April 27, 2004

Deborah Pearlstein '93 Questions U.S. Legal System

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Last night, Deborah Pearlstein ’93, director of the U.S. Law and Security Program of Human Rights First, spoke about three upcoming Supreme Court cases involving enemy combatant status and the jurisdiction of the American legal system. The talk, part of the three-day Liberty and Justice for All symposium, was well received by an assembled group of about seventy-five people — mostly professors and community activists.

“The cases the court is hearing this week are … not all about guilt or innocence, or about combatant sentence or non-combatant status of Yaser Hamdi, Jose Padilla or the Guantanamo Bay detainees,” Pearlstein began, “They are much more abstractly about fundamental questions of the rule of law in the United States.”

She then gave some background information on the upcoming cases. She said that 600 foreign nationals had been held, without access to a lawyer or communication with the outside world, for over two years. Recently, she continued, three youths had been released after two years of detention, one as young as thirteen years old.

At Guantanamo, at least thirty-two attempted suicides had taken place, and more are believed to have happened but due to the secrecy surrounding the camps, exact figures were impossible, Pearlstein said.

She then discussed the three cases more in depth, outlining the arguments being made on behalf of the detainees. The first case, brought on behalf of 16 Guantanamo detainees, was heard last week before the court. The detainees were picked up in Afghanistan and Pakistan and delivered to U.S. military authorities. President Bush contended that the prisoners are not POWs but enemy combatants and are therefore not protected by the Geneva convention.

The President also said that Guantanamo’s unique position allows the U.S. to hold them without standard protections afforded by the constitution. Pearlstein said that many in the military were uncertain about the legality of holding prisoners without military tribunal or Geneva-granted rights.

“[The military] is only now not following [the Geneva conventions] under the direct orders from the Commander-in-Chief,” she said.

She added that, aside from being a treaty ratified by the legislature, the military had codified the conventions into their own procedures.

Pearlstein also questioned the label of the detainees. “Enemy combatant is a term that doesn’t exist in U.S. law,” she said. “It’s a description, not a legal term.” She noted that the government, in each of the three separate cases, defined “enemy combatant” differently.

She also explained the three designations of the Geneva convention — lawful combatant, civilian, and unlawful combatant — and argued that it covered every possibility for someone picked up off the battlefield.

“In Guantanamo Bay, it’s a big mix [of types of prisoners],” she said.

None, however, were receiving their proper protections.

Hamdi’s and Padilla’s cases, for which Pearlstein will present oral arguments Wednesday, both involve U.S. citizens. The two have also been detained in North Carolina for about two years. “My sense is that there is a bipartisan consensus that this is across the line of what is acceptable,” Pearlstein said of the detainments. As evidence of the bipartisan support, she cited that these particular cases had brought an amicus brief — in favor of the accused — from the conservative Rutherford Foundation.

Following her talk, Pearlstein was open to questions from the audience, many of which focused on whether she thought the government was deliberately eroding liberties as part of a long-term agenda.

“I wouldn’t underestimate the extent to which the government really believes that it is still trying to get information [from the detainees],” she responded. “I’m always much more inclined to believe in incompetence and bureaucratic infighting than in a nefarious and well-coordinated government plot.” She also discussed the problem of raising awareness in the enemy combatant cases.

“These aren’t the showcase trials of the century,” she said. “You don’t even have a person.”

She cited frustration in dealing with major media outlets that had asked about the emotional state of a client who hadn’t been seen in two years, missing the point that the client’s physical state — much less their mental state — was unknown.

She said that one thing that students could do to help move the case into national prominence is to write letters and editorials to local media outlets.

“The reason CNN doesn’t pay any attention to this is because they feel that nobody even cares,” she said. “I think the hardest question I get asked right now is, ‘What can we do?'”

The answer, she says, is to slowly raise public awareness and, depending on how the court cases go, voice feelings on the case to the legislature.

She also said that thousands of amicus briefs sent in by students during the Michigan affirmative action case could set an example of possible action. On these briefs, she said that “the court doesn’t decide issues on this basis, but it isn’t immune to [student briefs].”

Those in attendance generally felt that Pearlstein was an excellent speaker.

“It was interesting,” said James Nuttall ’05. He did note, however, that most in attendance already were in agreement and understood the issues that Pearlstein addressed.

Prof. Mary Katzenstein, government, had taught Pearlstein during her Cornell days.

“It’s an underappreciated issue in exactly the way she explained,” Katzenstein said. “This [case] is nothing if not about the rule of law.”

The symposium, which began yesterday, is sponsored jointly by the Center for Religion, Ethics and Social Policy, Cornell for Peace and Justice, the Community for Peace and Justice (Human Ecology), and the Cornell Forum for Justice and Peace.

Archived article by Michael Morisy
Sun Senior Writer