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A Measured Response

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A scant two weeks after the World Trade Center was destroyed by terrorists, Supreme Court Justice Sandra Day O’Connor stood on a construction site some 20 blocks away from the smoldering ruins to preside over the groundbreaking for a new academic building at the NYU School of Law. O’Connor admitted she was “still tearful” and shaken after having viewed the devastation at ground zero. But she put on a shiny construction helmet, grasped a ceremonial shovel, and gamely scraped at some Greenwich Village dirt. After helping mark the beginning of what is now Furman Hall on Sullivan Street, O’Connor spoke with striking prescience about how 9/11 would change American life.

She counseled the aspiring lawyers and legal scholars in the audience to remember the basic tenets of American democracy as they responded to seismic shifts in the legal landscape. “We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country,” O’Connor said, reminding legal professionals of their obligation to protect the rule of law. She urged politicians to move cautiously after a disaster that “will cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration.” And she predicted, “Lawyers and academics will help define how to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.”

Anticipating that momentous cases concerning presidential and judicial authority during national emergencies would find their way to the Supreme Court, O’Connor, who retired in January 2006, then posed a series of questions that continue to frame public discussion about terrorism (and would make for a very respectable law school exam): “First, can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them? Second, at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that the legislation provides?”

As the legal system grappled with those questions, a new discipline developed, known as Law and Security. The form it has taken at NYU is particularly expansive, welcoming not only legal scholars and practitioners but also investigative journalists, policy and government wonks, and police and military officials sharing information in ways that have benefited all parties. Here they have three primary outlets to practice, study, and exchange ideas: (1) the NYU School of Law Center on Law and Security, a trailblazing internationally focused forum—something akin to an old-style intellectual salon updated for the life-and-death issues of the 21st century; (2) the scholarship and classrooms of about a dozen faculty, including, notably, David Golove on the law of war, Stephen Holmes on the rule of law, Richard Pildes on rights during wartime, Margaret Satterthwaite ’99 on extraordinary rendition, Stephen Schulhofer on police antiterrorism tactics, and Samuel Rascoff, one of the nation’s first tenure-track professors of national security; and finally, (3) the clinical and advocacy work of other Law School centers, such as the Center for Human Rights and Global Justice, which oversees the International Human Rights Clinic, the Brennan Center for Justice, and the Center on the Administration of Criminal Law.

Through its faculty and the centers, the NYU School of Law has helped shape the national security debate, says New York City Police Commissioner Raymond Kelly (LL.M. ’74). “NYU Law has provided an important platform for an examination of crucial issues ranging from constitutional safeguards to the ongoing threat posed by terrorists,” he says. “The Law School’s faculty and other experts involved with the Center on Law and Security are valued resources for critical thinking on the most pressing security challenges of the day.”

The development of law and security at the NYU School of Law began with a desire to create something meaningful out of the stunning destruction. “Everyone was shocked, shattered, demented by getting up in the morning and watching 3,000 people murdered right next door,” recalls Stephen Holmes, Walter E. Meyer Professor of Law. “So there was an attempt to come to grips with it, to think about it: What happened? How should we respond?”

The most immediate answer was to create the Center on Law and Security. Dean Richard Revesz turned to four faculty members whose specialties recommended them for the task: Holmes, a political philosopher; Golove, an authority on international law; Pildes, a constitutional law scholar; and Noah Feldman, an expert on Islamic law who now teaches at Harvard Law School. In turn, they recruited Karen Greenberg to help them draft a proposal. A former Soros Foundation/Open Society Institute executive, she had founded a program that opened NYU campuses in Prague and London.

Greenberg suggested that the Law School start a practical-minded center within the ivory tower. Her goal: “bring people with policy-making responsibilities and academic credentials together, so that officials would have a think tank of their own to rely upon, and academics and experts could apply their skills to a realistic set of concerns.” She also wanted to bring journalists into the conversation “because they had done their homework. They knew about Osama bin Laden and al Qaeda. They understood how to effect a constructive dialogue between Muslim communities and the West.” In Greenberg’s opinion, greater communication among scholars, reporters, law enforcement officials, and policy makers was essential for national security.

The proposal was greenlighted, and Greenberg was appointed executive director, with Feldman, Golove, Holmes, and Pildes named faculty advisers. The center immediately entered into the public discourse through the articles and books the scholars published on such subjects as wartime effects on the rule of law, the Constitution, civil liberties, and separation of powers. Feldman was tapped to be a senior constitutional adviser to the Coalition Provisional Authority in Iraq. His opinion pieces and feature articles for the New York Times and the Wall Street Journal, influenced by his role helping to craft a new Iraqi constitution, helped to raise the profile of the CLS. “The center became a focal point for discussion of counterterrorism and security for both scholars and practitioners,” says Rascoff, now a CLS faculty adviser who in 2003 was a special assistant to Ambassador Paul Bremer in Iraq. However it was the center’s response to reports that the U.S. was torturing prisoners of war that—for a broader audience—put it on the map.

[Sidebar: The “Doyenne of Counterterrorism”]

In early 2004, only months after the CLS officially opened its doors, the Abu Ghraib scandal broke. Leaked photographs of the abuse of Iraqi detainees sparked widespread concern about whether tactics in the American war on terrorism had come to include torture. Greenberg’s aggressive networking among journalists on the national security beat paid off as reporters—and soon thereafter, lawyers and human rights activists—began to request information about U.S. interrogation methods. As government whistle-blowers and enterprising journalists gradually pried classified memoranda from locked drawers at the Justice Department and Pentagon, the center diligently collected copies, amassing a lengthy paper trail of how the Bush administration justified detention policies that appeared to violate U.S. and international law. There was no other place where skeptics of Bush policies could do such efficient one-stop shopping for internal accounts of what Vice President Cheney famously termed “the dark side.”

Among those who approached the center was Joshua Dratel, a New York criminal defense attorney representing a detainee held at the Guantánamo Bay naval base in Cuba. He collaborated with Greenberg in editing the comprehensive collection of primary sources they provocatively titled The Torture Papers: The Road to Abu Ghraib (2005). Anticipation for the book was high. Senator Patrick Leahy used an advance copy to shape his stiff questioning in the attorney general confirmation hearings of Alberto Gonzales in January 2005. The New York Times later described the monumental 1,284-page collection as “necessary, if grueling, reading for anyone interested in understanding the back story to those terrible photos from Saddam Hussein’s former prison, and abuses at other American detention facilities.”

[Sidebar: Beyond the Academy: The Fellows of the Center on Law and Security]

The CLS soon gained a reputation as a leading critic of government security policies. In February 2005, Greenberg and her staff began producing the Terrorist Trial Report Card, a widely cited print and online periodical that assesses the prosecution of terrorism-related crime in the United States. The Report Card has helped fuel a lively debate over the Justice Department’s policy of invoking the threat of terrorism when indicting hundreds of Muslim Americans on garden-variety financial fraud and immigration charges. In a January 22, 2009 editorial, the Chicago Tribune cited the center’s research in arguing that the Obama administration needs to ensure that terrorism suspects are afforded better legal representation.

[Sidebar: Policy Incubator: Student Work in Law and Security]

More recently, the center has begun analyzing terrorism trials in Europe. Among the insights gained from comparison to U.S. strategies: European police tend to spend more time observing suspects before making arrests, sometimes yielding more concrete evidence, and some European judges have shown pronounced reluctance to uphold convictions where there is evidence that alleged terrorists have been questioned harshly while in American custody.

This sharing of information, the center’s trademark, occurs not only in its publications, but through conferences, open forums, and other live events where members of the faculty, students, and the community at large can voice their thoughts to guests to whom the public may otherwise not have ready access. At the December 2008 forum “After Torture: Discussing Justice in the Post-Bush Era,” cosponsored by Harper’s Magazine, Burt Neuborne argued passionately for civil litigation, alleging various abuses of power by top Bush aides. “If we’re serious this time [about upholding the Constitution], we ought to go after the people who made the policy,” Neuborne, Inez Milholland Professor of Civil Liberties, told an overflow audience in Lipton Hall. Retired Major General Antonio Taguba, another panelist, seemed to agree in principle. Taguba, who before his retirement from the Army in 2007 led a Pentagon investigation of the Abu Ghraib abuses, pointed out that while low-level soldiers had been punished, those higher up in the chain of command have largely escaped discipline. “We must have a single, uniform standard [for the treatment of military detainees overseas],” Taguba asserted. “We deserve clarity. I’m speaking for the troops out there, the 19-to-24-year-olds who are out there doing God’s work.”

In further pursuit of strategic cross-pollination, the CLS hosts an annual summer symposium that was specifically created to give European and American security officials a neutral place to share ideas. A group of about 20 counterterrorism authorities—including Michael Sheehan, the former deputy police commissioner responsible for counterterrorism in New York, and Peter Clarke, the former head of the antiterrorism branch of Britain’s New Scotland Yard—convene at NYU’s Florence, Italy, campus to speak candidly about their work. Although the discussions are off-the-record, they have sometimes sparked important public debate. In one notable instance at the June 2006 conference, Baltasar Garzón, Spain’s investigative magistrate and a former distinguished fellow at the center, denounced the detention center at Guantánamo Bay. His call to close Guantánamo crystallized growing European disillusionment with American policy.

While these examples draw a portrait of an organization that was, during the Bush administration, opposed to government policies, the CLS has made concerted effort to give all sides an equal platform. Daniel Benjamin, a former senior fellow at the Brookings Institution and a past member of the center’s outside board of advisers, notes that one of CLS’s great contributions was to create a venue for civil disagreement, even as it adopted a skeptical stance toward the Bush administration’s policies. Interviewed before he joined the Obama administration State Department as coordinator for counterterrorism policy, Benjamin called Greenberg “the doyenne of counterterrorism,” praising her ability to “bring people together, people of such diverse views that you’re astonished to find them in the same place: senior officials of the Bush administration together with the human rights lawyers who are fighting them tooth and nail in the courts; strong advocates of the ‘war paradigm’ in the struggle against terrorism and the scholars and journalists who have attacked them relentlessly; and American and European jurists and policy makers who are on opposite sides of issues such as Guantánamo, rendition, coercive interrogation, and the like.” Among Benjamin’s fellow board members was Viet Dinh, a senior Justice Department official during the Bush administration who teaches at Georgetown University Law Center. “The exchange has been vital, and just about everyone comes away a bit better informed and even wiser,” says Benjamin.

After 9/11 there was bound to be a surge of scholarly attention to the sort of legal questions posed by Justice O’Connor: Would the rules of a war on terrorism be different from those of a conventional war? What lessons could be learned from the constitutional conflicts that arose during Vietnam, World War II, or even the Civil War?

[Sidebar: David Golove on the Law of War]

“Although people liked to pretend that they knew all of this on September 12, 2001, that just wasn’t true,” observes Richard Pildes. Law and security issues seeped into classes on constitutional and criminal law with fresh problems related to surveillance, privacy, and the reach of government authority. New courses were created, too. The weekly Law and Security Colloquium, offered since 2003 and led last year by David Golove and Stephen Holmes, gives some 30 students the opportunity to read journalistic and academic books in the field and then meet with the authors to debate their findings. Past guests have included Pulitzer Prize winners such as the Washington Post’s Barton Gellman (Angler: The Cheney Vice Presidency) and the New Yorker’s Lawrence Wright (The Looming Tower: Al Qaeda and the Road to 9/11). Other visitors have more formal expertise, such as former CIA operative Marc Sageman (Leaderless Jihad: Terror Networks in the Twenty-First Century). In December 2008, New Yorker staff writer Jane Mayer, who wrote the critically acclaimed The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, a 2008 National Book Award finalist, was one of the colloquium’s guest speakers. In addition to ample praise from several students, her discussion about interrogation received some respectful dissent. Andrew Sagor ’10, who before coming to NYU worked from 2003 to 2007 as a special assistant in the Office of War Crimes in the State Department, argued that indefinite preventive detention of some terrorism suspects can be justified on security grounds and doesn’t necessarily lead to abuse. “No one wants to torture for the sake of torture,” added Sagor.

[Sidebar: Stephen Holmes on the Rule of Law]

Perhaps not, Mayer said, but her conversations with CIA operatives have revealed that some of them earnestly believe that indefinite detention, rough treatment, and, ultimately, the fear of death can elicit valid information. “I’ve interviewed people at the agency,” Mayer explained, “who say that anyone who says torture doesn’t work doesn’t know what they’re talking about.”

Afterward, Sagor, who hopes to combine private practice with future government service, called the colloquium a welcome contrast to more traditional black-letter law courses. “It’s really helpful to hear from a combination of investigative journalists and former government officials,” he said. “There are a lot of pieces of the puzzle, and the colloquium helps you fit the pieces together.”

[Sidebar: Richard Pildes on Rights in Times of Crisis]

The newest addition to the curriculum, Counter-Terrorism and the National Security Constitution, taught by Samuel Rascoff since 2008, guides students toward a practical view of the topic that might confound the typical prosecutor, cop, or defense lawyer. During one class last fall, Rascoff urged his students to consider whether terrorism investigations should be shaped exclusively by the goal of achieving jury convictions, as opposed to squelching threats before they coalesce. With that choice in mind, prosecutors might refrain from taking marginal cases to court. Instead, they might concentrate on turning budding extremists into intelligence sources. The government has undermined its counterterrorism campaign by seeking to imprison people with radical views who have shown no proclivity for violence, rather than cultivate them as informants, Rascoff told the class. He cited the Terrorism Trial Report Card: “It’s a pretty dismal or, at best, a lukewarm record on the part of the Justice Department.”

[Sidebar: Samuel Rascoff on Regulating Terrorism]

There are two aspirations behind the law and security work of faculty and students: to help shape public policy and help individuals caught in the web of new and hastily drawn laws. Besides the Center on Law and Security, several other NYU Law centers make these goals possible: the Center for Human Rights and Global Justice, which oversees the International Human Rights Clinic, taught by faculty directors Smita Narula and Margaret Satterthwaite; the Brennan Center for Justice and its Liberty and National Security Project; and the Center for the Administration of Criminal Law.

[Sidebar: Margaret Satterthwaite on Extraordinary Rendition]

In several papers published since 2004, all partly researched by students in the human rights clinics, the CHRGJ has criticized the U.S. government for secret detentions, renditions, and torture. A few months after releasing “Torture by Proxy: International and Domestic Law Applicable to Extraordinary Renditions,” jointly published by the CHRGJ and the Association of the Bar of the City of New York, Satterthwaite, the report’s co-author, stood behind Massachusetts Congressman Edward Markey as he introduced the Torture Outsourcing Prevention Act in February 2005. In a 2006 report, “Irreversible Consequences,” principal co-authors Narula, CHRGJ Research Director Jayne Huckerby, and International Human Rights Clinic students Adrian Friedman (LL.M. ’06) and Vrinda Grover (LL.M. ’06) criticize authorities for mishandling race and religion in the war on terrorism. They argue that so-called “shoot to kill” protocols adopted by the world’s police agencies to eliminate suspected terror bombers rely too heavily on stereotypes and lead to avoidable tragic mistakes, such as the London shooting of Jean Charles de Menezes, a Brazilian electrician. According to the report, “profiling sends the problematic message that the security of some is worth more than the security of others; or worse, that human rights abuses against those who fit into this ill-defined category of ‘terrorist’ are a necessary precondition to ensuring the security of the nation.”

Just last year, CHRGJ Fellow Lama Fakih ’08 worked with Martin Scheinin, U.N. special rapporteur on counterterrorism and human rights, to develop policy initiatives regarding gender in counterterrorism efforts. When the U.S. military detains Muslim men, typically their family’s breadwinners, the impact on women and children can be devastating, said the Beirut-born Fakih, who studied Islamic law in Egypt as a Fulbright scholar. When military interrogators force Muslim men to don women’s clothing, she added, the long-lasting effect is cultural humiliation.

[Sidebar: A Plan to Make the World Safer: Ronald Noble]

The ambiguity surrounding enemy combatants and detainees has created plenty of opportunity for litigation, too. The Brennan Center for Justice was part of the legal team that represented Ali Saleh Kahlah al-Marri, a legal U.S. resident detained as an “enemy combatant” without charge in a South Carolina navy brig for nearly six years. In December the U.S. Supreme Court granted certiorari review, but in March before oral arguments were made al-Marri was indicted and transferred into the civilian criminal justice system. The Supreme Court dismissed his habeas case as moot and vacated a lower federal court decision giving the president power to detain citizens and legal residents indefinitely. “We are disappointed that the court did not firmly clarify the limits of the executive’s detention power,” said Brennan Center Counsel Emily Berman ’05. “But we are happy that Mr. al-Marri finally got his day in court.” The center has also filed amicus briefs on behalf of a Canadian seeking damages after being extraordinarily rendered by the U.S. government to Syria, where he was tortured, and a group of 17 Chinese Muslims held at Guantánamo Bay since 2003 who are seeking habeas relief.

[Sidebar: Stephen Schulhofer on Law Enforcement]

In September 2008, Anthony Barkow, executive director of the year-old Center for the Administration of Criminal Law, visited Guantánamo and attended military tribunal proceedings as a volunteer observer for Human Rights First. Noting allegations of improper political influence on prosecutors, restrictions on public access to the proceedings, and problems with Arabic-English interpretation, Barkow advocates a fact-based analysis of each detainee case “with the hope that as many as possible should be tried in the federal courts.”

Barkow’s center has filed numerous amicus briefs on behalf of criminal defendants treated unfairly by overly aggressive prosecutors, says Barkow. In May, the Supreme Court unanimously agreed with the center’s position supporting the petitioner in Abuelhawa v. United States, which concerned a man who used his cell phone to buy a small amount of cocaine from another man whose telephone was monitored by the FBI. Both men have Muslim surnames. The buyer argued he had been wrongly convicted of a high-level felony given the fact that the law considers possession of drugs solely for personal use a minor offense often addressed by court-ordered treatment and rehabilitation.

Each day’s headlines bring intricacy and change to the complicated and fast-moving field of Law and Security. But with its broad mix of faculty, administrators, and students taking part in the debate, the NYU School of Law remains a relevant source of, and place to exchange, ideas. “We’re looking for a balance of scholarly deliberation and real-time analysis,” says Holmes. “Terrorism, unfortunately, is one of the challenges of our times, and the Law School has to be involved in figuring out how we best respond while preserving the rule of law.”

–Paul Barrett is a journalist, an adjunct professor at the NYU School of Law, and the author of American Islam: The Struggle for the Soul of a Religion (2007). Additional reporting by Thomas Adcock.

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