealistic. He apparently approves of the Convention Against Torture that says there are no excuses for torturing a prisoner. He castigates the United States for violating the Geneva rules by publishing a photo of Saddam Hussein. How do you support those views when the enemy thinks nothing of beheading its prisoners or gassing and murdering thousands of its own citizens?

The law school is to be congratulated for offering a course on terrorism, but after reading the interview of Professor Heymann, I think someone else ought to be teaching the course.

It seems that Professor Heymann opposes American unilateralism and that he wants the United States to obtain the support of friendly nations like France and Germany. Who doesn’t? But that is unbelievably na•ve when those friends have been corrupted, as they were by the U.N.’s management of the Iraqi Oil-for-Food Program.

Professor Heymann criticizes the United States for failing to build support in Muslim nations, saying that a poll shows that 70 to 90 percent of the people in the Muslim world were sorry that there wasn’t greater resistance in Iraq and that a large number prefer Osama bin Laden to President Bush. That’s no surprise. We saw them dancing in the streets when the Twin Towers collapsed. Moderate Muslims who might be inclined to support the United States or want freedom and separation of state and clergy don’t last long. Salman Rushdie still has a price on his head, and Anwar Sadat was killed for opposing the primacy of Sharia in Egypt. The Saudi royal family tries the appeasement route but is certainly under increasing attack by Islamic fundamentalist terrorists.

Running throughout the Heymann interview, it seems to me, is a preference that the “war” (a term he dislikes) against terrorism should be controlled more by Congress than the executive, and that international consensus should be a factor. In a perfect world, that would be fine. However, in reality, political partisanship too frequently stalls anything from happening in the Congress.

Furthermore, looking to the U.N., a body that fails to condemn terrorism, for leadership and guidance in the struggle against terrorism is bound to be unrewarding. I would also suggest that Professor Heymann, or whoever teaches a course on terrorism, take the following remark by Democratic Representative Jane Harman, quoted in another article in the same issue (“Code Red“), as a guiding principle: “The terrorists don’t want a seat at the table, they want to blow up the table.”

No Peril So Great

I was appalled to read Dick Dahl’s “Law in a Time of Terror” in the fall 2004 issue of the Bulletin. The article featured a supposed debate on the applicability of the rules of warfare to the current war on terrorism. In particular, Professor Dershowitz was said to urge the use of torture on suspects in some circumstances, citing the imperative security problems we now face. This presumably qualified use of torture may sound reasonable (providing torture is not used on nice people, like us). However, the argument has lent a cover of respectability to inhumane practices generally, at Abu Ghraib and elsewhere.

As a former Army JAG officer who taught the law of land warfare at the JAG School, and who admired Professor Baxter’s contributions in this important area of the law, I am appalled. Trying to find the words to argue against the approved use of torture leaves one sputtering; the matter is that self-evident. But I will try.

Using torture puts our own people in danger. It demeans us as a nation, and its advocacy degrades those who preach it. It produces phony leads that must be run down using valuable intelligence resources. Using torture assumes that the prostrate victims possess desired information. And yet, as the ICRC [International Committee of the Red Cross] has reported, most of the people at Abu Ghraib prison were caught in military sweeps. They were in the wrong place at the wrong time.

The advocacy of the use of torture seems to carry with it the notion that interrogators are simple chaps (and women) who cannot find out what is going on without its use. How demeaning for an entire profession. I will only cite the example of my late brother, Walter Shepard, Harvard 1953, who, after training at Fort Holabird, served in the Army’s counterintelligence service. His specialty was penetrating our own maximum-security installations. He did so successfully all over Europe, in the coldest part of the Cold War, through brainpower. I would not have wished to try to match wits with him in an interrogation session.

The United States, until now, has been an important actor in the development of civilized rules for land warfare. One thinks of Virginia Gov. Thomas Jefferson, researching the precedents to allow Hessian prisoners to stay in this country rather than be repatriated against their will, a precedent that was courageously invoked to protect captives in the Korean War. And of course, the Lieber Code, issued in April 1863 to the Union Armies in the field, was a landmark development in the law of war, preceding even the formation of the Red Cross. I wonder if Professor Dershowitz will tell us that our present peril is greater than that faced in either the Revolution or the Civil War.

There are, of course, technical arguments to be made regarding the Geneva Conventions in the war on terrorism, but not, I submit, very persuasive ones. There is always Common Article 3, applicable to any sort of warfare, which no cute reasoning can get around. It forbids torture. I am sure that the overwhelming body of authority would support my position. And the views to which the Bulletin gave publicity will continue to offer spurious justification of the ill treatment of prisoners and, in the long run, will bring shame to the law school.

I write this letter in protest, to convey in some way the screams that cannot otherwise be heard by Professor Dershowitz.

Alum Argued Guantanamo Case Before High Court

Although the Guantanamo prisoner litigation was written about in the last issue, I was surprised to find that my former colleague Judge John J. Gibbons ’50 and the case he argued before the Supreme Court last year were not mentioned. His pro bono advocacy before the Court resulted in the landmark decision of Rasul v. Bush, 124 S.Ct 2686 (2004) [which held that foreigners imprisoned at Guantanamo Bay, Cuba, have a right to file petitions for habeas corpus]. Inasmuch as I believe this to be a significant contribution to our jurisprudence and to the subject, I thought I would bring this to your attention.

The Debate Continues

Ms. Caporusso’s letter in your fall issue calling my classmate Mr. Schnadig’s claim that he saw no law school discrimination against women “simply ridiculous” should not go unchallenged.

With the important exception that the law school did not accept women until 1950, all examples of discrimination cited by Ms. Caporusso relate to finding a job or being admitted to the bar. If anything, Ms. Caporusso’s examples indicate that law schools did not discriminate even if the job market did: Justice Ginsburg graduated in the top of her class, and Ms. Estrich was president of the Law Review.

That less than 5 percent of our 1964 class is female is certainly prima facie evidence of discrimination by the law school. However, in the classroom, the only discrimination I observed was in Barton Leach’s 1L property class, when he held “Ladies’ Day” and called only on women. That aside, the HLS classroom experience was equally disagreeable to all, regardless of gender. I cannot address instances of law school discrimination outside the classroom, because I never met any of our female members. However, some discrimination apparently worked in reverse. My classmate Judith Richards Hope, writing in the Bulletin some years back, stated that she was invited to dinner by some of our professors. This is strikingly different from my experience and that of all my friends in the Class of ’64. Our outside contact was zero.

Whether women in our class faced law school discrimination is, of course, best known to them. I do not pretend to speak for them and apologize in advance if they find my opinion ill considered.