BY KATHERINE BROWN
Rejecting a protest by over 600 law professors from around the country, the Senate on September 28 passed a bill providing for tough interrogation and prosecution of terrorism suspects, 65 to 34. The House of Representatives passed the same legislation 253 to 168, and President George W. Bush is expected soon to sign it into law.
Harvard Law School Professor Martha Minow led a spontaneous protest effort last week that culminated in a two-page letter to Congress, signed by legal academics in 49 states.
“The students really spearheaded the effort and also made sure the letter received real attention by Congress,” Minow said. “So it was not for want of hearing our concerns that the Congress proceeded to curb dramatically the independent check of judicial review on executive decisions about whom to detain and how to treat them in what could be a response to terrorism without an obvious termination date.”
The bill, S.3929, allows for trial of terror suspects by military tribunal, and also curtails judicial review of the conditions for detention for those determined by the executive to be “enemy combatants,” which under the new legislation includes individuals who provide money, weapons, or other support to terrorist organizations
Clinical Professor James Cavallaro worked with students in reaching out to professors at schools across the country to mobilize against the legislation.
“The massive outpouring of support is a testament to how misguided the legislation is and just how much it departs from our best legal traditions,” Cavallaro said. “I also think the students’ work was exceptional. Their ability to organize, to work around the clock… served as inspiration for others here and in the legal academy around the country.”
The HLS Advocates for Human Rights collaborated with the Harvard College Advocates for Human Rights and HLS professors to compose the opposition letter and solicit signatures, all of which occurred within a 24-hour period, according to HLS Advocates President Jacob Kopas.
“Even though we were ultimately unable to prevent the bill from passing the House and Senate, our work and efforts are still very significant,” Kopas said. “If nothing else, there are now over 600 law school professors out there that are conscious that their sentiments and legal opinions on this bill are shared by a large section of the law academia in the Untied States.”
The letter contained nine footnotes and condemned the pending legislation as a threat to the U.S. Constitution. “Taken together, the bill’s provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence,” the letter stated.
The bill sets out intricate rules that the Advocates and other human rights organizations said could permit the government to use interrogation techniques that bordered on torture. It also establishes military tribunals that would allow some use of evidence obtained through coercion. However, in a liberalization of former law, the bill gives defendants access to classified evidence being used against them.
In June, the U.S. Supreme Court held in Hamdan v. Rumsfeld that military commissions developed by the Bush administration to try Guantanamo detainees violated both military law and the Geneva Conventions. New anti-terrorism legislation was subsequently introduced, and eventually modified in response to pressure from Republican Senators who questioned the constitutionality of the initial proposal.
But the professors who signed the letter rejected the bill even in its altered form. “Responding to the real challenges posed by the dangers of terrorism does not require the sacrifice of our vital legal traditions-on the contrary, upholding the rule of law can keep us all safer,” they wrote.
Democrats and some Republicans, including Judiciary Committee Chairman Arlen Specter of Pennsylvania, criticized the compromise for stripping detainees of the right to challenge their detentions. During debate on the Senate floor, Senator Patrick Leahy of Vermont cited the professors’ letter in his argument against its passage.
Stephanie Brewer, a 3L who assisted with legal research used in the drafting of the letter, said she spent several long days working with faculty to protest the legislation, and added that resistance efforts would not end with the passage of S.3929.
“[T]his bill allows for practices that are not only ethically repugnant but also clearly illegal under the Geneva Conventions and other applicable law, so there will definitely be challenges to this law in the future,” Brewer said.
Not everyone at HLS was unhappy with the outcome of the Senate’s deliberations. HLS Republicans Communications Director Sarah Isgur said the bill was a “reasonable compromise” that adequately protected the rights of detainees.
“The passage of this bill was a significant victory in the continued war on terrorism,” Isgur said, adding, “While I think that criticism is an important part of the legislative process, the Democrats in Congress and liberals on campus sometimes seem more concerned with scoring points by undermining this administration than taking proactive steps toward protecting our citizens.”
Dan Geldon of the HLS Democrats had equally incisive words for the Republican contingent.
“By now, the President should understand the folly of his go-it-alone policies,” Geldon said. “Instead of learning from their mistakes, the President and his allies ratified a program that has failed to prosecute a single terrorist, limits judicial oversight, and undermines our system of checks and balances.”