Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
There is much that I can write about — topics on which I suspect virtually all NACDL members can agree. The fact that our criminal justice system is short-sighted and far too harsh and incarcerates the disproportionate numbers of poor people of color for longer periods of time than virtually any other country. The fact that our prisons and jails have turned into our mental asylums because we, as a country, are not willing to provide the community mental health services that so many of these people need. The fact that in far too many states criminal defense attorneys are not paid fees sufficient to provide effective representation. But those are not what I have decided to write about in this column — perhaps next month.
The tragedy of 9/11, and what has happened since then, has affected so many aspects of our lives and practices. We live in fear, and our government relies upon that fear to justify outrageous violations of human rights. I cannot watch a news program about the behavior of our troops in Abu Ghraib without being deeply ashamed. At the same time, we have continued to incarcerate people at Guantanamo Bay for over four years without charging them with any offenses. And the government has announced that those individuals it eventually decides to charge will be tried before military commissions that fail to conform to military justice, international law, or constitutional standards.1 When those held at Guantanamo engage in a hunger strike to protest their treatment the government force-feeds them.2 And our government secretly “renders” suspected terrorists to countries that we know engage in torture.3
Shortly after 9/11, some attorneys in the Office of Legal Counsel at the Department of Justice advised the President that what most people (not to mention the Convention Against Torture) would view as torture is permissible when done in the name of national defense.4 Then, recently, we learn that for the past four years President Bush has repeatedly authorized the National Security Agency, a Defense Department intelligence agency, to conduct surveillance of domestic communications involving foreign contacts without ever seeking any judicial approval as required by the Foreign Intelligence Surveillance Act. And the justification for all these actions is that the danger of terrorism — which itself is indefinitely defined in both scope and duration — justifies whatever the government chooses to do, and that we must simply trust the Executive to do unilaterally what is in our interest.
As criminal defense lawyers, we appreciate how torture can result in false confessions and how informants who have much to gain may be less than totally truthful. We are also particularly sensitive to the argument that the ends justify the means. That is the argument some prosecutors use when they trample on our clients’ constitutional rights. (We all know that for some prosecutors, the need to get a conviction is more important than preserving anyone’s individual rights.) Finally, the claim that we should trust the government also rings hollow. Pardon my skepticism, but I need only consider the times that a prosecutor has told me that I can trust them to do what is right, and later learned that my trust was misplaced.
When Ephraim Margolin was NACDL President, he wrote a column entitled, “Building the Ark for the Coming Flood.”5 While the concerns he addressed back in 1989 may seem somewhat different than those we face today, in reality, they are much the same. He wrote: “A majority of those who vote in our elections perceive themselves as passengers on the Titantic. In the rush for lifeboats, people would trample over each other, especially over those less powerful, and people would also trample on values such as the Bill of Rights; suddenly, freedom itself becomes a relative term.” In contrast, he viewed “Noah’s Ark” as “a metaphor for choosing not to remain passive in the face of an impending danger.” He asked, “How do we respond to the fear and ignorance that consume our society, and the consequent call for the dismantling of the Bill of Rights? For if we do nothing, we may end as nothing. . . . Our liberties, like our republic, will remain ours only if we can keep them.”
It is far too easy today to say nothing — to do nothing — to challenge the actions the Executive Branch takes in our name. But when the Executive ignores the Bill of Rights, the separation of powers, and the basic constitutional principles upon which our republic is based, then we cannot remain silent. Just as we stand as the last champions of liberty for our clients, so too must we stand in support of the Constitution and the values that originally made this country great.
Notes
- See In re Guantanamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C. 2005).
- See, e.g., Eric Schmitt and Tim Golden, Force-Feeding at Guantanamo Is Now Acknowledged, New York Times Feb. 22, 2006.
- See, e.g., U.S. Dep’t of State Country Reports on Human Rights Practices (2003), available at (report on Syria); U.S. Dep’t of State Country Reports on Human Rights Practices (2003), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27930.htm (report on Jordan); U.S. Dep’t of State Country Reports on Human Rights Practices (2003), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27926.htm (report on Egypt). The Swedish Ministry of Justice has confirmed the U. S. involvement in the transfers. Craig Whitlock, A Secret Deportation of Terror Suspects; Washington Post. July 25, 2004, at A1. See also DeNeen L. Brown & Dana Priest, Deported Terror Suspect Details Torture in Syria: Canadian’s Case Called Typical of CIA, Washington Post, Nov. 5, 2003; Scott Shane, Suit by Detainee on Transfer to Syria Finds Support in Jet’s Log, New York Times, March 30, 2005.
- The memorandum may be found at http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_20020801_JD_%20Gonz_.pdf.
- Ephraim Margolin, “Building the Ark for the Coming Flood,” The Champion, President’s Column, 1, 39 (July 1989).
