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Counterterrorism Chief:
Secrecy Vital to Nat’l Security
Nat’l Counterterror Director Argues Terror
Fight Oversight is Best Pursued Behind Scenes
ism?” Obama wondered.
The National Counterterrorism Cen-
ter was created in the wake of Septem-
ber 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 person-
nel ranging from the President to indi-
NADER as NOVELIST:
vidual 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 Yu-
goslavia and Iraq. It was his military
service that gave him his shot at work- “ONLY THE SUPER-RICH CAN SAVE US!”
BY CHRIS SZABLA
ing in counterterrorism.
Leiter’s current role puts him in a po- Presidential Candidate Ralph Nader ‘58
Michael Leiter ’00 breezed into
sition to know quite a bit about the
world, and during his visit to HLS – Answers Ayn Rand in Latest Book
Hauser Hall after spending the last two sponsored by the National Security and
BY MATTHEW W. HUTCHINS reer as a public advocate while a stu-
hours at the Kennedy School. “I’m in Law Association – he led a discussion
dent at HLS half a century ago. His ar-
need of serious intellectual stimula- on the security situations in areas rang-
Would the United States become a po- ticles in the Harvard Law Record
tion,” he joked, invoking Harvard Law ing from Afghanistan and Pakistan to
lice state if there were another major examined America’s corporations and
School’s longstanding derision of its Yemen and even to the potential for do-
terrorist attack on our country? Why political parties with a critical eye, and
public policy-oriented counterpart mestic Islamist terrorism in the U.S.
did law professors, deans, and lawyers when he graduated he drew on his work
across Harvard Square. Afghanistan and Pakistan, Leiter
not stand up to the at the Record to
Yet Leiter’s cross-campus trek at noted, was “in flux” more than at any
Harvard mirrors the evolution in his time since Pakistan’s independence in
constitutional viola- NADER’S SPEECH: VIDEO write the book
tions of Bush and Unsafe at Any
own life: from the apogee of the world the wake of Partition from India in @HLRECORD.ORG
Cheney? What de- Speed (1965),
of legal academia, as president of the 1947. The border area between the two
termines the cur- which brought to
Harvard Law Review, to the National countries was home to “core elements”
riculum of Harvard Law School? Why light the need for federal regulation of
Counterterrorism Center, where he of Al Qaeda, which are forming new li-
do contracts professors minimize the auto industry titans like General Mo-
spends far more time analyzing foreign aisons with Pakistani militant groups
importance of adhesion contracts, they tors. The result was the enactment of
intelligence than legal opinions. When such as Lashkar-e-Taiba, enabling the
constitute 99% of what we sign? Is it mandatory safety standards that have
he first met Barack Obama ’91, the cur- group, just a few weeks ago, to mount a
true that 80% of the lawyers represent saved millions of lives and improved
rent U.S. president spun around upon direct attack on Pakistan’s military
20% of the people? vehicle efficiency. “That came out of
hearing that Leiter, like him, had led the headquarters.
In his visit to HLS on Friday, October the Harvard Law Record. It would not
prestigious Review. “What are you Pakistan, Leiter said, had traditionally
30th, Ralph Nader ‘58, implored stu- have come out of the Harvard Law Re-
doing briefing me on counterterror- Leiter, cont’d on pg. 3 dents in the audience to ask these ques- view,” said Nader.
INSIDE
students,” he said. Nader began his ca- Nader, cont’d on pg. 5
Leiter, cont’d from pg. 1 not be the basis for foreign policy. He noticed that in Afghanistan, pursuing coun-
used such groups as proxies through which to conduct its foreign policy. He hoped terterrorism at the expense of other priorities had left the U.S. supporting literally
that the headquarters attack would compel the Pakistani military to decisively any group that would act against Al Qaeda, with potentially dangerous conse-
move away from its defensive stance toward India and to engage militant groups quences. Still, in some cases, as in Yemen, he acknowledged, the U.S. has few in-
instead. He expressed optimism, however, that Pakistan’s nuclear weapons would terests to attend to other than counterterrorism.
not “fall into the wrong hands,” saying that the weapons had been secured, and that Third, Leiter opined, formulating policy was easy, but – and here was where he
he worried about the use of cruder, more improvised weapons instead. was most skeptical of the Kennedy School’s public policy perspective – forming
Leiter also highlighted the security risk emanating from Yemen. Recently, a a cohesive process to ensure accountability when something happens as a byprod-
Yemeni national trained by Al Qaeda had tried to assassinate a member of the uct of that policy, work, he said, better suited to lawyers, was the hard part.
Saudi royal family, he said. According to Leiter, Afghanistan, Yemen, and Soma- Finally, and most controversially, Leiter said that everything counterterrorism
lia were symptomatic cases, illustrating a larger trend: ex- did would require a large degree of public trust. He believed
tremist groups taking over sparsely-governed states or areas transparency would undermine such trust, making it diffi-
within states and using them as training grounds to export cult for counterterrorism policymakers to operate. Much
terrorism. needed to happen behind the scenes, he said, citing the use
While the U.S. has not faced as challenging a security of provisions of the Patriot Act to foil a recent bomb plot
threat from its domestic Muslim population as the U.K., against New York City subways, and noting that, in terms of
Leiter noted, the Somali immigrant population in the coun- international operations, there “was no altruism in interna-
try was posing an increasing challenge. 18-25 year old So- tional affairs,” and that difficult and delicate trade-offs were
malis have been traveling in increasing numbers back to often made in the pursuit of security.
Somalia, attracted by the desire to defend the country Returning to his third major lesson, Leiter said that, in the
against intervention from the African Union and other absence of public oversight, lawyers ought to play a greater
forces, which are sporadically present in unstable regions of role ensuring that there is accountability for any action taken
the country. While Americans have always traveled abroad to fight for foreign behind the scenes. A breakdown of the internal channels set up by the Church and
causes, such as during the Spanish Civil War, Leiter observed, this was the first in- Pike Commissions in the 1970s – specifically, a lack of trust in the House and
stance in which the U.S. was producing home-grown suicide bombers. Senate Intelligence Committees and the special courts set up to monitor use of
While they existed in lesser numbers, Leiter also pointed out that Afghan-Amer- the Foreign Intelligence Security Act (FISA) is what has led members of Con-
icans have traveled to Pakistan to gain training from Al Qaeda, and have attempted gress to leak vital information to the press, rather than deal with problems within
to set off improvised explosive devices in the group’s name in the U.S. the system. “Everything now plays out on the front page of the New York Times
Leiter said that it would be difficult for domestic agencies to form a single pol- and the Washington Post,” Leiter said, making it difficult for the NCTC and other
icy for engagement with the U.S. Muslim community, which he said was too het- national security agencies to pursue effective policies.
erogeneous for such a scheme, although he also noted that the government could Leiter’s position on secrecy may reflect the fact that he is a legacy of the Bush
do more to earn the trust of poorer, less-educated U.S. Muslims, particularly the administration, which first appointed him to his position in 2008. Still, he insists,
Somali community. his job has not changed much since Obama took office. 98% of his work, Leiter
Still, Leiter emphasized that instances of “home-grown terror” were not cause said, was “apolitical;” it was just that “the discourse” in the media focused on the
for any more alarm than traditional domestic security issues faced by the U.S., hard cases that were not. “In the New York Times counterterrorism is Guantanamo,
such as school shootings. In such a big country, he observed, there were always torture, and assassinations,” Leiter said. What had truly shifted between adminis-
bound to be new and creative forms of violence. This illustrated, he said, that such trations, Leiter observed, was the weight given to the needs and desires of differ-
terror should be dealt with as domestic law enforcement agencies deal with other ent departments – Defense, in particular, had received more attention under Bush
threats – they should be prevented and stopped as often as possible, but could not than Obama.
be eliminated entirely. And while Leiter’s stance in favor of secrecy and internal oversight both rankled
Leiter said he had divined at least four major lessons from his time at the NCTC. and invited skepticism, he insisted that the approach would and should not sacri-
The first was to not over-learn lessons from the past – an enemy could always fice its commitment to values. “The idea of not protecting civil liberties while
react in a different way to a given tactic or policy. The second was that “the coun- doing this job,” he said, “is losing the war in a different way.”
terterrorism tail should not wag the policy dog” – that counterterrorism should
Law How the Lisbon Treaty Will Make the EU More Democratic
Record
BY MATTHIAS C. KETTEMANN 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, im-
Treaty . The treaty's reforms will now enter into force on De- portantly, the European Parliament.
EStabLiShEd MCMXLVi
cember 1, 2010. The debate on its contents, however, is far The Lisbon Treaty also bolsters the significance of the na-
Matthew W. Hutchins
Editors-in-Chief
from over. Reacting to my article on the Treaty in the previ- tional parliaments' European counterpart. Article 14 (2) of
Chris Szabla 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 repre-
News: Rebecca Agule
Staff Editors
make the EU less democratic (or sents a real change: Article 189 of
Opinion: Jessica Corsi no more democratic) than it was the old EC Treaty still referred to
Sports: Mark Samburg 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 “com-
Victoria Baranetsky
Contributing Writers
democracy in the EU's unique munity”, the European citizenry
Anush Emelianova
post- and transnational context. may plays a direct role, rather than
Matthias C. Kettemann Article 2 of the Treaty on Euro- one mediated by the states.
Gustavo Ribeiro pean Union as amended by the Beyond institutional reforms,
Kan Yan Treaty of Lisbon emphasizes that the Lisbon Treaty actively en-
the Union is founded “on the val- courages citizen participation: by
record@law.harvard.edu ues of respect for human dignity, embracing civil and political
Submit Letters and Editorials to:
Letter to the
Some problems remain, namely the gap between the tional, nation state-oriented model of democracy. It is essen-
amended treaty's Article 9, which enshrines the principle of tial to realize that the transfer of powers to regulatory entities
Editor
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
BY JESSICA CORSI promote the notion of an international rule of law, we a strong message that the world has not forgotten nor
could begin with a message that if you break the law, is it willing to let the U.S. off the hook for its violence
Many claim that President Barack Obama '91 was we will do everything in our power to deal with this and illegal war on terror strategies. If we want to
awarded the Nobel Peace Prize to express interna- disagreement through the law. It is not clear whether change the perception that the U.S. gets to run around
tional support for the U.S.’ reengagement with multi- the Obama administration has considered this ap- the world shooting whoever it wants because it has
lateral peace efforts, including efforts to bring an end proach. We have not heard any talk of, for example, the biggest guns, we should at least stop sending spe-
to wars in Iraq and elsewhere. This new U.S. foreign capturing Saleh Ali Saleh Nbahan and bringing him to cial forces to assassinate suspects as they drive
policy stands in contrast to the U.S. Special Forces' his native Kenya, or to the International Criminal through remote deserts.
recent targeted assassination of a highly wanted Al Court, for trial (and now, it's too late). It is discom- What is even more eerie is that this represents a sig-
Qaeda member in Somalia. On September 14th, U.S. fiting to learn of the assassination after the fact with- nificant shift in U.S. foreign policy towards
ts.”
helicopters opened fire on a convoy of trucks in south- out being assured that alternative international legal Somalia. Not since the 1993 “Battle of
ec
usp
ern Somalia and shot and killed Saleh Ali Saleh Nba- strategies designed to strengthen global systems and Black Hawk Down” has the
gs
han, who is said to be responsible for the bombing of global security were considered. U.S. launched a helicop-
tin
na
an Israeli hotel on the coast of Kenya in 2002, and is Perhaps the most important message that the ter attack there.
suspected to have played a role in two 1998 attacks Obama administration could have chosen to send in- The attack
as s i
upon American embassies in East Africa. Targeted stead would have been that, if there are some funda-
as s came at a time
top
ts
assassinations in the territory of a country whose gov- mental differences at issue between the U.S. and when Somalia is consid-
eas
ernment is both recognized and supported by the U.S. people set on attacking the U.S., the country ered increasingly lawless, and
t l
da
is a counterproductive way to reengage factions that will do everything in our power to un- the local Islamist insurgent group, Al-
oul
the U.S. had previously alienated. derstand and better meet the in- Shabab, which has links to Al Qaeda, contin-
e sh
We could start by asking the question of whether or terests of the other side. ues its attempts to overthrow Somalia’s
not this attack was legal under international humani- Commentators
., w internationally recognized government. Since Black
U .S
tarian law, but this is neither the most interesting nor support- Hawk Down, the U.S. has limited its strikes on the
f the
the most pressing question. Instead of debating ing Obama's country to the use of long-range missiles. In this at-
ns o
whether the war on terror is in fact a war, whether Nobel Peace Prize have tack, we see the capability and willingness of the
the people shot and killed were enemy com-
ptio emphasized the President’s un- Obama administration to gather precise intelligence
r ce
pe
batants, and whether the U.S. had just precedented engagement with the Mus- as to the location of wanted terrorist suspects, and to
ge
cause to fly over Somalia and lim world. But swooping in and shooting then strike quickly to assassinate them. As this is the
chan
shoot these people suspected terrorists dead undermnines such efforts, first military action of this sort since Obama took of-
to
ant
dead, we should which would better ensure the U.S.’ long term na- fice, it could be an indication that we should expect
w
instead tional security. In the process, the U.S. fails to learn more targeted attacks in the future, especially as U.S.
w e ask: was this a where terrorists are coming from, why they are fight- troops are withdrawn from the ground, in Iraq and
“If
good idea? The legality ing, for what they are fighting for, how it is they have elsewhere. Unlike a prolonged ground war, this at-
of the issue is fuzzy and doubt- come to believe so strongly that the U.S. is an enemy tack communicates that the Obama administration in-
ful, but more importantly, this type of to be attacked, and why it is that terrorist groups are tends to attack Al Qaeda officials wherever they are
military operation is bad policy: we want to not running out of converts. It is both too easy and too found.
change the world’s opinion about the U.S., and in par- flimsy of an explanation to think that all terrorists are Knee jerk reactions to this news are often that we
ticular ideas about the U.S.' use of force, and who is madmen that can’t be reasoned with. The story can be can claim victory and a smart strategy. “We got the
or is not its “enemy”. If President Obama wants to written from another angle, and that story is one of an guy! He deserved it!” people cry. It is smarter to fight
move away from George W. Bush’s aggressive mili- oppressive U.S. that wages war in Afghanistan and them where we find them than to keep our troops
tary posture, a targeted assassination that sends the Iraq; abducts, tortures, and kills innocent people be- under fire in any one country, others think. But this is
message “if you cross us, we will take you out” is not cause they are of Arab descent or are Muslim; and neither a strategic nor a victorious approach. It is not
a change in tune but simply more of the same. gets away with flouting international human rights peaceful and its not smart, because it doesn’t address
There are several other messages the U.S. could standards in torture prisons like Abu Ghraib and the underlying issues that have led us into a fight
send that would fit with the underlying assumptions Guantanamo Bay. This story continues to gain against terrorists and extremism in the first place.
that prompted the award of the Nobel Peace Prize. If strength, as evinced with such recent developments Here’s hoping the Nobel Peace Prize is enough of a
we want to reengage international institutions, rein- as Wednesday’s Italian conviction of 23 Americans motivational tool to effectuate this much-needed re-
vigorate the idea that the U.S. is a team player, and involved in CIA renditions – a conviction that sends orientation.
UN High Commissioner:
privilege in that moment, but it was not the usual privilege and arrogance regard-
ing 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
Diplomacy Key to Securing Human Rights improve the lives of those who are truly depending on the law for help.
What do the elections in NJ, VA, and NY mean? Support Jeremy Haber ’12 in his bid to become a