FLAC's 2nd Annual Dave Ellis Memorial Lecture
1 December 2008
FLAC's second annual Dave Ellis Memorial Lecture took place on Monday 1 December in the Morrison Hotel, Lower Ormond Quay, Dublin 1. Mr Steven Shapiro, Legal Director of the American Civil Liberties Union (ACLU), delivered this year's lecture.
A synopsis of Steven's talk is given below:
Synopsis of Steve Shapiro Address:
THE EVOLVING HUMAN RIGHTS LANDSCAPE IN THE UNITED STATES
1. The United States is emerging from one of the most difficult periods in its history. Following the events of September 11, 2001, the Bush Administration pursued a course of conduct that trampled on human rights, undermined our security, and damaged our nation's reputation throughout the world. A new administration is coming into office on January 20th that was elected on a platform of change. What remains to be seen is what that change will look like, how quickly it will occur, and what role NGO's like the ACLU will play in making it happen.
2. The ACLU was founded in 1920, 88 years ago and 133 years after the U.S. Constitution was ratified. We have gotten accustomed in the U.S. to the idea that individuals may seek relief from the courts when their rights are violated. In fact, it took a long time for that idea to take hold in the U.S. When the ACLU was founded in 1920, for example, the Supreme Court had yet to strike down a single law as unconstitutional on free speech grounds. To the extent that there was any constitutional law in 1920, it favored property rights over individual rights. The Bill of Rights, which was added to the Constitution in 1791, was largely unenforced and its provisions remained essentially aspirational.
3. The creation of the ACLU was precipitated by two events. First, literally thousands of Americans were arrested, prosecuted, convicted and imprisoned for peacefully opposing U.S. involvement in World War I. Those prosecutions led to the first significant free speech decisions by the U.S. Supreme Court in 1919 (which, by the way, upheld the convictions). That same year, the U.S. government also launched the infamous Palmer Raids, rounding up and deporting thousands of immigrants based on alleged anarchist connections.
4. The history of the ACLU since 1920 parallels the development of modern constitutional law in the U.S., and the ACLU has played a major role in that development. We participate in more Supreme Court cases every year than any other private organization. We have more than 500,000 members and offices in every state. We have grown from an organization that focused primarily on free speech issues to an organization that addresses the broad range of human rights. We have also gone from an organization that focused primarily on litigation to a multi-faceted advocacy organization. We now have approximately 200 lawyers working full-time for the ACLU, thousands of other lawyers around the country who handle cases for the organization on a volunteer basis, a legislative lobbying office in Washington, and a sophisticated communications operation that uses both new and old media to get our message to policymakers and the public. Finally, while still a domestic NGO, we have gone from an organization that focused exclusively on U.S. law and constitutional principles, to an organization that is increasingly relying on international human rights norms to promote civil rights and civil liberties within the U.S.
5. Litigation has been a powerful engine of social change in the U.S. It has provided important protection for racial minorities, religious minorities, political minorities, and other disadvantaged groups. Litigation also has its limits, however, especially when the goal of litigation is not merely to achieve justice for individual victims but to reform political institutions and transform cultural attitudes. Our greatest successes have also led to some of our greatest frustrations. For example, 50 years after the Supreme Court declared racial segregation in schools unconstitutional, schools in America remain as segregated as ever but now that segregation is due to housing patterns rather than discriminatory legislation. Similarly, 35 years after the Supreme Court upheld the right of women to choose whether or not to terminate their pregnancy, abortion remains unavailable to millions of women across the country and subject to burdensome regulation for millions of others.
6. The lesson we have learned, sometimes painfully and slowly, is that public interest litigation cannot be divorced from its larger political context. With rare exceptions, courts do not like to get too far ahead of public sentiment and, when they do, their decisions often produce a political backlash that imperils progress. Even in a litigious society like the U.S., the struggle for human rights is ultimately a political struggle. Litigation is one tool in that struggle but it cannot and should not be the only one. There is much discussion in the U.S. about whether progressives have over-relied on the courts. I think the answer to that question is generally no. But we may be guilty of under-relying on grassroots organizing and coalition building. If nothing else, last month's presidential election in the U.S. demonstrates the capacity to build a political movement from the ground up. It is hard to sustain change without popular support.
7. George Bush has become one of the least popular presidents in American history. His administration did not have to make human rights a casualty of the so-called war on terror, but it chose to do so and we are all still living with the consequences. For the past 7 ½ years, the ACLU and numerous other allies have fought against the Bush administration's embrace of torture, rendition, racial and ethnic profiling, warrantless surveillance, and the suppression of dissent. We have carried on that battle in the courts, in Congress, in town hall meetings, and in the media. The record is mixed. Detainees at Guantánamo Bay have won the right to challenge their detention in federal court, but no one has yet been released as a result of a court order. Congress prohibited torture but then stood idly by when the President insisted on the CIA's right to use "enhanced interrogation techniques."
A massive program of unlawful surveillance was exposed by the media but then substantially ratified by Congress and efforts to challenge it in court have been effectively stalled by the administration's assertion of a "state secrets privilege." Indeed, the administration has even taken the position that detainees at Guantánamo cannot publicly discuss their torture because "methods" of interrogation are classified secrets that cannot be revealed.
8. Very few of us could have imagined a debate over these issues in the U.S. prior to 9/11. But it would be naïve to assume that these issues will simply go away with the election of Barack Obama. Obama comes into office with a very different attitude on many human rights issues than George W. Bush. But hope must always be accompanied by vigilance. The newspapers are already reporting on an internal debate among Obama's advisors about what to do with the Guantánamo detainees when Guantánamo is closed, as Obama has repeatedly promised to do. The ACLU's position is that the detainees, some of whom have now been held for six years, should be tried or released. There is, however, an increasingly public discussion about a creating of system of preventive detention, which the U.S. has never had, and which the ACLU will strenuously oppose.
9. Like many NGOs, the ACLU has produced a comprehensive transition document for the Obama administration that is available on our web site. We have proposals for the first 100 days and the first year. We also have three simple but profound proposals for Day One: close Guantánamo, stop torture, end rendition. The administration has changed but our principles have not. We will be watching closely and we will continue to fight for basic human rights, as the ACLU has done through 15 presidencies and nearly nine decades.