Can Harvard Law School Confront its Moral Crisis Over Rule of Law?

Dante’s Inferno warned that, “The hottest places in Hell are reserved for those who in times of moral crisis preserve their neutrality.”

That warning made Harvard Law School graduate and then United States Attorney General Francis Biddle agonize over the moral crisis he was then confronting.

The date was February 18, 1942.  Only weeks had elapsed since the December 7, 1941 Japanese attack on Pearl Harbor, which President Franklin Roosevelt had decried as “a date which will live in infamy.”

The Attorney General was looking at his own day of infamy.  President Roosevelt was prepared to issue an odious executive order (E.0. 9066) to herd 120,000 loyal Japanese Americans into concentration camps to appease popular hysteria at a time when Adolf Hitler’s extermination camps were filling with Jews. 

The Harvard Law graduate had concluded that E.O. 9066 was unconstitutional and morally nauseating.  Among other things, it rested on the racist views of Lt. General John L. DeWitt, who had reported from the West Coast:

“In the war which we are now engaged, racial affinities are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become “Americanized,” the racial strains are undiluted…. It, therefore, follows that along the vital Pacific Coast over 112,000 potential enemies of Japanese extraction are at large today. There are indications that the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”

Mr. Biddle made a Faustian bargain to remain as Attorney General.  On February 19, 1942, he acquiesced in the Executive Order, and silently witnessed 120,000 Japanese American men, women, and children uprooted from their homes and businesses and stigmatized as traitorous.  The day before the Faustian bargain, the Attorney General had written to the President:  “My last advice from the War Department is that there is no evidence of an imminent attack and from the F.B.I. that there is no evidence of planned sabotage.” 

That was not the end of his moral obloquy.  The Attorney General permitted the Department of Justice to deceive the United States Supreme Court in twin cases upholding the constitutionality of the Executive Order.  The Department represented that military officials believed time constraints precluded a case-by-case determination of Japanese American loyalty.   But time was not the problem.  The military held the racist view that since i to the Occidental eye “all Japs are alike,” even limitless time would not enable a separation of the guilty from the innocent..  The Department’s concealment of the military’s racism and assertion that time was of the essence when it was not became   the cornerstones of the Court’s decisions in Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v .United States, 323 U.S. 214 (1944).  They were later repudiated by Congress in the Civil Liberties Act of 1988, and by lower federal courts in coram nobis proceedings which invalidated the convictions of Gordon Hirabayashi and Fred Korematsu.

Attorney General Biddle was not alone in his moral cowardice. Supreme Court Justice Felix Frankfurter had starred as a Harvard Law School student and had acquired glittering renown as a Harvard Law School Professor of Law.  Before elevation to the Court by President Roosevelt, Frankfurter had supported his court-packing plan to destroy judicial independence.  After his elevation, Justice Frankfurter voted to uphold compulsory flag salute requirements as a condition to public education, and to endorse Mr. Biddle’s defense of Executive Order 9066. 

Meanwhile, Harvard Law School faculty and students earned a scarlet letter “S” for their collective silences as the Constitution took a bullet.

McCarthyism confronted HLS with another moral crisis.  It failed again.

Like a dog that returns to its kennel when danger appears, HLS retreated from Senator Joe McCarthy’s assaults on academic freedom instead of taking up legal arms against him.  As the late Alexander Cockburn recounted in CounterPunch (Feb. 20, 2009),“The Lawyer’s Tale:  Harvard Law School’s Hour of Shame,” HLS students and faculty ostracized Jonathan Lubell and his twin brother David after the two students had received subpoenas to testify in 1952 before the Senate Internal Security Subcommittee, notorious for witch hunting.  The two defended academic freedom by refusing to cooperate in reliance on their rights secured by the First and Fifth Amendments, for which they were shunned by HLS.

Then Dean Erwin N. Griswold, albeit belatedly, was one of the few in academia who challenged McCarthy. .  Jonathon Lubell related to Mr. Cockburn the following after he and his brother entered the Dean’s office:

Griswold was furious and told us that others at the Law School would be talking to us. At that time, the dean expressed the position that the Fifth Amendment was available only for those who were involved in criminal activities. Some nine months later, changing his position, the dean wrote that the Fifth Amendment was available to the innocent.”

Illustrative of the hysteria which fueled the McCarthy era  was the Wisconsin Senator’s attack on George C. Marshall. He, had served as Army Chief of Staff—the American military’s highest-ranking officer—during World War II, and then as Secretary of State and Secretary of Defense in the Truman administration.  The Senator accused Marshall of “having made common cause with Stalin” in “a conspiracy so immense and an infamy so black as to dwarf any such venture in the history of man.”

Yet Harvard Law School giants Zechariah Chafee and Arthur Sutherland argued   in a letter to the Harvard Crimson, January 13, 1953 regarding witnesses called to testify before congressional committees investigating Communist ideas or affiliations:  “…The underlying principle in considering the subject of [teachers or others who invoke the Fifth Amendment privilege] is the duty of the citizen to cooperate in government…[T]he fact that disclosure of present or past association with the Communist party will cause trouble for the witness with his church, his lodge, his union, his employer or his university, does not excuse him from answering questions about it when subpoenaed before a competent body….”

To be sure, Harvard Law School today is not what it was during the Japanese American concentration camps or the heyday of McCarthyism.  There is much more gender, racial, and ethnic diversity amongst the students, faculty, and administration.

But has anything else really changed?

At present, the Law School, faculty, and most students remain passive while the Constitution and rule of law are daily torn asunder by the trillion dollar military-industrial-terrorism complex that President Dwight D. Eisenhower flagged as the scourge of the nation in his 1961 Farewell Address:

“This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence — economic, political, even spiritual — is felt in every city, every State house, every office of the Federal government… [W]e must not fail to comprehend its grave implications….

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

Our perpetual unilateral presidential wars not in self-defense flout both the Declaration of War clause of the Constitution and the War Powers Resolution.  This usurpation is a clear and present danger to the Republic.  As Cicero observed, “In times of war, the law falls silent.”  Thus, Alexis de Tocqueville warned in Democracy in America that war is the shortest and surest means to destroy the liberties of a democratic nation.

Since 9/11, the President plays prosecutor, judge, jury, and executioner—the very definition of tyranny according to James Madison in Federalist 47–to kill citizens and non-citizens alike whom he deems is a national security threat based on secret, untested evidence.  The consequences are grim.

Consider the 65-year-old Pakistani grandmother exterminated by a predator drone while picking vegetables with her 9-year-old granddaughter, Nabila.

At a Congressional briefing, Nabila elaborated:

“It was the day before Eid. My grandmother asked me to come help her outside. We were collecting okra, the vegetables. Then I saw in the sky the drone and I heard a ‘dum dum’ noise. Everything was dark and I couldn’t see anything, but I heard a scream. I don’t know if it was my grandmother, but I couldn’t see her. I was very scared and all I could think of doing was just run. I kept running but I felt something in my hand. And I looked at my hand. There was blood. I tried to bandage my hand but the blood kept coming.”

Her 13-year-old brother, Zubair, whose leg was injured by shrapnel in the drone attack, testified, “I no longer love blue skies. In fact, I now prefer grey skies. Drones don’t fly when sky is grey.”

Republican and Democratic presidents alike substitute executive agreements, executive orders, and signing statements for the Treaty Clause and congressional legislation in order to circumvent the Constitution’s separation of powers.

Presidents invoke state secrets to thwart congressional oversight and judicial redress for government assassinations, torture, or kidnappings.

The Executive Branch imprisons persons indefinitely at Guantanamo Bay without accusation or trial—even those who have been cleared for years by the military as neither an enemy combatant nor a threat to the United States!

President Obama (based on political expediency) refuses to enforce laws, for instance, declining to prosecute torture in the interrogation of Al Qaeda suspects (including waterboarding) as chronicled in the Executive Summary of the Senate Intelligence Committee Torture Report.  (Publication of the full report has been blocked by President Obama because of alleged concerns over the disclosure of classified information).

Both Republican and Democratic presidents have trampled on the Fourth Amendment by warrantless, non-particularized spying on American citizens by the military under Executive Order 12333 or otherwise conducting surveillance outside the Foreign Intelligence Surveillance Act. 

A former Director of the National Security Agency, Michael Hayden, speaks of the intelligence community problem of dealing with the “not-yet-guilty,” a concept more befitting George Orwell’s 1984 than a nation where the rule of law should be king.

As recounted in Mr. Hayden’s book, Playing to the Edge:  American Intelligence in the Age of Terror, Article III Foreign Intelligence Surveillance CourtJudges Royce Lamberth and Colleen Kollar-Kotelly met secretly with national security officials and Department of Justice lawyers after 9/11 to discuss  the legality of foreign intelligence programs operating under alleged inherent Article II powers of the president in contradiction to the Foreign Intelligence Surveillance Act.  Judicial independence was compromised.

Shouldn’t Harvard Law School professors and students be in the vanguard of protest?  Aren’t these self-anointed stewards of the law saddled with a moral obligation to save it from vandalization?    

Isn’t the rule of law is the salvation of our Republic? 

That understanding sacralized the battles at Lexington and Concord and the midnight ride of Paul Revere.

Yet Harvard Law School is scampering away from teaching about the epidemic of executive branch lawlessness and revising its curriculum and actions accordingly.  Most HLS students are preoccupied with money, celebrity, and power.  Justice—the purpose of law and the end of civil society—is ignored.

But if Harvard Law School administrators, professors, and students with all their brains and access to power refuse to reenact Paul Revere with different choreography, then who will?     

The moral crisis they confront is greater than the crises created by the Japanese American concentration camps and McCarthyism.   

The Republic itself and rule of law hang in the balance.

One choice  is to follow in the footsteps of Francis Biddle, Felix Frankfurter and their like.  We know what ignominy that will bring.

Another choice is to “pledge their lives, their fortunes, and their sacred honor” to defeating the military-industrial-terrorism complex in all its lawless moods and tenses, and to restore justice as the lodestar of the legal profession and of the nation.

To do otherwise is to dishonor Harvard Law School’s own signature gospel emblazoned over the Main Entrance to Langdell Hall:

“Non sub Homine sed sub Deo et Lege” (Not under man but under God and Law). 

Bruce Fein, HLS 1972, was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan, Research Director on the Joint Congressional Committee on Covert Arms Sales to Iran, and Senior Policy Advisor to Ron Paul’s 2012 presidential campaign.  Mr. Fein’s books include Constitutional Peril:  The Life and Death Struggle Over Our Constitution and Democracy, and American Empire Before The Fall.

Bruce Fein

Bruce Fein is a member of the Harvard Law School Class of 1972.
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