Dean's Address

Fellow Dicky Grigg, our President-Elect, and I had the pleasure of doing a pilot trip to Russia on behalf of the Academy. We were privileged to meet, and the Academy ultimately inducted into the fellowship of the Academy, the Director of the Institute of State and Law, Boris Topornin.

As we sat down in his office, in an ancient building, to discuss the Russian rule of law, he said, "You know, we have jury trial here in Russia.” I said, "Yes, I've heard. How's it working?” He remarked that in criminal cases it wasn’t working very well. "What seems to be the problem?” I asked. He responded, "They acquit some of those people.”

A recent survey of Russian district courts and their handling of criminal cases demonstrated that at the first pass roughly 30 percent of the defendants might choose trial by jury. I say at the first pass because as part of the Russian constitution there is no double jeopardy. If you get acquitted by a jury, the government has an automatic right of appeal and the remedy is a retrial.

If you get acquitted again, the government has an automatic right of retrial, and your acquittal is reversed and remanded, you can be tried to a jury again. As a result, those who would rather not remain in jail until the ultimate disposition of the charges frequently elect to be tried by a judge sitting without a jury on the thesis that they’ll spend less aggregate time incarcerated.

There are two district courts within Moscow itself in which in the last decade there have been no acquittals. There are judges in the system who are reviewed for their qualifications to hold that office only if they acquit. So, having a constitution is not much of a barometer for the presence or absence of the rule of law.

We had another crisis during World War I. Shortly before the Armistice was signed, the Congress passed, and the President signed, the Alien Act of 1918 which authorized the government to deport any alien who was a member of an anarchist organization.

The proceeding was administrative. No judge or jury was called to determine if the deportee was a member of an anarchist organization or held anarchist beliefs. The administrative hearing was held in secret. There was no right to counsel, no right to appeal, and even naturalized citizens could be swept up in the scheme. In 1918 alone the United States deported 11,625 individuals.

As these patterns of national behavior emerge, we might consider defining the essential ingredients of the rule of law in terms of the values ignored and the freedoms denied in the Alien Act of 1918 and the earlier Aliens Friends Act.

Here are the questions posed: Before someone is deprived of liberty, are they entitled to be charged with an offense or some specific conduct which triggers their seizure? Once charged, are they entitled to a hearing to challenge the factual basis of the seizure? If so, are they entitled to the aid of counsel to navigate the nuances of the law and develop a record? Finally, and of critical importance, will the hearing be conducted by someone who is genuinely independent of the charging party?

Most of us would consider these components of procedural due process essential to our basic freedoms. We rebel at the notion that unilateral, non-reviewable governmental action comports with our rule of law. Nevertheless, much of our history of shame and embarrassment has come when people, citizens or not, were deprived of these fundamentals.

By the time of the second World War, we were no longer drawing a distinction between the way we treated citizens and non-citizens. In 1940, in response to the risks thought to be posed by aliens, and before America's entry into the war, the Congress passed the Alien Registration Act. Of the almost five million aliens who registered under the Act, 600,000 were Italian nationals, 260,000 were German nationals, and 40,000 were Japanese nationals.

Immediately after the attack on Pearl Harbor, the government classified all 900,000 of those as enemy aliens under the 1798 Alien Enemies Act. They were then subject to being apprehended and summarily deported.

Our shame and embarrassment deepened. On February 19, 1942 President Roosevelt signed Executive Order 9066, and over the following eight months 120,000 individuals of Japanese descent were ordered to leave their homes in California, Washington, and Oregon. Of these 120,000, 80,000 were citizens of the United States.

The issue, I think, as Justice Lemons has framed it, is “How do we react to our times of shame and embarrassment?”

In the next minute or two, I'm going to tread a potentially thin line. The Academy is bipartisan or, more precisely, nonpartisan. We not only do both plaintiff's and defendant's work and handle civil and criminal cases, we are made up of Republicans and Democrats, and conservatives and liberals. We are a blending of all that makes America great.

When I say the things that follow, if it sounds unduly partisan, I should apologize.

The late Justice Howell Heflin gave me an out, however. What a great man Heflin was. He was not just a former Chief Justice of the Supreme Court of Alabama, and a former United States Senator, he was a lover of the law and the rule of law.

He was one of the giants who passed away this past year. What a sad year -- Pope John Paul II, the Pope of peace, Howell Heflin, and Johnnie Cochran. Johnnie was a Fellow in the Academy. His critics knew him as O.J.’s lawyer, but critics like that don’t understand good lawyering. Johnnie will also be remembered as Abner Louima’s lawyer. Where but in America could a Haitian immigrant get a lawyer like Johnnie Cochran?

Heflin had -- besides a great mind and a love of the law – a wonderful sense of humor. As Chief Justice, Heflin reviewed the docket for one upcoming term of court: wills, estates, contracts, leases, land use, zoning. Something had to be done, he thought, lest boredom set in.

Before the court was a pro se petition for appeal in a criminal case that would, if a writ of appeal was granted, seem a waste of the Court's time. There were 200 years of precedent against the issue the pro se petitioner had raised. The Chief saw it, however, as an opportunity. He granted the petition and appointed counsel.

I talked to Fellow Jim Thompson about the incident, and he thinks appointed counsel was probably Rodderick Beddow, a gentleman who used to practice law with Jim's dad. If it was Beddow who was appointed to represent the law pro se petitioner by the Court, he was appointed because, while the cause was hopeless, Beddow was so eloquent, imaginative, and creative, he would at least give the justices a lively and entertaining hour of oral argument.

That magic moment came when counsel for this hopeless cause approached the podium. His brief was pencil thin because there was no law to support his position. For the longest time he just looked up and down the bench without saying a word. Finally he commenced:

"Mr. Chief Justice and Justices of the Supreme Court of Alabama, I come to ye as John the Baptist urging that ye repent from these 200 years of clear error."

The most junior Justice down on the Chief Justice's left, counsel's right, was first to respond. "Counsel is well advised of what became of John the Baptist, is he not?"

Counsel responded, "Yes, Mr. Justice, he was beheaded at the instance of a whore. And, unless Your Honor wishes me to draw the analogy further, I’ll resume my argument..."

Behead me, if you will, if what I'm about to say transgresses that line between law and politics in some forbidden or uncomfortable way. I don’t think one can comment about the rule of law in troubled times without running the risk of offending someone’s political sensibilities.

It has always been my assumption that the rule of law contemplates a hierarchy of values. Without life, liberty doesn't matter; without liberty, property rights don’t matter. During slavery we subjugated one person’s liberty to another person’s property rights in him.

During the United States’s response to the terrorist acts of September 11, 2001, thousands have been deprived of their liberty. The executive branch has justified their detention on the grounds they were aliens, were enemy combatants, or were outside the jurisdiction of our courts. The first two grounds are mixed questions of fact and law while the last ground is purely a legal argument.

The executive branch compounds these contentions with the further argument that whether the detentions were based on fact or law, they were not reviewable. Consequently, it argues, the courts have no role to review the manner in which the detainees are treated.

Let me read to you -- I apologize for reading, but I read for two reasons: I want to insure accuracy, and I want to establish a proper context for the comments. Jefferson said:

"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure."

Some of you may see in these simple words a refrain from Lewis Carroll’s Alice in Wonderland:

"If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?"

Let me turn to what laws we were bound by our agreement and consent as of September 11th.

Article I of the United Nations Convention Against Torture provides:

"For the purpose of this convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession."

The United States seized tens of thousands of people during the war on the Taliban in Afghanistan and the war in Iraq. What restrictions did the rule of law impose on our handling of these prisoners?

Notwithstanding the plain language of the Convention Against Torture, the legal opinion provided the President of the United States concluded that for torture to be prohibited under this convention the pain inflicted, or the injury accompanying it, must be such as to expose the detainee to organ failure or death. Short of that, and I quote from a legal opinion provided to the President:

"A significant range of acts that though they might constitute cruel, inhuman, and degrading treatment or punishment, fail to rise to the level of torture."

And the Geneva Conventions? On January 9, 2002, two Justice Department attorneys wrote that because Afghanistan was a failed state, its militia did not have any status under international treaties:

"Any customary international law of armed conflict in no way binds as a legal matter the President or the U.S. Armed Forces concerning the detention or trial of members of Al Qaeda and members of the Taliban."

On January 25, 2002 the President was advised that the Department of Justice had issued a formal legal opinion that the third Geneva Convention on the treatment of prisoners of war did not apply to Al Qaeda.

The Counsel to the President wrote that "the new war placed a premium on the ability to quickly obtain information from captured prisoners and the need to try them for war crimes.” In his judgment, these needs rendered the Geneva Convention's strict limitations on interrogations “obsolete” and rendered other of its provisions “quaint”.

To those of us trained in the law, the position there stated is sophomoric and untenable. Reduced to its simplicity, the opinion argued that if the executive branch no longer wished to be bound by a law, a unilateral declaration that the law was “obsolete” or “quaint” would render it a nullity.

We're at the end of my political commentary on that because in December 2004, the Department of Justice withdrew those opinions and replaced them with opinions more reflective of true rule of law opinions.

What I thought of interest, of the gentlemen who offered the suspect opinions, one went on to become a United States Court of Appeals Judge. I will not identify him. You may or may not know the gentleman. The other went on to become Attorney General of the United States.

Perhaps, and as lawyers we’ve had this happen, these gentlemen didn’t have client control. In my view, even if the President of the United States advised his counsel what he wanted the opinion to hold, it was their responsibility to advise the President, as client, that the opinion couldn’t so hold and be faithful to the rule of law.

I understand in the political world things happen differently than they might in our law offices, but I was reminded how another attorney handled it when his President proposed legal action the attorney thought improper. Elliott Richardson resigned.

I was also interested in an interview the Assistant Attorney General, who authored one of the torture opinions, gave after his confirmation for the Court of Appeals. He said he had a particular interest in the rule of law going back to ancient times, particularly as the rule of law was reflected in the bible. He had been the gospel doctrine teacher in his ward:

"From the fifth chapter of Matthew, before a man can offer gifts to God he must first be reconciled to his brother; and as a judge I will see to it that the parties come before me and attempt to reconcile."

"To reconcile," he said, "comes from the Latin meaning to be seated with or to be invited back to the table."

Quoting the judge:

"What a great image that is of everyone being brought back to the table, included once more in an intimate setting among friends."

"Both parties," he said, "in a dispute, the offended as well as the offender, need more compassion as they work toward resolution."

As the lawsuits concerning the treatment of the detainees have progressed, as FOIA requests, made to the agencies involved in tracking the detainees, have generated responses, as more information has been garnered about these detentions through aggressive investigative reporting, some interesting facts have percolated to the surface.

Firstly, in the records obtained by the American Civil Liberties Union, and there are some 20,000 pages of them now produced under FOIA requests, there are memoranda from battalion commanders, from the head of Abu Ghraib, and from subordinates.

Among the documents was one saying, “Of the 15,000 people seized, it was our conclusion that only one in ten had anything of intelligence value. That many of those swept up and detained had no connection to intelligence-worthy information but happened to be in the wrong place at the wrong time.”

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