HLS Forum Heats Up Over Policy

Three distinguished lawyers debated the legality of counter-terrorism measures yesterday as part of the Dean’s Forum series at the Harvard Law School (HLS) moderated by HLS Dean Elena Kagan.

During the discussion, entitled “Executive Power in an Age of Terrorism,” HLS alum Bradford A. Berenson argued in favor of controversial methods of combating terrorism. The former associate counsel to President George W. Bush said that measures such as indefinite detainment of suspected terrorists, military commissions, and even the use of torture were appropriate in extreme cases.

“[September 11] was merely a foretaste of what our current adversaries would do to us if they could,” he warned, emphasizing that the need to gather critical intelligence during a time of war necessitated measures inconceivable during a time of peace.

Berenson pointed to the Commander-in-Chief clause in Article Two of the Constitution as the legal source of the President’s executive power to act at his discretion during wartime. But Ames Professor of Law Philip B. Heymann took issue with this argument.

Heymann pointed out that while most wars have a definite time span, “terrorism is going to be with us for all of your lives.” He said that it was absurd for a president to claim special executive power in order to combat a war with no end.

Deborah N. Pearlstein—director of the U.S. Law and Security Program at Human Rights First and HLS alumna—brought up the deleterious effects of these practices on future intelligence gathering.

“Nobody wants to cooperate with us anymore,” she said.

The lawyers also argued about whether the “due process of law” guaranteed in the Fifth Amendment applied only within the U.S. and to U.S. citizens or if it also applied to aliens abroad.

According to Pearlstein, a 2004 Supreme Court ruling extended due process at the very least to the detainees of Guantanamo Bay.

Berenson’s final point was to emphasize the idea that drastic times call for drastic measures.

“The chance that these fanatics will get these nuclear weapons and use them is not small.”

But Heymann warned against this attitude.

“It is a fundamental mistake to think that the solution is to throw civil liberties out,” he said. “We can’t afford to be knee-jerk about national security.”