At different junctures in the McNary case, you relied on litigation and then on lobbying to try to win the freedom of the Haitians on Guantanamo (and to reverse the direct return policy).
As a public interest litigator who has devoted most of his career to suing governments and governmental actors, when do you think litigation is most likely to succeed?
If an issue is particularly controversial, litigation—while still an uphill climb—may be the best way to achieve change. It’s not that litigation is most likely to succeed in all such cases. The road is long and difficult, and in some instances, it simply will not work. For example, we never have, and never will, stop a president from going to war through litigation. But when individual rights are at stake, rights that can be grounded in the Constitution, and there are politically charged and contentious disputes surrounding those rights, litigation can be the most effective way to lead the fight.
Take the McNary case. Lobbying the INS to repeal its rule excluding all HIV-positive aliens (which would have allowed the HIV-positive refugees on Guantanamo to come to the United States) was a non-starter with the George H.W. Bush administration. So was trying to persuade the president to reverse his direct return policy—the practice of forcibly repatriating all Haitians fleeing Haiti that went into effect on Memorial Day Weekend in 1992. The lesson is that controversial issues, from certain social issues to debates that play out as national security issues, are difficult to win by lobbying, whether you’re dealing with an administrative agency, the White House, or Congress.
If you want to change a policy in such instances, it’s necessary to give an administration, even a favorable one, some cover—and an effective way to do that is to prevail in court (if you can manage it). For example, we finally shut down the HIV camp at Guantanamo by winning our case in federal district court in Brooklyn. Judge Johnson’s ruling gave the Clinton administration the chance to say it was simply obeying a court order. In contrast, the Supreme Court ruled against us in the direct return policy case—and it took over a year before the Clinton administration altered that policy.1
This does not mean that lobbying is hopeless, even on major social issues. In the Sixties, Congress passed the Voting Rights Act and the Civil Rights Act. These laws were the result not only of massive protests and litigation, but lobbying as well. Indeed, as a general matter, lobbying can be helpful even if it should not be the sole strategy. If we’re in litigation and a member of Congress gives a speech in favor of our position or if a committee holds hearings on a relevant issue, it helps create an atmosphere of making acceptable what many think is impossible as a policy matter—and it may even influence the courts. My colleagues at CCR and I use every tool at our disposal. We couple litigation with lobbying and protest and media outreach. Even when we think litigation is the best approach, we don’t think lobbying—or any other form of advocacy—should be ignored. Lobbying just shouldn’t lead the struggle, particularly on really controversial issues.
You often face difficult odds in the cases that you file. Given how hard it can be to win in court, how do you define success in litigation?
I would define success as standing up in court for what is right and for trying to maximize those rights guaranteed by the Constitution and the various human rights declarations and treaties binding on the United States. Our goal at CCR is to create a country and a world where rights that are said to be fundamental are treated as fundamental.
The key point is that we do not always need to win a case to move our society in the direction of justice and right. CCR and I will sometimes litigate even if we believe we may lose the case either because the case law is more or less against us or the immediate social and political environment makes a victory unlikely at that moment in time. I believe it is necessary to stand up against the denial of rights even when the odds are stacked against us—as they were in McNary and when we filed our post-9/11 Guantanamo cases. [CCR has represented a number of Guantanamo detainees since 2002.] Going to court to challenge a denial of rights not only provides a legal basis for addressing the issues, it sends an important message to politicians, the legal community, the media, and the general public. In other words, litigation can shine a spotlight on the issues, bringing them into public consciousness—especially in the litigious United States.
When do you think the “inside” strategy of lobbying—in contrast to the “outside” strategy of litigation—is most likely to succeed? Given your experience in McNary, do you believe lobbying can ever succeed when you are pressing a controversial position? Why or why not?
I am not sure with the current politics in Congress and the country as a whole that lobbying on controversial issues from the progressive side can win. Even with a Democratic Congress we failed to stop the expansion of the Foreign Intelligence Surveillance Act (“FISA”). Liberal senators, including Barack Obama, caved on the FISA amendments for fear of being perceived as weak on national security. In such highly charged political circumstances, a court is better suited than Congress to focus on the limitations our Constitution places on government power. A court’s job is to interpret and enforce the Fourth Amendment, and it can do so free from the pressure of election results.
Nevertheless, as I’ve stressed above, courts alone are not enough. Public protest, articles, media and lobbying are all necessary to win many of these battles. But my experiences with McNary reinforced my skepticism about lobbying as a winning strategy. When we began the case, we were told by AIDS lobbyists not to litigate the HIV ban on aliens; they thought there was a good chance of lifting the exclusion in Congress. I thought they were crazy. I never believed Congress would agree to lift the ban, mainly because of prejudice toward gays and fears about people who are HIV positive. My belief turned out to be right—and to the day, the HIV exclusion remains in place. And much more recently, we lobbied a Democratic Congress to restore the right of habeas corpus [the right to test the legality of one’s detention] for the Guantanamo detainees. We thought we could do it, but we couldn’t. It took the Supreme Court to step in and enforce the habeas guarantees of the Constitution.
As I think about the discussions on closing the post 9/11 Guantanamo camp, I fear I see some of the handwriting on the wall. Will the Obama administration really have the courage to release any Guantanamo detainee, particularly if in some instances they are set free in the United States? Or will the administration be driven by fears similar to, if not even greater than, those that prompted Clinton to go back on his promises about the Haitian refugees?
Are there instances where litigation and lobbying can be at cross purposes?
I believe in taking a principled position in litigation and not backing away from it. In contrasting this with lobbying, the problem is that the legislative process, by its very nature, is about compromise. So Congress, if it acts at all, will often give you only part of what a lawsuit could. For example, when I was lobbying for habeas corpus rights for post-9/11 detainees, a senator suggested that the right should attach only after a year in custody. That compromise, the senator said, would allow time for interrogation—and it could possibly get us sufficient votes to pass. The senator might have been trying to help our cause, but I could never have accepted an agreement that habeas corpus rights would become effective only after a detainee had been held for a year. As far as I was concerned, that would be selling out a fundamental right.
This type of compromise occurs all the time in Congress, and I find it deeply troubling. If we are trying to stop military aid to a country that grossly violates human rights, can we really accept the delivery to that country of “only” ten jet fighters instead of twenty? That’s my view, but then again, there’s a real split on these kind of issues among public interest groups. Some believe that if bad legislation is probably going to pass, the work of the public interest lobbyist is to make it less bad. In other words, they’ll tolerate our government sending the human rights violators ten jet fighters. I don’t accept that way of thinking. I believe that as soon as that sort of compromise begins, the real battle I’m trying to fight is over.
Has your approach to either litigation against the government or lobbying within government changed in light of your experiences in McNary?
My approach to litigation remains the same: Litigate and fight on principle. Even in litigation, there can be positions taken that compromise principle. I will not do it. For instance, we did not argue the post-9/11 Guantanamo cases in a way that was expedient. We could have argued that habeas corpus rights applied only to those people held at Guantanamo, which is under the exclusive jurisdiction and control of the United States. But we did not limit our argument that way. Instead, we insisted that everyone in the custody of the United States, no matter were in the world they were held, had that right. This position did not, I must admit, come easily. There
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1Of course, there were some key differences in the two cases that made winning the Guantanamo litigation easier. In closing Guantanamo, the administration was simply allowing a few hundred refugees into the U.S. It was changing no major policy. In contrast, reversing the forcible return program implicated larger domestic and foreign policy considerations, as well as future electoral politics in states like Florida. Given all that, I believe there’s almost no way we could have won that case for a group with as little political support as Haitian refugees.