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Defending Dershowitz

As a recent graduate, I was shocked and somewhat vindicated by the performance of certain professors at the panel discussion (on Sept. 20) of the September 11 terrorist attacks. I was shocked by both poor logic and the failure to acknowledge fundamental truths about the human condition. Vindication sprang from the fact that I was able to confirm, as an alum, the propagation of intellectual rumpus that oft confounded me in the classroom.

The most acute violations of logical debate were committed by Professor Slaughter in her rejoinder to Professor Dershowitz.

First, Slaughter decried Dershowitz’s point outlining why negotiating with the perpetrators of the attacks is not a viable option. Not that Slaughter favors negotiations, she simply wanted to get one up on Dershowitz. So, she asserted that his point was directed at a “Straw Man” because “no one” is suggesting we negotiate.

On this point, Slaughter was factually wrong and ignorantly so. One, our likely opponents in an armed conflict have offered negotiation points. The Taliban and Iraq have proposed deals both for handing over bin Laden (to a court in a neutral Islamic country) and for restraining future terrorist attacks (if all U.S. presence is removed from the Middle East). Two, pacifists — by definition — are opposed to the use of force. The remaining options are negotiations and non-violent coercion — which is, in and of itself, a negotiation tactic. Three, a widerange of religious leaders and peace activists have called for trying non-violent means, including negotiation.

If Slaughter meant “no one” on the panel, her accusation lacked not only perspicuity but context. Dershowitz’s prepared remarks were not limited to the scope of other members’ statements. It was entirely fortuitous that Slaughter presented her thoughts first and Dershowitz was third. Dershowitz gave an opening statement in which he refuted those who suggest negotiations. He was right to do so.

Second, Slaughter took issue with Dershowitz’s statement that he was not going to mindlessly participate in any peace rallies because self-described peacemakers do not always have the moral high ground. He offered historical evidence of Nazi sympathizers who rallied against war. Slaughter’s “disagreement” with this statement was that she would rather mindlessly march for peace that mindlessly rush to war. Good for her. But Dershowitz said nothing of thoughtless warmongering or any other alternative. His statement even left open the option of joining peace marches after contemplation. Dershowitz’s opening statement was explicitly seeking to dispel myths. And he is right again: It is a myth that those yearning for war are always more immoral.

Fortunately for everyone, Slaughter kept her criticisms of Dershowitz to three. Fortunate, because on her third strike she struck out again. Dershowitz posited that a change in U.S. policy toward Israel would not have averted the attacks because the plot against the U.S. was being formed at the same time the Clinton administration was putting the most pressure on Israel to make concessions to the Palestinians. Slaughter honed in on the word “policy” and lobbed off its context. She then asserted that Dershowitz was wrong because the U.S. does need to disavow unilateralism and intelligence operations that resemble terrorism — ignoring that Dershowitz made the same recommendations. Because she and her fans had ignored her illogical leaps, they laughed when Dershowitz plausibly asserted he agreed with the substance of each of her attempted refutations.

Based on Prof. Slaughter’s performance Thursday night, I propose a new surname-based term for the legal lexicon. Whereas “Bork” is now a verb meaning “to defeat the nomination of a federal judge,” “Slaughter” should be added to mean “to construct arguments on grossly mishandled facts.”

Seeing how easy it was to score with the audience, Prof. Heymann lobbed a couple of impossible challenges. In one, he compelled Dershowitz to draw a bright-line definition of terrorism. Anyone who has been around HLS long enough — and Dershowitz has — knows bright lines are impossible to defend against an experienced prof — which Heymann is. When Dershowitz declined the fruitless challenge, Heymann scorned his statement that, as an imperfect human being, he is prone to violate even the lines he draws for himself. Surely Heymann knows better. He has witnessed the human tendency toward wrong at many levels. Hopefully that includes within himself.

Clarity and perfection are impossible within the quagmire of the human condition. It is always easier to break down myths than to establish certain truths. But the collapse of untruths brings us closer to the otherwise illusive truth. Such was Dershowitz’s approach. Even if truth requires a revelation, that is what we all got on September 11th. In response to that revelation, Dershowitz was right again, we have got to draw some line and stand by it. This is no time for a hubristic demonstration of the lawyerly ability to dismantle everything.

Daryl Kreml ’01

Justice not just in public interest

I am compelled to respond to one of the points raised in Andrew Michaelson’s letter last week. In his indictment of Dean Clark’s record, Mr. Michaelson points to the supposed problem that “an overwhelming majority of recent graduates pursue not justice but the highest paying clients.” Implicit in his rhetoric is the self-righteous suggestion that only those who work for the “public interest” pursue justice, while the 65 percent of his classmates who enter private practice are pursuing something somewhat less noble.

Contrary to Mr. Michaelson’s impression, those who work in the self-proclaimed “public interest” do not hold a monopoly on the pursuit of justice. The administration of justice in our adversarial system depends on the zealous advocacy of counsel on both sides of every legal dispute. It demands effective representation, no matter who the client might be. We learned in criminal law that the great majority of criminal defendants in this country are in fact guilty of the crimes with which they are charged; yet no one suggests that the criminal defense bar, in defending these accused, is neglecting justice. The representation of corporate clients is no less essential and is no more reproachable. Justice is served even when Philip Morris and Johnson & Johnson are ably represented.

Mr. Michaelson laments the fact that the Law School, he says, has been captured by “the narrowest of corporate interests.” It has not occurred to him that the special interests served by the likes of the Earth Justice Legal Defense Fund, the National Organization for Women and similar groups are no less narrow. Moreover, he is not disturbed by these groups’ efforts to commandeer the courts to impose their political agendas on the nation while masquerading as the public interest.

Mr. Michaelson’s comments reveal a remarkably low regard for the work of the vast majority of our classmates and colleagues at HLS. To use the pharisaic colloquial, his fellow students have simply “sold out.” It is disappointing that Mr. Michaelson views their work as an indication of failure on the part of the Law School. Dean Clark and the Harvard Law School certainly have their shortcomings, but surely their success at educating some of America’s most accomplished and most dedicated professionals is nothing to be ashamed of.

Carlos M. Lazatín ’03

Ice Cream Kudos

I would like to thank the HLS community for showing such enthusiastic support for the American Red Cross. At the ice cream sundae fundraising event held on Sept. 20, 2001, together we raised $1,650 to help the victims, their families, and the rescue and recovery efforts in New York City and Washington, D.C. Hundreds of students, staff and faculty contributed.

Special thanks go to the Dean of Students office for sponsoring the cost of the food, to the talented and lovely ice cream scoopers who staffed the table, to the Scales of Justice for
leading “America the Beautiful,” to Sodexho’s helpful employees, and to Susan Lee and Carrie Jablonski, who helped organize the event.The aftermath of September 11th has brought so much grief, worry and suffering to us. Thank you all for showing such community strength in these dark days.

Avery W. Gardiner ’02

Fenno failings

While I am accustomed to racial profiling by law enforcement officials, I was a bit surprised to see it occur in the prestigious pages of the Harvard Law RECORD. While Fenno is often perceptive even is his/her perpetual state of intoxication, the recent column in the September 21st issue of the RECORD contains yet another example of racial misidentification.

Fenno accurately captures my personality and deep wisdom. However, when he discusses the impressive leadership in the American Constitutional Society, I’m not the one. I am a member of the board of directors of the Equal Justice Society, which is a new organization that is a response to the Federalist Society, among other things, and will be hosting a conference here at Harvard, November 16th and 17th, on federalism. But I am not at the moment a member or officer in the American Constitutional Society. That distinction goes to my colleague and dear friend, Prof. Christopher Edley. We are of the same race, height and political disposition, and in that light I completely understand how Fenno could have mistakenly identified me as my colleague. A little more rest, a little less alcohol, and an elective course in racial sensitivity would serve Fenno well.

Charles J. Ogletree, Jr.Jesse Climenko Professor of LawBoard of Directors, Equal Justice Society

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