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Remarks of Professor and
Attorney Emanuel Margolis
New Britain Judicial District's
Law Day Ceremony, May 6, 2008
With that kind of an introduction, Iím always reminded, first of all, I canít believe that so many years have gone by, but letís put that aside and Iím celebrating a little too many 50th anniversaries making me a little bit concerned about how old Iím getting. I just celebrated the 50th anniversary of my admission to the bar. I celebrated my law school 50th reunion a couple of years ago. And I understand that weíre now celebrating the 50th anniversary of President Eisenhowerís having designated this as law day. So if you add them all up, I think Iíd be 150 years old. We wonít do that.

The fact of the matter is time goes by and itís wonderful to be able to use it usefully and as you wish and Iíve been very lucky to find myself in a situation where the law firms, mainly the present law firm, Wofsey, Rosen, Kweskin & Kuriansky, has given me every opportunity to engage in the kind of practice of law in the pursuit of the principles of law that I so passionately believe in. Iím sure that there are other firms, if I had joined them, they would have said, Check your billable hours and letís make sure that they add properly. I never ran into that and I was very fortunate in that regard. I look back on it with a lot of pride.

Weíre here to talk about law day and the focus of our attention today is the rule of law. I believe that youíve just had an important essay contest for your 10th graders in which there has been a competition on writing about the rule of law and I have seen the winning essays and I think theyíre quite extraordinary. They really focused on something thatís been central to the practice of law and the purpose of being a lawyer. For me and Iím sure for anybody else who would have read those essays, I think you should take pride in what youíve done with them. Unfortunately, I didnít see the mock trial, but I suspect that was very well done as well.

When we talk about the rule of law, weíre talking about something that is really profound and historically developed over the years to the point where when we refer to the rule of law weíre referring to the fact that we are living under a constitution, a written constitution that was the Ė happens to be the oldest written constitution in the world. We have had to work at keeping it. Weíre going to have to work harder at keeping it in the future and Iím going to say something about that in the course of my talk this morning.

What are the essentials of the rule of law? When we talk about that, itís a nice phrase, but what does it mean? I would submit that it consists of four main parts. One is structure. The structure of our system is such that we have a separation of powers. Iím sure youíve all studied that in your civics classes and in your history classes. Separation of powers and a balance of powers so that not any single branch of government takes over at the expense of the other branches. That has never really been a threat in terms of our judiciary, I may say, but it certainly has been a threat with reference to the two other main branches which are the legislature and the executive. So we start with structure.

The second element in the rule of law which is essential to the rule of law is something that I would like to call process to sum it up, process. Process in the sense that our constitution and our system requires due process of law; that those four words are extraordinary in the terms of their breadth and their depth and their meaning and the way in which it has been applied over the years by our courts and our judges primarily to protect the rights of all of us, citizens and noncitizens alike, so that the slogan thatís emblazoned over the Supreme Court building in Washington, Equal Justice Under the Law, has become meaningful and has become a serious element and component of what we call the rule of law. So weíre talking about process, due process, and I would add to that the principle of habeas corpus which is absolutely essential to our system of law and Iím going to say a word or two about that later on.

The third element in the complex known as the rule of law is transparency in government. That is to say that government cannot operate in secrecy, cannot operate separate and apart from the people, and has to disclose what itís doing and why itís doing it. Weíve had some serious problems with that in recent years. There are some who would say and Iím inclined to share with you that we in the past several years, particularly since 9/11, weíve been operating under the most secret Ė secretive government in our history where the effort and the emphasis has been on nondisclosure rather than disclosure, let alone full disclosure. Transparency in government is absolutely indispensable to the rule of law and to our democracy. If that goes, the democracy goes with it.

The fourth element that I would urge as an essential component of the rule of law is the need and the absolute essentiality of accountability by public servants. Those who are in seats of government and seats of power and are there to help govern and help direct policies of the United States are there as our servants, public servants. They work for us. We donít work for them. They are accountable to us. We are accountable only in the sense of carrying out our civic duties such as voting and such as acting responsibly as citizens and honoring the precepts and concepts that weíve been talking about, particularly equality, particularly the right of people to speak their minds, the First Amendment principles, and certainly the principle of nondiscrimination.

All of these essential components of Americaís republican form of government have been, in my opinion, severely diminished, assaulted, or simply ignored since 9/11. You may recall the incident with Benjamin Franklin shortly after the Philadelphia meetings had taken place. And they took place in secret, by the way, when they were putting together a new constitution to replace the articles of confederation. Weíve all read about that. And in doing so, they insisted at that point on secrecy. They did not want transparency at that point because they felt that it would all fall apart over the period of weeks while they were trying to put together a new system, a new form of government. And when it was over, Benjamin Franklin emerged from the building, as did the other representatives and delegates to the constitution convention, and a woman approached them and said to him, Well, Dr. Franklin, what have we, a democracy or a royal government, a monarchy? Weíve got a monarchy or a republic? And he looked at her and he said, A republic, madam, if you can keep it. And keeping it is what weíre about now, especially in this time of crisis.

When Justice Sandra Day OíConnor came to New York City deliberately in order to see the aftereffects of September 11th, 2001 and she really wanted to get to Ground Zero and be about as close as she could under the circumstances. And after seeing that, this had an enormous emotional impact on her as it did on all of us who had the opportunity to go there. And she said at that time about 9/11 - this was about two weeks after, three weeks after it happened. She said the trauma that our nation suffered will alter and has already altered our way of life and it will cause us to reexamine some of our laws pertaining to criminal surveillance and wire tapping, immigration, and so on. It is possible, if not likely, that we will rely more on international rules of law than on our cherished constitutional standards for criminal prosecutions in responding to threats upon our national security. As a result, weíre likely to experience more restrictions on our personal freedom than has ever been the case in our country. And that was a fairly good prediction.

I remember being in Quinnipiac School of Law on 9/11, driving up to the school and hearing on the radio the air attacks on the World Trade Center and eventually as the rest of us realizing what it was, that it wasnít an accident. This was something horrendous that had happened and it happened on purpose. And my class on First Amendment Law was scheduled for ten oíclock that morning. The question in my mind was do we go forward and talk about the First Amendment or do we just simply say this is a horrible day and maybe we adjourn and go home? So I did what I thought was the democratic way. The class met. There were about fifteen students there as usual. And I said, We all know whatís happened. What do we do? Do we talk about the constitution and the First Amendment or would you prefer that we just go home and mourn? A lot of people died today. By a unanimous vote they said, We want to stay here; we want to talk. We want to talk about the constitution. It was one of the most moving moments of my life as a teacher and as a lawyer.

Since 9/11 we know that things have changed dramatically and we know that things were not going to be the same. One of the ideas that we adopted, which I think was most unfortunate, is that the clichť came to be nothing is the same after 9/11. Nothing is the same. Well, at first glance that looks attractive. On second glance, one has to say thatís totally wrong. The constitution is the same after 9/11. The Bill of Rights is the same after 9/11. We are the same good American people that we were before 9/11 and that we canít take that as an excuse for becoming an entirely different nation, an entirely different country with no principles, with no recognition of international rules of conduct, and with no recognition of our cherished bill of rights. So we discussed that in my class that day.

I think itís fair to say that we are presently in the most serious constitutional crisis in our history. The present administrationís trampling of our cherished constitutional principles are traceable to that date, 9/11, which like December 7th, weíll live in infinitely. This was the first attack on American soil. Hawaii was not yet a state when Pearl Harbor was attacked. To that extent, it might have been partly American soil. This attack succeeded beyond Osama Bin Ladenís wildest dreams. Bin Laden stole major parts of our countryís soul and its heart. The damage that was perpetrated in New York City and D.C. on 9/11 was negligible in contrast to its aftereffects. What happened there, it was something that I think is best summed up by Senator Lowell Weicker during the Watergate hearings when he said, These guys are stealing our country. And I think a lot of that was applicable to the post 9/11 period.

And as we found out then and we will rediscover liberty is easier to preserve than to obtain. The quintessence of liberty is the rule of law. We can only recapture our lost liberties and weíve lost a number of them. For example, the U.S.A. Patriot Act, illegal wire tapping, national security letters, NSA letters going out to people such as the Bristol librarians in which they are given certain instructions about turning over their records to the FBI and Ė and are instructed and warned that they are not to share the contents of the letter with these instructions with anyone, not their wives, not their kin, not their lawyers, no one, and that that information is to be held secret forever. Forever. Those were the NSA letters and thousands of them, thousands of them have gone out. Congress amended the law, the Patriot Law, a couple of years ago to make it a little bit better and they did, but only a little bit.

Weíve also had congress remove our habeas corpus protections, protections that are written into the constitution that are specified as being the authority of congress, not the president, but then congress did what the president wanted which was to remove it for noncitizens and that is a reparation project that remains to be done, a reparation project that Iím proud to say is being lead by Senator Christopher Dodd of our state.
As defined in your student essay contest, the rule of law Ė and Iím quoting now Ė refers to a system of self government with a strong and accessible legal process, legal process. This is what we mean by due process of law of which no citizen may be deprived. Itís a system based on fair and publicized laws enforced by lawyers and judges.

And speaking of judges, with all of the distinguished judges we have present, I know some of them, I wish I knew all of them. But being a lawyer in Fairfield County, we only get admitted to practice up in New Britain County by special dispensation. You got to get an administrative judge to say itís okay, so I donít get up here very often, but I have to say itís a real pleasure to be here and to have been invited.

I do know some of your distinguished judges. Certainly, Judge Sheldon, OíKeefe, and Judge Reicher. I think Iíve appeared before Judge Reicher. Iím not sure that he can recall. I think I lost, but we wonít go into that right now. And Judge George Levine and Judge Pittman, itís been a great privilege just to know these judges, let alone practice before them.

And I will say that as far as Connecticut is concerned, particularly under the leadership of our present chief justice, the rule of law is in good hands in our state. Thanks in no small measure to the judges of whom have been appointed and who have served with such distinction and itís a source of pride for me to be able to say that I practiced in Connecticut. Of course in Connecticut the rule of law is alive and well, although Iím sure it can be improved.

But itís at the federal level where the rule of law sustains some serious injuries and thatís what Iím talking about this morning and, hopefully, not fatal ones. Our fundamental constitutional principles of liberty and justice have been injured, undermined and, in some cases, almost destroyed by the principle of a global war on terrorism and Iím sure youíve heard that phrase, the global war on terrorism. This is the metaphor on the basis of which the present administration has laid claim to more power than any administration in our history with the possible exception of our civil war and World War II when our existence as a nation was militarily at stake. I want to emphasize that. We were threatened. Our survival as a country was threatened. As bad as 9/11 was and as bad as the Taliban was and is, this has not threatened us as a country.

Terrorism, when you think about it, is merely the name of a technique. Itís intentional Ė what does it mean? Itís an intentional attack upon innocent civilian. Itís a weapon which has been used for centuries. It didnít just appear in the last ten years.

Some have argued that our ancestors, our predecessors, those who sought to overthrow the then King George and declared their independence were indeed terrorists. They did Ė they committed acts of terrorism. Surely the antifascist groups in occupied Europe were engaging in World War II were engaging in acts of terror against the German occupation, against Japanese occupation. This was also true of the Israeli Irgun in Palestine after World War II when the Jews were seeking to create their own state and eventually did. But the acts that lead up to it, the bombing of the King David Hotel in Jerusalem, what was that? That was an act of terror. Thatís what it was. Weíve had that for years. Jews have done it. Arabs have done it. Arabs are still doing it. There are times when the Israeli state does things that I certainly donít approve of. Whether you call it terror, certainly in preemption invasion.

But war Ė talk about global war on terrorism Ė war, on the other hand, is not a technique. Itís a life and death struggle against armed forces of a particular enemy, a particular country. Great Britain made war against Nazi Germany, not the U2 rocket or those who were launching it, civilian or military. It was a war against a country, a country that had invaded numerous other countries. The United States declared and waged war against the Empire of Japan, not the rapists of Manchuria, not the terrorists who were engaged in horrific acts in China in the course of conquering China and many parts of the far east. The war was against the Empire of Japan.

Once we buy into the notion of war, worse yet global war, against the technique of terrorism, national security interests will trump liberty, will trump individual rights, will trump human rights. Citizensí rights under our incomparable bill of rights are sacrificed in order to keep us safe. The enemy is Al Qaeda. And like the Russians and the communists in the latter half of the 20th century, Al Qaeda is everywhere. Every battle that is fought in Iraq, with very few exceptions, are being fought against Al Qaeda, not really true. But thatís the way itís set up.

Our country is, quote, at war. Weíre actively engaged in two wars right now as we sit in this wonderful courtroom. Weíre engaged in war in Iraq. Weíre engaged in war in Afghanistan. We have been sporadically bombing a third country, Somalia. American war planes. Is that war? Is that part of the war on terrorism? We are now threatening Ė I donít want to borrow Senator Clintonís term, but she used the term obliteration of Iran. Can you imagine?

The war against terrorism has become the governmentís chief weapon to undermine our system, our cherished system of the rule of law replacing it in many ways with the rule of fear. The majority doesnít rule in many crucial areas of our life. It doesnít rule in terms of what Americans want with reference to the war in Iraq and it doesnít rule in terms of where Americans want to go in the future where 80 percent of Americans say weíre on the wrong road and we stay on the wrong road no matter what the opposition party does or, in large part, doesnít. Itís called caving.

Jingoism has been substituted for rational thought and responsible leadership and patriotism is now tested on the basis of what you wear in your lapel. The overwhelming majority of Americans know something needs to be done. You know that something needs to be done. We need to confront the grim constitutional future that lies ahead. We need to get our country back, the respect that we once had, the beacon of freedom for the entire world, not the country which a good portion of the world is more afraid of than Osama Bin Laden.

The framers of our constitution declared we the people in order to form a more perfect union and establish justice and secure the blessings of liberty to ourselves and our posterity. Iíve got five married children. Iíve got ten grandchildren. Thatís my posterity. And what are we leaving behind for them?

Our fundamentals of separation of powers, our rule of law, checks and balances, transparency, accountability. Whoís been made accountable for the system of torture which we now know America has been engaged in for some time? American representatives, particularly the CIA. Who has been held accountable? Whatís happened is that tapes of these torture activities, the water boarding and the rest of it, has - have been destroyed, have been destroyed. And whoís being held accountable for that? And when congress seeks to bring people for hearings to testify about it, they simply refuse to come. Where is the separation of powers? Where is the checks and balances in that situation?

Congress, in a word, in my view, must regain its spine. If I were a surgical orthopedist, Iíd say they need a spinal fusion so that they can be erect and stand up for our principles that they should be standing up for and the kinds of things that their constituents want. It must carry out its article one responsibilities, article one in the constitution, particularly but without limitation the provisions of Section 9 of the constitution which says as follows: The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety required of.

You tell me. Iím waiting for the person who will say to me we have a Ė a rebellion in the United States or we have a situation of invasion of the United States. Nobody can say that because no one can justify it. No one can provide evidence itís not happening. And yet congress, under pressure from the unitary executive, has seen fit to repeal Ė repeal a constitutional requirement which goes back a thousand years.

You are living in New Britain. Habeas corpus was first presented and perhaps the first document of freedom in Old Britain a thousand years ago. Weíve inherited that and itís part of our constitution. Itís called Magna Carta. The cycle of fear and repression which has been repeated throughout our history and youíll see it in the 1790ís in the (indiscernible) laws; youíll see it again in the suspension of habeas corpus before and during the civil war. Youíll see it again. You saw it in the resettlement of the Japanese by President Roosevelt on very bad advice and we ended up paying reparations to them fifty years later. Most of them had not even survived. And we do Ė we make these mistakes and then we go back and say, oh, that was a mistake, we shouldnít do that. Itís these cycles of fear and repression that cause us to do that and they have to be ended and this one, I would urge, must be turned around.

Letís recall Thomas Jeffersonís call for the defense of our constitution some 210 years ago. This was during the (indiscernible) of John Adams and after the passage of the alien and sedition laws. And Mr. Jefferson said, A little patience and we shall see the reign of witches pass over, their spells dissolved. And the people recovering their true sight restored their government to its true principles. Itís true that in the meantime weíre suffering deeply in spirit and incurring the horrors of a war and long oppressions of enormous public debt. Youíd think he had written this yesterday.

If the game runs sometimes against us at home, we must have patience until luck turns and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake. Itís time for us to recapture the rule of law and, in doing so, to readopt our America of the Declaration of Independence and the Bill of Rights.

Benjamin Franklin, if I may quote him again, a very smart guy, had it exactly right when he warned in 1759, They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety. Thank you very much.


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