for immediate release
Columbus, Ohio (January 8, 2002)
Lawyers as Patriots
By Mary Jane Trapp, President, Ohio State Bar Association
"Aware of the tendency of power to degenerate into abuse, the worthies of our country have secured its independence by the establishment of a Constitution and form of government for our nation, calculated to prevent as well as to correct abuse."
- Thomas Jefferson to
the Washington Tammany Society, 1809.
After the horrific events of Sept. 11, our nation witnessed a resurgence of patriotism. Many now display the American flag outside of their homes, on their lapels or on their vehicles. "America the Beautiful" replaced "Take Me Out to the Ball Game" during the World Series, and for a time bipartisanship was the rule in Congress, as our representatives rallied support for the newly declared war on terrorism.
I believe that the greatest acts of patriotism will come from those attorneys who defend the constitutional rights of their clients despite threats to their own personal safety or the scorn of their neighbors, and from those attorneys who challenge the attempts of the government to erode personal liberties. Lawyers who represent unpopular causes and clients are true patriots who take their oaths to defend the Constitution to heart despite unfounded and, often times, malicious personal attacks.
Concerned that our nation's intelligence service failed to uncover the Sept. 11th plot, Congress passed with record speed "The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001," H.R. 3162, which, among other provisions, greatly expanded the powers of the federal government to conduct surveillance, intercept private communications and access private records.
How ironic that Congress chose to name this a "patriot" act. Many experts opine that the provisions of this act go far beyond "modernization" of the provisions of The Foreign Intelligence Surveillance Act of 1978 (FISA), which was passed primarily to end the use of electronic surveillance in the United States without a court order. FISA required federal intelligence agencies to obtain permission from one of seven federal judges designated to serve on the FISA court, before they could use electronic surveillance in cases of threats to national security. After reading the provisions of the new act, I immediately recalled a lecture by one of my college professors.
Professor Christopher Pyle of Mount Holyoke College had been a captain in Army intelligence and a consultant to both Senator Sam Ervin Jr.'s Subcommittee on Constitutional Rights and Senator Frank Church's Intelligence Committee. He began a lecture on FISA by recounting an incident that occurred when he was an officer on the faculty of the Army Intelligence School. He had taken a book from the shelf and on the inside cover he found a faded imprint of a rubber stamp that read:
This publication is included in the counter intelligence corps school library for research purposes only. Its presence on the library shelf does not indicate that the views expressed in the publication represent the policies or opinions of the counter intelligence corps or the military establishment.
The book was the Constitution of the United States.
He noted that in an effort to "ferret out Communism" and "to purge military libraries of 'subversive' writings," our own government had unintentionally disassociated itself from the document that forms the bulwark of our democracy.
FISA grew out of the shocking abuses and "dirty tricks" of our intelligence service and the FBI during the eras of McCarthyism, the anti-war movement and the civil rights movement. Spying on U.S. citizens was rampant, and disregard for constitutional rights and the rule of law by our own government was arguably at its highest point. The revelation in the early 1970s of counterintelligence programs or "COINTELPROs," which targeted domestic groups such as Dr. Martin Luther King Jr.'s Southern Christian Leadership Conference, prompted Congressional hearings and legislation to check the power of the federal government, especially the executive branch, to disregard constitutional protections and one's right to privacy under the aegis of national security.
A "national security exception" to the Fourth Amendment has been the subject of a number of court opinions, most notably United States v. United States District Court.1 I will leave further discussion of the specific constitutional issues to the scholars, but I am gravely concerned that we are again facing an erosion of civil liberties in the name of national security.
There is an old adage that those who are willing to give up some of their freedoms for security give up both. Now, the Justice Department quietly has notified us that after Oct. 30, 2001, communications between inmates and their lawyers will be "monitored" without prior judicial approval when "reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism." I fear that we are once again ceding unchecked power to the government that will, if history repeats itself as it always does, lead to abuses and the erosion of a fundamental principle of the American legal system - the attorney-client privilege.
It would serve us all well to focus on the words of former U.S. Supreme Court Justice Benjamin Cardozo:
The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions and consecrating to the task of their protection a body of defenders.
Attorneys are the defenders of the Constitution. We have an obligation to closely scrutinize any legislation or executive orders that intrude on our civil liberties and to challenge these intrusions. The Fourth Amendment was not written to protect an individual's rights only until a "compelling state interest" such as national security emergencies arises to override.
As Professor Pyle noted, "Why should intelligence surveillance be treated differently from law enforcement surveillance? Both are equally intrusive. Both breach the same values that the Fourth Amendment was designed to protect."
I believe that this shift toward a law of necessity, not of constitutionality violates the general principles of constitutionalism grounded in the philosophy of John Locke including the concepts of individual rights, limited government and protection of private property. Our founding fathers struggled with separation of powers, attempting to give the executive more independence without creating a despot, but it is clear that they could not subscribe to all of Locke's theories, specifically the Lockean prerogative allowing for extra-constitutional power in the executive branch.
As one commentator on modern presidential power has noted, the overriding principle of constitutionalism is "limitation on governmental power, including that wielded by the President and no matter how far his authority under the basic law may be pushed, it cannot transcend the concept of limitation and remain constitutional. He cannot, in short, have 'constitutional' power to do anything which the needs of the nation require . . . ."
Patriotism comes in many forms, and while some may deride those who question the constitutionality of the new anti-terrorism laws and orders and accuse them of being unpatriotic in a time of war, I suggest that second only to risking your life in the service of your country, there can be no greater act of patriotism than defending the Constitution.