Gadfly is Marty Aussenberg, a columnist for the alternative weekly Memphis Flyer, where this story was originally posted. Marty is an attorney in private practice in Memphis, Tennessee.
I sat, dumbfounded, as I watched a demonstration, en masse, in Pakistan against the oppressive rule by that country’s strongman (and our “ally”), Pervez Musharraf, by a group of outraged citizens. Who were they? Not members of the typically rebellious masses (i.e., college students, factory workers, union members, political dissidents, etc.), but a group of LAWYERS!
How could this be, I wondered. Lawyers (a status I proudly claim) are usually part of the cosseted elite, beneficiaries of the status quo, recipients of the government’s favors, and cogs in the wheels of justice, government and societal processes in general. More often than not they go along to get along as part of the power structure. They are usually well paid, respected (stereotype-driven prejudice to the contrary notwithstanding) and comfortable members of the elite. Yet here they were, raucously demonstrating, throwing rocks at (and being beaten by) the police, and vociferously protesting the policies of their government. Right on, brothers! Lawyers just don‛t do this, I thought. It‛s contrary to their delicate constitutions, and their self interest.
Sadly, American lawyers have frequently been more a part of the problem in the decimation of the rule of law in this country than part of the solution, and I’m willing to take my share of the responsibility for that failing.
More after the jump
As it turns out, the Pakistani lawyers were righteously indignant about Musharraf’s “emergency” measures, dictatorially imposed on the country, including the suspension of the country’s constitution, cancellation of elections, the arrest and detention of the country‛s chief justice, the closure of privately-owned broadcast media and the replacement of many of the country’s high court’s judges with ones more to the dictator’s liking.
Wow, I thought; this sounds vaguely reminiscent of what’s happening right here, in the good ole US of A. Bush has all but suspended the constitution (i.e., eliminating habeas corpus, warrantlessly eavesdropping on American citizens, engaging in torture and stacking the Supreme Court—and the inferior courts—with his right-wing ideological kinsmen). But, not surprisingly, he doesn’t see the parallels. Indeed, in a moment of supreme irony, Bush’s press secretary said (in reference to Musharraf’s actions) that it was not reasonable to restrict constitutional freedoms in the name of fighting terrorism.
Bush has relied on compliant (if not complicit) lawyers in the Justice Department (headed, until recently, by the ultimate toady, Alberto Gonzales), to tell him what he wants to hear when it comes to bending or breaking various laws and the constitution. And now it appears we will be treated to another Bush lawyer/sycophant at the helm of that department, Michael Mukasey, who, among his other shortcomings” refused to say that a favored torture tactic, water boarding, is unconstitutional.
Nonetheless, can you imagine lawyers in this country taking to the streets to protest our very own version of a strongman’s infringements of constitutional and human rights? I know I can’t. And yet, no one is in a better position to protest our dictator’s policies, or has more at stake, than this country’s legal establishment.
Musharaf has obviously taken a page from Shakespeare in dealing with Pakistan’s lawyers. It is a favorite weapon of lawyer-bashers to quote the Bard’s phrase, paraphrasing, that “the first thing we should do is kill all the lawyers.” I’ve heard this line many times, once even from a now-deceased federal judge who uttered it, astonishingly enough, in the courthouse elevator as several lawyers got on to ride to the courtroom floor. I reminded him, as politely as I could, that in addition to being a judge, he was also a lawyer and would probably go with the rest of us (indeed, probably before us) if his prescription were to be followed.
But, the quote from Shakespeare is never cited in the context the Bard wrote it. In fact, Dick the Butcher, a character in Henry VI, utters the remark as part of a plot by another character in the play, Jack Cade, a rabble rouser and pretender to the throne of England, to take down the government. Eliminating lawyers, according to Dick, was a necessary part of a successful revolt. Dick and Pervez obviously share the same philosophy.
In this country, far from protesting the abuses of law and the constitution practiced by the current administration, lawyers have shamelessly capitulated to, if not facilitated, the excesses of the Bush administration. Whether it was John Yoo, the Justice Department lawyer (who John Ashcroft referred to as “Dr. Yes” for his willingness to tell the White House what it wanted to hear), who opined that whatever the president wanted to do in a time of war (including torture) was permissible, whether or not it was prohibited by statute or the constitution, or Scooter Libby (remember him?) who outed a covert CIA agent in the service of his own “Dick the Butcher,” or now Mr. Mukasey, who appears ready to immunize from prosecution for war crimes the agents of our government who may have engaged in torture, and their superiors (up to and including Bush) who authorized it, American lawyers (with some notable exceptions) have been stunningly, deafeningly silent in the face of the Bush administration’s abuses.
And lawyers like Arlen Specter, Chuck Schumer and Lindsay Graham (who also happen to be U.S. senators), have, by approving Mukasey’s nomination, even as they professed outrage at his unwillingness to declare water boarding torture, have ignominiously shamed their profession by carrying the administration‛s water on that nomination.
American lawyers, who should have known better, have stood by and watched (and, in some cases, facilitated) Bush nominate candidates for the Supreme Court who swore, under oath, that they would honor the principle of “stare decisis” (precedent), and then proceeded, in several cases, to violate that oath and decimate long-standing precedents. Chuck Schumer, in particular, apparently doesn’t believe in the old “fool me once…fool me twice” when it comes to the lesson of Bush’s nominees. They stood by in 2000 when the Supreme Court issued its opinion in Bush vs. Gore, one of the most political decisions in its 200 plus year existence (with the possible exception of its Dred Scott, pro-slavery opinion) which robbed the winner of that election of his rightful victory. Can anyone doubt that, in virtually any other country in the world, there would have been mass protests against this theft?
So, I stand with my Pakistani brothers in law, in spirit if not in body, and say, “I support your cause, because it is just.” But call me a hypocrite, because I just don’t think I’ll be throwing any rocks (at least not literally), manning any barricades, or suffering any police beatings over here protesting “Pervez” Bush’s violations of the constitution or the rule of law over here, anytime soon. When all is said and done, I’m afraid I’m just another proud, and chicken-hearted, member of the establishment.
