BY STEPHAN SONNENBERG
In case you missed it, because most of us did, the author of the infamous torture memorandum came to our campus last Thursday to give a talk. The right to be free from torture is one of the most fundamental guarantees of international law. As such, some would argue that anyone justifying such crimes should not be invited to an institution dedicated to the promotion of the rule of law. Why? The ‘art’ of lawyering, so the argument goes, does not include the right to incite war crimes any more than it permits me to perjure myself before court, primarily because it is not right to torture, under any circumstances, at any time, morally, legally – even militarily – full stop. Others would welcome such an invitation if it encouraged genuine and open debate on the issue of torture and legal ethics, important as they are to our nation’s future.
However, I cannot see the justification for inviting Bybee and then subsequently shielding him and his views from the vast majority of students at Harvard. This, to my mind, is a fundamental infringement of the academic spirit of open dialogue and engagement inherent to campus.
As much as any lawyer can do so, Judge Bybee played a crucial role in facilitating the commission of war crimes by American troops in our ‘war on terror.’ A 2002 memorandum bearing Bybee’s signature argues that torture must be “an extreme act far beyond the infliction of pain or suffering alone,” of such an intensity to be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Not content with this clear misrepresentation of international legal standards, Bybee’s memo continues to dismiss a fundamental tenet of international criminal jurisprudence first established at the Nuremberg Trials, namely that “just following orders” is not a sufficient defense to war crimes.
More worryingly still, the New York Times has alleged that Bybee was apparently asked to write his torture memorandum after US forces had already begun using torture during interrogations of high-level suspects in the war on terror. Thus, he may have known about past patterns of CIA torture, and his legal memorandum was intended only to justify them. Thanks to Bybee’s tortured legal logic (please excuse the pun) and blatant misrepresentations of international law, these practices subsequently have become a mainstream component of American interrogation techniques. We know this from well-documented accounts of sickening prisoner abuse emerging from the depths of what Amnesty International has called the “Gulag Archipelago of the 21st century,” referring (as did Judge Bybee in his memo) to the various US-run detention centers for the prisoners in the “war against terror.”
Was Bybee reprimanded for his role in this process? Of course not! In reward for his service to our nation’s torturers, Bybee today supervises the rule of law in our country, protected from all accountability by the conveniences of a lifetime judicial appointment. Granted, the Senators had no idea of Bybee’s dark role in facilitating torture when they affirmed his nomination to the Ninth Circuit. But the Bush administration certainly knew when they nominated him, just as the organizers of last week’s event knew when they invited him to campus. Perhaps that is why all of Bybee’s supporters act as though they are harboring a war criminal. Like a hermit crab fearful of the environment outside of his protective shell, Judge Bybee apparently fears discussing his legacy of torture with those concerned about human rights and civil liberties. To me, this is a further instance of being rendered a voiceless observer of our nation’s moral and legal decay, this time by my own fellow students.
A “heckler’s veto” you say? Freedom for poor and vulnerable Mr. Bybee to express his views free from pesky protesters? Yes – let’s talk about freedom of speech: it is about time our campus removes its headphones and engages on these crucial issues of our time! I would have liked to peacefully express to Mr. Bybee my profound disgust at his legal integrity. I would have liked to voice my concerns about using Harvard Law School’s name to quietly whitewash Judge Bybee’s legacy: transforming him from the “author of the torture memo” into a “constitutional scholar.” Where better than a law school – an institution dedicated to the education of competent and ethical lawyers – to discuss Mr. Bybee’s lack of legal and ethical integrity head on? Why was the majority of campus excluded from such an important event? Tragically, as Judge Bybee speeds away from a secretive and closed event in his black limousine, I can’t help but feel that it was my right to express myself that suffered, and not Judge Bybee’s.
Stephan Sonnenberg is the president of HLS Advocates for Human Rights.