I gave a commencement speech this morning at Western Connecticut State University. Skipping the usual themes, I addressed political concerns. My remarks inspired a number of hecklers, parents and students alike, who tried to boo me from the podium. My thanks to the many people who applauded, and those brave young graduates who stepped out of line when receiving their diplomas to shake my hand. I thought I would pass along my remarks.
From the time I was a little girl, I wanted to be a lawyer. I was obsessed by the notion of justice. Like the boy who became a marine biologist after witnessing his goldfish being flushed down the toilet, I had my reasons. My heroes were the great trial lawyers of our time, like Clarence Darrow, as portrayed by Spencer Tracy in Inherit the Wind, and Atticus Finch as portrayed by Gregory Peck in To Kill a Mockingbird. These were the fellows who, in Texas terms, could charm the socks off a rooster, or better yet, could change the course of human destiny with the force of their words. These were the characters who convinced me I wanted a career in the law. Now if you had asked my mother, she'd tell you I'd argue with a post and had to find a profession that would pay me to do that. Nevertheless, I like my story, and I'm sticking to it.
As a youngster, I believed our founders had divined a bit of heaven on earth. They believed that the Rule of Law could defeat tyranny. Remember, the first immigrants came to this new world to escape arbitrary decrees. A king could, for example, pronounce a tax on wheat and immediately begin collecting revenues. If he chose, the law would only affect certain segments of the population, while his cohorts remained immune. The favored grew wealthy while others starved. Witnessing this injustice, our founders gave such authority instead to the people. Tempered by their representatives and restrained by the Constitution, Americans would make and administer the rules for our new society. The lawyers, pledged to justice and democracy, would be the guardians at the gate. No one man, no single group, could arbitrarily or selfishly direct our lives.
But there was a catch, as Benjamin Franklin forewarned. As he left the Constitutional Convention, a woman asked, "What sort of government have we, Mr. Franklin?" He replied, "A Republic, Madam, if you can keep it." Thomas Jefferson, ever the idealist, believed our countrymen would live up to the challenges of a self-governing society. The pragmatist Franklin had his doubts.
An ingenious fellow, Alexis de Tocqueville, described our challenge over a century ago in his monumental work, Democracy in America. So clearly did he see the strength of a democracy and the weakness of human character, his words might have been written today. He said, in summary, that our real power as a people came through voluntary associations. Our personal freedoms would be protected if we could voluntarily resolve the problems of society, rather than permit the heavy hand of government to do it for us. But he recognized our great weakness--the willingness to live 'as strangers apart from the rest'. If we lost our communal bond, then authority and social control would come from another source. "Man would yield his sovereignty to an immense power" he predicted, "one that does not destroy, or even tyrannize, but one that serves to stupefy a people, reducing them to nothing better than a flock of timid and industrious sheep."
Over the years, as a student of history, politics and the law, I have concluded that Tocqueville's prediction was correct. While the Constitution and Bill of Rights provided an extraordinary blueprint, the plan required appropriate execution. Unfortunately, we Americans have failed to shoulder our responsibilities. The qualities of active citizenship that Jefferson ascribed to us have not been realized, nor have our appointed leaders lived up to their noble assignment.
Not everyone loses in this tradeoff. In barely a generation, lawyers, politicians and bureaucrats have taken the palace without firing a shot. This group controls the creation and enforcement of law. Their ability to write rules and manipulate them at will has established a new tyranny in America. The rest of us, sometimes willingly, other times selfishly or in ignorance, succumb to their false promises. Believing that mere words can guarantee security and equality, we have traded away our liberties. Abdicating personal responsibility, we now expect the government and courts to compensate for the vagaries of life. Succumbing to divisive rhetoric, we support intrusive laws that unsuccessfully target social and moral behaviors. Finally, we permit the selective enforcement of rules and legal giveaway of tax dollars as political favors for those who feather the political nests.
Our great cornerstone of democracy, the Rule of Law, has become a source of power and influence, not liberty and justice. I resent the insidious manipulations by those entrusted with such authority, but even more, I despise our deliberate ignorance and passive acceptance of these shackles on the American spirit
When I wrote these words in my book, The Case Against Lawyers, I had plenty of targets: criminal and civil law, the regulatory arena and the lobbyists and legislators on capital hill, but I did not see the larger threat that would soon make itself known. Most of the book was with the editors before 9/11, and it was in print before the current issues about our civil liberties emerged. As a nation, we were fearful, but those fears had not yet become the launching pad for everything from a war in Iraq to the invasion of our personal telephone records. The fix was already in; I just couldn't see it.
It is a nightmare today. I just pray we will awaken to action before the dream becomes an entrenched reality.
I won't spend time reviewing the planning for Iraq that occurred even before 9/11 that gave rise to the WMD excuse, before the lies and obfuscation that sent our young men and women into that hell hole to die along with innocent civilians, before the squandering of goodwill the world held for us post 9/11, before the opportunity to build a legitimate coalition to fight the then small number of true terrorists acting in isolation that have now become legions rallied by the actions of our president. I hope you know that story.
Let's talk instead about how the use of such fears has eroded the very protections for American citizens embodied in our Constitution.
It was only weeks after 9/11 that Vice President Dick Cheney and his top advisors began arguing that the NSA should intercept purely domestic phone calls and e-mail messages without warrants. NSA lawyers argued no, the law would only permit such eavesdropping on communications into and out of the country. Many, me included, believe even this reading is too broad--that those calls must pass through the special courts created for such review as required by the Foreign Intelligence Surveillance Act, but no matter. Cheney's point of view has ultimately triumphed.
Interestingly, Fredrick Schwartz, the Chief Counsel for the Church Commission in the 1970's that created the FISA courts to oversee any domestic spying programs, was interviewed last week He recalled that American corporations were implicated in such spying back then, and described the actions taken to prevent such complicity again. In a project known as Project SHAMROCK, companies like ITT, RCA Global and Western Union were violating the privacy rights of their customers at the behest of the government and assisting in the spying on our citizens. This was addressed in the FISA legislation passed in 1978. But here we are again. And James Risen in his new book, State of War, reports that today, among the few NSA people who knew about the extent of current eavesdropping, there are those who considered resigning, who wouldn't participate in the decisions to compromise the nation's phone companies and spy on domestic communications. He says these were all people who lived through the Church Committee period who protested. The younger members didn't have such reservations.
Schwarz concluded his interview by saying that "Bush lawyers argue that the Constitution gives the President the right to break the law. If this is not put down or defeated, we are in a slippery slope moving toward a much more totalitarian government that's like the monarchy we tried to put behind us when we had the revolution 200 years ago."
Newsweek managing editor, Evan Thomas, said it succinctly last week, "when Americans are under threat, we sort of make this pact with the government, allowing it to go off and be secret and do dirty things without telling us about it. But you cannot have an open society and an effective spy service." Yes, there are tradeoffs. But Benjamin Franklin weighed in on which side should win when he told us, "Those who would give up liberty for security deserve neither liberty nor security." I'm with Ben.
Worse yet, Bush is expanding his executive power to not only create domestic spying on our citizens but to install the military as a domestic force, despite Constitutional prohibitions. His recent plan to send National Guard troops to the borders is in direct conflict with the Posse Comitatus Act of 1878. We do not allow the military to operate in that fashion on our home turf. This Act was passed to prohibit federal troops from running elections in former Confederate states and is considered a bulwark against the development of a police state. While there are limited exceptions, especially where such troops act under local or state authority in times of natural catastrophes and similar emergencies, Bush intends the National Guard to be under federal authority. As Larry Korb, former assistant secretary of defense under Reagan said, "the military is trained to vaporize, not Mirandize." And the Cato Institute wrote, "The same training that makes U.S. soldiers outstanding warriors, makes them extremely dangerous as cops."
There is a growing history here. The Total Information Awareness surveillance program reared its ugly head only to be shot down, when neighbors were asked to spy on one another just a few years ago. Then we used Pentagon spy planes during the Washington area sniper search in 2002, and attempted to let the military grab personal information in banks, libraries and elsewhere. Now Bush intends to bring in the same corporations that are contracted to spy in Iraq to run the high tech surveillance on our borders...operating, I'll wager, under the DOD or NSA. We should be alarmed.
In the wake of Katrina, the challenge to the Posse Comitatus Act has grown. Bush recently called for the possible use of federal troops to respond to a bird flu outbreak. The military analyst for the Washington Post recently reported that Donald Rumsfeld has developed a plan that predicted a "scenario in which the Defense Department would have to take the lead from civil agencies and the states, that is, to act without civil authority." He added, "I think we call that martial law."
Last month, Richard Dreyfus wrote a piece talking about the Counterintelligence Field Activity agency, created after 9/11 that is "systematically gathering and analyzing intelligence on American citizens at home." He cites examples of the new agency spying on antiwar protestors. After it was revealed that a new intelligence unit in the California National Guard was spying on the Raging Grannies, conducting a Mother's Day protest against the war, a state senator called for it to be dismantled noting this circumvented the Posse Comitatus Act.
The obvious danger is that this president, who has consolidated more power in the White House than any administration in well over a century, is using the military and our intelligence services in unprecedented fashion.
Couple this with the attack on dissent, whistleblowers and now journalists, and we are headed for real trouble. Brian Ross of ABC News, was called last week and told to ditch his cell phones. Apparently, the NSA is not only gathering our phone calls, but using journalists' phones to track back to their sources. This is the method apparently used to go after the CIA whistleblower who may have leaked information about the secret prisons in Eastern Europe. Instead of protecting those who leak critical information of governmental wrongdoing, or better yet, going after those officials who are committing such unconstitutional violations, the government is trying to shut down those who would bring us the truth.
Surely Congress can protect us. The People's representatives can pass laws to protect the American people and our Courts will uphold them, right? Have you heard of Presidential Signing Statements? Let me explain. When the president signs a piece of legislation, he has been regularly amending that bill by writing in his own interpretation to be followed by those who would then enforce the law, like bureaucrats, regulatory agencies, or better yet, our intelligence services. Since taking office, Bush has claimed the authority to disobey over 750 laws, saying that he has the power to set aside Congressional statutes, or ignore their terms, when they conflict with his own interpretation of the Constitution. He is not only 'The Decider" but the "Interpreter". He is the first president in modern history that has never vetoes a bill. Now we know why. He doesn't think he needs to...he simply rewrites then after signing. He has noted he can bypass the torture ban imposed by Congress. He doesn't have to tell Congress before diverting money from an authorized program to a 'black ops' operation. Congress says the military can't use intelligence that was not lawfully collected; Bush simply noted that only he, as commander in chief, could make that decision. He can nullify whistleblower job protection for employees who speak out to Congress on wrongdoing. He can ignore Congressional requirements that the Justice Department tell it how often and when the FBI uses special national security wiretaps on home soil. It goes on and on.
I interviewed Sandra Day O'Conner the other day and asked her if such signing statements had ever come before the High Court. She said no, but, despite her retirement, would not give me an advisory opinion about the legality of such actions. However, she has become increasingly outspoken about threats against an independent judiciary in this country. In a March speech, she warned against the intimidations now occurring and the path that could lead to a totalitarian regime. Justice Ginsberg weighed in through remarks she made in South Africa earlier this year. Surprisingly, just last week, even Justice Scalia told the right wing to get out of the Court's business. Although he disagrees with the referencing of International Law in Supreme Court opinions, he told the Far right to quit using that as an excuse to intimidate or control the Courts. I wrote about this in my book Contempt, How The Right Is Wronging American Justice published last September, but more and more is being written, as attempts to politicize and control the courts increase. Recently Congress said it intends to create an Inspector General to supervise judicial ethics. Congress won't manage its own, but it will go after the judges....the last truly independent branch of the government.
I thought long and hard before talking to you today about this subject. I could have stood up here full of inspirational rhetoric, how you should pursue your dreams, serve mankind, achieve true success I life. But this crisis is real, and who better to speak to about it?
You are the sentinels at the gates of freedom. Remember what Shakespeare told us in Henry VI? "First think we do is kill all the lawyers." Often the punch line in jokes, but recall the circumstances in that play. The bad guys knew that to defeat freedom and maintain tyranny, you had to murder those who would object and fight for such principles. Those were the lawyers. In a democracy, the lawyers have company. The people must be the guardians of their sacred documents, the Constitution and Bill of Rights, and of the rule of law. However, there is not time for delay.
Recently I was asked to write a piece on ethics. I was presented several dilemmas issues to address then asked for conclusions. Here are my thoughts.
As a lawyer, judge and journalist, I have confronted countless ethical challenges. Such events are not always a choice between acting one way or another. Sometimes the failure to act--behavior by omission--can qualify as an ethical dilemma. When you see wrongdoing and keep silent, that can present the greatest ethical quandary of all. As to the former, making a choice between one path or another, I have not had much difficulty in charting my course. I am lucky, or cursed, to have a healthy dose of puritan guilt. My decisions always weight heavily on my overactive conscience. However, to choose to speak out, to act, when most would not notice or criticize my safer silence, is the greater challenge. In the world of journalism today, keeping one's opinions to oneself is usually applauded. Just the facts, ma'am. Presenting voices from the left and right is deemed balanced reporting even when the author knows that this does not deliver 'the truth' to readers or listeners. To hide behind seeming objectivity can be cowardly at times. When I wrote The Case Against Lawyers, I decided to pull out the stops and tell 'my' truth, bolstered by the facts as I tried to divine them. I was prepared to make enemies and shatter the illusion of objectivity in the process. I have never been happier since stepping from behind that protective curtain and entering the fray.
Justice Potter Stewart set out an excellent guideline with the following definition; ethics is "knowing the difference between what you have a right to do and what is the right thing to do. " However, I have added a caveat to Potter's definition. To know the difference is not enough. You must ACT upon such knowledge to lead a truly ethical life. A wonderful Buddhist saying tells us, "He who knows and does not act, never really knows."
It is legal to remain silent in the face of injustice in the world. Yet for me, such omission is a moral sin. To read great religious or spiritual teachings and fail to perform accordingly leaves out the critical element in a value-driven life. To witness unethical conduct, although clearly removed from the behavior, makes one complicit in my book. This act of omission is rampant in our society. We moan about problems; we readily wag our fingers at transgressors, but rarely do we determine to make an effort to change the circumstances that produce such problems. This is nothing new. Mark Twain found it curious that "physical courage should be so common in the world, and moral courage so rare."
People do not have to take on the great struggles of our time to simply 'add their light to the sum of light'. Small acts can ripple across a community, the country or the world with amazing speed, producing enormous change. To paraphrase Margaret Mead, never think a small group of people cannot change the world. That is the only way such change occurs.
All right...so I came back to that notion. I am going to add my voice to the many other commencement speakers who call upon you to take up the torch, to confront the many challenges of our time and to make the world a better place. But I must say to you that these are not platitudes, they are mandates. You can try to remain safe by ignoring the warning signs. You can join the 'system' and hope to get yours before things tumble out of control. Or you can use your knowledge to wield the power of a free people to protect and defend this great democracy and the rule of law. Choose wisely, because our future is literally in your hands.
And finally, I leave you with these words from Ernest Hemingway. "The world kills people who are particularly gentle, courageous or brave. Now, if you're none of these, the world will kill you too. It just won't be in such a hurry."
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