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|Speech by Hon. John McClellan Marshall|
“WHERE WERE ALL THE LAWYERS?”
The Honorable John McClellan Marshall
The Honorable John McClellan Marshall
It is no accident that in Act IV, Scene 2 of Henry IV, Part II, Dick the Butcher utters the famous line, “The first thing we do, let’s kill all the lawyers.” Considering that he was an anarchist of the first water, he recognized that for him to succeed his first targets would have to be those persons who, because of their training and dedication to the rule of law, would be the first to oppose his brand of chaos and the destruction of civil liberties that would follow in his train. History is littered with the careers of those who would abridge or even destroy those rights labeled “unalienable” by Thomas Jefferson in the name of “order” or “security” or in reaction to some perceived or even real threat. Yet, as Benjamin Franklin reminded, and to this day reminds, us, “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.” In such a situation, it is appropriate to ask, “Where are all the lawyers?”
Perhaps because of our fortunate geographical isolation from historically less stable areas of the world, we Americans have, in our short history, developed an optimism tinged with naiveté that leads us to tend to be more reactive than proactive in dealing with potential problems that come to vex us. We like to think of ourselves as so much the product of the freedom of the individual that it is really those civil rights for which we fought so hard in the Revolution that are our greatest protection; hence, we have no need of “walls.” Nothing could exemplify this better than the actions of the government following the tragic attacks of 9/11, which is viewed by some as an attack on us because of our freedom and the way of life that it supports.
It often has been said since 9/11 that the United States has been targeted because of the liberties that we enjoy and that Islamic extremist terrorists, if not aggressively pursued, would take those liberties from us. In reality, the reactions of the Congress and the redefinition of his Constitutional role by the President during the period immediately following those attacks may well have damaged the civil liberties of the American people beyond anything a terrorist in an airplane or Richard Nixon could have imagined. Outside the United States, our claim to be a “nation of laws” is viewed by many as disingenuous at best, rendering us untrustworthy at worst, and that, too, increases the danger to our country.
In a veritable orgy of “damage control” after 9/11, the country was treated to the “let’s roll” speech by the President. Americans were assured that the measures contemplated were to protect them in response to this threat and would support a “global war on terror” that would follow. The American people, in a supreme act of trust, supported these measures almost without question. When these words were spoken, where were all the lawyers?
There has been no Congressional declaration of a “war on terror”, assuming that such could in fact occur. Similarly, Congress did not declare war on Iraq, yet we are at war there and in Afghanistan because a President has said so, the Constitutional language to the contrary notwithstanding. The term “enemy combatant” is defined at the whim of the executive, and one so designated, whether citizen or not, faces an almost total deprivation of civil rights. In addition, it would appear that the current Vice-President, despite the clear language of Article II that creates his office, has stated his belief that he is not part of the executive branch of government and is thus under no obligation to obey the orders of the President as to his office files. Having been led through such a Looking Glass by such statements, any self-respecting White Rabbit, seeking the way back, would ask, “Where are all the lawyers?”
There is no question of the tragedy of the loss of life that occurred at the Twin Towers or at the Pentagon or on Flight 93. There is equally no question that it provided, intentionally or not, an opportunity for the limitation of civil liberties by the government that has served as a means to control dissent in the name of “national security” reminiscent of the McCarthyism of the early 1950’s. After all, as was said by a government official in an earlier time, “all you have to do is to tell [the people] they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to greater danger.” Hermann Goering during the Easter recess of the Nuremberg trials, April 18, 1946. As this contemporary atmosphere of fear and the near-constant cry of “Wolf” were being created and broadcast, where were all the lawyers?
The passage of a bill entitled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”, reduced to the acronym “USA Patriot Act”, reflects the intent in many of its provisions to “provide security”. For example, §106 gives the President the power to “confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged” in an attack against the United States. [Italics supplied]. Furthermore, all title to property so confiscated vests in an agency designated by the President, and it may be “held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States. . . .” [Italics supplied]. At first blush, the use of the term “confiscate” does not seem congruent with the statement in the Fifth Amendment to the Constitution “. . .nor shall private property be taken for public use without just compensation.” The bill was passed in such haste and with so little public debate, either in Congress or out, that one is reminded of the quote by Edmund Burke that “the only thing necessary for the triumph of tyranny is for good men to stand silent.” In the face of such silence, as that legislative and possibly un-Constitutional expansion of executive authority was taking place, where were all the lawyers?
In §802(a)(5)(A) the Patriot Act, “domestic terrorism” is defined as any activity that “Involves acts dangerous to human life that are a violation of the criminal laws of the United States or of any State.” It would appear that operation of an automobile while under the influence of alcohol during a peace demonstration in Washington, D.C., could very well be an act of “domestic terrorism.” The phrase “void for vagueness” comes to mind, but while this was being drafted where were all the lawyers?
The surreal atmosphere in which this act was created appears clearly in §1002 “Sense of Congress” in which Congress finds “Sikh-Americans stand resolutely in support of the commitment of our Government to bring the terrorists and those that harbor them to justice.”
In a following section of the act was the initiation of a domestic surveillance program, recently renewed though with some limitations, to “protect the rights and civil liberties of all Americans” that did not require warrants of a type that we as lawyers would recognize as meeting the requirements of the Fourth Amendment. In line with the politically bizarre atmosphere of the period, a future Attorney General wrote a now notorious memorandum that, in effect, legitimates torture of captured “terror suspects” as part of the post-9/11 American judicial process. Even without the creation of Manzanars for Muslim-Americans, confronted with such governmental actions so clearly outside of the bounds of the Constitution, one must ask, “Where were all the lawyers?”
Of course, as lawyers we are trained in the notion that the proper resort in such cases is not to the streets, but to the courts. Historically, the courts have served, as Lord Coke observed, as “the lions under the throne.” In other words, they and the lawyers who appear before them, are to be the very foundation and defenders of whatever liberties are to exist. Indeed, regardless of one’s political persuasion, it is difficult to argue with the idea that “mirandizing” a criminal defendant prior to questioning and obtaining a true confession is superior to a rubber hose in the back room of the station house merely to have a good clearance rate on the blotter. Let it not be forgotten that it was the Supreme Court, not Congress, that brought that about, by reading the Constitution in light of contemporary facts, not philosophizing on some imagined “original intent.” It was one of the finest hours for lawyers that the rubber hose was replaced by the law.
The Founding Fathers did not draft in the Constitution a document designed to be like a fossilized mosquito in amber, but to be one that would move with the times. There is no clearer example of this as the true “original intent” than the Commerce Clause. The Framers may not have known that there would be such things as airplanes, but they knew that there would be technological changes that the document would have to accommodate. If the Constitution were not meant to be a living document as suggested by some, then the Commerce Clause could have had no application to steamboat, trains, or aircraft. . .yet it does, because the Supreme Court has said it does, from Gibbons v. Ogden to the modern day. For some judges and justices to suggest that the Constitution is not a “living” document is to reveal their ignorance of the very document that it is their sworn duty to “preserve, protect, and defend”; by the way, substantially the same oath that we take as attorneys “to uphold the Constitution of the United States”. With such a background, how is it possible for lawyers to argue with any semblance of rationality in the 21st Century that it is lawful in America, in the name of “national security”, to allow people in custody to be held without benefit of counsel or being charged? Are the “walls” of our civil liberties that have protected us for so long been found so wanting? Certainly not! Indeed, any weakening of those walls enshrined in the document allowed by we who are sworn to uphold it should lead us as citizens to ask, “Where are all the lawyers?”
Yet, it would seem that all may not be as grim as might have been thought six years ago. Not our naiveté, but our optimism and belief in the rule of law may be taking hold once again. Recent decisions by both intermediate courts of appeal and the Supreme Court seem to be pointing us away from the rather glaring gap that has existed between “due process” and incarceration at Guantanamo’s Camp Delta and between the right of privacy and unlimited surveillance of American citizens to judicial review of such matters. Perhaps, after all, here is the time and place for the lawyers.
Again, without regard to politics, we as lawyers need to be the first, not the last, to speak up and be true to our oaths. It is not only our professional duty, but it is also our sworn duty as officers of the courts to be the proud and hopeful defenders of those whose rights may well have been trampled upon in the heat of the executive or legislative moment. As the Nobel Laureate Elie Wiesel said, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” Ours is not a country that has taken well to dictatorship, either by executive or legislative authority, and it is historically the courts that have brought matters back into balance. Why? The answer is transparently simple. It is because we as lawyers brought the poor, the disfranchised, the unpopular, even the hated, before the bar to receive the justice promised to us all in the Constitution. In most cases we found judges, yes lawyers also, whose commitment to that justice was just as strong as ours, so that the system worked “without fear or favor.” There are the ones among us who hold up the walls of our civil liberties, the lawyers. In the words of a fictional revolutionary, “Fairness . . .[and] justice are not mere words. . .they are perspectives.” V in “V for Vendetta.”
Martin Niemoeller, a great Lutheran pastor of the last century, left us, as lawyers, the following thought to consider as we move forward through this century, “In Germany, the Nazis first came for the Communists, and I did not speak up, because I was not a Communist. Then they came for the Jews, and I did not speak up, because I was not a Jew. Then they came for the trade unionists, and I did not speak up, because I was not a trade unionist. They came for the Catholics, and I did not speak up, because I was not a Catholic. Then they came for me. . .and by that time, there was no one to speak up for anyone.” In America today, as citizens first and foremost who happen to be lawyers and members of a fraternity dedicated to upholding this highest ideals of the law, it is for us to be the “lions under the throne” of which Coke spoke and to be the first, not the last, to speak up, so that, in years to come no one will ask, “When they came to take away our civil liberties, where were all the lawyers?”
Speech to the Biennial Convention of Phi Delta Phi International Legal Fraternity