The next generation of lawyers must continue to fight for the constitutional rights of all citizens, especially considering the challenges posed to civil liberties by government security measures established after September 11, said ACLU President Nadine Strossen in her keynote address to the sixth annual Conference on Public Service & the Law Feb. 12. This year’s conference attracted more than 200 students, attorneys, professors, and community members, who debated and discussed topics in public law as well as public service careers. In his introduction to Strossen’s speech, Dean John Jeffries said the Conference has become a “defining event” for the Law School.
Strossen, a New York Law School professor who has served as ACLU president since 1991, opened her talk by urging students to consider public service. “All of those many years since I was a law student have indeed flown by, so astonishingly quickly, because I absolutely loved my work in our great legal profession,” she said. “I want you all to make a promise to yourself that you will not settle for anything less than enthusiasm and excitement about your work.”
Being a lawyer is an important credential that “can literally open any door for you. It’s up to you to find the right door.”
Strossen said even if lawyers choose private practice, there is time for pro bono work. Most ACLU cases, including many of the greatest constitutional law cases, were argued by lawyers working pro bono. One such case put the ACLU on the map: the 1925 Scopes trial, in which ACLU attorneys and volunteer Clarence Darrow challenged Tennessee’s law banning the teaching of evolution in schools. The evolution argument has reemerged recently in some school districts, Strossen said, showing that “no fight for civil liberties ever stays won,” as ACLU co-founder Roger Baldwin once declared.
Called by some “liberty’s law firm,” the American Civil Liberties Union has about 100 staff lawyers nationwide, but thousands who donate their time and talents to serve as “cooperating attorneys,” allowing the ACLU to be involved in 6,000 cases a year. ACLU attorneys appear before the Supreme Court more than any other organization except for the Department of Justice, which often is on the opposing side, defending the government.
Strossen said the ACLU model of pro bono service has been so successful it was imitated by Rev. Pat Robertson (a Yale Law graduate), who founded the ACLJ—the American Center for Law and Justice. Like the ACLU, the ACLJ promotes public service not only through litigation but through legislative lobbying, teaching, and community organization, showing that no matter what, “there is some pro bono work that is tailor-made just for you.”
The ACLU acronym has spawned jokes claiming it stands for “All Criminals Love Us,” or “Always Causing Legal Unrest,” Strossen noted. She recalled speaking at the University of Kansas, where demonstrators from the Westboro Baptist Church held pickets charging the ACLU as “the nation’s number-one fag lobby.” Strossen said she was proud when she heard such insults, instead seeing them as back-handed compliments.
Strossen cracked that lawyer jokes have no audience: “lawyers don’t think they’re funny, and nobody else thinks they’re jokes.”
In reality, “when you take a closer look at public attitudes, you actually find lots of respect and trust,” she said. Surveys show that most people value their own lawyers or lawyers they know personally, but turn sour on those who advocate for others. “Everyone wants [the ACLU] to defend their rights or the rights of people with whom they agree, but the problem is that we also defend everyone else’s rights, including people with whom they strongly disagree,” she said. Some of their own clients, such as the conservative editor of a right-leaning college magazine, the Dartmouth Review, have heatedly denied membership with the ACLU as a result.
Context matters when it comes to slurs against lawyers, Strossen emphasized, pointing to Hitler’s remarks that he would not rest until Germans realize it is shameful to be a lawyer.
One of the more infamous lawyer jokes, from Shakespeare’s Henry VI—“The first thing we do, let's kill all the lawyers”—is actually uttered by a character named “Dick the Butcher,” when discussing plans for seizing absolute power in England. Strossen said the joke shows that lawyers even then were an obstacle to plans to exterminate human rights. “Thank you, Dick the Butcher, for that compliment to all of us lawyers. May we all always deserve it,” she said.
While lawyer bashers make fun of lawyers’ perceived greed and wealth, those who work in public interest earn substantially less than those in the private industry. “We are all rich in a way that really matters—that is in satisfaction and in joy,” she said. Strossen quoted Will Rogers: “A man makes a living by what he gets; he makes a life by what he gives.”
Strossen emphasized that no matter what the Constitution grants in theory, its clauses are only worth the paper they’re written on unless acted on in practice. The vast majority of ACLU efforts are to educate police, school teachers, and other government officials about what is constitutional. Each year the ACLU gets hundreds of thousands of calls saying their rights have been violated. Most issues that come to the ACLU’s attention are resolved without going to court. “While this kind of work doesn’t lead to landmark Supreme Court decisions, it does make all the difference in the world for the people involved and by extension for everyone else in their communities.”
She cited recent students’ rights cases involving the Internet, in which the schools punished students for creating Web sites on their own time that in some cases dared to criticize the schools or teachers. “Hurt feelings or wounded pride hardly justify censoring or punishing speech,” she said. In one case, the school superintendent was quoted in a newspaper that he lost on a “technicality.” The district’s lawyer added, “the First Amendment was overlooked.”
“All of you can help bring such injustices to light,” Strossen said, by simply informing community members of their rights and making sure local officials are also made aware.
“Never have we lawyers had a more crucial role in carrying on our professions’ grand traditions of resisting abuses of power than right now, in the wake of the September 11th terrorist attacks, which occurred shortly before you began law school and which will continue to color your whole legal careers. After all, the core value that the terrorists attacked was the very rule of law itself,” Strossen said, noting that Sandra Day O’Connor made these points as the first Supreme Court justice to speak publicly after 9/11. O’Connor outlined the issue: lawyers would help define how to maintain a fair and just society ruled by law when many would be more concerned with safety and vengeance.
In response to reports that the United States had tortured detainees abroad and in Guantanamo, the ACLU filed a Freedom of Information Act request in 2003 seeking the release of relevant documents. The ACLU sued the government for not complying in June 2004 and finally received some of the requested information in January 2005, which exposed prisoner abuse in Guantanamo to the media. Released FBI documents show that prisoners were shackled in the fetal position for up to 24 hours and left in their own urine and feces. Other documents described how female interrogators taunted Muslim prisoners with sexual touching, wearing miniskirts and thongs, and in one case smearing a Saudi man’s face with fake menstrual blood. “And these are only some of the horrifying examples that the FOIA litigation has brought to light,” she said.
Strossen credited public service lawyers for helping to release the information as well as military lawyers who have spoken up against government tactics since 9/11. She praised FBI agent and counsel Colleen Rowley for voicing her opinion about the FBI’s responsibility for 9/11. Department of Justice Inspector General Glenn Fine likewise has criticized the detention of hundreds of Muslims who were not charged with a crime.
“Lawyers and judges are speaking up, all over the country, with a positive impact on both liberty and security.” She pointed to a three-judge panel’s opinion in Georgia that upheld the rights of those protesting torture and human rights abuses and said that the government cannot suspend liberties during the war on terror because the war on terror is unlikely to ever be over. She quoted the opinion, “September 11, 2001—already a day of immeasurable tragedy—cannot be the day liberty perished in this country.”
Strossen concluded that in light of former Attorney General John Ashcroft’s
comments that dissent was unpatriotic after 9/11, an ACLU t-shirt that
declares “you have the right not to remain silent” should
read “you have the patriotic duty not to remain silent.”