November 10, 2010 at 11:02 A.M. "Errors" inserted in this text, again, may have been aimed at humiliating not only its author, but also Secretary of State Hillary Rodham Clinton and President Barack Obama.
October 5, 2010 at 11: 23 A.M. An "error" was reinserted in this text by a New Jersey hacker. I have corrected that "error." The continuing violations of the First Amendment undermines many of the hopes expressed in the essay that follows.
July 10, 2010 at 6:04 P.M. "Errors" inserted in this text which had been left alone for a while may be a comment on me or Secretary of State Clinton.
Harassment continues to make posting essays difficult. I will continue to struggle against censorship. At any time, New Jersey's computer warfare may prevent me from writing on-line. Perhaps things will improve with further arrests of lawyers, politicians and other civic "leaders" in the Garden State. Is this "freedom of speech" in America today?
I am grateful and honored by this invitation to address the graduates of Yale University's School of Law. Congratulations to each of you and to your proud families on this happy and most significant occasion in your lives. Woody Allen has raised the weighty question that defines the crisis of our times:
"Put in its simplest form, the problem is: How is it possible to find meaning in a finite world given my waist and shirt size?"
Woody Allen, "My Speech to the Graduates," in Side Effects (New York: Random House, 1980), pp. 57-58.
I am confident that each of you will discover responses to life that will allow you to cope with this problem in a personally satisfying fashion.
You have chosen to enter a profession and to study an area of human activity, law, that is undergoing a paralyzing crisis of identity and legitimacy at the dawn of the twenty-first century. Collapsing epistemological and metaphysical foundations seem to leave America's legal structure in a highly precarious condition. Foundations for much legal thinking are missing. I suggest that these foundations will be found only if we return to our legal heritage and traditions.
The American legal system has suffered a decline in respect from your colleagues and counterparts all over the world. America's legal system is alleged to be contaminated by the "unspeakable horror of torture" and other "crimes against humanity," hypocrisy, gross disparities in outcomes on the basis of race, poverty, even gender are said to be "ineradicable" by social scientists. A recent study of Supreme Court decisions suggests, to many observers, an obvious political bias in opinions, making a mockery of claims of objectivity or rigorous discipline in legal methodology. Adam Liptak, "The Roberts Court, Tipped by Kennedy," in The New York Times, July 1, 2009, p. 1 and Adam Liptak, "Justices long on Words but Short on Guidance," in The New York Times, November 18, 2010, at p. A1.
I am not persuaded that objectivity, neutrality, and fairness are unattainable in the U.S. legal system. This is not to deny that we often fail to meet these ideals. Is law really no more than a mask for power? Is a life devoted to the puzzles of legal analysis and "shopkeepers' arts" (in the words of Oliver Wendell Holmes) worthy of a fine intellect and a first-rate education at one of the world's great universities? Is law only a "means to the ends" of personal wealth or power?
I believe in law. I will offer a plea on behalf of legal institutions, processes, and methods (generally) and America's Constitutional system (specifically). For the moment, I will set aside the question of the merits, if any, found in these charges against America's legal system. Paradoxically, there are historical moments for optimism and hope, also for renewal of commitment to struggle -- moments that arise, usually, when things seem most bleak. We are living at such a moment. Our greatest danger is also our finest opportunity.
It is incumbent on all of us not to yield to a sense of despair or futility, but to persist in the struggle for a more just society. A life in law is a life of struggle for justice. A lawyer's life must be lived on behalf of reason and communication against violence and human tendencies towards evil. To be a lawyer in America -- with all exceptions granted -- is, and must be, to fight for civilization and against terror, often in the name of ordinary and far from powerful people, to promote values of community and the peaceful resolution of disputes. This insight is at the heart of what I understand by legal ethics.
Lawyers are often concerned to resolve or settle conflicts or difficulties between parties, not only to prevail at the expense of others. Indeed, this is an attorney's highest calling to bring about just and lasting solutions to troubling disputes and difficulties that plague society. When the crises that we face are greatest, our possibilities for progress by resolving these crises are also greatest. At such moments of crisis, courage is needed and determination. Great things that benefit humanity for decades and centuries emerge because of such legal resolutions. Perhaps there would be no Obama presidency without Brown v. Board of Education.
This moment in legal history that we share is defined by a collapse of foundations for authority. Legitimacy is no longer merely institutional because the natural law basis for legal reasoning has been, mostly, forgotten. Court decisions are perceived as only impositions of power. America's Constitutional order will make no sense to those who question or abandon a commitment to reason and the search for truth as essential to our jurisprudential efforts.
Legitimate authority means moral and transparent processes with justice as a goal. No secrecy, no thumbs on the scales of justice, no favoritism, impartial and disinterested (objective) decision-makers, evidential-bases for all findings of fact, and a fair opportunity for all sides to be heard. The only meaningful "ethics of legality" concerns adherence to this "methodological natural law" of democratic institutions. (Lon L. Fuller, Ronald Dworkin, Charles Fried, Michael Perry.)
This lawyer's life of struggle -- long hours and few thanks, often unpaid legal bills that we submit for our services -- seems to many outside the profession to be a "Quixotic" life. The battle against injustice may never be fully won.
Why are we called upon to engage in this effort? I suppose the only answer that we can give is that lawyers see vast amounts of cruelty and suffering, unjust situations in need of correction. We experience ourselves as talented in the ability to reinterpret situations so as to relieve suffering and oppression. Compare Allan A. Ryan, Jr., Quiet Neighbors: Prosecuting Nazi War Criminals in America (New York & London: Harcourt Brace, 1984), pp. 324-345 with Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), p. 98. (Nazi torturers forfeited their American citizenship and were subjected to criminal prosecution for actions that are now deemed "legal" by Mr. Bush's torture lawyers.)
We feel and cultivate a special skill at discovering or developing the solutions to problems that are said to be insoluble. Let us call this unique style of "lawyer's thinking" the "artificial reason of the law." (Lord Coke) We feel duty-bound to articulate the concerns and needs of the inarticulate and unrepresented. Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), pp. 106-107. (" ... a society should take seriously the possibility that there are right answers to political-moral problems.")
Government and private practice will offer you many opportunities to do good work in the cause of peace and justice. Great lawyers are also some of our finest interpreters and translators of rival discourses in the legal world and to as well as for the world community. This work is impossible for those who regard concepts of truth and justice as meaningless or not worth pursuing.
"Nihilism bakes no bread and builds no bridges" as the slogan has it. Amoralism is dispiriting and counterproductive in the legal enterprise -- whose legitimacy, I believe, depends on the idea of justice, as a value and hope in our flawed human institutions, a hope by which we measure success in the administration of laws.
This "good" legal work also cannot be done by those who despair or whose capacity for struggle is diminished by apathy or, worse, cynicism. The unfortunate part played by lawyers in recent scandals concerning torture of detainees and other abuses of power is not in keeping with America's legal traditions. Those who remember Watergate will experience a sad sense of deja vu. The lack of punishment of any kind for government lawyers responsible for "crimes against humanity" is most unfortunate, given our ease at inflicting the ultimate punishments on politically powerless or poor litigants and lawyers. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey.")
Future administrations in America must not travel further down this path. Torture is not who we are in America's legal profession. The acceptance of torture in a U.S. population in danger of losing its fundamental values -- especially among members of the legal profession who are experiencing this so-called "identity crisis" -- is highly worrisome:
" ... it's difficult to comprehend that anyone in a position of authority in America can get away with calling these practices [Guantanamo and Abu Ghraib] anything but torture, and also hard to believe there's any debate taking place at all over whether or not the torture outlined in the Office of Legal Council Memos is justifiable. However, in a survey published on April 29, the Pew Forum found that 49 percent of the U.S. public believes that torture can sometimes or often be justified. Among white evangelical Protestants, this number climbs to 62 percent. The Pew Forum didn't carry out the survey using a euphemism such as 'enhanced interrogation techniques' or another such watered-down phrase. Respondents were actually endorsing torture."
Clayton Whitt, "Nothing Sacred: What We Talk About When We Talk About Torture," The Humanist, July/August, 2009, at pp. 10-11 (emphasis added). http://www.americanhumanist.org/
An editorial in The New York Times expresses shock and outrage:
"After the C.I.A. inspector general's report on prisoner interrogation was released last week, former Vice President Dick Cheney settled into his usual seat on Fox News to express his outrage -- not at the illegal and immoral behavior laid out in the report, of course, but at the idea that anyone would object to torturing prisoners. He was especially vexed that the Obama administration was beginning an investigation."
"Dick Cheney's Version," (Editorial) The New York Times, September 3, 2009, at p. A30.
Mr. Romney also favors torture as a "weapon" in the struggle against "terrorism." For a comparison, see Charlie Savage, "To Critics, Obama's Terror Policy Looks a Lot Like Bush's," in The New York Times, July 2, 2009, at p. A14.
None of the respondents, if asked, would approve of the torture of Americans captured by the enemy in Iraq. Everyone identifies the torture of Americans with terrorism and crimes against humanity. The U.S. attitude to torture only changes when victims are non-Americans. ("The Experiments in Guatemala" and "America's Unwilling Experimental Animals.")
This contradiction in our legal values is seen by the global community and may explain some of the loss of respect for American law. It appears that -- even within the nation's borders and illegally -- persons are tortured by agents of the state. Crimes must always be prosecuted to the full extent of the law. Talk of the "ethics" of victims of rape, assault, theft, slander, violations of civil rights, including privacy -- by their victimizers -- is absurd. ("What is it like to be tortured?" and "What is it like to be plagiarized?")
Perhaps the difference between the Obama administration and the Bush/Cheney years (or Mr. Romney) is that President Obama's administration has explicitly rejected torture as an instrument of foreign policy, while setting in place the mechanisms by which to try detainees as well as closing the infamous facility that has housed them "within a year" or as soon as may be reasonably possible.
"We choose to do these things," President Kennedy said, "because they are hard and not because they are easy."
I am sure that President Obama's administration will continue to refuse to torture or enslave human beings. No attempt to "pass along" responsibility for the failures of the past will be successful in deceiving the American people. Detainees will be tried. If convicted, they will be punished without being tortured. If acquitted, detainees must be set free. Furthermore, those who are acquitted in fair proceedings must be seen by the world to be exonerated and liberated. There will be no secret and indefinite "monitoring" of persons not charged with or convicted of crimes in America. No murder in America of U.S. citizens (or anyone) for secret reasons outside the boundaries of law is acceptable under our Constitution.
Brutality in response to brutality; violence in response to violence is always a failed policy. The recent effort to impose a military solution on what is just as much a political as well as cultural struggle has resulted in a highly dangerous situation and crisis in Pakistan. Salman Masood, "Attack in Pakistani Garrison City Raises Anxiety About Safety of Nuclear Labs and Staff," in The New York Times, July 5, 2009, at p. 6. (The loss of a country with 100 nuclear weapons to Islamic fundamentalist forces is possible in Pakistan and is not acceptable to the world community.)
Indeed, this concern over safety and security is recognized by Pakistanis today, Eric Schmidt & Jane Perlez, "Pakistan Objects to U.S. Expansion in Afghan War, Fears Militant Influx," in The New York Times, July 22, 2009, at p. A1. (Is it wise to drive the Taliban closer to nuclear weapons by pressuring them to move from Afghanistan into Pakistan?) Eric Schmidt & David E. Sanger, "U.S. Asks More From Pakistan In Terror War: Wider War is Seen as Key in Afghanistan," in The New York Times, November 16, 2009, at p. A1. (The conflict is spreading and our "allies" in Pakistan have an "ambiguous agenda.")
Has India become a "player" in this drama? China? The military actions in Pakistan must be seen as only one component in a much larger struggle that involves lawyers in that country working to enhance due process rights and social justice for ordinary Pakistanis. America must be on the side of progressive change in the region even as it is against Taliban and Al Qaeda terrorism. The U.S. is on the side of the Pakistani people. America must not lose the support of the people in the region. This support is still ours to lose.
Seeking to use India as a "wedge" against Pakistan's compliance with our wishes risks alienating both societies that are reduced to "instruments" of American foreign policy. If we are asking Pakistanis to risk their lives and die in the struggle against Taliban forces, then it seems clear that rewarding or encouraging potential conflicts between that nation and India, as part of a geopolitical strategy, may be unwise. America needs and welcomes equal partners, not servant states.
The U.S. is also on the side of the Cuban people in their recent efforts to create a more free society that is socially just and equal for all of its members.
Will indiscriminate drone attacks anywhere help in this effort to defeat the Taliban? It is difficult to say. This much seems clear: Pakistanis must understand why actions are taken and who is the intended target of U.S. military action. The consequences for all law abiding persons in the region from Taliban oppression and obscurantism must be appreciated. I believe that more can be done -- especially by lawyers in Pakistan who are sincerely concerned about the rule of law -- to educate the population concerning these matters.
Perhaps the concern with a fundamentalist "take-over" in Pakistan should focus as much on conflicting loyalties among intelligence and military personnel in the Pakistani government as upon the revolution led by the Taliban. More worrisome are the new alliances being forged between Marxist guerilla forces in northern India, others in the Middle East and Africa, as well as the Taliban and Al Qaeda.
Latin America is not as hostile to U.S. concerns as it was under Bush/Cheney. However, a "recasting" of the bilateral relationship between the U.S. and Cuba -- perhaps eliminating the embargo -- would do much to foster a healthier climate in the region by demonstrating our capacity to make peace as well as war. ("Time to End the Embargo Against Cuba.")
The crises inherited by the Obama administration from the Bush years -- Pakistan and Afghanistan are only part of the trouble -- have followed the president on recent trips abroad. Ellen Barry, "For Obama Visit, Russia Mutes a TV Pastime: Ranting at U.S.," [sic.] in The New York Times, July 6, 2009, at p. 1: The United States is "derided as 'a great power with a broken back where armed psychopaths regularly roam educational establishments' and 'a parasite that owes the world $53 TRILLION.' ..." (The word "pastime" appears with this spelling "error" as a title to the lead story on the front page of The New York Times.)
President Obama's comments concerning freedom of speech and tolerance in China must be seen as absurd by readers who have witnessed, daily, protected censorship and criminality directed against U.S. dissidents by the government of America's most corrupt jurisdiction, New Jersey. Perhaps these tactics are merely a passtime for elected officials without sufficient responsibilities to fill the workday.
Helene Cooper & David Barboza, "In China, Obama to Press For Tough Stance on Iraq," in The New York Times, November 16, 2009, at p. A4. Many wonder whether we are in a position to "press" China on anything. Regrettably, the errors of the past have given ammunition to America's critics. This ammunition supplied by the "errors" of our predecessors is also a threat to American security. America's security is a complex phenomenon that has an economic, cultural, military aspect, but that is also a legal matter.
Deleting words from a published text will not diminish the force in these arguments. It is time to push the "reset" button in our foreign policy. For Americans to make it a goal to embarass the Secretary of State of the United States of America is to betray our national interest. Censorship by government in this country is a betrayal of the Constitution, regardless of the politics of the victim. ("Manohla Dargis Strikes Again!")
I wish to return to this idea of the loss of legal values. The temptations of success for lawyers can be overwhelming. Great wealth and power are possible rewards for a lawyer's skills. Often, there will be more money to be made by skirting or "dancing around" legal provisions, or by assisting in violating the spirit of laws that are obeyed only in a literal sense. There may well be entire jurisdictions ("Soprano States") where corruption becomes pervasive or "cultural," even as evil contaminates "legal" processes which no longer deserve to be described as Constitutional or just. In the midst of these pressures, it is important and very difficult to hold on to our humanity and ethical values, as efforts are made by powerful forces to deprive us of both. However, it is essential that we retain our sense of commitment to and faith in the legal process. Secrecy is the enemy of freedom and law. ("New Jersey's 'Ethical' Legal System" and "New Jersey's Office of Attorney Ethics.")
The loss of values, as Senator John McCain's life has taught us, is unacceptable even in a torture chamber because it amounts to the loss of ourselves. Hence, any confession obtained through violence or other illicit questioning or even psychological torture processes leading to so-called "statements" -- such as John McCain provided to his North Vietnamese torturers -- always makes such statements involuntary and inadmissable. The experiences John McCain suffered shamed his captors, not himself. We must realize that the same is true when any "detainee" or other person is tortured by anyone for any reason. Aside from distractions concerning bizarre science fiction hypotheticals involving ticking bombs and terrorists, we know that torture is evil:
"The consequences of legalizing interrogational torture, and thus institutionalizing it, would be so disastrous as to outweigh any such [ticking bomb] catastrophe anyway."
Bob Brecher, Torture and the Ticking Bomb (Oxford: Blackwell, 2007), p. x. (Anxieties produced in victims through threats to family members fall into this category of torture.)
The effort to hold on to what defines us -- our identities as lawyers and free persons -- will involve commitment to values that are and must be in tension: 1) representation of clients with individual needs and rights concerns; and 2) obligations to a system on the verge of collapse from excessive volume and the pervasive as well as corrosive influence of money and cronyism, corruption and favor-mongering, to say nothing of racism and sexism. ("So Black and So Blue in Prison" and "Not One More Victim.")
What torturers must bear in mind is that what they do to others will be done to Americans. The legal standards that are bent and broken may be turned upon those who bend and break them: "President Obama in China: Economy, Security and, Yes, Human Rights," (Editorial) in The New York Times, November 16, 2009, at p. A24. (America's call on China to improve human rights has been met with Chinese requests that we improve our own human rights record.)
This happy balance between values (Hegel's "dialectic of Right") can only be maintained by keeping in sight the legal profession's commitment to Lon Fuller's foundational "morality of legal institutions," membership in a professional community of brothers and sisters, even as we fight for the rights of litigants (individuals). This fits with our Constitutional compromise between freedom and equality. See Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964), then Peter Gabel's "Transformative Possibilities for Progressive Lawyers," in The Bank Teller and Other Essays on the Politics of Meaning (San Francisco: Acada Books, 2000), pp. 163-164:
"The way to surpass this contradiction that has plagued progressive lawyers for at least my adult lifetime is to start telling the truth about the vision of social life that we are trying to make real, and to treat the American people as a whole as if they also can and should believe in it. I have already stated the philosophical/ontological basis for the possibility of this occurring -- the desire for mutual confirmation and the felt need of everyone to overcome the blockage of this social desire means that people will want to respond to (and in some cases to defensively resist the pull of) evocative moral appeals that convey a sense of transcendent moral purpose. Claims of right, when they are formulated with clients in law offices and whether they are made in court or through the media, should be justified legally in a way that is continuous with the qualitative political meaning that inspires them. As for the possible objection that this kind of thinking is 'idealist' in the sense of not being grounded in the real socioeconomic and cultural conditions that shape people's responses to such appeals (a view shared by both Marxists and conservative economic rationalists), let me say simply that any claim must be contextualized so that it expresses some particular tendency, already alive and moving within the culture, that carries a disalienating, potentially transformative meaning that can legitimately support the political expression of this meaning in public legal discourse. If the Constitution is an 'evolving document,' then its meaning should always be subject to a contested debate over who 'we' are as social beings and how we are or should be constituted as a political community."
Are we torturers? I do not believe that Americans are torturers. Do we enslave persons? I do not believe that Americans seek to enslave other human beings. Is the American Constitution and the traditions from which that document is derived compatible with denials of human dignity, or with the loss of freedom and equality for persons? I refuse to accept such a possibility.
We can not sacrifice human dignity and retain the values of our Constitutional legal system. We must choose law over revenge, respect for human dignity over an illusory security. We must continue to insist on freedom for others in order to ensure our own autonomy. This balance between values is, primarily, the responsibility of lawyers -- like the lawyers many of you soon will be -- for whom the temptations of corruption will be greatest because of a dangerous proximity to power and wealth. No person is only an "object" or an instrument of social purposes, defined by others, whose rights may be violated by government with impunity. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")
What is at stake in a life in law is the transformations that we allow to take place in ourselves -- also in our society -- as a result either of an embrace of evil through abandonment of our fundamental values or ever-greater aspirations for social justice with extentions of the rule of law:
"Let us consider, first, the belief that law is an expression of man's [or woman's] rational and moral nature and that any particular law must be interpreted in the light of the rational and moral purposes which it is designed to fulfill. This belief, which presupposes that what 'is' cannot be divorced entirely from what 'ought to be,' and that a rule or command cannot properly be called law if it violates the ideals for which law itself exists, is disputed by many in America today; yet unquestionably it has exercised an important influence on American legal development, and, further, certain features of American law presuppose its validity."
Harold J. Berman, "Philosophical Aspects of American Law," in H. Berman, ed., Talks on American Law (New York: Vintage, 1961), p. 223. Professor Berman remains one of our foremost legal historians and thinkers. Harold J. Berman, Law and Revolution: The Formations of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), pp. 165-199. ("Theological Sources of the Western Legal Tradition.")
For purposes of comparison, students and professors will wish to recall the discussions at Marshall Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence (New York & London: Duckworth, 1983), pp. 3-73. I especially urge lawyers to consider the essays by Professors E. Philip Soper and David Lyons, then H.L.A. Hart for an opposing view, also Kent Greenawalt and Michael Sandel. Professor Soper's essays and book dealing with the ideas of Lon L. Fuller are highly recommended. Opposed to these views are many of the writings of Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), pp. 220-244. For one horrifying view of what must be avoided at all costs, see Bob Ingle & Sandy McLure, The Soprano State: New Jersey's Culture of Corruption (New York: St. Martin's Press, 2008), pp. 127-163 ("'See No Evil' Law Enforcement and Court Jesters").
Historians and philosophers, whose interests extend beyond law, are directed to Lloyd L. Weinreb, Natural Law and Justice (Cambridge: Harvard University Press, 1987), then John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), followed by Robert Nozick, Anarchy, State, and Utopia (Cambridge: Harvard University Press, 1973). Our Republican friends may also refer to Leo Strauss, The Rebirth of Classical Political Rationalism (Chicago: University of Chicago, 1989), pp. 13-27 ("Relativism"). For an opposing and complementary view, please see Susan Neiman, "Mass Murder: Why Auschwitz?," in Evil: An Alternative History of Philosophy (New Jersey: Princeton University Press, 2002), pp. 250-258.
"By requiring that all laws must conform to these moral principles," Professor Berman writes, "the Constitution has encouraged American judges to submit to the test of conscience not only legislation, but all legal rules and all governmental acts, including their own judicial decisions. It would be wrong to infer from this that American judges feel free to decide a case without regard to statute, precedent and custom; on the contrary, stability of laws and consistency of decisions are basic values of our judicial system. Nevertheless it is of the greatest significance that the judge can at times say: a statute (or a rule, or an official act) which conflicts with justice is not law. He [or she] can do this when the Constitution is infringed; but the power of judicial review of the constitutionality of legislation has had a pervasive influence on the entire legal system, for lurking in the background of every case, civil or criminal or administrative, is the constitutional requirement of 'due process of law.' A gross injustice always suggests, at least, a constitutional issue."
Berman, "Philosophical Aspects of American Law," Supra., at p. 225 (emphasis added).
President Obama and the members of his administration recognize this duty to formulate policy that conforms to American national values as reflected in the Constitution. No member of the Obama administration -- and certainly not a State Department official under my tenure as Secretary of State of the United States of America -- will act unconstitutionally or criminally. This guidance provided by our Constitutional traditions makes it very clear that torture is not acceptable policy for this government.
America's Constitution will serve as a beacon for you in your life as a lawyer because it is the truest statement of America's legal identity to the world. The principles found in the Constitution deepen and ripen (really, it is our understanding of them that does this) with the passage of time, demonstrating our errors, leading us in the right direction, which is always towards greater respect for human dignity and tolerance of diversity.
My advice to the graduates of Yale University's School of Law and to a new generation of American lawyers is "do justice." I began with the wisdom of one of our greatest philosophers, Woody Allen. I will close my remarks with Professor Allen's profound explanation of our existential dilemma:
"More than at any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray that we have the wisdom to choose correctly."
Allen, "My Speech to the Graduates," Supra., at p. 57.
