ATTHEW

W.H

UTCHINS

Eventhemostradicalconservativecanagreewith NoamChomskyonatleastonething.“Nooneintheir rightmindwantsIrantode-velopnuclearweapons.”ButtoChomsky,nonprolif-erationrequiresreciprocalaction,ratherthaninterna-tionalcondemnation.Chomsky'sreputationasa prolificauthorofbooksonsubjectsincludinglinguistics,philos-ophy,cognitivescience,politicalsci-ence,andmediamightleadoneto believethathisviewsstemfromeso-terictheoreticalarguments,butChomskytakesapragmaticviewof internationalrelations.Hisconclu-sionisthatIranisdevelopingnuclear

UCTION

-A

PRIL

HarvardLawRecord

March11,2010 Vol.CXXX,No.5

www.hlrecord.org—twitter@hlrecord

TheIndependentNewspaperatHarvardLawSchool

News

•LawReview’sNewPresident•ExploringAsianIdentity•ProfsCome,GoFromDC

Opinion

•GreenLightfor.xxxDomain?•GenocideonHarvard’sName?•9/11Trial:Holder’sLastStand•SupportImmigrationCourts

INSIDE

TheHLRecord

Chomsky,

cont’donpg.5

ExpertsPonderImplicationsofRemote,RoboticWarfare

ArchbishopTutuPraisesHarvard-UNICEFResearchCooperation

NewBookProbesRoleofChildreninPost-ConflictJusticeProcesses

Photo:J.Parks Photo:U.S.AirForceLt.Col.LesliePratt

TEPHANIE

OUNG

Widespreadpublicparticipationandad-ministrativecost-benefitanalysisarenotal-waysconsideredtobecompatibleconcepts.ButonMarch1,whenCassSunstein’78spokeon“HumanizingCost-BenefitAnaly-sis”toaroompackedwithstudents,pro-fessors,andcommunitymembers,hedemonstratedacommitmenttolinkingthesetwoideas.DeanMarthaMinowin-troducedSunstein,HLSprofessorandAd-ministratoroftheOfficeofInformationandRegulatoryAffairs,astheheadof“thesin-glemostpowerfulofficemostpeoplehave

Sunstein,

cont’donpg.5

HRIS

ZABLA

SpeakingatthelaunchofajointHarvard-UNICEF publicationontheroleofchildrenininternationaljus-tice,SouthAfrica’sArchbishopDesmondTutucon-demnedtheworld’sfailuretocareforchildren,butofferedpraiseforHarvardandUNICEF’swork,whichincludesresearchthearchbishopbelievesmightimprovethefateofchildreninpost-conflictsocieties.“Wehaveturnedtheworldintoahostileplacefor

Alllogicgamesandnofunonesmakeforadulllife.That’swhythe

Record

soughtout threeemergingalumsintheworldofartsand letters:toshowthat,forthecreativemind thereislightattheendofthelawschooltun-nel.Seepages7-9.

A RIGHT BRAINSTIMULUS PACKAGE

Sunstein: We Can Humanize,Democratize Regulation

DRONE WARS

HOMSKY

: W

ENTALITYIS

OOTOF

ORE

ONFLICT

ATTHEW

W. H

UTCHINS

They are watching you. Thou-sands of feet above, circling end-lessly with cameras that recordyour every move. They are quiet,they are deadly, and you cannotstop them. They are Predators,drones sent into areas where theU.S. Army needs surveillance,where the Air Force needs to exe-cute precision strikes, and wherethe CIA seeks to conduct covertoperations. The revolution in un-manned aerial vehicle (UAV) tech-nology that has swept the U.S.military over the last decade hasgenerated massive amounts of re-connaissance data and increasedthe cost efficiency and safety of precision aerial combat missions,dramatically altering the psycho-logical landscape of war.“My entire career was removingor displacing the cockpit pilotfrom the battlefield,” said Lt. Gen.Tad Oelstrom, speaking at thesymposium of the National Secu-rity Journal and National SecurityLaw Association on March 5th.From his time guiding the AGM-12 Bullpup missile as an F-4 pilotto the later introduction of the F-15 Eagle, Oelstrom, who is thehead of the National Security Pro-gram at Harvard's KennedySchool, saw the engagement of pi-lots with the enemy move progres-sively farther from the location of the target. The greatest challengecreated by recent change, saysOelstrom, is that doctrine has notkept apace with innovation. Thethree elements of strategy, doc-trine, and vision, he says, are eachessential to maintain a proper bal-ance between robotics and theother tools of modern warfare.Gen. Oelstrom's greatest fear isthat we will fall down the slipperyslope of unpredictable implica-tions of technology that we putinto action before it is fully under-stood. “How is the U.S. lookedupon by the rest of the world interms of the way we go to war?What would we look like as a na-tion if we showed up and all our robots got off the back of the C-17?” Oelstrom believes that as thecost of warfare in lives and moneyfalls due to innovation, strategiesB

ATTHEW

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UTCHINS

Mormons, often misunderstood by popular culture and viewed with some suspicion bymany Americans, occupy a strange place in con-temporary America. In a culture that often side-steps the important questions of faith andspirituality, the followers of the Church of JesusChrist of Latter Day Saints, or LDS, often standout because of the important ways their beliefsdiffer from the main stream of Christians and thezeal with which they proselytize. Because of thequestions lingering on the minds of many out-siders to the religion, the LDS student group atHLS has for the last five years convened an an-

Probing the Mysteries of Faith

Mormon Elder Clarifies LDS Beliefs

Photo: Haris Sair

UNICEF,

cont’d on pg. 5

Drones,

cont’d on pg. 3

Mormonism,

cont’d on pg. 6

Page 2Harvard Law RecordMarch 11, 2010

Following in the footsteps of President Barack Obama ’91 and many before him, Zachary Schauf ’11was elected President of the

Harvard Law Review

on January 30. The

Harvard Law Record

made its way toGannett House to discuss all things law review, past and future, with the new editor.

1) California, England, D.C., and now Cambridge.What brought you to Harvard Law School?

I’ve been all over the place, it’s true. To make a longstory short, I decided to go to law school because Iwanted a career that would be both intellectually chal-lenging and focused on solving concrete problems,and the law seemed like the best fit. As for why HLS,I came because I don’t think there’s a better place toget a legal education. Although people debate themerits of big schools and small schools, I love HLS’size. The faculty has leading experts in just aboutevery field you can think of, and the students herehave done so many impressive things.

2) Rumor has it that you were voted your Section's'Most Likely to be

Law Review

President.' ThatDelphic pronouncement aside, what ultimately en-couraged you to run for Review President?

First off, I should say that I was very surprised by thathumbling vote of confidence from Section 7, thoughI was fairly sure that it would jinx me during thewrite-on competition. In the end, I decided to run be-cause I had such a fantastic experience during my firstsemester on the

Review

. We have a very special com-munity, and we have the chance work on the cuttingedge of legal scholarship. After getting to know theorganization, the choice to get more deeply involvedwas an easy one.

3) What are your goals as

Review

President? /What lessons did you learn from your predecessor,Joanna Huey ’10?

We’re about to enter our 124th volume, and our biggest goal is to uphold the

Review

’s commitment to publishing high-quality, well-edited scholarship. Be-yond that, we set our priorities democratically duringour transition process, and my role is principally toimplement the goals we’ve identified as a class. Thisyear, one of our main goals is to continue to build our online Forum.Joanna has been a fantastic leader, and incrediblyhelpful as I’ve been learning the ropes. Joanna — along with the other members of the outgoing leader-ship team, Colleen Roh ’10 and Chris Bates ’10 — have made the Review a wonderfully welcoming andinclusive community, and I hope that Luke McCloud’11, Christina Hoffman ’11, and I can build on their success.

4) What have you enjoyed most about your timeon the

Review

The

Review

is a close-knit and supportive group, andit helped ease the transition from 1L year, when al-most all your classes are with the same 80 people, to2L year, when the school becomes a much bigger place. I hadn’t anticipated what a fun place the

Re-view

would be. Sure, we do our share of work, but wealso have monthly issue parties, heated Wii tourna-ments, and lots of long conversations over bagels andcoffee — sometimes about the law, sometimes aboutthe latest episode of

Mad Men

5) In light of websites like SSRN, academic blogstouting new and interesting research, and facultywork-shopping trends, much has been said in re-cent years about the continued relevance of law re-views. What, if anything, can the

Review

do to stayrelevant in the legal community?

I’m confident that the

Review

will remain an impor-tant institution in the legal community for a long time.We sort through thousands of submissions each year to pick 15 or so of the strongest articles, and our track record shows that many of these articles will end upchanging the way people think about the law. We also put enormous energy and care into our editing process; I think that our authors would agree that this process makes already strong articles even stronger.And our generalist focus can promote conversationsamong different specialties that might not happen oth-erwise. In light of these roles, I think the

Review

andthe trends you mention are complementary rather thanconflicting. Of course, we recognize that changes intechnology create new challenges and new opportu-nities. That’s one reason that our online Forum will be a focus over the coming year.

6) What does the Forum entail? Are digital jour-nals, like the new

Harvard National Security Jour-nal

, the future?

The Forum is principally a way to continue the con-versations that begin in the printed journal. We don’tenvision it as standing alone. Its focus is on shortcommentaries that build on the articles we publish inthe printed journal, and our hope is to solicit severalresponses to one article in each issue, and for the re-sponses to come out as close as possible to the article.Because we see the Forum as tightly connected to our regular articles, our commitment to the printed jour-nal remains as strong as ever. Our Forum Chair, An-drew Moshirnia ’10, is working hard to bring theseideas to fruition.Of course, we’re excited about the growth of stu-dent-edited journals, like the

Harvard National Secu-rity Journal

, and it’s great that the digital formatlowers the startup costs. They enrich legal scholar-ship, and they’re great for the HLS community. I think there’s plenty of room for both models to thrive.

7) Last year Joanna noted that the best part of the

Review

, resume aside, was the Community. Whatelse appeals to you about the organization?

The work we get to do here is really fantastic. On our articles, we get to work with authors who are at thetop of their fields. And on our student writing, we’vegot a fantastic group of talented editors with intereststhat span a huge range of topics. It’s a lot of fun towork with each other to help make our writing better.

8) What should interested 1Ls do to find out moreabout the

Review

We’ve held a few info sessions so far, and after SpringBreak we’ll be holding tip sessions for our write-oncompetition, which takes place the week after springexams. If anyone has questions in the meantime, Ihope they’ll email me or our Outreach Editor, Beth Newton ’11.

New Law Review President: No Threats, Only Opportunities Online

Dinner forDarfurand Haiti

Wed., April 21, 2010Two Seatings5:30 - 7:307:30 - 9:00

100% of Proceeds For:

American Refugee Committee, Darfur ProjectMeds & Food for Kids, HaitiTickets $15 in advance, $20 at the doorEnjoy an

all-you-can-eat buffet

featuringfood from local restaurants,

plus beer!

More information:

ddixon@jd11.law.harvard.edu orsdorenbosch@jd11.law.harvard.edu

Nearly a year and a half since Barack Obama ’91’s election as President of theUnited States, at least one Harvard LawSchool faculty member he recruited toserve on his administration is returningto Cambridge, while another is departingto serve in Washington.Jody Freeman LL.M. ’91 S.J.D. ’95worked in the White House as Counselor for Energy and Climate Change, but willnow take up a formal appointment to anHLS chair named for former Solicitor General and Watergate prosecutor Archibald Cox ’37. She will also returnto her post as Director of the Environ-mental Law Program. She is scheduledto begin teaching again in Fall 2010. Atthe same time, famed constitutional law professor Laurence Tribe ’66 has joineda program that facilitates legal represen-tation for the poor run out of the Depart-ment of Justice.A considerable number of Harvard fac-ulty members – many of whom werefrom HLS – left Cambridge in 2008 and2009 to work for President Obama’stransition team or administrative posi-tions. At the time, this newspaper edito-rialized the loss with headlines including“HL Exodus” and “Obama’s gain is Har-vard’s drain”.The most notable departures werethose of Dean Elena Kagan ’86, who leftto become Solicitor General, and CassSunstein ’78, who became head of theOffice of Information and Regulatory Af-fairs (OIRA). Faculty members at HLSmay take up to two years’ leave beforefacing a loss of tenure.Freeman had always only planned toserve in the White House for about ayear. She left an impressive record, hav-ing led the push for greater motor vehicleemissions standards. Georgetown LawProf. Richard Lazarus ’79 told the

Har-vard Crimson

he thought it was likelyshe would serve in a higher position – perhaps as administrator of the EPA – if Obama won a second term in office. Asan academic, he said, Freeman facedfewer potential conflicts of interest thana private sector recruit.Tribe, who employed Obama as a re-search assistant when the latter was atHLS, and who called the President the best student he’d ever had, is serving ascounselor to the access to justice initia-tive while in Washington, a position hetook up on March 1.

For Profs, Revolving Door BetweenHLS and DC

Jody Freeman Returns as Larry Tribe Heads to Capital

March 11, 2010Harvard Law RecordPage 3

ITUS

What does it mean to be Asian Amer-ican? Are racial and ethnic distinctionsto be endured or celebrated? What rolecan identity politics play in respondingto such events as Texas Rep. BettyBrown’s statement that Asian Ameri-cans should adopt names “easier for Americans to deal with?”With those questions in mind, Har-vard Law School’s Asian Pacific Amer-ican Law Students Associationconvened its annual conference on Sat-urday, February 27th. The 16th Annual National Asian Pacific American Con-ference was titled “What Identity?Whose Politics?” and brought together hundreds of law students from acrossthe country to discuss the effectivenessand legitimacy of identity politics as amechanism for positive social changein the Asian American community. TheConference was organized by JennyLee ’11 and Helen Lu ’11, leading ateam of more than fifty volunteers."The Conference is not only a forumfor discussion of important issues fac-ing Asian Americans today, but theyear-long process of putting it together is also a key community builder for Harvard APALSA," said Helen Lu.In addition to keynote addresses de-livered by James C. Ho, Solicitor Gen-eral of Texas, and Yul Kwon, DeputyChief of the Consumer and Govern-mental Affairs Bureau for the FederalCommunications Commission and win-ner of

Survivor: Cook Islands

, the Con-ference featured seven substantive panels, a networking luncheon and ca-reer fair, and an evening banquet at theHarvard Faculty Club.To start the day off, Phil Lee ’00 de-livered a short presentation on the his-tory of discrimination against AsianAmericans, guiding the audiencethrough key Supreme Court jurispru-dence that affected the status of AsianAmericans. Solicitor General Ho, whogave the morning keynote address, took up the question of what it means to beAsian American. He urged the atten-dees to be aware of the real strugglesthat Asian Americans face, but also to be wary of self-pigeonholing and inad-vertently reinforcing divisive labels.The audience appreciated his speech for being simultaneously uplifting and cau-tionary—striking a balance betweencelebrating how far the Asian Americancommunity has come and how far itmust go toward achieving racial andcultural equality.The seven substantive panels covereda broad swath of topics ranging fromthe role of Asian Americans in acade-mia to making partner at a large lawfirm as an Asian American. On "Find-ing Our Place in the Academy," AsianAmerican law professors from aroundthe nation talked about their personalexperiences and contributions and gaveattendees an inside look at what it takesto land an academic job in today'steaching market. At “Steering the Dis-course on Asian American Issues: Blog-ging and Social Change,” Phil Yu, thecreator of AngryAsianMan.com, spokeabout militating against stereotypes of Asian Americans in media. “ThinkingOutside the Bamboo Box: Innovators inActivism” featured a full panel of com-munity activists and leaders in the pub-lic interest sector. "I really enjoyedhearing about the panelists' experiencesand personal inspiration for public in-terest work," said Katy Yang ’12. "Andwhile the panelists' diverse back-grounds and careers made it clear thateveryone has a different approach to so-cial change, I thought it was particularlyinteresting to see common insights -such as the importance of political en-gagement - emerge across differentissue areas."On "Toward an Asian American Ju-risprudence," Professors Neil Gotanda,John Park, and Rick Su ’04 exploredthe meaning of Asian American Ju-risprudence, its motivation, history, andfuture. Professor Gotanda, one of thefoundational figures in critical race the-ory, delivered a short lecture on mean-ing and scope of the field. John S.W.Park, professor of Asian AmericanStudies and Dean of the College of Let-ters and Science at UC Santa Barbara,and Rick Su of the University of Buf-falo spoke on the history of immigra-tion law and its implications on thestatus of minority groups.The Conference also featured two practice-oriented panels. Asian Ameri-can partners from Choate, GibsonDunn, Hogan & Hartson, Kirkland &Ellis, Sullivan & Cromwell, andWachtell shared their insights on what ittakes to make partner at a large law firmtoday and offered students candid ad-vice for this always challenging path.And Asian American and Asian part-ners from Davis Polk, Jones Day, Mil- bank, and Ropes & Gray spoke aboutthe globalization of the practice of lawand trends in international business.Deputy Chief Kwon, who deliveredthe evening keynote address at the Fac-ulty Club banquet, spoke about his ex- periences in law, business, government,and television. His speech mixed light-hearted anecdotes with more serious in-sights. He shared with the audience thathis decision to audition for

Survivor

was motivated by a desire to shatter racial stereotypes about Asian Ameri-cans, since there were and still are veryfew positive Asian American figures intelevision or film. Jeremy Tran ’12 re-flects, “Yul challenged me to reallythink of how I want to create change for our community. Law school easilyidentifies the traditional means of socialchange—community organizing, aca-demia, or even diversity at firms—but Inever thought of entertainment, letalone reality-television, as a means of initiating change.”“Deputy Chief Kwon’s keynotespeech was the most inspiring portionof the conference for me," recalledRobin Achen ’12. "It was clear he wasspeaking candidly and from the heart ashe told stories about his life as an AsianAmerican that resonated throughout thecrowded banquet room. One of thethings that impressed me most was thathe seems to be a perfect example of ex-actly what he was calling all of us to be--Asian Americans willing to work to break the mold society imposes andwilling to support one another in the en-deavor.”

What Does it Mean to be Asian?Conference Explores Identity

like those employed by Gen. Stanley McChrystal in Afghanistan – reducing civil-ian casualties, even at the cost of greater risk to one's own troops – will be an important part of maintaining the support of the local population in future militaryengagements.Speaking in a later panel, Afsheen John Radsan ’87, a professor at WilliamMitchell College of Law, questioned the legality of the Predator operations cur-rently being conducted by the CIA. “If we are going to have a symbol of Obama’swar, it is the Predator. This is Obama's tool.” Prof. Radsan, who worked in the of-fice of the general counsel of the CIA from 2002 to 2004, pointed to theweaponization of the Predator drones as an example of the CIA's unique legal sta-tus having made it an attractive candidate for Bush-era programs of questionablelegality. “Should the CIA be involved in the Predator program? Should the CIA be running secret prisons? Should the CIA be involved in rendition?” The key, henoted, is that as a non-military agency, the CIA is accustomed to conducting covertoperations and espionage activities outside the view of the public. Because of thesensitivity of national security issues, Prof. Radsan believes that Congress and thecourts are less effective checks on legality than internal review boards and the in-spector general, but the most effective check is the scrutiny of the public. “Whatis the CIA most worried about? It's not Congress, it's not the courts. It may bethe internal agencies, but mainly it is the media.”While legal norms and military doctrine evolve in response to new applicationsof technology, the success of UAV technology on the battlefield has only servedto further stimulate innovation. But according to Missy Cummings, Director of the Humans and Automation Lab at MIT, unmanned systems are less interestingas weapons systems than they are due to the novel challenges they create in the or-ganization of the command structure and work load of flight missions. “There isfunctionally no difference between firing a hellfire missile from a UAV and re- programming a Tomahawk [cruise missile] mid-flight.” Under the traditionalmodel of Air Force combat missions, officers were in the cockpit to pull the trig-ger for authorized weapons release. But with UAVs being increasingly controlled by automated systems and operated from the comfort of a command center, the de-cision to release weapons can be made by an entire team, usually including alawyer. “The pilot is a mere voting member in the system that decides how tocontrol the vehicle.” While the Air Force has held to the old model and employedofficers with two years of special training as unmanned mission pilots, the Armyhas successfully run the same missions using enlisted personnel with ten weeks of training. Soon, she predicts that the increasing automation will make it possiblefor each pilot to command multiple UAVs at a time. The result will be that the pi-lots of the future will be more like video game players than the Chuck Yeager daredevils of the past.Cummings also foresees UAVs having a dramatic impact on personal privacy,since as they become easier to fly and cheaper to build they will be used morefrequently for civilian and police purposes. Gen. Oelstrom also pointed out the se-rious security implications UAVs will present once they are employed by terror-ists as weapons. “You could imagine 30 simultaneous attacks occurring around New York City with WMDs.” Regardless of these dangers, Oelstrom was bullishabout innovation, expressing fear that the enemy is “one step behind us.” “Weneed to press technology as hard as we can, as long as we have the framework around it that gives us the strategy, the doctrine, the vision that comes with it.”

Drones

, cont’d from pg. 1