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Philip Heymann

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Philip HeymannPhilip Heymann is the James Barr Ames Professor of Law and Director of the International Center for Criminal Justice at Harvard Law School. The International Center for Criminal Justice joins scholars, practitioners from the public and private sectors, and Harvard Law School students to develop and implement practicable solutions to global problems. Recommendations developed by the Center are distributed to legislators and government officials and followed by real efforts to influence national and international policy. Most recently, the International Center for Criminal Justice has been engaged in initiatives in the areas of national security, drug enforcement, and corruption. Heymann teaches courses on terrorism and leadership in the public sector at Harvard Law School, including a seminar with Radcliffe Dean Louise Richardson comparing state responses to terrorism and executive leadership seminars at the Kennedy School of Government. At Harvard Law School he leads efforts to encourage national and international public service by lawyers and helps to coordinate the Harvard Law School and Kennedy School of Government joint degree program.

Heymann has served at high levels in both the State and Justice Departments during the Kennedy, Johnson, Carter, and Clinton administrations including Deputy U.S. Attorney General (1993-1994). A former Fulbright Scholar with degrees from Yale University and Harvard Law School, Heymann has served as clerk for Supreme Court Justice John Harlan, Acting Administrator for the State Department’s Bureau of Security and Consular Affairs, and Deputy Secretary of State for the Bureau of International Organizations, among other positions.

Heymann has been integrally involved in a global debate about the conditions necessary to keep high officials accountable to a system of criminal justice. His work on organized crime, international corruption, and international response to genocide and terrorism has reached from Guatemala, to Peru, Northern Ireland, the Palestinian Authority, South Africa, and Russia.

Heymann has authored and edited seven books and numerous articles on terrorism, management in government, criminal justice, and combating corruption at home and abroad. His most recent book, Protecting Liberty in Age of Terror, co-authored with Juliette Kayyem from the Kennedy School of Government, explores threats to national security and civil liberties posed by terrorism. Informed by meetings with senior counterterrorism experts from the United States and United Kingdom, Protecting Liberty in Age of Terror provides a legal framework for policymakers faced with decisions in coercive interrogation, detention, electronic surveillance, targeted killing, and racial profiling, among other issues.

—Courtesy of Harvard Law School International Legal Studies

Based on his constitutional powers and the authorization for the use of military force granted by congressional resolution after the events of Sept. 11, 2001, President Bush has declared himself free to ignore any law that he thinks limits his ability to fight terrorism. This is an extraordinary claim for any president in a country that prides itself on a rule of law binding government officials as well as ordinary citizens.

In signing the McCain amendment outlawing cruel, inhuman, and degrading treatment of detainees this month, Bush announced that he might ignore the amendment in order to fight terrorism, the very field that the amendment, adopted by overwhelming majorities in both Houses, had specifically addressed. The statute forbids the president only to do anything that, in the circumstances, ”shocks the conscience,” thus violating the due process clause of the Fifth Amendment. This leaves him broad discretion and little reason to claim powers Congress has specifically denied him. But that is what he has done.

This is at least the fourth occasion Bush has announced that he is not bound by statutes or treaties. He has said he is also free to ignore statutes prohibiting torture, detention of Americans without legislative authority, and electronic surveillance for intelligence purposes without compliance with laws set up to regulate that activity. These claims could be consistent with obedience to statutory law only if either the Constitution had given him exclusive powers (a contention that few accept), or the situations in which he claims authority were so unusual as not to have ever been contemplated by Congress. Certainly the general words of the congressional authorization to use force to deal with Al Qaeda were not meant to overrule every statute the president felt was a hindrance in fighting terrorism.

In each of these cases, Congress plainly addressed the very situations in which Bush now claims an exemption from law. The president is claiming that his powers to deal with terrorism as commander-in-chief override a negotiated compromise with the Congress, embodied in a statute signed by the president. He is saying, simply and flatly, that no law can stand in his way. We should not accept that claim.

—From an op-ed by Philip Heymann, Boston Globe, January 12, 2006

Recommended Reading

Terrorism and America: A Commonsense Strategy for a Democratic Societyby Philip B. Heymann (2000).