Columbia Faculty Hire Faces Human Rights Questions

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The New York Sun

Columbia Law School has offered a faculty appointment to an official at the State Department, Matthew Waxman.

Despite credentials as a Fulbright Scholar, Yale Law School graduate, and former clerk for Justice Souter, Mr. Waxman may face opposition from faculty members at some law schools because of his former role as the Pentagon’s deputy assistant secretary of defense for detainee affairs, in which he oversaw and defended the detention facility for war prisoners at Guantanamo Bay. His administration role was raised during the evaluation process at Columbia, after which the law school went ahead and offered him a job.

Mr. Waxman was mentioned in a recent letter to the editor in a Maine newspaper from the head of a local chapter of Amnesty International, Mary Ellen Crowley. She criticized the Bush administration’s policy regarding detainees who are Chinese Muslims, known as Uighurs. Lawyers who filed a petition for habeas corpus with the Supreme Court cited the former defense official’s action as one reason why their Uighur client should be released.

The criticism of Mr. Waxman as insensitive to human rights concerns is seen as paradoxical in some circles since he dissented from aspects of the Bush administration’s policy on detainees and argued that the Geneva Conventions should be the official policy for all those in military hands.

“He fought a fairly bruising battle to press for the adoption of common article three of the Geneva Convention,” said the Washington director of Human Rights First, an advocacy group, Elisa Massimino. The Supreme Court and McCain Amendment eventually took such a view.

Likewise, the dean of Duquesne Law School, Donald Guter, a former admiral and judge advocate general of the Navy, told The New York Sun that his recollection of Mr. Waxman that he “tried to hold the line” in insisting on strict application of the Geneva convention.

After a reported disagreement with Vice President Cheney’s counsel, David Addington, Mr. Waxman left the Pentagon to work at the State Department, where he is principal deputy director of the policy planning staff.

Mr. Waxman gave a recent talk at Stanford Law School, news of which set off rumblings among certain alumni and others in human rights circles. Yale Law School and New York University School of Law are also believed to be weighing offers to Mr. Waxman. A spokeswoman for Yale Law School declined to discuss teaching offers.

The dean of Columbia Law School, David Schizer, said: “All candidates to the faculty go through the same confidential process. At the end of that process we extended an offer, and we very much hope that he joins our faculty.”

Mr. Waxman declined to be interviewed for this article.

A second-year student at Columbia Law School, Tim Abbott, said he would not assume that just because someone had served in the Bush administration he had not been giving “good advice on important legal questions.” Mr. Abbott, a member of the American Constitution Society, a left-leaning counterpart to the conservative Federalist Society, said it is good to have real world practitioners on the faculty: “You don’t want all ivory tower types.”

But working for the Bush administration can cast at least a partial shadow or add a few potholes on the road from government to academia. Mr. Waxman’s entry to academe may be a small reprise of the case of Jack Goldsmith III, a former top Justice Department official who accepted a position at Harvard Law School. Although Mr. Goldsmith had clashed with some in the Bush administration, a minority of faculty members, mostly on the left, were uncomfortable with him, though ultimately more than 80% of the faculty voting confidentially were reported to have backed his tenure.

Since the issue of detainees and whether the Geneva Conventions applied to the war on terror was a source of friction and debate among Bush administration officials, it may not be surprising that these issues divide law faculties as well.

A professor of law at Harvard, Charles Fried, told the Sun that Mr. Goldsmith’s scholarship and teaching were excellent and that was sufficient. “That seemed to me what counted,” he said.

Likewise a professor of jurisprudence at Columbia, George Fletcher, asked about the faculty offer to Mr. Waxman, said: “Sophisticated academics do not pay attention to party loyalty. They look at the quality of the work.”

A third-year Columbia law student, Spencer Marsden, a member of the Federalist Society, said, “It doesn’t surprise me that there might be grumblings among the faculty about a conservative faculty appointment. However, it is my experience that political ideology is not that significant here at Columbia. When it comes down to it, Columbia Law School is about merit, and if a professor is an exceptional legal scholar I would be shocked to learn that ideology was the only reason an offer was not extended.”

But a former official at the Justice Department’s Office of Legal Counsel, John Yoo, who has argued that the Geneva Conventions do not cover war with Al Qaeda, and who received tenure at the University of California, Berkeley’s Boalt Hall School of Law, said: “I hate to say it, but it would not surprise me if the legal academy were to discriminate against lawyers who worked in the Bush administration, especially those who worked on the war on terror.” He said “conservatives generally have a hard go at getting into teaching” and the last he heard, more than 85% of law professors who donated to presidential candidates gave to Democrats. “The opposition against the Bush administration is only going to make the academy’s natural bias against conservatives worse,” Mr. Yoo said.

It is not clear how much of a problem the case of Anwar Hassan, a Chinese Uighur or Turkic Muslim, whose habeas petition is before the Supreme Court, may prove for Mr. Waxman. A review tribunal first determined Mr. Hassan, also known simply as Ali, was not an enemy combatant. But after Mr. Waxman stepped in, another panel determined Mr. Hassan was subject to detention as an enemy fighter. He has since been cleared from that status and is authorized to leave Guantanamo, if a country will accept him.

Alim Seytoff of the Uyghur American Association said the detained Uighurs’ situation is perilous because they face reprisal if returned to China.

The habeas petition asserts Mr. Waxman noted, “16 other Uighurs with identical circumstances were determined to be enemy combatants.” It also quotes from an e-mail chain that offered two points of advice in determining a petitioner’s status: “Inconsistencies will not cast a favorable light on the CSRT [combatant status review tribunal] process or the work done by OARDEC [Office of the Administrative Review of the Detention of Enemy Combatants] … By properly classifying them as EC, then there is an opportunity to (1) further exploit them here in GTMO and (2) when they are transferred to a third country, it will be controlled transfer in status.”

James Crisfield Jr., the Navy lawyer who reviewed the outcome of the second review of Mr. Hassan’s status, called the first part of the e-mail “troubling” and wrote that it seemed to seek a “one size fits all” process that would deny detainees individual review of their cases. Commander Crisfield could not be reached for comment.

The context of the statements in the e-mail is unclear, because the full exchange is still classified. The government is due to respond to Mr. Hassan’s petition next month.


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