Lawyers Journal

Gala Dinner keynote speaker Clarke calls on MBA members to defend constitutional rights

MBA Gala Dinner keynote speaker Richard A. Clarke, the nation’s former counterterrorism chief and a best-selling author, urged Massachusetts Bar Association members to defend the rule of law and civil liberties from government interference.

Protecting such basic American principles should transcend partisan political disagreements and will be essential if the nation hopes to defeat terrorism, Clarke told the audience of more than 700 people in the Rose Kennedy Ballroom at Boston’s InterContinental Hotel on Nov. 1.

“You took an oath to preserve, protect and defend the Constitution,” he said. “Not the president, the party or the flag. You took an oath that you would protect the Constitution against all enemies, both foreign and domestic – that’s your job.”

MBA President David W. White Jr. set the stage for Clarke’s speech in his introduction.

“Six years ago, we were all a little more innocent, and life seemed a little more secure,” White said. “I’ll confess, in the anger and outrage that followed the destruction of the World Trade Center and the attack on the Pentagon, I thought maybe I should be willing to surrender a little bit of my freedom if it meant my children would be a little safer.”

But as the United States turned its attention to invading Iraq, White said, the government undertook extraordinary policy changes, including labeling captured enemies as “enemy combatants” and holding them indefinitely, without charge and limited or no access to lawyers or the courts.

“Along the way, we seemed to lose our focus,” White said, and neither Congress nor the press asked hard questions about the government’s actions.

“We became lawyers not just to make a living, but to uphold the higher principles of the law,” he said. “Our founders recognized, in our Constitution and our Bill of Rights, that these rights are not given to us – we have them innately: they belong to us. And our president and attorney general do not have the right to ignore the Constitution and the laws which protect us from illegal wiretaps and other searches.

“Richard Clarke is here tonight because he recognizes, and I am quoting from his book, ‘That we must… defend the Constitution against those who would use the terrorist threat to assault the liberties the Constitution enshrines,’” White said.

Clarke began on a light note, amusing Red Sox fans by saying, “It’s a great honor to be here tonight, even though I understand that the first invitation to speak went to Jonathan Papelbon.”

But the tone and subject matter quickly turned serious, as Clarke informed the audience that while they were enjoying the pre-dinner reception, Bush had taken to the media to chastise Congress for holding up Michael Mukasey’s nomination for attorney general as a threat to national security.

“Of course, the reason we don’t have an attorney general is because the last one lied to Congress and violated the letter of the law of F.I.S.A. (the Foreign Intelligence Surveillance Act),” Clarke said. “We don’t have an attorney general because the last one broke the law, and this one refuses to say that torture is torture,” referring to Mukasey’s nuanced responses to questions from the Senate Judiciary Committee.

Touching upon his Boston connection, Clarke added that his debate coach at Boston Latin had taught students to never deny the obvious.

“How did we get here?” Clarke asked. Because after 9-11, we abandoned our values.”

Clarke said that since Sept. 11, only 29 percent of the people prosecuted for terrorism have been convicted, while the nation enjoyed an inverse prosecution rate before, when suspected terrorists were afforded Miranda rights, habeas corpus and access to lawyers.

“We put them on trial and convicted them,” Clarke said.

Clarke then noted that intelligence derived from torture is unreliable and can lead to such faulty “confessions” as Iraq’s collaboration with al Qaeda.

“For years, we’ve gotten the information we needed without torturing people. It’s not necessary; it’s not necessary to engage in torture; not necessary to engage in warrantless wiretapping,” Clarke said. “We have to defeat their ideology, and to do that, we have to stand for something. America used to stand for something.”

As an illustration of his point, Clarke said, for example, that people living in slums in an Islamic country used to believe that the United States represented certain principles, regardless of how they viewed our nation. “Now, they think we’re hypocrites, he said. “Since 9-11, we have seen the growth of violent Islamism because of the way we responded to 9-11.”

America has lost sight of the principles that once guided it, allowing them to be abused for political advantages, Clarke said.

“People are trying to divide our country by using the issue of terrorism as a wedge,” he said. While that kind of manipulation will win some votes, Clarke said, it shouldn’t be allowed to hijack universal American ideals.

“At the root and at the base, these should not be partisan issues,” he said, adding that opposition to the Bush Administration’s policies have come from both parties. For example, he noted that Sen. Lindsey Graham, R-South Carolina, has been a prominent defender of the need to adhere to international standards for the treatment of captured troops.

And, he said, “Sen. John McCain’s is the most eloquent voice in Washington on (prohibiting) the use of torture.”

The presidential candidates need to be pinned down on their stands on torture and adherence to humane treatment of enemy soldiers, Clarke said. He urged mainstream organizations like the MBA – not just partisan groups like MoveOn.org – to demand commitments from the candidates regarding issues like forbidding torture, respecting the rule of law and honoring international agreements.

The nation’s founding fathers recognized the need to place controls on government, Clarke said, quoting Benjamin Franklin, that “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

The United States is at great risk if the government continues to abuse both domestic and international law, he said.

“It’s very serious stuff,” Clarke said. “We can fight al Qaeda and we can win and do it legally. In fact, I don’t think we can win if we do it differently.”

White said he was thrilled with both the turnout and the speakers.

“I couldn’t have been any happier with the evening,” he said. “The speakers were riveting. It was great to have the Bar Association focused on constitutional issues and protecting our rights against false claims of terrorism.”

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