Protest of “Torture Memo” Rocks Pound Hall


Judge Bybee leaves Pound Hall as hooded protesters look on.

HLS students and others protested in Pound Hall last Thursday at a Federalist Society event, a talk given by Judge Jay S. Bybee of the Ninth Circuit. The protest was organized by HLS Advocates for Human Rights and the Alliance for Justice in the Middle East at Harvard in response to the infamous “torture memo” authored by Judge Bybee at the Justice Department’s Office of Legal Counsel.

Observers reported that more than 20 people, not all HLS students, attended the protest, many wearing black hoods that mirrored those worn by prisoners at Abu Ghraib and carrying signs which read “No Torture” and “You Can Run But You Can’t Hide.” Professor James Cavallaro, clinical director of the Human Rights Program, attended along with the students. The event was held in Pound 201, a room with a back exit through Pound 203. Protestors stood along the hallway outside this door as well as outside the room’s main exit, waiting for the talk to end. Judge Bybee and the student attendees left through the back and proceeded to the building’s exit. The protestors followed, chanting “Shame, shame.”

Both Matt Cooper, Federalist Society president, and Assistant Dean Alexa Shabecoff, who was asked to attend the protest as a neutral observer, agreed that the protestors were entirely peaceful inside Pound. “I was watching very closely,” said Shabecoff, “and at no point did I see any of the protesting students block the doors, shove anyone, or do anything inappropriate.”

The crowd made its way down the Pound hallway and stairs and out toward the parking lot, where Bybee left in a car. At this point, both protestors and event attendees have alleged physical contact, such as pushing, and noncompliance with Harvard’s Protest and Dissent Guidelines. These reports are conflicting and remain unconfirmed.

Originally advertised to the law school at large as an opportunity to talk about how the Constitution is written versus how it is taught, the Federalist Society sent out an e-mail to their membership on Wednesday saying the event was “cancelled due to a scheduling conflict.”

In fact, however, the e-mail was sent out when the Federalist Society leadership learned that a protest was planned. The event was moved to a smaller room, and only officers of the organization were invited. The protest organizers learned that the event was still on only a few minutes before it began. Stephan Sonnenberg, HLS Advocates president, sent out an e-mail to the group asking members to come immediately to Pound 201 and to bring black hoods with them.

Cooper denies that the event cancellation was motivated by anything other than an attempt to “avoid controversy and have an orderly meeting where [they] could have a meaningful interaction with Judge Bybee about his views on the Constitution.” A closed meeting with the Federalist Society officers was the original plan, explained Cooper; it was expanded so that “the entire student body would benefit from hearing Judge Bybee,” and then drawn back when the Federalist Society learned that there was a confrontational protest planned to disrupt the talk. He added that the Dean of Students was consulted and kept informed throughout the process. Dean Ellen Cosgrove confirmed that she was informed of the changes in the scheduling of the event.

Student activists argue that the cancellation was an attempt to stifle dissent and free discussion. In Monday’s Crimson, Daniel Li of the Alliance for Justice in the Middle East harshly criticized the Federalist Society for this change of plans, stating “[I]n ordinary usage, when you say an event has been ‘cancelled’ that does not mean that the same sponsors host the same speaker at the same event in the building next door.” Others criticized Judge Bybee and the Federalist Society for avoiding the issue of torture altogether. “[W]hy not stand tall and face dissenting voices?” asked HLS Advocates member Deborah Popowski, “Is [Judge Bybee] ashamed of what he’s done?”

Cooper, though, argues that this event had nothing to do with Judge Bybee’s service at the Department of Justice. The Federalist Society, he says, has no position on the “torture memo,” and hosting Bybee’s talk on constitutional interpretation does not constitute the Federalist Society’s endorsement of his other actions. Furthermore, Judge Bybee was already present on campus as the guest of another organization. “Instead of trying to silence speech,” he says of the protestors, “they should focus on bringing engaging and provocative speakers sharing their views to campus.”

The memo, dating to August 1, 2002, has been hotly debated. In its original form, it stated that only physical pain “of an intensity akin to that which accompanies serious physical injury such as death or organ failure” constitutes illegal torture. Alberto Gonzales, now Attorney General, commissioned the memo, and it was signed by Judge Bybee, who then headed the Justice Department’s Office of Legal Counsel. Gonzales has defended the memo, saying he was only seeking “objective legal advice.” The Justice Department officially rescinded the memo in December 2004.

The memo has come under widespread criticism from human rights activists and legal scholars. Dean of Yale Law School Harold Koh has denounced it as “the most clearly erroneous legal opinion [he has] ever read,” and “a stain upon our law and national reputation.”

Andrea Saenz contributed to the reporting of this article.

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