When William Kunstler wrote this book in 1963 he was not yet the most well-known, effective, and to many, the most beloved lawyer in America. He was a political liberal, a decorated veteran officer of World War II, and a married man with a wife and two children with a suburban home engaged in the general practice of law with his brother Michael – to whom the books is dedicated – in a small town outside of New York City. He had not yet come to the understanding, as he expressed in a speech in 1994 to a meeting of the New York Association of Criminal Defense Lawyers, that the law “…is nothing other than a method of control created by a socioeconomic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible” The United States Supreme Court, the highest court in the land, was “…an enemy, a predominately white court representing the power structure.” He was to come to this basis understanding from his movement lawyering in the sixties and his study of American history.
This book is Kunstler’s explication of five key political trials, trials that helped shape American politics and culture for much of the twentieth century. When he penned these chapters, Bill had not yet grown into his individual historic role, which would contribute to the making of that history.
When he read the manuscript, Kunstler’s editor at Oceana Publications must have been very satisfied with his choice of Bill as a writer. In picking Kunstler to do the book, the editor knew Bill’s qualifications. Intellectually accomplished, he had graduated magna cum laude in French literature from Yale in 1942. He attained the rank of Major serving in the U.S. Army in the Pacific during the war and then took a law degree at Columbia, where he taught English to undergraduates. Later when he was famous and speaking on college campuses sometimes three and four times a week to large audiences he would often flavor his talks with lines of favorite poems. Not only did Bill have the literary background and analytical legal skills, he was an active participant in the American Civil Liberties Union.
The ACLU was the main organization in the U.S. supporting the Bill of Rights, the first ten amendments to the United States Constitution. Indeed Roger Baldwin, a founder of the ACLU in 1920, contributed the book’s first introduction.
The original title of this book “…and Justice for All” is of course ironic. The trials it examines should not have taken place much less resulted in convictions if their instigators, prosecutors, and jurors had held to the standards of the very Pledge of Allegiance reprinted at the book’s beginning: “I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, with liberty and justice for all.”
All five of these trials were occasioned and sustained by communities infused with fear and prejudice. Four of the defendants, Sacco and Vanzetti and the Rosenbergs were to executed in electric chairs. Tom Mooney, the head of the California American Federation of Labor, served 19 (?) years in prison before his pardon emerged a man broken in health who was to die three years later. Engle v. Vitale took on those who would foster prayers to God in public schools, an issue which is still with us. It corollary case, the Scopes trial in Tennessee, involved the suppression of the teaching of modem science and indeed the issue of evolution is still contended passionately.
A man for whom Bill Kunstler had no respect, Richard Nixon, was once asked by a reporter what his secret of political success was. “Fear,” answered Nixon. “I use fear, and they don’t teach you that in the Boy Scouts.” Because of the September 11, 2001 attack on the United States by political Islamists fear is once again afoot in America, just as it was in the 1950s when Nixon ascended on a chariot of anti-communism. Fear is again afoot as it was after the First World War when anti-immigrant prejudice doomed Sacco and Vanzetti and as it was after World War Two when anti-communist and anti-Semitic prejudice doomed Julius and Ethel Rosenberg.
The evidence in the five trials that trial lawyer Kunstler deftly and succinctly summarizes does not support the verdicts the jury rendered against the defendants. Although these cases were historic landmarks when Kunstler set them out, he refrains from placing them in their historic context or judging the defendants. He let the trial testimony speak for itself. This is Bill’s singular and powerful contribution.
After the terrorist attack on the World Trade Center and the Pentagon President George W. Bush announced on national television to great popular acclaim a “war against terrorism” of indeterminate length and undefinable boundaries. You are either with us or against us he pronounced and assured a worried and traumatized American public that “god is not neutral” in this battle. Bush saw his personal popularity soar to unprecedented levels, even though less than a year before it took a five to four vote of the reactionary United States Supreme Court to block a recount of the election ballots in the State of Florida and install him in office inasmuch as he had only garnered a minority of the popular vote in the 2000 elections, elections where in fact half the eligible voters did not even bother to tum out. Such as Nixon advised is the power of fear.
Kunstler’s thesis in this book was well put by Roger Baldwin: “…how difficult it is for juries and judges to rise above community fears to deal justly and fairly with unpopular or hated defendants.” In addition in such a climate laws that roll back the constitutional guarantees of the Bill of Rights are easily promulgated. We are facing just such a situation today in the wake of the September 11 attacks in the United States. Constitutional rights that most of us felt were sacrosanct no longer protect us; human rights protections guaranteed by international law are disregarded; and those the United States government has labeled as opposed to it are held arbitrarily and indefinitely in cages in U.S. occupied Guantanamo Bay Cuba.
We have no doubt that Bill would have been in the forefront of those opposed to these draconian violations of law which include the indefinite detention of battlefield detainees outside the standards of the Geneva Convention; military tribunals to try suspected terrorists; and the possible use of torture to obtain information. He would have led the fight against the massive arrests and interrogation of immigrants and the passage of legislation granting intelligence and law enforcement agencies much broader powers to intrude into the private lives of Americans.
He would have been especially incensed at recent new initiatives–such as the wiretapping of attorney-client conversations, or the FBI’s new license to spy on domestic religious and political group and the undermining of core constitutional protections.
No book written by Bill would have omitted a discussion of the serious assault currently taking place in this country against people’s rights and particularly the rights of those the state has selected for detention and or prosecution. The government has established a wide-ranging series of measures in its claimed effort to eradicate terrorism. Some of the key measures are analyzed below.
I. The President’s Military Order
On November 13, President Bush signed a military order establishing military commissions or tribunals to try suspected terrorists. Under this order non-citizens, whether from the United States or elsewhere, who are accused of aiding international terrorism can be tried before one of these commissions at the discretion of the President. These commissions are not courts-martial, which provide far more protections for the accused.
The divergence from constitutional protections allowed by this executive order is breathtaking. Attorney General Ashcroft has explicitly stated that terrorists do not deserve constitutional protections. (By “terrorists,” Ashcroft means accused or suspected individuals, not those proved to have committed terrorist acts.) Accordingly, what have been set up are essentially “courts” of conviction and not of justice.
Under the provisions of the military order establishing these commissions, the Secretary of Defense will appoint the judges, most likely military officers, who will decide both questions of law and fact. Unlike federal judges who are appointed for life, these officers will have little independence and every reason to decide in favor of the prosecution. Normal rules of evidence, which provide some assurance of reliability, will not apply. Hearsay and even evidence obtained from torture will apparently be admissible. (This is particularly frightening in light of the intimations from U.S. officials that torture of suspects may be an option.)
The only appeal from a conviction will be to the President or the Secretary of Defense. Incredibly, the entire process, including execution, can be carried out in secret and the trials can be held anywhere the Secretary of Defense decides. (A trial might occur on an aircraft carrier, for example, with no press allowed, and the body of the executed disposed of at sea.)
Although military tribunals were used during and immediately subsequent to World War II, their use since that time does not comply with important international treaties. The International Covenant on Civil and Political Rights as well as the American Declaration of the Rights and Duties of Man require that persons be tried before courts previously established in accordance with pre-existing laws. Clearly, the tribunals are not such courts. In addition, the Third Geneva Conventions of 1949 requires that Prisoners of War (POWs) be tried under the same procedures that U.S. soldiers would be tried for similar crimes. U.S. soldiers are tried by courts-martial or civilian courts and not by military tribunal. This is probably one important reason the United States is refusing to classify the Guantanamo detainees as POWs; if they were POWs, the government would not be free to use tribunals.
The administration has offered to address some of the criticisms when regulations are written. Still, as currently conceived, the President will select the defendants; the Secretary of Defense will appoint the judges; the death penalty remains a sentencing option and no genuine appeal will be permitted.
Trials before military commissions will not be trusted in either the Muslim world or in Europe, where previous terrorism trials have not required the total suspension of the most basic principles of justice. The military commissions will be viewed as what they are: “kangaroo courts.”
Indefinite Detention Under the Military Order and the Guantanamo Prisoners
In addition to authorizing military tribunals, the same military order of November 13 requires the Secretary of Defense to detain anyone whom the President has reason to believe is an international terrorist, a member of al Qaeda or anyone who harbored such persons. There is no requirement that a detained individual ever be brought to trial.
Detention without any charges and without any court review can last an entire lifetime.
Subsequent to the issuance of the Military Order, U.S. and Northern Alliance forces in Afghanistan captured thousands of prisoners. On or about January 11, 2002, the United States military began transporting prisoners captured in Afghanistan to Camp X-Ray at the U.S. Naval Station in Guantanamo Bay, Cuba. As of April, authorities were detaining 300 male prisoners representing over 30 nationalities at the Guantanamo compound, and the number was expected to grow. It is these prisoners who may be indefinitely detained or tried by military tribunals to face the death penalty.
There have been allegations of ill treatment of some prisoners in transit and at Guantanamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan; that their beards and heads were forcibly shaved, and that upon arrival at Guantanamo they were housed in small cells that failed to protect against the elements. While such treatment is never acceptable, more serious is the fact that these prisoners exist in a legal limbo, their identities secret and the charges against them unknown.
It is the official position of the United States government that none of these detainees are POWs. Instead, officials have repeatedly described the prisoners as “unlawful combatants.” This determination was made without the convening of a competent tribunal as required by Article 5 of the Third Geneva Convention, which mandates such a tribunal “should any doubt arise” as to a combatant’s status. In its most recent statement on the status of those detained at Guantanamo, the U.S. government announced that although it would apply the Geneva Conventions to those prisoners it decided were from the Taliban, it would not extend them to prisoners it believed were members of al Qaeda. However, in no case were any of the detained to be considered POWs. The United States has repeatedly refused the entreaties of the international community to treat all the detainees under the procedures established under the Geneva Conventions.
The United States’ treatment of the Guantanamo detainees violates virtually every human rights norm relating to preventive detention. The United States has denied the detainees access to counsel, consular representatives, and family members; has failed to notify them of the charges they are facing; has refused to allow for judicial review of the detentions, and has expressed its intent to hold the detainees indefinitely in the future.
II. FBI Arrests and Investigations
Arrests of Non-Citizens
The FBI has always done more than chase criminals; like the Central Intelligence Agency it has long considered itself the protector of U.S. ideology. Those who have opposed government policies — whether civil rights workers, anti-Vietnam war protestors, opponents of the covert Reagan-era wars or cultural dissidents–have repeatedly been surveilled and had their legal activities disrupted by the FBI.
In the immediate aftermath of the September 11 attacks, Attorney General John Ashcroft focused FBI efforts on non-citizens, whether permanent residents, students, temporary workers or tourists. Normally, an alien can only be held for 48 hours prior to the filing of charges. Ashcroft’s new regulation allowed arrested aliens to be held without any charges for a “reasonable time,” presumably months or longer. The FBI began massive detentions and investigations of individuals suspected of terrorist connections, almost all of them non-citizens of Middle Eastern descent; over 1,300 were arrested. In some cases, people were arrested merely for being from a country such as Pakistan and having expired student visas. Many were held for weeks and months without access to lawyers or knowledge of the charges against them; many are still in detention. None, as yet, have been proven to have a connection with the September 11 attacks; most remain in jail despite having been cleared.
Stories of mistreatment of such detainees are not uncommon. Apparently, some of those arrested are not willing to talk to the FBI, although they have been offered shorter jail sentences, jobs, money and new identities. Astonishingly, the FBI and the Department of Justice are discussing methods to force them to talk, which include “using drugs or pressure tactics such as those employed by the Israeli interrogators.” 1 The accurate term to describe these tactics is torture. There is resistance to this even from law enforcement officials. One former FBI Chief of Counter Terrorism said in an October interview: “Torture goes against every grain in my body. Chances are you are going to get the wrong person and risk damage or killing them. “2 As torture is illegal in the United States and under international law, U.S. officials risk lawsuits by using such practices. For this reason, they have suggested having another country do their dirty work; they want to extradite the suspects to allied countries where security services regularly threaten family members and/or use torture. It would be difficult to imagine a more ominous signal of the repressive period we are facing.
Investigations of Middle Eastern Men and of Dissenters
In late November 2001, Attorney General Ashcroft announced that the FBI or other law enforcement personnel would interview more than 5,000 men, mostly from the Middle East, who were in the United States on temporary visas. None of these men were suspected of any crime. The interviews were supposedly voluntary. A number of civil liberties organizations, Muslim and Arab American groups objected that the investigations amounted to racial profiling and that interviews of immigrants who might be subject to deportation could hardly be called voluntary. A number of law enforcement officials, including a former head of the FBI, objected as well, saying that such questioning would harm the relationship of police departments with minority communities; that the practice was illegal under some state laws and that it was a clumsy and ineffective way to go about an investigation. A few local police departments refused to cooperate.
Although Ashcroft claimed the questioning was harmless, the proposed questions themselves made this assertion doubtful. The initial questions concerned the non-citizen’s status; if there was even the hint of a technical immigration violation, the person could well find himself in jail and deported. Information was requested regarding all of the friends and family members of the questioned person; in other words, the FBI wanted complete address books. Once the FBI had such information, it would open files and investigations on each of those named, even though no one was suspected of a crime.
Other questions concerned whether the person interviewed had any sympathy with any of the causes supposedly espoused by the attackers on September 11. Media reports in this country and elsewhere have suggested that the attackers were acting in the name of Palestinian rights. Whether or not this is the case, many Arab-Americans are sympathetic with the plight of the Palestinians, and would be put in a bind by FBI questioning about this topic. If the person questioned by the FBI admitted to such sympathy he immediately would become a potential suspect; if he was sympathetic, but denied it, he would be lying to the FBI, which is a federal crime.
The FBI was also instructed to make informants of the persons it questioned, and to have them continue to report on and monitor the people they are in contact with. Oliver “Buck” Revel, a former FBI Assistant Executive Director, has criticized this practice as “not effective” and as “really gut[ting] the values of our society, which you cannot allow the terrorists to do.”3
The FBI is also currently investigating political dissident groups it claims are linked to terrorism–among them pacifist groups such as the U.S. chapter of Women in Black, which holds peaceful vigils to protest violence in Israel and the Palestinian Territories. The FBI has threatened to force members of Women in Black to either talk about their group or go to jail. As one of the group’s members said, “If the FBI cannot or will not distinguish between groups who collude in hatred and terrorism, and peace activists who struggle in the full light of day against all forms of terrorism, we are in serious trouble.”4
Unfortunately, the FBI does not make that distinction. We are facing not only the roundup of thousands on flimsy suspicions, but also an all-out investigation of dissent in the United States.
Renewed FBI Spying on Religious and Political Groups
Attorney General John Ashcroft is considering a plan that would authorize the FBI to spy upon and disrupt political groups.5 This spying and disruption would take place even without evidence that a group was involved in anything illegal. A person or group could become a target solely because of expressing views different than those of the government or taking a position in support of, for example, Palestinian rights.
Ashcroft would authorize this by lifting FBI guidelines that were put into place in the 1970’s after abuses of the agency, including spying upon and efforts to disrupt the activities of Dr. Martin Luther King, were exposed. That earlier spying and disruption was done under a program called Cointelpro, which stands for “Counterintelligence Program.” It was a program to “misdirect, discredit, disrupt and otherwise neutralize” specific individuals and groups. Probably the most notorious goal of Cointelpro was the FBI’s effort to prevent the rise of what it called a “Black Messiah.” At one point, the FBI tried to induce Dr. King to commit suicide by threatening to expose his extramarital affairs to his wife. It is not known whether this proposed new version of Cointelpro has been adopted.
III. Attorney-Client Communications
At the heart of the effective assistance of counsel is the right of a criminal defendant to a lawyer with whom he or she can communicate candidly and freely without fear that the government is overhearing confidential communications. This right is fundamental to the adversary system of justice in the United States. When the government overhears these conversations, a defendant’s right to a defense is compromised. Now, with the stroke of a pen, Attorney General Ashcroft has eliminated the attorney-client privilege and will wiretap privileged communications when he thinks there is “reasonable suspicion to believe” that a detainee “may use communications with attorneys or their agents to further facilitate an act or acts of violence or terrorism.” 6 Ashcroft says that approximately 100 such suspects and their attorneys may be subject to the order. He claims the legal authority to do so without court order; in other words without the approval and finding by a neutral magistrate that attorney-client communications are facilitating criminal conduct. This is utter lawlessness by our country’s top law enforcement officer and is flatly unconstitutional.
IV. The New Anti-Terrorist Legislation
On October 26 Congress passed and President Bush signed sweeping new anti-terrorist legislation, the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), aimed at both aliens and citizens. The legislation met more opposition than one might expect in these difficult times. A National Coalition to Protect Political Freedom of over 120 groups ranging from the right to the left opposed the worst aspects of the proposed new law. They succeeded in making minor modifications, but the most troubling provisions remain, and are described below:
“Rights” of Aliens
Prior to this legislation, anti-terrorist laws passed in the wake of the 1996 bombing of the federal building in Oklahoma had already given the government wide powers to arrest, detain and deport aliens based upon secret evidence — evidence that neither the alien nor his attorney could view or refute. The new legislation makes it even worse for aliens. First, the law would permit “mandatory detention” of aliens certified by the attorney general as “suspected terrorists.” These could include aliens involved in barroom brawls or those who have provided only humanitarian assistance to organizations disfavored by the United States. Once certified in this way, an alien could be imprisoned indefinitely with no real opportunity for court challenge. Until now, such “preventive detention” was believed to be flatly unconstitutional.
Secondly, current law permits deportation of aliens who support terrorist activity; the proposed law would make aliens deportable for almost any association with a “terrorist organization.” Although this change seems to have a certain surface plausibility, it represents a dangerous erosion of the constitutionally protected rights of association. “Terrorist organization” is a broad and open-ended term that could, depending on the political climate or the inclinations of the Attorney General, include liberation groups such as the Irish Republican Army, the African National Congress, or NGOs that have ever engaged in any violent activity, such as Greenpeace. An alien who gives only medical or humanitarian aid to similar groups, or simply supports their political message in a material way, could also be jailed indefinitely.
More Powers to the FBI and CIA
A key element in the USA Patriot Act is the wide expansion of wiretapping. In the United States wiretapping is permitted, but generally only when there is probable cause to believe a crime has been committed and a judge has signed a special wiretapping order that specifies limited time periods, the numbers of the telephones wiretapped and the type of conversations that can be overheard.
In 1978, an exception was made to these strict requirements, permitting wiretapping to be carried out to gather intelligence information about foreign governments and foreign terrorist organizations. A secret court, the Foreign Intelligence Surveillance Court, was established that could approve such wiretaps without requiring the government to show evidence of criminal conduct. In doing so the constitutional protections necessary when investigating crimes could be bypassed.
The secret court has been little more than a rubber stamp for wiretapping requests by the spy agencies. It has authorized over 13,000 wiretaps in its 22-year existence, currently about a thousand last year, and has apparently never denied a request for a wiretap. Under the new law, the same secret court will have the power to authorize wiretaps and secret searches of homes in criminal case –not just to gather foreign intelligence. The FBI will be able to wiretap individuals or organization without meeting the stringent requirements of the U.S. Constitution, which requires a court order based upon probable cause that a person is planning or has committed a crime. The new law will authorize the secret court to permit roving wiretaps of any phones, computers or cell phones that might possibly be used by a suspect. Widespread reading of e-mail will be allowed, even before the recipient opens it. Thousands of conversations will be listened to or read that have nothing to do with any suspect or any crime.
The new legislation is filled with many other expansions of investigative and prosecutorial power, including wider use of undercover agents to infiltrate organizations, longer jail sentences and lifetime supervision for some who have served their sentences, more crimes that can receive the death penalty and longer statutes of limitations for prosecuting crimes. Another provision of the new bill makes it a crime for a person to fail to notify the FBI if he or she has “reasonable grounds to believe” that someone is about to commit a terrorist offense. The language of this provision is so vague that anyone, however innocent, with any connection to anyone even suspected of being a terrorist can be prosecuted.
The New Crime of Domestic Terrorism
The USA Patriot Act creates a number of new crimes. One of the most threatening to dissent and to those who oppose government policies is the crime of “domestic terrorism.” It is loosely defined as acts that are dangerous to human life, violate criminal law and “appear to be intended” to intimidate or coerce a civilian population “or influence the policy of a government by intimidation of coercion.” Under this definition, a protest demonstration that blocked a street and prevented an ambulance from getting by could be deemed domestic terrorism. Likewise, the demonstrations in Seattle against the World Trade Organization in 2000 could fit within the definition.
This was an unnecessary addition to the criminal code; there are already plenty of laws making such civil disobedience criminal without labeling protest as terrorist and imposing severe prison sentences.
Overall, the severe curtailment of legal rights, the disregard of established law and the new repressive legislation represents one of the most sweeping assaults on liberties in the last 50 years. It is unlikely to make us more secure; it is certain to make us less free. It is common for governments to reach for draconian law enforcement solutions in times of war or national crisis. It has happened often in the United States and elsewhere.
We should learn from historical example. Times of hysteria, of war, and of instability are not the times to rush to enact new laws that curtail our freedoms and grant more authority to the government and its intelligence and law enforcement agencies.
The U.S. government has conceptualized the war against terrorism as a permanent war, a war without boundaries. Terrorism is frightening to all of us, but it’s equally chilling to think that in the name of anti-terrorism our government is willing to permanently suspend constitutional freedoms permanently as well.
1 Walter Pincus, Silence of 4 Terror Probe Suspects Poses Dilemma, Washington Post (October 21, 2001) A6.
3 Jim McGee, Ex-FBI Officials Criticize Tactics On Terrorism, Washington Post (Nov. 28 2001) at A1
4 Report by Ronnie Gilbert, FBI Investigation of Women in Black, October 4, 2001, at www.labournet.net/world/0110/wmnblk1.html
5 David Johnston and Don Van Natta Jr., Ashcroft Seeking to Free F.B.I. to Spy on Groups, New York Times (Dec. 1, 2001) A1
6 National Security; Prevention of Terrorist Acts of Violence, 28 CFR Parts 500 and 501.