I doubt whether most "loyal Bushie" Alberto Gonzales would have questioned why it is that, with so many law-trained people around, so many in these last few years haven't used their critical thinking skills better to uphold the rule of law in our country. So when AG Gonzales got too busy trying to remember things and couldn't make their commencement, I decided to tell the 2007 Iowa law graduates what he probably wouldn't have. (What a pleasant surprise to learn, only a couple days after my speech below, that government lawyers like Deputy AG Comey, FBI Director Robert Mueller and even former AG Ashcroft had, in fact, been using their skills to resist Gonzales' lawless ways.)
No Time for Pettifoggery: Too Many Challenges Await!
(Law Commencement at Hancher Auditorium, Iowa City, Iowa, May 12, 2007)
Thank you for the great honor today of being able to congratulate you and hopefully give you some words of wisdom and encouragement as your graduating class heads off to face the difficult, mind-boggling challenges of this new millennium.
A funny thing happened on the way to this forum. A few weeks ago a Google hit popped up that told me I was not first pick for commencement speaker but that I had only been asked after embattled U.S. Attorney General Alberto Gonzales was unable to make it. Guess the Attorney General got too busy studying or something. So that reminded me of one of my favorite ethics quotes by Mark Twain who once said: "Never lie. And then you don't have to remember anything." Of course, the only other way around this problem, as Alberto must have figured out, is just not to remember anything. In any event, someday, if YOU remember, you'll be able to tell your grandchildren that instead of having one of the most "loyal Bushies" at your commencement, you got one of the least loyal Bushies. (It should go without saying that all of us who swore oaths to protect and defend the Constitution from all enemies, foreign and domestic, could never make political loyalty our top consideration.)
What a deal. This is just unbelievable to be invited back to my alma mater 27 years after I sat in the same place as you. Especially since I was one of the non-conformists of my class.
You see I was one of the few students who went to law school not wanting to actually become a lawyer or practice law. From the start, I sought a law degree in order to have a better chance of becoming an FBI agent or a foreign service officer. So I guess I didn't feel as much pressure as others. And while I went to almost all of my classes -- I had a lot of those great professors: Vernon, Fahr, Weston, Bonfield, Widiss, Clinton and Sass, whose portraits now hang in the law school's entry hall -- I actually can say I attended class most of the time, not because I was worried about getting a good grade, but because I found the lectures and discussion interesting. I never joined any hard core "Paper Chase" type study group or bought a cheat sheet outline or anything like that. But I did discover some other tricks and shortcuts pretty quickly. My vision had previously been 20-20 so I didn't wear glasses but my eyes were starting to go. So I sat in the front row or near the front to see the board better. It's kind of counter-intuitive but I quickly found out that if you sat in the front row and raised your hand a lot during the first couple weeks of any class, you'd be pretty safe the rest of the semester from the surprise and embarrassment of the Professor's "Socratic Method" questioning.
Another trick I discovered by hit and miss trying to save money was buying used law books that were well annotated and highlighted. If you could find the books of the smartest, most conscientious students in the classes ahead, you'd have it made because even if the professor called on you and you hadn't read the case, you could quickly spot the answer already written in the margin. The best book I ever found was used by at least four students before me. It was so marked up, with three different colors of highlighter, that the price was reduced down to like $10. But it turned out those four prior students who had used that book were all top notch and they had all the right answers written all over it! I think I got my highest grade in law school in that class.
Also when I went to law school, the running craze was just starting in the United States. The first Iowa City marathon was held when I was in law school and a classmate and I got into it big time. We ended up running before and after and to and from classes, whenever we could, to fit in our 70 miles per week. So we had to come to class dressed in sweat suits, often carrying two or three large cinnamon rolls to try to get enough calories to fuel all those miles. Ultimately my running friend, fellow law student and law review member Barb got her priorities of running and law studying so reversed that she ended up failing the bar exam. She ended up qualifying, however, for the first Olympic trials held for the women's marathon in the United States. And she also went on to become an accomplished artist and sculptor.
All this to explain, not how to get through law school since you've all obviously mastered that, but just to confess to already being a bit of a rogue. In 1979 when the FBI applicant coordinator flew all the way from Omaha to Iowa City through a thunder storm in a small plane, he found only two third year law students out of the whole class had signed up for his interview. I guess the FBI wasn't cool back then, but anyway I and this really weird guy in the class who always wore army boots were the only ones who signed up. So instead of twenty minutes of the FBI agent's time, I got a couple hours and a real leg up on the FBI application process which no doubt helped me get in.
Even though my law school experiences were no doubt different from my classmates and different from yours, I can tell you I learned a ton from law school -- things that have stuck with me for life and these are also the things that I think are most important for you to take from here too. I learned and developed the critical thinking skills that would land me, 22 years after graduation, on the cover of Time Magazine, twice, for revealing how 9-11 might have been prevented. But less than a year later the same critical thinking skills resulted in my being demoted one GS-level for publicly warning that the Iraq War would prove counterproductive.
I will predict that when all is said and done, you're going to look back and most of you will identify the number one thing you got out of law school was developing your critical thinking skills: whether or not it ever brings you fame or fortune; whether or not you become a U.S. Senator like Norm Coleman; a law school dean like Carolyn Jones; a marathon qualifier-turned sculptor like my classmate Barb or a great jurist like Chief Judge of the 8th Circuit Court of Appeals and 1949 Iowa grad Donald Lay who died the day I was writing this speech. There's almost no better environment than studying law to hone one's critical thinking skills. Nothing better than the cognitive reading and training the mind to spot issues; Socrate's method of questioning everything; and producing the strongest argument for and against something. It should be no surprise then why law schools produce so many leaders. But with so many law-trained people around, maybe what we should be surprised about is why so many haven't used those skills better in the last few years.
I hope, by this point, it's no longer considered radical to point out our country is in a mess, in umpteen ways, certainly foreign policy wise, fiscal wise, climate and environment wise but also legal and constitutional crisis-wise. So many constitutional scholars and concerned citizens have been sounding the warning about the huge pendulum swing -- what I call "Green Light On" to shredding the Constitution. We've been like the frog in warm water, learning of one constitutional infraction after another on the part of government officials: from "extraordinary renditions", use of "black sites", authorization of torture, illegal monitoring of communications, politicization of entire government agencies, to obtaining records and maintaining lists of hundreds of thousands of innocent people and finally what should have prompted the frog to hop out of that boiling water -- even deleting the Writ of Habeas Corpus -- a fundamental right that's been around well over 300 years, predating the Constitution.
This brings me to the second major thing I got out of law school and which I hope you will take with you too: respect for the rule of law. As it turns out, respect for the rule of law is even more important to democracy-building than a one-time-purple-finger-up-in-the-air vote. I would never have guessed how this could play out in an ordinary life. But here I was pre 9-11, an ordinary, rather conservative law and order type FBI agent. For 13 years I was responsible for legal instruction to other FBI agents and police officers -- mostly on the constitutional provisions affecting criminal investigation: the law of search and seizure, interrogation and right to attorney. I taught law enforcement officers the finer points, that some would call the technicalities of, for instance, the Miranda Rule. Of course my role was teaching agents how to go right up to the legal lines set out by the Constitution in order for them to effectively do their jobs and aggressively investigate, fight crime and enforce the law. 9-11 happens. (And there's a whole 'nother story there we don't have time to go into.) Anyway, within a month, hundreds of innocents were picked up and imprisoned, some beat up; the Patriot Act passed (all 342 pages of it with almost no one even reading it); and talk began of "taking the gloves off" with those detained. No one knew back then but the president had also ordered the NSA to begin monitoring American telephone and electronic communications without a warrant. Just about four months after 9-11, a government attorney named David Addington drafted a memo that said the Geneva Convention was quaint but obsolete and this memo was signed by Alberto Gonzales on January 25, 2002. In other words, a huge pendulum swing got underway. Another way to visualize this is to imagine a snowball that gets pushed down a hill and picks up mass and momentum. Once that happens, the decision becomes do you roll with it? Or should you do what you can to try to stop it? I just happened to be in a position to clearly see this happening and my decision to do what I could, even if it meant getting in front of the snowball, was certainly due to the respect for the rule of law and critical thinking skills I gained at the Iowa law school.
Now in the last 5 plus years, I and others have been trying just a myriad of ways to get things back to the way they should be: more governed by the rule of law instead of the law of force. You probably know about the first whistleblower disclosure I made about the need to honestly unravel the mistakes and lapses that allowed 9-11 to happen in the first place. But I also ended up making similar whistleblower complaints about the post 9-11 detentions; the arbitrary and politicized color codes; and the blurring of terrorist activity with first-amendment protected activity in FBI guidance to police officers. I asked for the DOJ Inspector General to investigate some of these things and I wrote papers that I cleared through the FBI's "pre-publication review" so I could expand avenues of speaking and educating others. For instance, once I had cleared a couple of paragraphs in my paper on civil liberties and the need for effective investigation which later was published as Chapter 30 in a book: Patriotism, Democracy and Common Sense: Restoring America's Promise at Home and Abroad, I felt free to use that information to warn the ACLU that they were on the wrong track in not looking into the FBI's unbridled use of National Security Letters to gather hundreds of thousands of bank, credit, hotel, telephone, and electronic communication records on Americans. Of course while I still acted as the Minneapolis legal counsel, our office fought a lot of the pressure from Washington, as I said, to roll along in disregard of principles of law. Our office for example avoided detaining any innocent person in the "post 9-11 roundup." I even took advantage of my last farewell e-mail to my colleagues in the FBI to warn them that the "green light" always goes out and those higher-ups that turned it on will always deny they did and leave the little guys to take the blame. After I retired, I tried to get on the President's Privacy and Civil Liberties Oversight Board (and actually came pretty close by getting 8 of our 10 Minnesota Congresspersons to recommend me). I've testified to Congress, lobbied Congress and, finally, I tried to run for Congress, in part, to restore the rule of law and our constitutional rights in this country as well as combat terrorism more effectively.
Now if anyone has any other ideas, please let me know. Please see me at the punch bowl after commencement. All constructive methods will be considered. We certainly need more help and good legal advice. Thankfully Congress itself has finally begun to take steps to undo some of the damage and get things turned around but there is still a long way to go.
Anyway you probably already recognize that as newly trained law school graduates, you are going to be entering or returning to the work force and the real world under these really unusual circumstances and enormous pressures. The same conflicting loyalties, slippery slopes and group think situations will confront you and ensure that that you face moral dilemmas similar to or even greater than what I've faced. People say some of the recently made national decisions will prove to be the biggest blunders of history. Others say George Orwell's 1984 was just a couple decades late in coming. Or history might be repeating. I think the best description of our current situation comes from the following quote from a book about the Vietnam era:
"It seemed to us that the whole country, not just the government, had laid aside its normal pursuits and danced off to disport itself in a puddle of flummery, that we had become a nation of pettifoggers, of small time tricksters, a padded Lilliput whose citizens had simultaneously forgotten how to tell the truth. That the itch to equivocate had become as widespread and as irresistible as the temptation to fudge on taxes, and so on and so forth...maybe they put something into the water."
A pettifogger is, if you don't know, a lawyer whose methods are petty, underhanded or disreputable. Although this quote, from a book on the Vietnam War, was referring to the deliberate underestimating of enemy troop strength by certain military generals and administration officials during that war in order to falsely project American victory and draw attention away from mounting American casualties, I fear that the phrase about becoming "a nation of pettifoggers" may be more true today than it was back then. Maybe it's just that truth is always the first casualty of war.
In any event, we can afford a few of you becoming non-conformists but we certainly can't afford any of this Class of 2007 becoming pettifoggers. There are real messes that need your help to be cleaned up. So please after the graduation celebrations and bar exams are over, please pour your new blood, new energy and new ideas into these challenges. Our nation needs you to put the critical thinking skills and respect for the rule of law that you have acquired here into immediate use to help guide our country out of the morass and flummery it finds itself in, to help re-establish itself as the great constitutional democracy and leader in the world that our founding fathers envisioned.
Congratulations on accepting this challenge and good luck! And good luck especially to any of you non-conformists in the pack. We're really counting on you all to get the country back on the right track.