THE HLSA CONNECTOR

Newsletter of the Harvard Law School Association of New Jersey

Volume 5, Issue 1


Fall/Winter 2009

Farmer, Azmy Discuss Life and ELIOT SPITZER TO DELIVER

Law After Guantánamo Bay 535353 RDRDRD VANDERBILT LECTURE Eliot Spitzer ’84 , who served as New Relocations and recriminations – but what next for national security? York’s Attorney General from 1999 to 2006 and as Governor of New York John J. Farmer, Jr. describes the as counsel for a German resident from 2007 to 2008, will deliver the 53 rd American balance between public and Turkish national who was annual Arthur T. Vanderbilt Lecture on safety and individual liberty this way: imprisoned as an “enemy Wednesday, “We have made a deal with ourselves combatant” for almost five years October 21. as a society that some of us will be until his release in 2006. Dubbed “The less safe, because the alternative Sheriff of Wall … is a police state, where the Street” by real criminals wear the badges.” CBS News’ 60 But terrorism has thown a Minutes in 2003, wrench into the balancing test, Spitzer will because “when we’re talking about trying to prevent address the role thousands of deaths” at the of government hands of a few violent and in investigating, regulating and unrepentant terrorists, “the Eliot Spitzer ’84 balance is different.” But prosecuting detaining people based upon “no corporate wrongdoing. evidence,” mere suspicion, or the The program, which is also the uncorroborated allegation of Association’s annual meeting, will begin another individual, is equally with cocktails at 5:30pm, followed by unacceptable – and, Farmer says, dinner and the lecture program at “the current system is clearly, 7:00pm. As usual, the Vanderbilt clearly illegal.” Lecture will be held at The Manor, 111 Farmer, a former Attorney Prospect Avenue, West Orange. The General of New Jersey who is John J. Farmer, Jr., addresses the 2009 HLSA-NJ Spring Symposium. per-person fee for the event is $85 for now Dean of Rutgers Law alumni graduated from the Law School School, served as senior counsel and The balancing test society and before 2004, and $60 for “young team leader for the U.S. “9/11 the courts apply to restrictions on alumni” graduated in 2004-2009. Commission” that investigated the individual liberty, Farmer says, 2001 attacks. He delivered the 2009 indicate that the criminal system If you haven’t received your invitation to the HLSA-NJ Spring Symposium in New alone is an inadequate and Vanderbilt Lecture, please e-mail Brunswick on June 8, joined by inappropriate forum for dealing [email protected] or call (201) 489-3737. discussant Baher Azmy , a professor with the question of what to do of constitutional law at Seton Hall with the approximately 240 men INSIDE Law School. Azmy has written still held at Gitmo. extensively on the legal issues raised Consider, for example, the Summer Reception  Drew Berry ’67 by the U.S. detention facility at question of whether and how to  Weissbard ’62 on Spitzer  Guantánamo Bay (“Gitmo”), based in Alumni Updates  and More part on his many visits to the facility See Farmer ,page4 Page 2 THE HLSA CONNECTOR

Letter From The President Summer Public Interest you look for the bad in mankind, expecting to find it, you Program Celebrates Ten Years surely will,” Abraham Lincoln is said to have observed. If Robert C.Holmes ’70 Federal Public Defender’s Over the past few months, I have received many comments Part of the important work Office, the Office of the from members of the Association about our selection of former of the Harvard Law School Attorney General for New New York Governor Eliot Spitzer ’84 to deliver the 53rd Association of New Jersey Jersey, the N.J. Institute for Vanderbilt Lecture on October 21. A due is to design and implement Social Justice, a public regard to the opinions of my fellow alumni initiatives that encourage interest law firm, and requires an explanation of how Mr. Spitzer was HLS students to consider others. Our first Summer selected and the deliberations by the Board of careers in New Jersey. This Public Interest Fellow, Trustees that resulted in his selection. In the year will mark the 10 th John Bartlett ’01 , has built interest of open discussion, this newsletter also anniversary of one such a career in New Jersey, and includes a column by the Honorable Harvey initiative, the Summer even served as President of Weissbard ’62 , expressing his view of the Public Interest Fellows HLSA-NJ. Michael Board’s decision to invite Mr. Spitzer. Program. This program is Passante ’03 , our third Prior to Mr. Spitzer’s selection, the Board carried out in cooperation fellow, also served as a considered a number of potential speakers. with Harvard Law School’s trustee and officer of Each was evaluated based on several criteria, Stephen Herbes ’01 Office of Public Interest HLSA-NJ and now serves including experience, expertise, ability to comment on current Advising and Office of our state on the staff of events, and availability. Having presided at the meeting where Mr. Student Financial Services. U.S. Senator Bob Menendez. Spitzer was selected, I can assure you that the circumstances Every spring, the For the summer of surrounding Mr. Spitzer’s resignation as governor of New York Association circulates an 2009 we were fortunate to application form at HLS, have two Fellows, Julia were considered by the Board. The selection of the Vanderbilt inviting responses from Figueira ’11 and Casselle lecturer was not put to a vote until all the Trustees in attendance had students who will be Smith ’11 . Ms. Figueira been given every opportunity to voice their opinion. Of the working in New Jersey- worked in the Office of the potential speakers the Board discussed and put to a vote, Mr. Spitzer based “public interest” jobs Public Defender in received the most votes. for the summer. Over the Newark. In an email Trustees supporting the selection of Mr. Spitzer argued that his past ten years, such jobs thanking the Association record as New York Attorney General was distinguishable from his have included the U.S. for its support, Ms. subsequent activities, and in particular that his experiences Attorney’s Office, the investigating and prosecuting financial crimes on Wall Street would Continues,page3 be highly relevant in light of the current economic crisis. The Board having voted, it was my responsibility as President ALUMNI On The Move of the Association to carry out the Board’s decision. I will not use Paul Fishman ’85 was nominated by this column to debate the desirability of the Board’s selection. I President Barack Obama ’91 to be the next United would, however, remind each alumnus of our responsibility as attorneys to reserve judgment on any matter until all the facts are States Attorney for the District of New Jersey. known and not to allow ourselves to be swayed by the ever- His nomination was sent to the Senate Judiciary changing tides of public opinion. Mr. Spitzer did much good as New Committee in June and was scheduled to be York Attorney General and his experiences in that position remain considered in September. very relevant to the on-going debate over how to respond to the Jason F. Orlando ’00 , immediate past president of meltdown in the financial industry. HLSA-NJ, has joined Michael Murphy to form As most of you know, all of the Trustees and officers of the Murphy Orlando LLC , with offices in Trenton and Association are volunteers. Stephen Roth ’67 , who chairs the Jersey City. Jason will also be affiliated with Impact Vanderbilt Lecture every year, devotes countless hours of his time to NJ LLC , a government affairs firm. this event; in my experience, Steve has always gone above and beyond the call of duty to ensure that alumni receive the best Assemblyman Jay Webber ’00 (R-26 th ) was elected Lecture possible. In my view, he deserves our hearty thanks. chairman of the Republican State Committee in July. His efforts, and those of the entire Board, have enabled us over the past four years to hear from our state’s Attorney General, I appreciate, and try to listen to, the concerns of Anne Milgram ; get an insider’s view of the high-profile Lewis I. all alumni. Whether you like what we’re doing and “Scooter” Libby trial from our colleague Ted Wells ’76 ; welcome want to be part of it, or dislike what we’re doing and James R. Zazzali as the fifth Chief Justice of New Jersey to deliver want to change it, I encourage you to take a more the Vanderbilt Lecture since 1956; and hear the insights of HLS active role in the Association next year. professor Charles Ogletree ’78 . Stephen F. Herbes ‘01 Page 3

frompage2 Opinion Figueira reported that she worked mainly for the Spitzer Pick Is Emblematic of Lecture’s Troubles Appellate Division, organizing a case file and preparing a brief. Harvey Weissbard ’62 Spitzer ’84 as this year’s and other cities “using a She also did some work for In recent years the once lecturer. variety of aliases and paying the Megan’s Law division. esteemed Vanderbilt Upon receiving advance with postal money orders.” Mr. Smith reported that Lecture has fallen on hard notification of the lecture, I Rather than speaking on he worked in the Office of times. Rather than a immediately wrote to the corporate fraud – his Reentry in the City of Newark, platform for presentation Association President Vanderbilt topic – Mr. reporting to the Deputy Mayor of scholarly views on a arguing that the selection Spitzer should be speaking for Housing and Economic subject of interest or of Mr. Spitzer, who about the evils of Development. Newark’s reentry program will celebrate its one concern to the legal resigned the governorship prostitution, as an -year anniversary in in disgrace after being institution which denigrates September, and the Office exposed as a client of a females generally and often spent the past year working high-priced, multi-state leads young women into a on a sustainable reentry prostitution ring, was ill- “profession” where they model, relying heavily on conceived and imprudent. are used, in the worst sense partnerships with faith and The fact that Spitzer was of the word. And Spitzer’s community-based organizations lucky enough to escape hypocrisy should not go to provide “wrap-around” prosecution does not mean unnoticed. He utilized services to formerly incarcerated that his conduct is prostitutes while, as individuals. Mr. Smith assisted in somehow rendered blame- Attorney General, having drafting contracts between less. To the contrary, his prosecuted that activity by such organizations and the City and will remain in actions facilitated the others. contact with the program commission of crimes by The Association over the coming fall semester others in the enterprise and President commendably is, by any standard, brought my concerns to as part of a team that will be Harvey Weissbard ’62 producing a film on the reprehensible and the Board of Trustees, reentry initiative. community, the lecture has deserving of the strongest which considered them but HLSA-NJ extends its become primarily a venue condemnation. As more ultimately declined to congratulations and thanks to for well-known legal recent reporting by the rescind the Spitzer Ms. Figueira and Mr. Casselle, personalities, public, New York Times has invitation. This spectacle and to the alumni whose dues private or academic. This revealed, Spitzer’s will bring no credit to make it possible for the unfortunate tendency is involvement was not Harvard Law School. Association to partner with HLS to provide support for nowhere better evidenced sporadic but regular over a Rather, attendance at the public interest-minded than in the regrettable period of 18 months to two event cannot help but be students in New Jersey. With decision to have former years, during which he met viewed as tacit approval of your continued support, we New York Governor and repeatedly with prostitutes the speaker in which I, for look forward to a successful Attorney General Eliot in New York, Washington one, cannot join. second decade.

To become an active member of the Harvard Law School Association of New Jersey, simply fill out the form below and return it with a check payable to “Harvard Law School Ass’n of N.J.” to Paula Tuffin, Esq., Sills Cummis & Gross PC, The Legal Center, One Riverfront Plaza, Newark, NJ 07102. Dues for the 2009-2010 association year are $75 for alumni admitted to the bar for six to 49 years as of July 1, 2009, and $50 for alumni admitted for fewer than five or more than 50 years and those in the public sector.  I enclose my check for the 2009-2010 dues to the Harvard Law School Association of New Jersey in the amount of  $75.00  $ 50.00 Name: Class: Address: Telephone: E-Mail: Year of Admission to the Bar:  I am employed in the public sector. Page 4 THE HLSA CONNECTOR

Farmer Michael Dunleavy, frompage1 was so astonished by the poor use evidence obtained through torture intelligence or other means that would render it supporting the inadmissible under current law. detention of those “Dealing with these cases through the in his care that he criminal system runs the risk of went to corrupting our criminal law, because Afghanistan to ask the pressure to convict these people commanders on will be so high that we’ll have the ground why doctrinal changes” with pernicious they were “sending effects when applied to non-terror … ‘Mickey Mouse’ cases, says Farmer. people” to Gitmo, Azmy described the U.S. Azmy added. detainment program at Gitmo as This was not merely an illustration of these consistent with Prof. Baher Azmy compares the merits of criminal prosecution with those of an independent challenges, but as “a deep failure what Farmer said investigation or “truth commission.” of law, law that could have been he’d heard from applicable to detentions but was officials with knowledge of the Libya, Tunisia and Algeria – could be studiously avoided in order to detainees: “I asked, ‘Of the 240, how tortured if returned home, Azmy said, aggregate a great amount of many are real bad guys?’ The high and the facility’s Uighur detainees are execute fdf vviicve power” in the number I heard was 30, the low “fairly certain to be tortured and wake of the 9/11 attacks. number was four.” executed” if returned to China. (Since Azmy noted that when his SHLS Having created the problem, the the Symposium, the Uighurs have colleague Mark Denbeaux investigated U.S. is now vexed by how to fix it. been accepted by the island nations of Defense Department data on 517 Azmy said that of the 240 men who Bermuda and Palau.) detainees, the data revealed that only remain at Gitmo, “100 to 160 can be When the U.S. looks to its 8 percent were “alleged Al Qaeda released,” most to their home country. European allies to accept some fighters,” 31 percent had engaged in However, because about 100 are released detainees, Azmy added, “any hostile act,” and more than half Yemeni, and Yemen is viewed as “the Europeans respond, ‘You say (55%) were detained based upon “a unstable and a major organizing they’re not dangerous. Why don’t vague association with one of 72 ground for Al Qaeda, home return of you take them?’” groups” identified by the U.S. these individuals may pose too great a Looking forward, Azmy cautioned government as terrorist. The facility’s security risk to U.S. interests. Of the operational commander, Maj. Gen. balance, some – such as those from Continues,page5

Charles B. Turner ’57 with past HLSA-NJ presidents HLSA-NJ Trustees Fredi L. Pearlmutter ’71 and Jason F. Orlando ’00 and Robert C. Holmes ’70. Geraldine Reed Brown ’71 (J.D.) ’73 (M.B.A.). Page 5 frompage4 In Memoriam against creating a “heads I win, tails Drew Berry ’’’65, HLSA-NJ Trustee you lose system of justice,” where detainees who can be tried are HLSA-NJ Trustee Andrew “Drew” convicted and those who cannot be Berry ’65 , chairman of McCarter tried are detained anyway. He also and English and a long-time, active expressed doubt about the very idea member of the Newark and New of “preventive detention,” calling it Jersey civic and philanthropic “imprecise” and noting that it “tends communities, died in July at his to metastasize” in response to current vacation home in Maine. A 1962 events. graduate of Princeton University, Farmer noted that an inquiry into Drew was remembered with a what happened to create the Gitmo memorial service in the University “problem” could take several forms, Chapel in August. The Association including criminal prosecution of extends its condolences to his individuals such as the Department of widow, children and grandchildren, Justice attorneys who authored the and to his many colleagues and infamous “torture memos” or friends. Defense officials who ordered detentions and renditions; a Congressional investigation or Finn W. Caspersen ’’’66 investigations; or an independent HLSA-NJ member Finn W. inquiry by “some other body, such as Caspersen ’66 died in late August a ‘truth commission.’” at his vacation home in Rhode Both speakers agreed that criminal Island. Caspersen, a philanthropist prosecution of Bush Administration and fundraiser, was chairman and officials is not the best way to get at the whole truth. Because prosecutors chief executive of Beneficial Corp. are focused on proving the facts that from 1976 to 1998. Former New make up the elements of the crimes Jersey Governor Thomas Kean, Sr., said of Caspersen, “he was the most charged, and only with respect to the generous man I knew. In his defendants charged, “the prosecutor lifetime, I wouldn't be surprised if doesn’t necessarily help us get all the he gave away $100 million." facts we want to have [when] those facts are not relevant to the specific prosecution,” Azmy said. accusations of a cover-up. can make the same arguments [in Whatever procedures According to news favor of indefinite detention] at are selected for the reports, some “enemy another location in the world.” To The United States investigation of the U.S. combatants” in U.S. regain the moral high ground, he actions and policies that “must close Gitmo custody are now being added, the U.S. “must close Gitmo created Gitmo and the not as a base in routed to a prison not as a base in Cuba but as a way of detainee problem, facility at Bagram handling terror suspects.” Farmer urged the Cuba but as a way Airfield, a U.S. base in government to begin by of handling terror Afghanistan. Farmer This article conveys only a fraction of the opening its records to cautioned the fascinating insights and legal analysis offered suspects.” public review. As the government not to by our speakers. If you thirst for knowledge state’s Attorney General, misuse facilities like and are fascinated by the practical and policy with authority over the State Police, Bagram: “We’re not really closing implications of the law, don’t miss the annual during the investigation of allegations Gitmo, writ large, if the administration HLSA-NJ Spring Symposium. – Ed. of racial profiling on the New Jersey Turnpike in the 1990s, Farmer said, Corrections:
The spring Connector contained several errors in identifying “we waived privilege on all alumni by class year. Justice Alan Handler is a member of the class of 1956, the documents” in the interest of bringing late Justice Daniel O’Hern was a member of the class of 1957, and Arthur Rose, the truth to light and avoiding pictured on page four, is a member of the class of 1956. We regret the errors.  Page 6 THE HLSA CONNECTOR

Lowenstein Sandler Hosts HLSA-NJ Summer Reception On August 20, HLS alumni gathered in the Alan V. Lowenstein [ ’36] Center at Lowenstein Sandler PC  in Roseland,tocelebratetheend ofsummerandthebeginning of the coming school year. The Association’s annual effort to gather alumni and currentstudentsisdesignedto expose students to the range of career opportunities available in the Garden State and to provide alumni the opportunity to network with peersfromacrossthestate. Recent alumna Berta Matos ’06 networks with Kaushal “Ken” Majmudar ’94 and Eugene Lipkowitz ’63 at the Summer Reception.

HLS classmates Adam Weiss ’92 and Pat Paul ’92 Steve Herbes ’01, HLSA-NJ President for 2008- catch up on old times. 2009, welcomes alumni to the summer reception. Become a Trustee of HLSA-NJ The activities of the Harvard Law School Association of New Jersey are made possible by its volunteer trustees. The Association is seeking new volunteers to participate in the governance of the association, to be formally elected as trustees at our annual meeting on October 21. Being a Trustee is a great way to stay involved and network with fellow HLS alumni in all walks of life. The current leadership includes law faculty; public-, private-, and nonprofit-sector attorneys; and sitting and retired judges from all across New Jersey. In addition to our annual meeting, the Vanderbilt Lecture, the full Board of Trustees meets approximately 2-3 other times each year. For more information, e-mail Albert Cohn at [email protected].