To The Readers Of The Metropolitan Corporate Counsel:
When America triumphs in the War on Terrorism, as we most surely will, we know that we will still be the Home of the Brave. It is the responsibility of the legal profession, however, to insure that America remains the Land of the Free. On assuming the leadership of the New York County Lawyers' Association (NYCLA), the great "democratic"bar association located at the perimeter of the World Trade Center site, I said that my prime focus will be to expand access to justice and preserve liberty for all Americans. This is a two-fold challenge.
First, the organized bar must insure that the fundamental freedoms enshrined in our Constitution and our Bill of Rights are staunchly defended against all enemies, foreign and domestic. Second, we must insure that those freedoms and a system of justice that imbues them with meaning in everyday life are available to all persons, regardless of economic circumstances. It is the first of these two challenges that is uppermost in my mind as we enter the month of June, the month in which we celebrate Flag Day and the symbol of our republic. June is also the month in which the United States Supreme Court often renders its most far-reaching decisions.
As a nation, we are passing through one of those dangerous eras, recurrent throughout American history, when the endurance of our democratic traditions is at risk. It is a uniquely American phenomenon that when the country goes to war the fundamental liberties for which our citizens are so generously prepared to fight and die also come under attack.
The Civil War brought the detention of thousands of non-combatants and the suspension of habeas corpus. The aftermath of World War I ignited xenophobia and gave rise to the Palmer raids. During World War II, the United States detained thousands of loyal Japanese Americans in internment camps, a practice that was upheld by the United States Supreme Court in the Korematsu case. The Cold War, America's prolonged struggle against communist ideology, gave rise to McCarthyism, which destroyed countless careers and lives, trashing the principles of free speech and expression. And during the Vietnam era, abuse of governmental institutions resulted in the creation of an "enemies list," subjecting countless citizens to suspicion and abuse. Eventually, the Watergate fiasco exposed a government that had become wholly detached from the rule of law.
Now, as we fight a new kind of enemy, one with a demonstrated capability to strike within America's borders, our commitment to the rule of law and our determination to preserve the nation's core values and liberties hang in the balance. Concern for public security is understandable, particularly for institutions such as NYCLA, whose historic Home of Law remarkably withstood the 9/11 attacks. But the assertion of Executive authority in order to combat an illusive enemy carries grave risks. Following a wave of mass detentions, largely based on national origin, a series of cases are now pending before the United States Supreme Court in which the government seeks an unprecedented expansion of power.
In the Guantanamo Bay cases, the government seeks the power to hold indefinitely, and without the filing of any charges, foreign nationals who were seized oversees and transported to the American base. In the enemy combatant cases, the government asserts the right to detain indefinitely American citizens, including those seized within the United States, and to do so without filing any charges against them and by denying them access to any court to adjudicate the propriety of the detention. In short, purely on "suspicion," however that subjective term may be defined, the Executive branch asserts the power to act as accuser, judge, jury and, potentially, as executioner.
The profound consequences of such an emergence of imperial power would be unprecedented in American history. How long would these powers last given that the Administration has indicated that the War on Terrorism may last indefinitely? How will we know when it has ended? Is terrorism the only evil that justifies these detentions? What about other foreign or domestic threats? If the detainee is only a suspect and has no right to adjudicate a claim of innocence in any court, how do we know that we are not detaining the innocent? And if the detainee is a critic of American policy, is not the potential for suppression of dissent limitless? And finally, if the assertion of power is upheld, what is there to prevent the government from engaging in unchecked abuses, such as torture or murder?
Variables of these questions were raised in the oral argument in the Supreme Court. Indeed, one of the justices specifically raised the question concerning torture. Sadly and ironically, only days later the Iraqi prison abuse scandal broke with graphic evidence of the consequences of unchecked power. Once again we are reminded of the enduring truth of Lord Acton's observation in 1887: "Power tends to corrupt and absolute power corrupts absolutely."
All citizens of conscience wait with bated breath for the Supreme Court decisions in these remarkable cases. It is likely that the Court's rulings will define the contours of America's experiment with democracy for generations to come. Hopefully, the Court, in its wisdom, will find a way to balance legitimate security concerns with a firm adherence to the principles underlying American freedom for which so many have sacrificed. This is not the first time that the Supreme Court has faced a momentous decision. Will the Court give us a Marbury v. Madison, vindicating the role of the judiciary? Or will we have Dred Scott, barring access to the courts and thereby dashing any hope that the Court would exercise its authority in the cause of freedom? Will we have a Brown v. Board of Education or a Plessy v. Ferguson? Indeed, will we have a United States v. Nixon, limiting the powers of the Executive and ending a long period of abuse, or will we have another Korematsu, bringing shame and lasting damage to America's reputation?
It is now the month of June. We will soon know the answer. One thing is certain: if the Court's decisions uphold our great traditions of liberty, America's lawyers, through the collective voice of the organized bar, will celebrate the triumph of the rule of law. If the decisions imperil liberty, lawyers will decry the result and mobilize to restore the balance necessary to ensure the survival of our democracy. Whichever road we must travel, I will be proud to lead NYCLA in those efforts.