Panel Debates Congressional and Presidential Action on Terrorism


Professor Phil Heymann, Congresswoman Jane Harman ’69, National Counterterroism Center Director Michael Leiter ’00, and Professor Jack Goldsmith discuss the role of Congress and the executive branch in creating a new legal framework for dealing with terrorism.

The Law School inaugurated its new Program on Terrorism and the Law Tuesday with a panel entitled “Dealing With Terrorism: What Congress and the President Should Do.” The panel featured Representative Jane Harman ’69, chair of the Intelligence Subcommittee of the Homeland Security Committee in the House;

Michael Leiter ’00, director of the National Counterterrorism Center, and HLS professors Phil Heymann and Jack Goldsmith, themselves experts and extensive writers about the government and national security.Representative Harman spoke about what Congress should do about new legal problems surrounding America’s response to terrorism, saying they need to first “get serious” and move beyond highly partisan blaming, and next to “stop dealing with it on an ad hoc basis,” and be ambitious in constructing a framework for dealing with detention, interrogation, surveillance, and other issues that balances important legal and security interests.

Heymann stressed the need to prioritize, saying “weapons of mass destruction are vastly more important than bombs in trash bins at malls,” and said it was essential for the United States to “reduce the enthusiasm of others for attacking us” on top of having strong security measures. “As far as I know we’ve done no serious thinking on [that],” he continued, causing Leiter to shake his head in disagreement.

As a member of the executive branch and intelligence expert, Leiter opined that “we’re reasonably good at fighting today’s war. I think the gap is less on the intelligence side and more on the policy side. As Representative Harman knows, it’s easy to get funding for that F-21 Raptor or whatever it is…it’s harder to get funding for a foreign service that goes out and fights this war of ideas.”

Leiter also acknowledged, “there will be another [terrorist] attack. My pager will go off. And when that happens the public debate will get worse, so we have to have this discussion now.” Heymann agreed, saying the real question was whether a future attack would be small and contained, not whether it would ever happen again.Goldsmith pushed back a bit, saying that the “best way to provide overreaction to the next attack is to prevent the next attack.” Goldsmith called it remarkable that there are still detainees at Guantanamo Bay, six years after 9/11, and predicted that many of them, perhaps half, would never be released. He speculated that new Attorney General Mukasey might make this a special issue of his, or barring that, that if the Supreme Court acts in June to undermine the Gitmo detention scheme, that the President will come back before Congress asking for new power for a detention scheme, which Goldsmith predicted they would grant.

At this, Representative Harman frowned. The discussion continued into the afternoon, with the four panelists answering audience questions and engaging in constructive, but real, disagreement about the future of counterterrorism policy and the role of the legislative and executive branches in answering today’s most difficult questions.

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