U.S. Appeals Court Judge Jay S. Bybee received a less-than-cordial welcome at Harvard Law School Thursday when about 35 human rights activists protested his role in formulating policies that some claim justified the torture of detainees.
As Bybee exited Pound Hall 202 following a speech on constitutional law instruction, he was confronted in the corridor by chanting students. Most of the protesters donned black hoods to reference the hooded prisoners at the Abu Ghraib prison in Iraq.
The human rights groups that organized the protest also accused the Federalist Society—the conservative law and policy organization that hosted the event—of closing the event to the public “in order to hide a speaker with a toxic reputation.”
The Society responded that it is commonplace for organizations to hold closed events, and that “instead of trying to silence speech” the protesters should use other means “to persuade students of the strength of their ideas.”
The protest and ensuing spat began last Wednesday when Federalist Society officers sent an e-mail to members announcing that the previously-public talk with Bybee had been cancelled “due to a scheduling conflict.” The Society had actually moved the event to a location that it disclosed only to its officers.
But in an e-mail to The Crimson, Society President Matthew D. Cooper defended the wording of the e-mail, saying that once he and other officers learned of the “disruptive protests [that] were planned for the talk,” they “reserved a smaller room, cancelled the public event that now conflicted with our closed meeting, and announced the meeting and location to our officers.”
Cooper also said that since the threat of a protest prompted the Society to close the event to the public, “the [Law School] community was prohibited from hearing Judge Bybee by a small group of students exercising a heckler’s veto.”
Darryl Li ’01, a member of the Alliance for Justice in the Middle East at Harvard—which organized the protest along with Harvard Law Student Advocates for Human Rights—responded strongly to Cooper, saying that “the tortured language of the [Society’s] e-mail is clearly disingenuous.”
“[I]n ordinary usage, when you say that an event has been ‘cancelled’ that does not mean that the same sponsors host the same speaker at the same time in the building next door,” Li said. “The fact that he skulked around campus like a fugitive while speaking only to sycophants has nothing to do with a ‘heckler’s veto’ and everything to do with the cowardice of the culpable.”
Cooper repeatedly told The Crimson that Bybee’s speech was not meant to elicit controversy, and that “Judge Bybee’s talk to the Federalist Society dealt exclusively with his experiences teaching constitutional law.”
“This event did not deal in any way with Judge Bybee’s past government service with the DOJ,” Cooper said.
But the Justice Department work was exactly what the human rights activists focused on.
“Jay Bybee helped formulate policies that have violated the fundamental rights of hundreds, if not thousands, of human beings,” Li said, referring to the August 2002 “torture memo” produced by the Office of Legal Counsel and signed by Bybee. The memo said that the torture of al Qaeda terrorists held abroad “may be justified” and that international covenants may be an unconstitutional violation of the president’s authority.
Many legal experts have attacked the memo, and the Bush administration even took the drastic step of formally disavowing it in June 2004. Yale Law School Dean Harold H. Koh ’75, an expert on international law, called the memo “perhaps the most clearly erroneous legal opinion I have ever read” and said that it could “be used to justify the atrocities at Abu Ghraib,” in testimony before the Senate last year.
Cooper declined to comment on the contents of the memo, citing Federalist Society policy to “not take any position on particular policy issues.”
Bybee did not respond to requests to comment sent through the Ninth Circuit Court’s press office or to several phone calls to offices at the court.
Li emphasized that his organization’s main problem with Bybee is that he has enjoyed “complete impunity” for his actions thus far.
“If he will not face a court of law he should at least have the dignity to face the public,” Li said.
—Staff writer Paras D. Bhayani can be reached at firstname.lastname@example.org.