Harvard Law Record, V. 129 No. 4, Nov. 5, 2009

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November 5, 2009

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Counterterrorism Chief:

Vol. CXXIX, No. 5

Secrecy Vital to Nat’l Security

Nat’l Counterterror Director Argues Terror Fight Oversight is Best Pursued Behind Scenes

BY CHRIS SZABLA

Michael Leiter ’00 breezed into Hauser Hall after spending the last two hours at the Kennedy School. “I’m in need of serious intellectual stimulation,” he joked, invoking Harvard Law School’s longstanding derision of its public policy-oriented counterpart across Harvard Square. Yet Leiter’s cross-campus trek at Harvard mirrors the evolution in his own life: from the apogee of the world of legal academia, as president of the Harvard Law Review, to the National Counterterrorism Center, where he spends far more time analyzing foreign intelligence than legal opinions. When he first met Barack Obama ’91, the current U.S. president spun around upon hearing that Leiter, like him, had led the prestigious Review. “What are you doing briefing me on counterterror-

ism?” Obama wondered. The National Counterterrorism Center was created in the wake of September 11th to collect and synchronize data from the U.S.’ various intelligence agencies, and to make corresponding recommendations for counterterrorism policy, which Leiter delivers to personnel ranging from the President to individual policemen and firefighters. He was appointed in 2008, after a career that included a clerkship with Justice Stephen Breyer ’64, a stint as a federal prosecutor, and time spent serving in the U.S. navy during campaigns in Yugoslavia and Iraq. It was his military service that gave him his shot at working in counterterrorism. Leiter’s current role puts him in a position to know quite a bit about the world, and during his visit to HLS – sponsored by the National Security and Law Association – he led a discussion on the security situations in areas ranging from Afghanistan and Pakistan to Yemen and even to the potential for domestic Islamist terrorism in the U.S. Afghanistan and Pakistan, Leiter noted, was “in flux” more than at any time since Pakistan’s independence in the wake of Partition from India in 1947. The border area between the two countries was home to “core elements” of Al Qaeda, which are forming new liaisons with Pakistani militant groups such as Lashkar-e-Taiba, enabling the group, just a few weeks ago, to mount a direct attack on Pakistan’s military headquarters. Pakistan, Leiter said, had traditionally Leiter, cont’d on pg. 3

Stop Fooling Yourself!

Psychologist Searches for Source of Fear

BY ANUSH EMELIANOVA GUSTAVO RIBEIRO

AND

Why does the brain scare itself? On Monday, October 19, Professor Dan Gilbert confronted this question in an event sponsored by first-year Section VI. Professor Gilbert, who wrote the bestselling book Stumbling on Happiness, is a Professor of Psychology at Harvard University and the Director of Harvard’s Hedonic Psychology Laboratory. He opened his remarks by stating that the power of the mind to automatically make predictions by simulating outcomes is the key feature that distinguishes humans from other animals. Because the brain is made up of semi-independent systems, it can talk to itself or even “scare itself”. Gilbert, cont’d on pg. 7

ALL NEW: HLRECORD.ORG

NADER as NOVELIST:

“ONLY THE SUPER-RICH CAN SAVE US!” Presidential Candidate Ralph Nader ‘58 Answers Ayn Rand in Latest Book

reer as a public advocate while a student at HLS half a century ago. His arWould the United States become a po- ticles in the Harvard Law Record lice state if there were another major examined America’s corporations and terrorist attack on our country? Why political parties with a critical eye, and did law professors, deans, and lawyers when he graduated he drew on his work not stand up to the at the Record to write the book constitutional violaNADER’S SPEECH: VIDEO tions of Bush and Unsafe at Any @HLRECORD.ORG Cheney? What deSpeed (1965), termines the curwhich brought to riculum of Harvard Law School? Why light the need for federal regulation of do contracts professors minimize the auto industry titans like General Moimportance of adhesion contracts, they tors. The result was the enactment of constitute 99% of what we sign? Is it mandatory safety standards that have true that 80% of the lawyers represent saved millions of lives and improved vehicle efficiency. “That came out of 20% of the people? In his visit to HLS on Friday, October the Harvard Law Record. It would not 30th, Ralph Nader ‘58, implored stu- have come out of the Harvard Law Redents in the audience to ask these ques- view,” said Nader. tions of the government and the Over his decades of public advocacy, school’s administration. “You don’t Nader has been instrumental in the crehave any idea how you are respected ation of numerous public interest orwhen you speak out collectively as law ganizations and the enactment of students,” he said. Nader began his caNader, cont’d on pg. 5 BY MATTHEW W. HUTCHINS

Alum Arrested for 9/11 Chapel Arson

Recent Harvard Law School alumnus Brian Schroeder ’09 allegedly set fire to a chapel in Manhattan on the morning of October 31st, according to various New York media outlets, including the New York Times. The chapel, located in Memorial Park, at First Ave. and 30th St., houses the remains of unidentified victims of the September 11, 2001 terrorist attacks on the World Trade Center. Media that reached the scene have indicated that the remains, which are housed in a climate-controlled vault while they await DNA identification, were not affected, but that cards, flowers, and other memenArson, cont’d on pg. 4

INSIDE

The HL Record News

• Cyberterrorism Eludes Experts • Psychologist’s Sources of Fear

Opinion

• More Democracy for Europe • U.S. Assassinations in Somalia

Features

• MacKinnon and Social Change • Travel: Ski Austria’s Alps • A.R.T.’s Sexy “Sleep”

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Harvard Law Record

November 5, 2009

November 5, 2009

WA R

ON

TERROR

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Leiter, cont’d from pg. 1 used such groups as proxies through which to conduct its foreign policy. He hoped that the headquarters attack would compel the Pakistani military to decisively move away from its defensive stance toward India and to engage militant groups instead. He expressed optimism, however, that Pakistan’s nuclear weapons would not “fall into the wrong hands,” saying that the weapons had been secured, and that he worried about the use of cruder, more improvised weapons instead. Leiter also highlighted the security risk emanating from Yemen. Recently, a Yemeni national trained by Al Qaeda had tried to assassinate a member of the Saudi royal family, he said. According to Leiter, Afghanistan, Yemen, and Somalia were symptomatic cases, illustrating a larger trend: extremist groups taking over sparsely-governed states or areas within states and using them as training grounds to export terrorism. While the U.S. has not faced as challenging a security threat from its domestic Muslim population as the U.K., Leiter noted, the Somali immigrant population in the country was posing an increasing challenge. 18-25 year old Somalis have been traveling in increasing numbers back to Somalia, attracted by the desire to defend the country against intervention from the African Union and other forces, which are sporadically present in unstable regions of the country. While Americans have always traveled abroad to fight for foreign causes, such as during the Spanish Civil War, Leiter observed, this was the first instance in which the U.S. was producing home-grown suicide bombers. While they existed in lesser numbers, Leiter also pointed out that Afghan-Americans have traveled to Pakistan to gain training from Al Qaeda, and have attempted to set off improvised explosive devices in the group’s name in the U.S. Leiter said that it would be difficult for domestic agencies to form a single policy for engagement with the U.S. Muslim community, which he said was too heterogeneous for such a scheme, although he also noted that the government could do more to earn the trust of poorer, less-educated U.S. Muslims, particularly the Somali community. Still, Leiter emphasized that instances of “home-grown terror” were not cause for any more alarm than traditional domestic security issues faced by the U.S., such as school shootings. In such a big country, he observed, there were always bound to be new and creative forms of violence. This illustrated, he said, that such terror should be dealt with as domestic law enforcement agencies deal with other threats – they should be prevented and stopped as often as possible, but could not be eliminated entirely. Leiter said he had divined at least four major lessons from his time at the NCTC. The first was to not over-learn lessons from the past – an enemy could always react in a different way to a given tactic or policy. The second was that “the counterterrorism tail should not wag the policy dog” – that counterterrorism should

not be the basis for foreign policy. He noticed that in Afghanistan, pursuing counterterrorism at the expense of other priorities had left the U.S. supporting literally any group that would act against Al Qaeda, with potentially dangerous consequences. Still, in some cases, as in Yemen, he acknowledged, the U.S. has few interests to attend to other than counterterrorism. Third, Leiter opined, formulating policy was easy, but – and here was where he was most skeptical of the Kennedy School’s public policy perspective – forming a cohesive process to ensure accountability when something happens as a byproduct of that policy, work, he said, better suited to lawyers, was the hard part. Finally, and most controversially, Leiter said that everything counterterrorism did would require a large degree of public trust. He believed transparency would undermine such trust, making it difficult for counterterrorism policymakers to operate. Much needed to happen behind the scenes, he said, citing the use of provisions of the Patriot Act to foil a recent bomb plot against New York City subways, and noting that, in terms of international operations, there “was no altruism in international affairs,” and that difficult and delicate trade-offs were often made in the pursuit of security. Returning to his third major lesson, Leiter said that, in the absence of public oversight, lawyers ought to play a greater role ensuring that there is accountability for any action taken behind the scenes. A breakdown of the internal channels set up by the Church and Pike Commissions in the 1970s – specifically, a lack of trust in the House and Senate Intelligence Committees and the special courts set up to monitor use of the Foreign Intelligence Security Act (FISA) is what has led members of Congress to leak vital information to the press, rather than deal with problems within the system. “Everything now plays out on the front page of the New York Times and the Washington Post,” Leiter said, making it difficult for the NCTC and other national security agencies to pursue effective policies. Leiter’s position on secrecy may reflect the fact that he is a legacy of the Bush administration, which first appointed him to his position in 2008. Still, he insists, his job has not changed much since Obama took office. 98% of his work, Leiter said, was “apolitical;” it was just that “the discourse” in the media focused on the hard cases that were not. “In the New York Times counterterrorism is Guantanamo, torture, and assassinations,” Leiter said. What had truly shifted between administrations, Leiter observed, was the weight given to the needs and desires of different departments – Defense, in particular, had received more attention under Bush than Obama. And while Leiter’s stance in favor of secrecy and internal oversight both rankled and invited skepticism, he insisted that the approach would and should not sacrifice its commitment to values. “The idea of not protecting civil liberties while doing this job,” he said, “is losing the war in a different way.”

What Is Cyberterrorism? Even Experts Can’t Agree

BY VICTORIA BARANETSKY

Cyberterrorism is a buzzword that has been thriving in President Barack Obama ’91’s administration, but it has such a nebulous meaning that it managed to eluded three expert panelists last Wednesday. Leonard Bailey was transferred from the Department of Justice’s (DOJ) Computer Crimes and Intellectual Property Division to the administration’s new National Security Division (NSD), in September 2009 to spearhead the team’s cybercrime efforts. According the NSD’s press release, “Mr. Bailey is widely respected within the Justice Department and the Intelligence Community for his knowledge of cyber issues.” However, even he admitted he is at a loss for words on the subject. The area suffers from a “limited lexicon,” he explained, “we even lack a unified definition of cyberterrorism and that makes discourse on the subject difficult.” The government has failed to convene its various departments to forge a single definition. The FBI alone has published three distinct definitions of cyberterrorism: “Terrorism that initiates…attack[s] on information” in 1999, to “the use of Cyber tools” in 2000 and “a criminal act perpetrated by the use of computers” in 2004. Other government agencies responsible for responding to cyberattacks, such as the Department of Defense, Federal Emergency Management Agency, National Infrastructure Protection Center, Drug Enforcement Agency, National Homeland Security Agency, and the Department of Justice have each created their own definitions. Bailey’s explanation for the limited and conflicting vocabulary is twofold. First, “the interest in cyber is-

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sues only started in the nineties so the terms are still nascent.” Secondly, the departments have fragmented the definition because the meaning depends on their differing interests. “Look at the response to Twitter,” he observed. “The Department of State lauded its use in Iran, while other departments heavily criticized it.” Unlike Bailey, Kim Taipale, founder and executive director for the Stilwell Center for Advanced Studies in Science and Technology Policy believes “cyberterrorism, whatever it is, is a useless term.” Taipale believes that, “terrorists will use any strategic tool they can” so “cyber” terrorism is no more important then other forms. Rather the problem is that there is no “unified legal regime,” creating a “gap between lawmakers and authorities,” he stated. “Whether the military or police should respond, whether it is domestic or foreign is not fully determined,” said Taipale. These separate entities are “incompatible and inconsistent, making us more vulnerable to terrorism.” Taipale explained that having such a fragmented legal structure means that we are “not equipped to deal with an array of a whole host of new problems” that cyber issues present. And this is truly troublesome because the line between “safe society and chaos is a thin one,” said Taipale, “We are in line for some serious cyber-Katrinas that we are not ready to deal with.” Like Bailey, however, Taipale believes that the “obsolete security infrastructure” exists because different entities have differing concerns. After cyber-threats were made to Slobodan Milosevic’s bank accounts during the 1999 Kosovo crisis, for example, the cyberterrorism discussion was raised in the U.N., and although Russia expressed interest in the problem, the U.S. stalled the discussion. “What is and isn’t per-

missible was never decided because of the U.S.’ interest in its own international liability,” said Taipale. “Now there are no rules,” he continued. “Now we are reaping the problems.” Taipale’s fear that the line between safe society and chaos is fragile is compounded by the problem of trust, highlighted by Dr. Andrew Colarik, an information security consultant. Colarik stressed the term’s etymology, saying that “there is no cyberterrorism without terrorism.” In essence, the goal of terrorism is to cause severe disruption through widespread fear in society, meaning “our dependency on digital material,” is the problem, he said. “The majority of our currency is not paper, it’s digital. And like money, if we loose confidence in the underlying system, we will have insolvency.” Colarik argues that we should limit the amount of information we store digitally. Taipale echoed the doomsday concern, “the U.S. is a real target because of our dependency on the online system.” These attacks are about “exploitation.” “Non-peer” countries don’t depend on the digital system and so they have an opportunity to attack without the risk of suffering from similar counterattacks. But Bailey believes the problems Taipale and Colarik raise cannot be solved without some basic agreement over terminology. “These are conversations that cannot take place because there is no common language to discuss this,” he said. He suggests as a first step “that we as a government have to consider what we think about these issues first.” The hesitation is that “whatever you decide you have to live with.” While it is possible that trying to divine a definition of cyberterrorism is a fools’ errand, “it is a way of achieving an end.”

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EStabLiShEd MCMXLVi Matthew W. Hutchins Chris Szabla Editors-in-Chief

Staff Editors News: Rebecca Agule Opinion: Jessica Corsi Sports: Mark Samburg Contributing Writers Victoria Baranetsky Anush Emelianova Matthias C. Kettemann Gustavo Ribeiro Kan Yan [email protected] or Harvard Law Record Harvard Law School Cambridge, MA 02138-9984

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Letter to the Editor

Obama’s Nobel is the Pride of Africa

When Barack Obama ’91 campaigned for and won the U.S. presidential election, he was supported not only by Americans, but by millions of people across the globe who believe in his message of “hope”. For us in Africa, Obama symbolizes the renewal of hope for global peace and security. We see this honor as an encouragement and acknowledgement of his good vision and excellent leadership in making the world a safe and better place, for us and the generations yet unborn. The election of President Obama marks a new era in international relations. Many young people across the world see Obama as a role model. Undoubtedly, the award which identifies him as an Ambassador of Peace will not only encourage him, as an individual, but also others that look up to him. His ability to reach out to other countries across political, ethnic, religious and cultural divides, within his short period in office, surely made him a hero that merits this award. Congratulations President Obama. More grease to your elbows. We are proud of you! Aminu Gamawa is an LL.M. student from Nigeria.

WE, THE PEOPLE OF EUROPE Harvard Law Record

November 5, 2009

How the Lisbon Treaty Will Make the EU More Democratic

ensure that the lawmaking process will result less clearly in "laws made in Brussels", but, instead, in legislation that On Wednesday, after the Czech Republic's highest court emerges from a process based on a dialogue between the failed to find any grounds on which it was unconstitutional, Commission, national parliaments, national governments on Czech President Václav Klaus finally signed the Lisbon both the national and the Union levels, the Council, and, imTreaty . The treaty's reforms will now enter into force on De- portantly, the European Parliament. cember 1, 2010. The debate on its contents, however, is far The Lisbon Treaty also bolsters the significance of the nafrom over. Reacting to my article on the Treaty in the previ- tional parliaments' European counterpart. Article 14 (2) of ous issue of the Harvard Law Record, a number of com- the amended EU treaty states that the European Parliament is menters criticized the undemocratic character of the new composed of “representatives of the Union’s citizens”. This treaty and argued that it would may seem obvious, but it repremake the EU less democratic (or sents a real change: Article 189 of no more democratic) than it was the old EC Treaty still referred to before. These arguments are mis“representatives of the peoples of leading: they are based on a the States brought together in the wrong conceptual approach to Community”. Inn the new “comdemocracy in the EU's unique munity”, the European citizenry post- and transnational context. may plays a direct role, rather than Article 2 of the Treaty on Euroone mediated by the states. pean Union as amended by the Beyond institutional reforms, Treaty of Lisbon emphasizes that the Lisbon Treaty actively enthe Union is founded “on the valcourages citizen participation: by ues of respect for human dignity, embracing civil and political freedom, democracy, equality, the rights, and by further integrating rule of law and respect for human civil society and representative asrights” (emphasis added). This sociations into the lawmaking principle of democracy, which exprocess. tends its reach vertically (towards Such support will increase the Member States) and horizontally quality of deliberative democracy EU Parliament. Photo by Pietro Naj-Oleari (towards EU institutions), is corrobin Europe, allowing for the creation orated in the EU's different codifications of human rights, of a European public discourse. Beyond the treaty's new legal such as Article 3 of the First Additional Protocol to the Eu- framework, however, far-reaching structural changes in citropean Convention on Human Rights, the common constitu- izens' socio-political approaches to European topics and their tional traditions of Member States, community practice, and (under)representation in the media, need to be discussed. the other democratic principles in the amended treaty. This will take years. Despite this, it is true that the commitment to democracy, Indeed, arguments over the shape of democracy have been which had already been made in Article 6(1) of the Treaty a consistent feature of European intellectual history,. It stands on European Union as it existed prior to Lisbon, has not pre- to reason that the European Union should be able to shape a vented the emergence of the "democratic deficit". new geometry of democracy that fits its current state. A reBut the Lisbon Treaty's attempts at reform have at least led alistic conception of democracy has to be developed for the to a partial mitigation of portions of EU law that create a gap Union. The multinational model, in which the member states between the expectation of democracy and its fulfillment. are the (only) relevant actors, seems anchored in the tradiSome problems remain, namely the gap between the tional, nation state-oriented model of democracy. It is essenamended treaty's Article 9, which enshrines the principle of tial to realize that the transfer of powers to regulatory entities equality for all EU citizens, and the voting procedures in the beyond the nation state needs to coincide with new models Council, which offer less favourable population-to-voting for the legitimation of their decisions. power ratios to citizens of bigger states. A functional model of democratic legitimacy is needed that But the Lisbon Treaty truly mitigates the democratic deficit combines participative, representative and deliberative eleby increasing the legitimacy of European decision-making ments, in a setting where actors can translate needs into poprocesses. First, national governments, responsible to na- litical postulates and develop, propose and pass suitable tional parliaments, are united in the European Council. Sec- remedies. This model must make it possible to trace back the ond, there are direct lines of legitimacy from the citizen to the exercise of this authority directly – and in an uninterrupted EU Parliament, though they are not yet widely perceived. chain of legitimation – to the citizens of the European polity, When Article 10 (2) of the Lisbon-amended EU treaty lays who need to participate, to the greatest extent feasible, in the down the democratic accountability of heads of state or gov- process of developing laws and norms. ernments in the European Council and of the governments Now that the Lisbon Treaty will enter into force, it is upon in the Council to their national parliaments, or to their citi- the citizens of the European Union to fill the letter of the law zens, it relies on the powers of national parliaments to influ- with life and to dispel the myth of the democratic deficit. ence EU decision-making procedures at an early stage by parliamentary control. Using this control more actively will Matthias C. Kettemann is an LL.M. student from Austria. BY MATTHIAS C. KETTEMANN

Arson, cont’d from pg. 1 toes both inside the chapel and posted to a wooden bench in the park, which was damaged, were either stolen or burned. Schroeder, 26, is originally from Texas. The valedictorian of his high school, he received his undergraduate degree from Duke, where he majored in theatre studies. He was co-president of HLS Lambda and served on a task force to assess how to limit the impact of military recruiting on the campus gay community. He also edited the Harvard Latino Law Review and acted in the Parody, a satirical comedy stage show about life at the school. After graduation, Schroeder moved to New York, where he had been a summer associate in 2008 for the law firm Sidley Austin. Having accepted the firm's deferral package, he was due to start as an associate there in 2011, after spending a year working at a pro bono organization with a stipend provided by the firm. Schroder was planning to use the time to work in human rights law in Switzerland. On Monday, Sidley Austin officially revoked his job offer. He turned himself in to the police on November 1st, and

his lawyer has claimed he was drugged while the incident took place, perhaps because something had slipped into his drink. There have also been allegations that the fire was set as part of a drunken dare. Still, Schroeder's motives remain unclear. He says he cannot remember what took place that night. "Anyone who would set fire to the inviolable Memorial Park chapel is craven and contemptible," New York City Mayor Michael Bloomberg said in a statement. The New York Daily News labeled him "New York's newest Public Enemy #1". Speaking to the newspaper about the incident, a woman whose son was a firefighter killed in the attacks, asked "why are the good people gone and the losers still with us?" The city's deputy fire chief said he didn't "know what they teach those kids at Harvard". Schroeder's mother called his actions "dumb" but said her son had committed an isolated incident that did not reflect his general character. Schroeder was released the night of his arrest on bail. Charges for arson, mischief, and burglary are pending.

November 5, 2009

Nader, cont’d from pg. 1 several landmark pieces of legislation aimed at protecting citizens, including the Safe Drinking Water Act and the authorizing statutes for the Occupational Safety and Health Administration, the Environmental Protection Agency, and the Consumer Product Safety Commission. More recently, he has waged three major, national campaigns for President, in 2000 as the candidate of the Green party and in 2004 and 2008 as an independent candidate. Author of over thirty books, Nader’s latest work is a “practical utopian fiction” that lays out a blueprint of how to change America from both the top-down and bottom-up. Only the Super-Rich Can Save Us! begins with an incensed Warren Buffett responding to the Hurricane Katrina disaster by organizing an impromptu relief effort to assist New Orleans survivors. Inspired by his ability to help the most vulnerable through forceful application of his wealth, Buffett organizes a convention of fellow billionaires and media moguls to devise a plan for reversing the degeneration of American civil society. “The missing element of the equation for public interest and progressive groups is that they don’t have enough money,” said Nader. The book, Nader’s “answer to Ayn Rand”, chronicles the Super-Rich crusaders’ quest as they mobilize community organizers in every congressional district around the country and push against the corporate control of Washington politics. “The conversation is very acute, very provocative, fresh, but I didn’t want any magic wands. The detail is to show it could happen if the money is there, because the talent is out there. The solutions are on the shelf.” But Nader expressed serious concern about the ability of the next generation of HLS alumni to apply their efforts and their imaginations to the problems facing our country. “Without elevated imagination, we don’t go anywhere. If your imagination is not elevated, you

Harvard Law Record don’t have a vision of possibilities. If you don’t have vision of possibilities, you don’t have reach. If you don’t have reach, you don’t have a grasp. And let’s face it, we grow up in cultures that set our imaginations at a certain level.” During his time at HLS, Nader found the culture of the school to be an oppressive series of measures designed to cow students into submission to a legal order dominated by corpo-

rate firms. “I gravitated to the Harvard Law Record because that was the law writ large. That’s where I found elbow room to ask the questions of justice and injustice, and what are lawyers for, and what’s the difference between lawyers and attorneys?” Whereas attorneys are the partisan advocates of their clients’ interests, Nader believes a lawyer is someone who asks the bigger questions about justice and the purposes of the law. The process of inquiry, said Nader, should begin for law students while they still have the freedom to write about subjects they would enjoy pursuing after graduation. “It’s very important for law students, while you are free to do it, before you are out working 100 hours a week in these pressure

CAMBRIDGE, USA: LAW AS COURAGE, EMOTION, AND SOCIAL CHANGE

BY JESSICA CORSI

When Catharine MacKinnon said goodbye to us at the end of her Sex Equality class on Wednesday October 28, she choked up, and we all choked up with her. The emotion was evident in her voice as she read us a passage from Virginia Woolf’s A Room of One’s Own that can be found in the center of MacKinnon’s Sex Equality textbook. The passage entreats us to work: it reminds us of why we work at all, and describes vividly the people for whom we work when we work on sex equality: “I told you in the course of this paper that Shakespeare had a sister; but do not look for her in Sir Sidney Lee's life of the poet. She died young - alas, she never wrote a word . . . . Now my belief is that this poet who never wrote a word and was buried at the crossroads still lives. She lives in you and in me, and in many other women who are not here tonight, for they are washing up the dishes and putting the children to bed. But she lives; for great poets do not die . . . they need only the opportunity to walk among us in the flesh. This opportunity, as I think, it is now coming within your power to give her. For my belief is that if we live another century or so—I am talking of the common life which is the real life and not of the little separate lives which we live as individuals—and have five hundred a year each of us and rooms of our own; if we have the habit of freedom and the courage to write exactly what we think; if we escape a little from the common sitting–room and see human beings not always in their relation to each other but in relation to reality . . . then the opportunity will come and the dead poet who was Shakespeare’s sister will put on the body which she has so often laid down. . . . As for her coming without that preparation, without that effort on our part, without that determination that when she is born again she shall find it possible to live and write her poetry, that we can-

not expect, for that would be impossible. But I maintain that she would come if we worked for her, and that so to work, even in poverty and obscurity, is worth while." Why do we study law? Why do we study Sex Equality and why do we put ourselves through the process of qualifying at the bar and why do we go to work every day? We do all of these things because Shakespeare’s sister is dead and she never wrote a word, despite all she could have shown us and despite how much she could have enriched our lives and fulfilled the purpose of her own. And when we sat in our Sex Equality class, we came into contact with all of the girls and women—and boys and men, too; but mostly women and girls—who are dead or too sick or hurt or too poor or too shut out of education or work to write, to share their gifts, to live their lives and to contribute to ours. In Sex Equality, we engaged in something that often falls by the wayside in legal education: the reality of the lives of those living under and touched by the law. Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class. Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion. Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified. Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should. And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of disCambridge, cont’d on pg. 7

Page 5 cooker, corporate law factories, to raise that imagination level.” Beyond just imagination, Nader urged students to take up the tools of normative analysis with zeal and work for justice in the relationship of individuals to institutions. “If you don’t have fire in your belly, it doesn’t matter what you do in the area of reform.” Nader pointed to Rosa Parks and the sit-down strikers who formed the United Auto Workers as examples of the power of having resolute conviction in demanding justice from society. Students should not, he said, adopt the skepticism of the academy with respect to normative thinking, because conceptions of justice and injustice are questions that require examination through normative dimensions. Analytical champions like 7th Circuit Judge Richard Posner ’62 are, according to Nader, empirically starved and intellectually arrogant. Quoting from an article he wrote for The New Republic in 1968, Nader characterized his time in law school as “a process of engineering the law student into corridor thinking and largely non-normative evaluation. It was a three-year excursus into legal minutiae embraced by wooden logic and impervious to what Oliver Wendell Holmes once called the felt necessities of our times.” Another pitfall of academic myopia, Nader said, is the fetishistic reverence of pure intellect. But the fallacy of this blind adherence to intellectual ability lies in its failure to yield actual improvements in the lives of individuals. “Would you rather have someone who is dim but right or smart but wrong?” he asked. Nader pointed to former President of Harvard University Larry Summers, who was instrumental in the deregulation of the financial industry through the GrammLeach-Bliley Act of 1999, as the epitome of the fetish of brilliance. Financial deregulation led to the formation of a $600 trillion dollar derivatives industry and the excessive risk-taking that weakened the Harvard endowment and imperiled mega-banks like Citigroup. But despite his role in financial deregulation, Summers has risen higher yet, now serving as President Barack Obama ’91’s chief economic advisor. Above all, Nader expressed criticism of the steady degradation of the status of individuals compared to institutions in America and the decay of constitutional order. He pointed to the power that corporations have gained through adhesion contracts, tort reform, unfettered lobbying power, opaque government procurement contracts, and trillions of dollars in bailouts to Wall Street firms. Equally distressing to Nader is the inability of citizens to challenge abuses of the constitution by actors at the highest level of government. He said that the Obama administration had only contributed to the problem by failing to open a full inquiry into the Bush administration’s war in Iraq, waterboarding interrogation, and unchecked snooping by the NSA and CIA. “Every time there is a major violation pattern and it is not called out and enforced on, it becomes part of the fiber of a deteriorating system which will eventually end up with death squads and rampant homicidal activity.” Nader expressed doubt that President Obama will be successful in dealing with all the challenges his administration faces. “His problem is he’s conflict averse, especially when it comes to corporate power and being accused of benig soft on terror. He’s been dealt a tough hand . . . However he has a lot of competent people working under him.” Among the most daunting tasks at hand are the reversal of the damage done to the Department of Justice under Attorneys General John Ashcroft and Alberto Gonzalez ’82 and the extrication of the United States from the Afghan quagmire. “We should have never toppled the whole regime . . . We will never defeat [the Taliban] because they view us as a foreign occupation force.” With a grim demeanor of stark gravity, Nader encouraged law students to remember the words of Daniel Webster: that “justice is the greatest work of man on Earth.” He cautioned the idealistic youth to appreciate the difficulty of maintaining resolve in the fight for social justice. “The system devours you all, equal opportunity, unless you have a strong-willed determination to make a difference and can challenge the invisible, institutional chains that wrap around you.”

Somalia Assassination Undermines Case for Obama Nobel

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BY JESSICA CORSI

Many claim that President Barack Obama '91 was awarded the Nobel Peace Prize to express international support for the U.S.’ reengagement with multilateral peace efforts, including efforts to bring an end to wars in Iraq and elsewhere. This new U.S. foreign policy stands in contrast to the U.S. Special Forces' recent targeted assassination of a highly wanted Al Qaeda member in Somalia. On September 14th, U.S. helicopters opened fire on a convoy of trucks in southern Somalia and shot and killed Saleh Ali Saleh Nbahan, who is said to be responsible for the bombing of an Israeli hotel on the coast of Kenya in 2002, and is suspected to have played a role in two 1998 attacks upon American embassies in East Africa. Targeted assassinations in the territory of a country whose government is both recognized and supported by the U.S. is a counterproductive way to reengage factions that the U.S. had previously alienated. We could start by asking the question of whether or not this attack was legal under international humanitarian law, but this is neither the most interesting nor the most pressing question. Instead of debating whether the war on terror is in fact a war, whether the people shot and killed were enemy combatants, and whether the U.S. had just cause to fly over Somalia and shoot these people dead, we should instead ask: was this a good idea? The legality of the issue is fuzzy and doubtful, but more importantly, this type of military operation is bad policy: we want to change the world’s opinion about the U.S., and in particular ideas about the U.S.' use of force, and who is or is not its “enemy”. If President Obama wants to move away from George W. Bush’s aggressive military posture, a targeted assassination that sends the message “if you cross us, we will take you out” is not a change in tune but simply more of the same. There are several other messages the U.S. could send that would fit with the underlying assumptions that prompted the award of the Nobel Peace Prize. If we want to reengage international institutions, reinvigorate the idea that the U.S. is a team player, and

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promote the notion of an international rule of law, we could begin with a message that if you break the law, we will do everything in our power to deal with this disagreement through the law. It is not clear whether the Obama administration has considered this approach. We have not heard any talk of, for example, capturing Saleh Ali Saleh Nbahan and bringing him to his native Kenya, or to the International Criminal Court, for trial (and now, it's too late). It is discomfiting to learn of the assassination after the fact without being assured that alternative international legal strategies designed to strengthen global systems and global security were considered. Perhaps the most important message that the Obama administration could have chosen to send instead would have been that, if there are some fundamental differences at issue between the U.S. and people set on attacking the U.S., the country will do everything in our power to understand and better meet the interests of the other side. Commentators supportObama's ing Nobel Peace Prize have emphasized the President’s unprecedented engagement with the Muslim world. But swooping in and shooting suspected terrorists dead undermnines such efforts, which would better ensure the U.S.’ long term national security. In the process, the U.S. fails to learn where terrorists are coming from, why they are fighting, for what they are fighting for, how it is they have come to believe so strongly that the U.S. is an enemy to be attacked, and why it is that terrorist groups are not running out of converts. It is both too easy and too flimsy of an explanation to think that all terrorists are madmen that can’t be reasoned with. The story can be written from another angle, and that story is one of an oppressive U.S. that wages war in Afghanistan and Iraq; abducts, tortures, and kills innocent people because they are of Arab descent or are Muslim; and gets away with flouting international human rights standards in torture prisons like Abu Ghraib and Guantanamo Bay. This story continues to gain strength, as evinced with such recent developments as Wednesday’s Italian conviction of 23 Americans involved in CIA renditions – a conviction that sends

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a strong message that the world has not forgotten nor is it willing to let the U.S. off the hook for its violence and illegal war on terror strategies. If we want to change the perception that the U.S. gets to run around the world shooting whoever it wants because it has the biggest guns, we should at least stop sending special forces to assassinate suspects as they drive through remote deserts. What is even more eerie is that this represents a significant shift in U.S. foreign policy towards Somalia. Not since the 1993 “Battle of Black Hawk Down” has the U.S. launched a helicopter attack there. The attack came at a time when Somalia is considered increasingly lawless, and the local Islamist insurgent group, AlShabab, which has links to Al Qaeda, continues its attempts to overthrow Somalia’s internationally recognized government. Since Black Hawk Down, the U.S. has limited its strikes on the country to the use of long-range missiles. In this attack, we see the capability and willingness of the Obama administration to gather precise intelligence as to the location of wanted terrorist suspects, and to then strike quickly to assassinate them. As this is the first military action of this sort since Obama took office, it could be an indication that we should expect more targeted attacks in the future, especially as U.S. troops are withdrawn from the ground, in Iraq and elsewhere. Unlike a prolonged ground war, this attack communicates that the Obama administration intends to attack Al Qaeda officials wherever they are found. Knee jerk reactions to this news are often that we can claim victory and a smart strategy. “We got the guy! He deserved it!” people cry. It is smarter to fight them where we find them than to keep our troops under fire in any one country, others think. But this is neither a strategic nor a victorious approach. It is not peaceful and its not smart, because it doesn’t address the underlying issues that have led us into a fight against terrorists and extremism in the first place. Here’s hoping the Nobel Peace Prize is enough of a motivational tool to effectuate this much-needed reorientation.

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Travel: As Winter Approaches, Austria’s Alps Beckon

BY MATTHIAS C. KETTEMANN

True, after a long and dreary December some sunworshipping law students might prefer to opt for a warm and ‘beachy’ location for their winter holidays. But selecting on the basis of the quality of sun, sand and sangria is a much too easy way out of the difficult question how to best spend your winter holidays (apart from preparing for winter term, that is). If the financial crisis has taught us one thing, it is that we should sometimes consider more conservative investment options. Applying this approach to holiday choices, what better to look for that the choices of retirees. Forbes magazine has just published a list of the 10 best retirement havens, including Thailand, Italy, Panama, Ireland, Australia, France, Malaysia, Spain and Canada. Not all the standards applied will help students make their choice, as they include decent and affordable medical care. But the number one retirement haven on Forbes’ list, Austria, does offer some additional benefits for law students looking for a re-

laxing winter time. Here are five reasons why should you consider choosing mountains over beaches, Europe over the Caribbean, and – once you’ve decided to hit the slopes – the Alps over the Rockies:

1. Europeans love you (again): Now that Barack Obama is US president, go make the most of it and enjoy the love of the world. Just tell your holiday hosts that you went to the same law school as he did and they might throw in a free night (or a free Zirberl, a famed pine schnapps).

2. Global warming is a reality: Enjoy the Alps with their glaciers and snow as long as you can. Boston will offer some Caribbean feeling soon enough.

3. It’s good for your wallet: There are a number of very affordable European skiing packages The Austrian tourism portal, Austria.info, writes that “for someone on or close to the East Coast, a trip to an Austrian ski resort could be between US$ 100 and

US$ 300 less than a trip in a Western ski resort. With lift tickets, transfers, food, taxes and tips factored in, a skier who lives on the West Coast will find that a oneweek ski vacation in Austria costs about the same as an equivalent ski trip to a resort in the Rockies.”

4. The Alps are neither too hot nor too cold: Daytime temps in the Alps in winter are around 20 degrees F and make for excellent outdoor conditions. The Alps offer snow for every kind of endeavor, from packed powder snow on the groomed runs to fluffy powder snow off-piste.

5. Harvard on the Alps: For those of you who just can’t get enough of learning, Austrian skiing schools are renowned for their quality of instruction and, as I’m reliably informed by female friends, the attractiveness of the instructors.

For more information on skiing in Austria, visit www.austria.info.

November 5, 2009

Gilbert, cont’d from pg. 1 But Prof. Gilbert believes that the limited mental capacities of humans impose limits on the accuracy of predictions about the emotional impact of future events. He demonstrated this by identifyingfour limitations of the brain’s ability to simulate the future: unrepresentativeness, essentialization, truncation, and presentism. According to Prof. Gilbert, humans’ mental simulations are unrepresentatively based on the individual’s best or worst memories, failing to correspond to the average experience. When the mind produces imaginary scenarios, the images tend to be essentialized, that is, distilled to a simplified image with the details cut out. Remembered experiences also interfere with accurate prediction because they are truncated and fail to incorporate the ability to adapt to different situations over time. Furthermore, Prof. Gilbert believes the human mind has a “presentist” bias, accepting in most circumstances the fiction that tomorrow will be exactly like today and that the feelings at the moment of making a decision will persist until the outcome of that decision arises. As an example, Professor Gilbert demonstrated a photograph of a 16-year-old who had tattooed Pac-Man on her head, suggesting that the excitement of the moment would eventually give way to regret. Professor Gilbert does not believe humans have the capacity to systematically prevent errors in mental

Harvard Law Record simulations. “As I marinate you in the bloopers and foibles, the mistakes and biases of the human mind, you must be thinking, is there anything we can do about this? I’m happy to tell you the answer is no,” he said. Despite the failure of predictions to account for dynamic circumstances, humans tend to adapt or rationalize outcomes to make themselves feel better. Prof. Gilbert illustrated this tendency with the satisfied attitude of Pete Best, the original drummer for the Beatles. Despite missing out on being part of one of the most successful bands ever, Best said in a 1994 interview that, “I’m happier than I would have been with the Beatles.” Professor Gilbert argued that this was a striking example of rationalization. Prof. Gilbert also indicated that there may be techniques available to minimize some types of cognitive error. “Surrogation,” or asking others about their experience of a similar situation, can act as a more reliable guide than one’s own expectations. In fact, according to Prof. Gilbert, any random person’s actual experience of a given situation is likely to be much more predictive of our future enjoyment than our imaginary simulation of that same experience. “Human beings are all basically the same.” Video of the presentation will be available at the Project on Law and Mind Sciences website in November.

UN High Commissioner:

Diplomacy Key to Securing Human Rights

BY JESSICA CORSI

In commemoration of the 25th anniversary of its Human Rights Program, the UN’s highest human rights official, Navanethem Pillay, LL.M. ’82 S.J.D. ’88, graced Harvard Law School. Pillay, the UN High Commissioner for Human Rights, discussed her current position as a human rights diplomat, and how it differered from her previous roles as a judge and an impassioned activist. Pillay aimed to show how diplomacy works behind the scenes to secure human rights, noting that it played an oft overlooked role in finding the common ground needed to sustain fundamental human rights agreements. Today, she continued, we see the role of human rights diplomacy in the international law that states commit to and that the UN monitors, and in the larger international human rights movement that utilizes advocacy to press governments to embrace human rights law. Her talk charted the rise of human rights as an international movement and a field of practice, including the creation of her own post in 1993, the expansion of the Office of the High Commissioner for Human Rights, which now spans the globe, and the mainstreaming of human rights within the UN system. Her timeline highlighted that the ascendancy of human rights seemed concurrent with and on the heels of the mass atrocities and wars the world witnessed in the former Yugoslavia, Rwanda, and Somalia in the early 1990s. She discussed how war was transformed in the 90s, becoming

privatized—conflicts were no longer between states, but internal rebellions or fights between militias in the service of non-state actors who controlled “large swaths of territory, natural resources and weapons.” Fueling the atrocities, “[t]he suppliers of weapons and the beneficiaries of profits from natural resources . . . were callously unconcerned with the human rights record and the rapacity of their customers.” From all this, she noted, we have come a very long way in establishing a working human rights regime. Pillay candidly admitted how hard it was to work on behalf of human rights, noting that she is “often astonished at the resistance to and fear of human rights” that permeates even the UN. After highlighting some of the most useful tools for mainstreaming human rights within the UN system, such as the Human Rights Council and their progress regarding the Universal Periodic Review of human rights conditions in all member states, she reminded the audience that while “it is easy to get caught up in the world of the United Nations,” the focus must always remain on the conditions on the ground, such as conflict and poverty. Following her speech, Pillay fielded questions from audience members on everything from Darfur to global warming, explaining how her office was involved in each of these issues. She addressed critical comments and sensitive topics, such as Sri Lanka’s refusal to accept an OHCHR office in country and her efforts to increase the amount of non-Western staff OHCHR employed.

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Cambridge, cont’d from pg. 5 crimination we face in our daily lives. Why just study the law and obey the law? If the law makes you unhappy, if the law is grossly disconnected from the realities in which we live, if the law perpetuates rather than alleviates the harms of sex discrimination—do something. You are more than equipped. What is a Harvard Law School education good for if not this? When Professor MacKinnon finished reading from Virginia Woolf, we gave her a standing ovation. Afterwards, I thought about why. I thought about why every day her class was full of people auditing—not just other students but other professors, Harvard staff members, and people from the community. I had received emails from friends of friends who wanted to take off work and come to see her speak. What attracted these people so strongly to her class, I think, is her courage. But not just any courage—courage to speak truth not only to the power of our gendered hierarchies but to the power of the law. Legal education can make us cowed. We fall into the habit of repeating the law as it is already applied. We are not innovators, and if we are, we innovate on behalf of clients who have no particular reason to be deserving of legal change other than that they have paid for our services. But Sex Equality class was about courage to face down and modify the existing legal structure on behalf of vulnerable and marginalized people—women—who do not have billions of dollars to throw down for our services and for whom legal innovation is not a matter of a better and more efficient merger or a more profitable contract but rather a matter of life and death. And with this move we return a deeper meaning to the legal profession. Perhaps some of our law school class pursued a law degree for the sole purpose of obtaining a steady, high status job that promises heaps of money. But other people came to law school because they see the law as a tool and they connect emotionally to people that they would like to help through the law. They want to see social change that eliminates discrimination and gives voice to those on the margins of society. Sex Equality gives that back. It reconnects law to emotion and law to courage and law to social change. We all choked up along with Professor MacKinnon as she read, because we know from our own experiences that what she read is true: we know that Shakespeare’s sister is dead and that she won’t rise up unless we work. We know that Virginia Woolf wouldn’t have been allowed to enter Harvard Law School because it did not admit women at that time. We know it to be true that if we sit here and do nothing women will not advance. And so we tear up and we jump to our feet and we clap our hands, because we’ve made it inside these hallowed institutions that Woolf dreamed of entering, and so now we have the power to resurrect the poet, to let her be born in great numbers in the next generation. We felt our own privilege in that moment, but it was not the usual privilege and arrogance regarding Harvard’s rank in the world and our rank along with it; it was privilege with meaning and power to affect change. It is the privilege to use our law degrees to improve the lives of those who are truly depending on the law for help.

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Victory in Puerto Rico for HLS Mock Trial Team

This past weekend, a team of Harof trials. Judges and attorneys from vard Law students won first place at around the country evaluate and the Fourth National Puerto Rico Trial score the competitors. The four teams Advocacy Competition in San Juan. with the highest scores advance to the The “invitation only” competition semi-finals. Harvard defeated Stetson was sponsored by the Inter-American University in the semi-final round University of Puerto Rico School of and went on to defeat defending Law and held at the Old San Juan champion, Barry University, in the District Courthouse. six hour final round. The HLS team, which advanced The team members are no strangers undefeated, consisted of 3Ls John to national trial competitions. Last Quinn, Julian Thompson, and Doyear, Thompson, Ukpai and Winters, minique Winters and 2L Nneka along with David Knight ’09, won Ukpai. In addition to the overall win, the national Black Law Students AsThompson won Best Cross-Examisociation competition. In that same nation and Best Closing Argument. year Knight, Ukpai and Winters, Quinn earned a perfect score in the along with Eli Schlam ’09, took secsemi-final round. ond place in the national American The team owes a debt of gratitude Bar Association Criminal Justice to its esteemed coaches, Criminal Section’s trial competition in Justice Institute (CJI) Deputy DirecChicago. All four team members tor J. Soffiyah Elijah, and CJI Cliniearned perfect scores. These teams cal Instructor Dehlia Umunna. were also coached by Elijah and The fact pattern involved charges Left to Right: Clinical Instructor Dehlia Umunna, Julian Thompson ‘10, Nneka Ukpai ‘11, Umunna. The HLS trial team has an of bribery and perjury against a sitting Dominique Winters ‘10, John Quinn ‘10, and Deputy Director for the CJI, J. Soffiyah Elijah outstanding legacy of winning najudge. Ukpai and Winters represented tional trial competitions. The first the prosecution; Quinn and Thompson represented the defendant. The team began victorious team included Professor Ronald Sullivan Jr. ’94, and Lecturer of Law practicing in late September and met several times a week, including Saturdays Stephanie Robinson ’94. HLS last won the ABA competition in 2004 when team and sessions that went past midnight. member Laura Ferry ’04 won Best Advocate. Only teams that have won titles in past national competitions are invited to comThe HLS trial team has been invited to return to San Juan next fall and to compete in the San Juan tournament. All eight teams participate in the initial rounds pete in the ABA tournament in Chicago this spring.

Theatre: A.R.T.’s “Sleep No More” is Surreal, Sexy, Violent

“Sleep No More,” a coproduction of the British theater troupe Punchdrunk and the American Repertory Theater, is part Macbeth and part Hitchcock, but one needn’t need to be familiar with either to be taken by the experience, as KAN YAN found when he joined the audience, wearing white masks and following actors through the halls and classrooms of the Old Lincoln School in Brookline. “Sleep No More” runs almost every night except Monday, through January 3rd.

We arrive thirty minutes late and are immediately ushered into a narrow, pitch-black tunnel. I feel my way further into the darkness until it opens into a velvet-lined bar bursting with jazz-era people. Boylston Street leads into dark elementary school into pitch-black hallway into anachronistic jazz club into dark elementary school full of people wearing creepy white masks. I shoot past the white masks, reading books, and lounging in a parlor impeccably matched to the time period of the club. In the dark hallways of the school, a faraway, longing music plays, Victorian lamps rest on desks kept at a distance saturated with potential action, and bodies each topped off with identically long masks wander about slowly and silently. A maskless woman touches my chest and breaks the wordlessness, “Come! … Come!” We’re in an elegant bedroom with her maid. She’s kicking and flailing. The maid keeps her baby from her. I don’t know why. Around them a crowd of white masks silently gathers, sometimes watching intently, sometimes looking about the room. The maid drags her into the next room. She has undressed and is

naked, beautiful and frightening, with madness in her eyes. She looks about her, seeing white-masked ghosts the maid cannot. She looks through my mask into me, her eyes wild with fear. She crawls into the bathtub, curls up, waiting for a feeling of safety that never comes. She slits her wrists. The water reddens. She flails onto the floor shaking, naked, alone among the masks looking down at her. I walk through a forest. The smell of pine is overpowering. How is there grass in this school? Each room is era-perfect, down to the odors and sounds. From behind a mask, with blackened edges of vision, there is a distinct feeling that one has entered a film. There are dozens of rooms, each holding at least a mask or two silently wandering. I wonder whether being alone in a room is more frightening or less. What a perfect place for a murder. A woman is on top of a bookcase. She’s shaking and licking her hand, then she wipes something off a statue of the virgin. She is obsessed with its impurity. A shirtless man in suspenders launches up onto the bookcase and the two dance in a beautifully choreographed struggle atop the case before falling to the floor among the masks. They fly around each other’s bodies silently. Only the mad speak, and they speak to masks they only half believe exist. Time slows on occasion and we are totally enrapt. We lost our reality somewhere in the dark before the jazz took us, so we are totally here with them in the madness of their frantic paranoia. They are not alone. They are with us. Yet we are alone. We, behind the masks, the unreal, the imagined.

What do the elections in NJ, VA, and NY mean?

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TOWNIE TERROR REIGNS IN SALEM

Sunny Lee, LL.M. ’10, dressed as Scarlett O’Hara, is seen here with two Townies in Salem on Halloween. The LL.Ms went to Salem looking for witches and demons; Sunny found Dracula!

Support Jeremy Haber ’12 in his bid to become a columnist for Vote at views.washingtonpost.com/pundits