BY MIKE WISER
In a discussion intended only for the ears of the Law School community, five professors Thursday night expressed mixed opinions on potential responses to the September 11 attacks and concern over the future of civil liberties in the United States.
The panel was organized by J.D. Dean Todd Rakoff in an effort to encourage open discussion among HLS affiliates about the policy dimensions of the terrorist attacks. Langdell North, equipped with a video link, had been designated the “overflow room,” but a half-hour before the panel was scheduled to begin, the overflow room itself was swapped with people sitting on the floor and standing in the back of the sweltering room. Meanwhile, professors Anne-Marie Slaughter, Frank Vogel, Philip Heymann, Alan Dershowitz, and Juliette Kayyem gathered before thecameras in Langdell South.
While agreeing on some points, the panelists seemed to disagree in how they would characterize the proper American response. Slaughter and Vogel said they were concerned about the potential international response to any unilateral action.
“Every time we play Lone Ranger, whether it is not signing on to an international criminal court, or pulling out of institutions we are already part of, or simply declaring we are not bound by rules the rest of the world is, we are feeding powerful domestic opposition,” Slaughter said.
Both Slaughter and Vogel supported military response to terrorism, but were concerned about what the emphasis would be. Vogel commented that the U.S. should respond with “words over guns” and the “glove rather than the fist.” The U.S., Vogel said, needs to engage Islam and attack terrorism at the level of ideas.
Prof. Alan Dershowitz, who also argued for pre-emptive assassinations of terrorists, argued that the U.S. should not assume “that good people always favor peace, and it is always the bad people that favor military action.”
He said that in 1939 the peaceniks were the racists and Nazis.
“[T]he decent people were the war mongers who bring us into a fight with Hitler who they saw as non-negotiable evil,” he said. “I will not participate in peace rallies, unthinking peace rallies, or sing John Lennon songs about give peace a chance. I think we need to look smartly at what the alternatives are.”
In response, Slaughter said: “The only thing worse than unthinking peace marches, is demonizing anyone who questions the use of force as an appeaser.”
While there are things worth dying for, Slaughter said “you have to be able to question the use of force without being told automatically you want to give in to the enemy.”
Part of the answer, Prof. Philip Heymann said, is deciding that terrorism is always wrong.
“Most people have regarded terrorism up till now as something that you were very angry about when it happened to you and not very angry when it happened to your enemy,” he said.
Heymann recommended that the U.S. conduct a campaign similar to the one that convinced the world’s governments that condoning drug use and production is always wrong.
Dershowitz argued for seettling on a non-ideological definition of terrorism.
“We have honored terrorists, we have welcomed terrorists, we have approved of terrorists, we have accepted the election of terrorists to positions of leadership in their countries,” he said. “Everybody in this room has a terrorist who they have supported in their lifetime. Nobel prizes have been given to terrorists.”
Prof. Juliette Kayyem of the Kennedy School responded by pointing out that people such as Nelson Mandela would fall under this strict definition of terrorism. Heymann was also reluctant to accept Dershowitz’s hard line, asking him whether dropping bombs on civilians at 30,000 feet would be included in his definition.
Dershowitz responded by saying that it was difficult and in some situations he might even be tempted to break his own rules.
“If we try to distinguish and we try to play these lawyers’ games, inevitably we are not going to have the moral high ground,” he said. “I have to tell you that every terrorist I’ve ever represented believes himself a freedom fighter, and once you give terrorists any claim that there is a justification for their terrorism, you will never find that what he is doing is wrong.”
Slaughter called for America to respond in a way consistent with the principles of international law. Besides using the United Nations as a pre-made coalition, she argued that the United States “should do something really different.”
Specifically, she said: “We should not try [Osama bin Laden] in an American court. We should create a global court composed of supreme court justices of every country that lost citizens in the attack.”
The problem with Slaughter’s argument, Heymann said, was that it ignored the effect that the attack had on America.
“The insecurity of the United States and the damage to our self-confidence is the overriding fact here,” he said.
Professor Dershowitz dismissed Slaughter’s proposal by arguing that an international court would be illegitimate.
“Nobody laughs at American justice more than I do, and nobody scoffs at American justice more than I do, and my credibility on this one is deep and long standing,” he said to the laughter of the crowd. “And I believe the chances of getting real justice in front of an American court are considerably better than in front of a quasi-world court.”
Vogel, director of the Islamic Legal Studies Program, argued that America was too quick to dismiss the proposal for trying Osama bin Laden in an Islamic court. The West, he said, has dismissed “out of hand” a legal tradition that did not condone the recent attacks.
Dershowitz responded that such a court’s decision to convict or acquit the terrorists would have no legitimacy in America.
Dershowitz argued that it was vital for the U.S. to increase domestic security in a way that is mindful of civil liberties. However, he also argued that civil libertarians should not reject any technological innovation simply because it is different.
“For example,” he said, “face recognition technology, which many of us might be concerned about, is far better than ethnic profiling.”
Dershowitz also argued that roving wiretaps were better than traditional wiretaps, because they were less likely to record personal conversations of innocent people who were not the target of the wiretap.
Kayyem, who served on a terrorism panel under Janet Reno, argued that she was very concerned by the “terrifying” proposal for infinite detention of alien terrorists without judicial review.
“Not in South Africa, I believe, or Israel during war time did they have indefinite detentions of terrorists,” she said.
Kayyem said she was also concerned about the growing number of aliens in America who were being detained as part of the investigation. Now the number is somewhere near 100, she said, and at some point that number is going to get too big.
Vogel, who said he initially had a “terrible anxiety” that the U.S. would “indiscriminately lash out military force against Islam and Muslim countries,” said he soon became concerned about the “domestic equivalent.” Vogel, however, said he had been reassured by what students working with the Islamic Legal Studies Program had told him about the response here at the law school. He also applauded Bush’s visit to a Washington, D.C. mosque. He called the visit “unprecedented, seemingly totally uninhibited and sincere.” “He is actually, embracing, celebrating American Muslims, something long overdue,” Vogel said.
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