The People's Lawyer reveals just how far bourgeois law can be taken in the struggle against exploitation, repression and oppression, demonstrating that the legal system is not a level playing field.
Albert Ruben, The People’s Lawyer: The Center for Constitutional Rights and the Fight for Social Justice, from Civil Rights to Guantánamo (Monthly Review Press 2011), 200pp.
The People’s Lawyer is Albert Ruben’s neatly condensed history of the Centre for Constitutional Rights (CCR). The CCR was founded in 1966 with a goal of ‘advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights’.
What marks it out from other civil rights legal firms established in the sixties was its commitment to using politically motivated cases as an organising tool within the wider social movements. Cases may not end in victory for the CCR but they could play a key role in educating the public in ‘the creative use of law as a positive force for social change’.
The CCR has survived on a shoestring for decades, relying on wealthy philanthropic donors and, more recently, monthly payments from supporters. It was the CCR’s decision to challenge the US government over its monstrous Guantanamo Bay ‘detention facility’ that thrust the CCR into the spotlight and secured the organisation a more stable income. Nonetheless the decision was controversial in the context of the patriotic fervour whipped up after 9/11, and lost the CCR some of its donors. It was especially controversial amongst the legal community, a group not typically known for such humanitarian trendsetting.
The book acts – one assumes unwittingly – as a sort of philosophical exploration of just how far bourgeois law can be taken in defence of ordinary people facing exploitation, repression and oppression. The People’s Lawyer reveals the contradictory nature of the legal system in America and, by extension, elsewhere. On the one hand, time and again it is shown how the resources of the state are ranged against progressive lawyers. This is true no matter how motivated they may be, and the central figures in the CCR are truly motivated. On the other hand, the CCR has won substantial victories that shape the legal landscape of America today.
This contradiction is best illustrated in a CCR case recounted towards the end of the book. In 1972, Richard Nixon’s Justice Department brought cases against seven members of the high-profile organisation, Vietnam Veterans Against the War (VVAW) and one of their supporters. In the so-called ‘Gainesville Eight Conspiracy Case’ the VVAW activists were accused of ‘crossing a state line to incite a riot’ at the upcoming Republican National Convention in Miami (p.156). The anti-war movement had grown so large by this time that it posed a real threat to Nixon’s administration. The CCR drew the conclusion that the Gainesville Conspiracy Case was an attempt to label the VVAW a ‘violent extremist group’ and therefore discredit the entire movement.
It later transpired that Nixon needed to justify the state-sanctioned burglary carried out during the Watergate affair. If he could prove that his actions were justified in the name of preventing violence at the Republican Convention, he could get away with a criminal act. The VVAW debacle presented the perfect opportunity for him to do just that. That this would also deal a devastating blow to the peace movement was the icing on the cake. However, in reality, the VVAW activists had been organising to prevent a suspected attack on anti-Nixon protestors by police during the Convention. Furthermore, undercover FBI agents had infiltrated VVAW in an attempt to incite its members to commit violent acts. The jury acquitted all eight defendants in under four hours.
But the case took its toll on the CCR, absorbing huge amounts of the organisation’s ‘limited time, energy and resources’. A CCR report stated that ‘it is precisely in this way that the government ends up the victor, though its case is repudiated and its victims set free’ (p.156).
The limits of the law
The CCR is certainly the most radical organisation operating in the field of US law. As the book explains, the law is a deliberately conservative institution and any progressive change it may undergo comes about through slow, incremental steps. Furthermore, whatever progress is made in one case can be wound back in another. In one case, a government lawyer accused of lying under oath is stripped of his legal immunity after arguing that he should be protected even if he had hypothetically committed murder. The ruling is that such immunity is not ‘absolute’. However a later ruling in an unrelated case re-asserts such immunity. There’s certainly a ‘one step forwards, two steps back’ dimension to some CCR cases.
Nonetheless they do gain some permanent ground as well. It was the CCR which successfully argued that burning the American flag was, rather than an act of sedition punishable by jail, protected under the First Amendment right to freedom of speech. Such an act was, they argued, a non-verbal symbolic expression, and therefore a form of speech. The extension of the definition of speech to include visual communication is especially significant in the age of YouTube and Flickr.
More controversially, the CCR won the precedent that US courts can try non-residents who enter American soil. The ‘Alien Tort Statute’ was part of an obscure act passed in 1789 designed to assure foreign governments that the US would uphold its commitment to international law. It had remained buried in obscurity until the CCR dug it up during an unsuccessful attempt to prosecute the US government for its complicity in the Mai Lai massacre in Vietnam in 1969. The CCR later used the act to prosecute a Paraguayan ex-police officer accused of torturing and killing the teenage son of Dr. Joell Filártiga, who had opposed the dictator Alfredo Stroessner. After taking the case to appeal - and bizarrely having to brief the court on the existence of international law in the first place – the court awarded a payout of over 10 million dollars. The case extended the reach of US law:
‘It established the principle that those who commit serious human rights violations in another country and then enter the United States may be sued by their victims in federal court. Filártiga became the CCR’s most widely recognized landmark case’ (p.141).
A major criticism of the act came from leftist lawyer, Victor Rabinovictz. According to Rabinovitz, ‘...if a US court can snatch a citizen from Paraguay and hold him responsible for a crime committed in Paraguay, then they could do exactly the same thing to a representative of Cuba’ (p.142). He went on to argue that most lawyers consider international law to be ‘a legal fiction which enables governments to act in accordance with their national interests while preaching sanctimoniously about a “law” which does not exist’ (p.142).
The imbalance of forces
What is also demonstrated in the book is that the legal system is not a level playing field. Corporations and governmental departments have access to money and resources denied to ordinary people. This is exacerbated by the fact that the majority of victims of civil rights abuses tend to be poor, working class, black, LGBT or disabled. However, the US constitution and the Universal Declaration of Human Rights claim to hold all people equal under the law. This provides a space within which social injustice can be contested in court. For the CCR that seems to be the end of the matter, although some CCR lawyers are more aware of the limits of the law, and its manifest bias, than others. According to CCR lawyer Arthur Kinnoy, ‘in the United States... it isn’t necessary to stage an insurrection; all you have to do is go to court’ (p.61). Despite this naïve belief, Kinnoy acknowledged a contradictory understanding, that ‘people’s interests are best pursued not by lawyers... but by people’s movements’ (p.60).
Lawyer William Kunstler had a less idealised approach to the law, quoting Shakespeare’s King Henry IV, part II – ‘the first thing we do, let’s kill all the lawyers’. Kunstler spent the early part of his career believing that any violations the US government made were aberrations, not the norm. He saw the law as the ultimate leveller, keeping power in check. But, according to Ruben, his experience defending anti-Vietnam war activists in the late 1960s taught Kunstler to ‘regard the institution of the law with a contempt that he openly, almost proudly, proclaimed... He liked to think of himself as standing squarely in the path of abusive government, “fighting to keep people alive, literally, or to keep them out of jail, or to preserve their forums”...’ (p.86).
The CCR’s work defending women’s right to chose has been exemplary. Nancy Stearns was a lawyer who joined the CCR in 1969. She presented abortion cases to the courts from the perspective of the women themselves, not of doctors. The simple act of presenting abortion cases from the perspective of women, and their human rights, was in itself a consciousness-raising exercise, seen from the conservative stand point of the legal profession. The CCR also argued that access to abortion healthcare facilities was restricted, especially to working class women, in a way that childbirth provisions were not.
Although the CCR was one of the first legal organisations to relate to the feminist movement, promoting gender equality within the organisation itself was a mixed experience. The paternalistic tendencies of some CCR members created tensions in the early years, as emancipatory ideas introduced during the heady movement days of the 1960s clashed with unchallenged prejudices.
As important as the CCR’s work is, especially during political downturns, it has always been the strength and vitality of America’s social movements which has driven the greatest change in US society. The reason that President Lyndon Johnson signed the Civil Rights Act in 1964 was not due to his innate sense of equality (he had voted against an anti-lynching law in the 1950s) but due to the power of the civil rights movement.
The problem is that for every organisation like the CCR there are a hundred cut-throat law firms out to make as much money as possible from as many disreputable clients as they can find. Another problem is simply the amount of time each case takes to be resolved. The average CCR case takes six years to pass through the courts. One case, in which a couple were charged with sedition after organising poor people to take on the power of local companies in Kentucky, took 19 years to win.
The CCR’s focus on movement activity is an attempt to gain strategic advantage in such a biased system. According to Albert Ruben, the CCR taught that ‘a lawsuit could be not only a hammer with which to beat a defendant into submission but also an anvil on which to shape an entire movement’ (p.48). However the CCR has been accused of channelling the energy of protest movements into individual case actions, robbing them of momentum. It raises vital questions – in an alliance of different social forces, who leads and who follows? Should independent organisation be maintained or should the weight of a movement be put behind professional organisations such as the CCR? The book provides no definitive answers.
The final site of power
The law is not the final arbiter of power in society. Power is ultimately decided on the streets and in the workplaces; either by a mass movement and industrial action, or by the armed bodies of the state – the police and army – and by the bosses. And, ultimately, the balance of these forces, the relative strength of each contending class, will determine the fortunes, and the ultimate success of, popular movements.
Dan is a writer, broadcaster and campaigner. His most recent documentary was The New Scramble For Africa and his documentaries have appeared regularly on the Islam Channel. He is an organiser for Counterfire and a regular contributor to Counterfire site.
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