I am especially proud that the emerging fields of Law and Security and Law of Democracy—last year’s cover story—were incubated and developed by our faculty. In each year’s magazine, we feature an area of law in which I am confident a peer review would say we lead the way among top law schools. Past articles have highlighted our programs in international, environmental, and criminal law, as well as in legal philosophy, civil procedure, and clinical law. To maintain our leadership even during this recession, we continue to invest in expanding our faculty, and I am pleased, in this issue, to introduce five full-time tenured additions. My joy is tempered, however, by the death last May of our esteemed colleague Thomas Franck.

I also greatly admire Jerome Cohen’s expertise and foresight; he is profiled by Pamela Kruger in “China’s Legal Lion.” Back in the 1960s Jerry studied Mandarin in his Berkeley basement, which led to his taking part in many watershed moments over the last four decades as China became a world power—from Nixon’s historic trip in 1972 to the 2008 election of Jerry’s former student Ma Ying-jeou (LL.M. ’76) as president of Taiwan. Nancy Morawetz ’81 gathers nine colleagues and former students for a fascinating discussion of one of the thorniest issues of our times: immigration enforcement. Ten years ago Nancy started the Immigrant Rights Clinic, which has inspired influential student casework, launched many careers, and been widely imitated by law schools across the nation. This fall, Joseph Weiler inaugurates two centers. His powerful vision is to make an academic home on Washington Square for great thinkers of our time, giving them the freedom to explore their ideas. We welcome the distinguished fellows of the Straus Institute for the Advanced Study of Law & Justice and the Tikvah Center for Law & Jewish Civilization to our campus, where they will surely enrich the Law School’s intellectual discourse.

The past year has been marked by two galvanizing events: the financial crisis and the presidential election. I am impressed by our alumni serving the public through their roles in the economic recovery and the Obama administration. I want to highlight David Kamin ’09 and our back-page subject, Max Kampelman ’45. Kamin graduated in January and immediately became special assistant to Peter Orszag, director of the Office of Management and Budget. Kampelman, an ambassador in the Carter administration and Reagan’s arms negotiator, could be enjoying a leisurely retirement; instead, he has shown an inspiring determination to bring about the global eradication of nuclear arms. I couldn’t ask for better examples of graduates who are devoted to making the world a better place.

Richard Revesz

In fact, Donovan has a long-standing relationship with the Furman Center, a joint research center of the Law School and the Robert F. Wagner Graduate School of Public Service. After serving as a deputy assistant secretary for HUD during the Clinton administration, Donovan was a Furman Center visiting fellow in 2001-02, studying ways to preserve federally assisted housing. Subsequently, as New York City Housing Preservation and Development commissioner, he relied on Furman Center research about the New York City real estate market to inform policy decisions. More recently, center co-director Ingrid Gould Ellen, associate professor of public policy and urban planning at the Wagner School, served during the Obama transition as a member of HUD’s agency review team, and remained a policy adviser for a few months after the inauguration while Secretary Donovan put his team in place.

Donovan began his speech at the Furman Center’s conference, “A Crisis Is a Terrible Thing to Waste: Transforming America’s Housing Policy,” by citing “terrifying” statistics: 2.2 million foreclosures in 2008, and in December alone 45 percent of home sales were foreclosures or short sales. Donovan then vowed that one of HUD’s top priorities would be to step up the loan modification process. (A few days later, President Obama announced an aggressive plan to help up to nine million homeowners by providing billions in funds to Fannie Mae and Freddie Mac and offering financial incentives for lenders to reduce mortgage rates.)

Donovan’s speech—in which he also revealed his long-term goals for HUD—generated a flurry of news coverage from outlets such as CNBC, the New York Times, and the Wall Street Journal. Many reporters noted Donovan’s announcement that HUD would, for the first time, focus on sustainability issues, striving to make public housing a model of energy efficiency. Residential housing accounts for 28 percent of greenhouse gas emissions in the United States, and as many as one in 10 households resides in buildings that are in some way connected to HUD, Donovan said: “We can catalyze an enormous change in the way that housing gets built and renovated.” He announced the creation of the Office of Sustainability, to be run by Ron Sims, Washington State’s King County executive. Sims has a national reputation for his environmental stewardship and was unanimously confirmed as deputy secretary of HUD by the U.S. Senate in May.

Also noteworthy was Donovan’s pledge to make fair housing part of HUD’s mission. A 2007 Furman Center analysis found that the 10 New York City neighborhoods with the highest rates of subprime mortgages had black and Hispanic majorities, while the 10 areas with the lowest rates were composed largely of non-Hispanic whites. “We have to ensure we never again have targeting of communities,” he said.

Funded by the Rockefeller Foundation and the MacArthur Foundation, the Furman Center’s conference also featured addresses as well as roundtable and panel discussions by economists, bankers, scholars, and policy makers. A talk about mortgage-backed securities (MBS) included Joseph Tracy, executive vice president of the Federal Reserve Bank of New York; Austan Goolsbee, member of the Council of Economic Advisers and staff director of the Obama administration’s Economic Rec overy Advisory Board; Lawrence White, Arthur E. Imperatore Professor of Economics at NYU; and Lewis Ranieri, chairman of Ranieri Partners, a private investment advisory firm. Described as an inventor of MBS, Ranieri introduced himself as “Dr. Frankenstein” and engaged in a spirited discussion with the panelists on how MBS—initially a boon to homeownership—became a curse, causing the housing bubble that wreaked havoc on the U.S. economy. Some of the panelists argued that to avoid future subprime messes, mortgage originators should be required to “have skin in the game” and retain some of the risk of loan defaults.

Each session was designed to generate candid discussion about the challenges and opportunities of the current crisis, and to end with specific policy recommendations for moving forward. At press time, the center was working on a summary white paper to deliver to the Obama administration.

“The conference helped the Furman Center move outside of its sometimes New York–centric research to more explicitly engage in federal policy debates,” said Vicki Been ’83, director of the Furman Center and Boxer Family Professor of Law, a few months after the event concluded. “The center has remained a critical part of this discussion and will continue to take on research with national policy implications.”

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In 1985, Lu, a leader in the democratic reform movement, was in a Taiwanese prison, serving a 12- year sentence for sedition. At Cohen’s request, Ma, then an aide to President Chiang Ching-Kuo, and Cohen visited Lu. Shortly after, Lu was freed; she has credited Cohen, who asked Ma to push for her release, as well as the efforts of human rights groups.

Also in 1985, Cohen served as a pro bono representative of the widow of Henry Liu, a Taiwanese- American writer murdered after sharply criticizing Taiwan’s one-family rule. After a Taipei district court convicted reputed gangsters of the murder and gave them life sentences, Cohen publicly dismissed that trial as “a well-rehearsed performance,” designed to hide the government’s role. During a second trial before a higher court (life sentences in Taiwan are automatically reviewed), Cohen was permitted to cross-examine the defendants and the implicated military officials. The three defendants’ sentences were upheld, and Taiwan’s military intelligence chief was later convicted for his role in the murder. Under pressure from the U.S., Taiwan lifted martial law in 1987.

More recently, Cohen’s advocacy of the Rule of Law has sometimes put him at odds with officials from both the ruling and opposition parties, and even the Ma administration. Ma was elected president in March 2008 and chairman of the ruling Kuomintang party in July 2009.

Last November, Taiwan’s past president (and Ma’s political foe) Chen Shui-bian was charged with crimes that allegedly netted him and his family millions. While Cohen applauded the arrest, saying it showed that Taiwan would uphold the law, he later criticized the government’s handling of the case.

First, Cohen condemned as unfair the switch of the case from a threejudge court that released Chen without bail, pending prosecution, to a court that kept him detained for many months, before and during the trial. Then, Cohen criticized the “increasingly disturbing circus atmosphere,” citing reports that at a dinner attended by the minister of justice and others in the legal elite, prosecutors performed a skit mocking Chen. Cohen called on Ma to take swift action to ensure Chen’s right to a fair trial.

Through a spokesman, Ma responded that he would not intervene, though he “hopes that the judiciary will behave in a way that does not induce improper political reactions on the part of the public.” At press time, Chen’s trial was still underway. He has denied all charges.

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Return to “China’s Legal Lion”

When the Cohens arrived in North Korea, they were squirreled away to a remote estate with armed guards and were only allowed to visit museums and other public spots after they were emptied of North Koreans. “We were essentially under house arrest,” Cohen’s son, Ethan, then 11, remembers. (Since Beijing was a main route to North Korea then, the family also visited China on that trip.)

It wasn’t until 1997 that Cohen was invited back to North Korea. He has since brought over a North Korean delegation to speak at the Council on Foreign Relations, where he is an adjunct senior fellow, and he—along with NYU Law Professor Stanley Siegel—has taught North Korean officials the basics of international business law in Beijing. “I’ve always felt that we should bring North Korea into the world, just as we did with China,” he says.

Cohen’s experience with South Korea, however, was even more dramatic, as he intervened in the Korean Central Intelligence Agency’s (KCIA) audacious kidnapping of Kim Dae-jung, a friend of Cohen’s and a South Korean activist who later became one of the country’s most revered presidents and won the Nobel Peace Prize in 2000. In August 1973, Cohen received an urgent call from Kim’s U.S. aide, saying Kim had been kidnapped in Tokyo by KCIA agents and would be killed. Would he call President Nixon’s aide Henry Kissinger for help? Cohen says he did, and that Kissinger promised he would do everything he could.

A few hours later, Kim reportedly was on a boat, bound, blindfolded, with weights attached to his wrists, about to be dropped into the sea to die, when suddenly he heard shouting and a mysterious aircraft overhead. Kim was subsequently released in Seoul.

Press reports credited then-U.S. Ambassador to South Korea Philip Habib for warning South Korea’s president that he would face the U.S.’s wrath if Kim were killed. Kissinger hasn’t publicly discussed his role. Even Cohen isn’t sure what action Kissinger took, though he says Kim later told a Korean magazine that the appeals to Kissinger made by Cohen and Edwin Reischauer, a noted Harvard Asian studies scholar and former U.S. ambassador to Japan, helped save his life. Indeed, the Kim Dae-jung Presidential Library and Museum in Seoul plans to display Cohen’s recollections of his role. Kim died in August.

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Peter Bergen
Credentials: Fellow, New America Foundation
Relevant Works: The Osama bin Laden I Know: An Oral History of al Qaeda’s Leader (2006)

Sidney Blumenthal
Credentials: Former senior adviser to President Bill Clinton and Senator Hillary Clinton
Relevant Works: How Bush Rules: Chronicles of a Radical Regime (2006)

Barton Gellman
Credentials: Staff Writer, Washington Post
Relevant Works: Angler: The Cheney Vice Presidency (2008), expanded from a Pulitzer Prize–winning series in the Washington Post

Nir Rosen
Credentials: Journalist who has worked in occupied Iraq, Somalia, Congo, Syria, Jordan, Egypt, Turkey, Pakistan, and Lebanon
Relevant Works: The Triumph of the Martyrs: A Reporter’s Journey into Occupied Iraq (2008); In the Belly of the Green Bird: The Triumph of Martyrs in Iraq (2006)

Michael Sheehan
Credentials: Former Deputy Commissioner of Counterterrorism, NYPD; former Assistant Secretary General, U.N. Department of Peacekeeping Operations
Relevant Works: Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves (2008)

Lawrence Wright
Credentials: Staff writer, New Yorker
Relevant Works: The Looming Tower: Al Qaeda and the Road to 9/11 (2006), winner of the 2006 Pulitzer Prize for nonfiction

In addition to the current fellows above, former fellows whose work has been supported in part by the Center on Law and Security include: Tara McKelvey, senior editor at the American Prospect and author of the anthology One of the Guys: Female Torturers and Aggressors; the late Amos Elon, historian and social critic who wrote Israelis: Founders and Sons, among several other books; Baltasar Garzón, magistrate for Spain’s National Court, who has ordered the arrest of Augusto Pinochet and Osama bin Laden; and Dana Priest, two-time Pulitzer Prize–winning investigative reporter for the Washington Post who wrote The Mission: Waging War and Keeping Peace with America’s Military.

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“We must move from a predominantly military-led approach to fighting terrorism to one that employs all components—diplomacy, military, intelligence, and policing—with equal vigor,” said Noble, who served as undersecretary of enforcement for the U.S. Treasury from 1993 to 1996. In that job he oversaw the Secret Service, Customs Service, and the Bureau of Alcohol, Tobacco and Firearms. Taking issue with the phrase “war on terror,” Noble argued that such terminology skews counterterrorism too far in the direction of military solutions “using soldiers, weapons, and combat strategies. Wars have clearly defined opponents and objectives, but this does not apply to al Qaeda, which is neither a state nor a nation, but instead a decentralized network of individuals.”

A major weapon in INTERPOL’s arsenal for tracking and neutralizing criminal networks is its collection of databases that allow the law enforcement community to connect tips and clues around the world. INTERPOL manages a library that recently included 94,000 sets of fingerprints, 88,600 DNA profiles from 50 countries, and information on 12,400 persons suspected of being linked to terrorist activities. It also maintains the only global stolen and lost travel documents database, whose 18.6 million documents shared by 145 countries are queried more than five million times per week. How the information is used is ultimately important. Despite numerous terrorist plots that have involved fraudulent passports, only 51 countries systematically screen travel documents at their ports; the U.S. joined that group only recently.

Noble made the case that law enforcement across the globe must occupy a larger role in counter terrorism. “One reckless murder or the destruction of property is a police matter,” he said. “So, too, mass murder and mass destruction are police matters, not because of an abstract categorization but because we, the police, have the tools, the experience, the mindset, and the determination to investigate and solve these sorts of crimes and, at times, to prevent them from happening again.”

Noble, who teaches criminal law to LL.M. students in the NYU@NUS Singapore Program, raised the question of whether, given the current global financial crisis, counterterrorism and combating other transnational crimes could remain a top priority for the U.S. and other nations. But, he argued, neglecting those issues also has a financial impact: “Unless our citizens and businesses are secure physically and feel secure psychologically, there can be no solid and sustained economic development or recovery. Just one major international terrorist attack against the U.S. or its allies could push us even deeper into a worldwide recession.”

In the end, Noble concluded, everyone in the counterterrorism world has an important function: “Please don’t think that the military only or diplomacy alone will solve the problem, and please don’t think that the intelligence community can do it alone.” Rather, he says, effective counterterrorism requires a concerted effort in which law enforcement has an essential role to play.

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Lawrence Wright: The Center on Law and Security is the strangest academic institution I have ever seen. There’s a mixture of academics and cops and spooks that you would never see in any other institutional setting. What kind of model did you have?
Karen Greenberg: I didn’t have a model, but I had one goal: reality. If you start with practitioners, you’re guaranteed that some realistic relationship between theory and practice will take place.

LW: One thing that strikes me in attending the center’s events is that there is such a range of political views. It’s not easily categorized as being left or right. Is that deliberate?
KG: It’s important to listen to people no matter what end of the spectrum they’re on because they believe what they think, and they think they’re serving a positive end by their ideas. I’m always wanting to bring a broad range of perspectives— provided they are willing to listen to each other—to the table.

LW: And your reach is not just American but international.
KG: Our first fellows were from Spain and the Continent. We’ve kept the transatlantic and Middle Eastern dialogue as alive as possible.

LW: Why is this center at NYU?
KG: Because it has a vibrant law school that already has a reputation for attending to public policy matters. The center was created in the context of the Bush administration. Now that that administration is part of history and Obama has turned a new page, how is that going to affect the center’s work? We had to pay so much attention to the policies of the Bush administration that it limited us in scope. Now we are branching out into larger issues of national and global security. So we’ve started a civilian military project, we’re doing some work on food security, and we’re increasing our focus on foreign policy and the way it relates to our law enforcement and military strategies. And of course, we’ll continue documenting whatever needs to be documented for current journalists and future scholars.

LW: Do you feel you’re actually going to be able to affect the policies of this administration?
KG: Without a doubt. How? The center was created as a place to broaden the perspective of practitioners. Having an institute that can take the time and effort to think through discrete issues such as detention or privacy could prove to be invaluable.

LW: Now, torture: How did you decide to champion this cause of shining light on practices of torture?
KG: I had stumbled upon a national policy that, once named and exposed, I thought would disappear—because it was beyond my imagination that there would be a government that would embrace this policy as laid out in the memos. And then it became a cause only because it so obviously was the wrong road to go down.

LW:Was it your interest in exploring this issue that led you to Guantánamo?
KG: The detention issue has been central to the war on terror and our need to design a policy, whether we’re having terrorism trials domestically, which the center has spent a great deal of time analyzing and collecting data on, or whether at Guantánamo, Bagram, or Abu Ghraib. And so it was the detention issue and the possibility of trials that led me to Guantánamo, not necessarily torture.

LW:How does working in this dark area, on such dark issues, affect your outlook?
KG: People used to say when I first took this job, “How can you think about these things all the time? Don’t you get really scared?” You could get scared thinking about some of the scenarios. But our feeling at the center is the more you know, the better informed you are, the safer you feel. And there are a lot of really good, smart people working on this, and the more they have a say and the more they’re in government, the safer we are.

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Freifeld has run a project on European counterterrorism for the center, and after taking a break to be a foreign policy staffer on Hillary Clinton’s presidential campaign, he has been laying the groundwork for a series of roundtables on energy and geopolitics in the Persian Gulf. “I literally dedicated my Law School career to CLS. It was the ideal way to apply my legal education to the outside world.”

Another of Freifeld’s projects was heading the Terrorist Trial Report Card, taking the reins from its first research director, Andrew Peterson ’06. Now a member of CLS’s board of advisors, Peterson began working with the CLS at its inception: “I was very interested in national security and terrorism, so the mission of the center was appealing to me.”

The Report Card, a comprehensive summary of U.S. terrorism cases, is a herculean effort to construct a track record on government prosecutions often shrouded in secrecy. Culling through news reports and court records to obtain reliable statistics on terrorism trials, students compiled a database that has become an invaluable tool for assessing competing claims about the efficacy of counterterrorism prosecutions.

The hands-on experience Peterson gained at CLS helped him secure internships with the Department of Justice, the Department of Homeland Security, and the Central Intelligence Agency’s Office of General Counsel, where he now works as an attorney. “The center provided not only an incredibly deep but also a relatively broad exposure to all the different types of policy decisions and legal issues in the counterterrorism world. Right after 9/11, the discussion of the war on terror was still relatively simplistic,” Peterson says. “The center was critical in helping to bring a much more complex analysis, and by doing that it informed policy going forward.”

The center’s current research director, Francesca Laguardia ’07, is the latest head of the Report Card, whose last edition is due out this fall. Weighing in at quadruple the pages of previous editions, this final report will crunch eight years of data to sum up “what we learned…with a much more detailed and in-depth analysis of how strategy and our actions have changed,” she said. Laguardia, a former investigative analyst in the Rackets Bureau of the New York County District Attorney’s Office, is currently working toward a Ph.D. in law and society from NYU. She is also steering the center’s latest mammoth undertaking. The Accountability Papers will “collect everything that someone would want to know as far as issues of accountability in the Bush administration,” dealing with matters such as interrogation tactics, surveillance, and justifications for the Iraq war.

Laguardia’s work helps her to think about politically freighted issues from a more neutral stance, she said, and she pointed to the importance of the center’s efforts to create dialogue: “We help Law and Security actors talk to each other and learn from each other when they would not otherwise have the opportunity to do so. The center performs a vital role in making that kind of communication possible, and also gets the public involved in the conversation. That’s a fundamental role that the center fulfills in a way I’m not sure any other institution is doing.”

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Schulhofer’s examination of the Uniform Code of Military Justice, the Geneva Conventions, and related protocols spurred him to rethink the strengths and weaknesses of the U.S. court system in trying accused terrorists. He concluded that the same Article Three courts that hear cases involving alleged gangsters and securities-fraud artists have proven themselves quite capable of handling international conspiracies. Although classified intelligence complicates the matter, he says, “if the courts can deal with taking down the mob, they can deal with terrorism.” In Guantánamo and Beyond: What to Do about Detentions, Trials, and the ‘Global War’ Paradigm, published earlier this year, Schulhofer offers the Obama administration a road map for reasserting the primacy of conventional courts and military courts martial over special military commissions. “Sometimes, despite the complexity of a problem, the simplest solution is best,” he contends. By employing existing laws such as the Classified Information Procedures Act, federal judges can allow the government to protect secrets even while allowing for an accountable and largely public trial process. To support this view, Schulhofer interviewed dozens of prosecutors, defenders, and judges from the major international terrorism trials in New York in the 1990s. These trials resulted in long prison terms for nearly all of the defendants and no significant exposure of classified intelligence.

Schulhofer and University Professor Tom Tyler are now collaborating on a large empirical study of the impact of counterterrorism investigations on Muslim communities in Brooklyn and East London. Funded by the National Science Foundation, the research involves hundreds of interviews to determine how surveillance, enforcement, and community-relations policies shape Muslim attitudes toward cooperating with authorities in identifying dangerous individuals. “We want to see which mixture of policies encourages compliance with the law and assistance to the police,” says Schulhofer. The answer could point toward a wiser balance of security and civil liberties.

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But Satterthwaite’s work continues. Just as the notorious Guantánamo Bay detention center remains open while the administration studies what to do with its more dangerous prisoners, the CIA retains the authority to conduct “ordinary” rendition, meaning that the U.S. may continue to snatch terrorism suspects around the globe and send them to third countries provided that it obtains assurances from the receiving countries that detainees won’t be tortured.

Satterthwaite, faculty director of the Center for Human Rights and Global Justice, is now analyzing what legal standards ought to apply to Obama’s “rendition lite.” She hopes her conclusions—which will appear in a forthcoming law review article—will help shape the report of an interagency task force Obama has charged with addressing the issue. “The work is intellectually harder, because the answers are less obvious” now that policies are less extreme, Satterthwaite says.

In Satterthwaite’s clinical human rights work, which allows NYU students to participate in cutting-edge litigation, she represents Mohamed Farag Ahmad Bashmilah, a Yemeni who was rendered and held in CIA “black sites” for more than 18 months before being released in his native country without having ever been formally charged with terrorism. In 2007, Bashmilah sued Jeppesen Dataplan in federal court, accusing the Boeing subsidiary of providing flight services for his allegedly illegal detention and questioning.

The Bush administration intervened in the ACLU-led case, arguing that the litigation should be dismissed because open court proceedings risked revealing sensitive state secrets. The trial court agreed with the government, and surprisingly, a Justice Department lawyer told the appellate court in February 2009 that the Obama administration would continue to argue the so-called state secrets doctrine and seek to stop the lawsuit.

Satterthwaite said, “It was literally just Bush redux—exactly the same legal arguments we saw the Bush administration present to the court.” She adds: “Our role in the case clearly isn’t over.”

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