CCNY 2017 Skadden, Arps Lecture: David Cole, ACLU

CCNY 2017 Skadden, Arps Lecture: David Cole, ACLU


I’m Vince Boudreau. I’m interim president here at City College
and I’m really pleased to welcome you all here tonight. This is a lecture that’s part of a series
of programming that’s associated with our Skadden, Arps program in legal studies, and
I want to say just a little bit about that program before introducing the moderator for
tonight. The Skadden, Arps program started about eight
years ago, and there was really a visionary investment from the Skadden, Arps law firm,
specifically in diversifying the legal profession, and they have, over the years, worked with
us, and it’s a grant that has allowed us to take up to 100 students a year, 50 first-year
students and 50 second-year students and provide tremendous amounts of support, support for
writing, support for learning and studying about the law, a paid internship in between
the first and the second year, and it is a program that I have to say allowed us to learn
both how daunting the obstacles are sometimes to getting into law school and to get better
and better over the years at overcoming them, and so eight years ago, we started with a
lot of focus on doing some black box law classes, and as time has gone on we’ve brought in people
to help our students write in a way that will prepare them for law school and really get
a better sense of the lay of the land of the legal profession. A big part of that has been exposing students
to various aspects of the law, and so they will meet practicing lawyers from all branches,
but also have the opportunity to come and listen to people who are leading decision-makers
and opinion-makers in the legal profession, both because it’s important and to give folks
a sense of the range of options that are open to them, and a lot of this has been made possible
by the fact that we have the Joseph Flom Professor in Legal Studies, and I’ll introduce her in
a second, but I want to say just something very briefly about Joe Flom. Joe Flom is a City College graduate. He is no longer with us. He passed away I think five or six years ago,
but he was the beating heart of the Skadden, Arps law firm. Skadden, Arps, Meagher, & Flom. He’s the Flom, and Joe was tough. Joe was credited with some real absolutely
effective, but some real bare knuckle legal struggles that he almost inevitably won, and
when he talked about the way he handled himself in the courtroom, he always talked about his
City College background. He always talked about what it meant to be
a young guy at CCNY who didn’t have to pay tuition, who had to work to support himself,
and learned how to scrap at this college, and learned that in order to get to graduation,
into law school, into the legal profession, he carried what he really claimed proudly
as a City College identity through that into the absolute heights of the legal profession. And so when the Skadden, Arps law firm decided
to invest in legal studies at City College, they wanted to put at the center of that,
Joe’s name, so one of the artifacts of that is the fact that we have the Joe Flom Professor
in Legal Studies, and that’s Lynda Dodd. Lynda’s been with us now for I think eight
years, seven, eight years at City College. She received her law degree in 200 from Yale
University. Four years later, she received her PhD in
political science from Princeton University, and she is the inaugural Joe Flom Professor
at City College, and one of the things that she’s really paid very close attention to
is finding opportunities like tonight to bring students and leaders in the field together
for really significant discussions of important issues in the legal profession. So I will cede to her the privilege of introducing
tonight’s speaker, but please welcome Professor Lynda Dodd. Thank you. Like many of you, after election night, I
thought of what I could do to deal with the challenges ahead, and one of the things that
I thought would be helpful is to see if we could bring some speakers to campus to talk
about these challenges, and we were so lucky that when I reached out to David Cole, that
he was able and interested in coming to speak to the students at CUNY and City College. Let me tell you a little bit about his new
appointment at the ACLU. So in 2016, before the November election,
he was appointed the National Legal Director at the ACLU. Like many lawyers, I thought this was a perfect
appointment. We were all excited to hear about it. The ACLU, you probably know is the largest
and most powerful public interest legal organization in the United States, has an illustrious history. After the election, I really thought that
this was a providence at work here with David in the moment this country is facing. He’s really the perfect person in my view
to lead the legal resistance against the current administration. Let me tell you a little bit about his background. You can read more, actually, in this month’s
issue of the Washington Monthly. It has a wonderful profile of him and his
background and his current work with the ACLU. I’ll tell you a little bit, though, just to
introduce him. So as a young lawyer, after he graduated from
Yale Law School in 1984, he joined a really important civil rights organization called
the Center for Constitutional Rights. While he was there, he wrote a pair of Supreme
Court briefs in cases that overturned a Texas law and then a congressional statute that
criminalized the burning of the American flag. These are renowned briefs and really showed
David’s legal talents. After that, long before 9/11, he began working
to defend Muslims from prosecution and deportation in the name of national security, so all of
this earlier work that concerns the first amendment, immigration, and national security
is discussed in the Washington Monthly profile, but really, all of these prior experiences
helped make his appointment today such a perfect fit. After working at CCR for a few years, he began
working as a law professor at Georgetown’s Law School, and he’s since then educated generations
of law students there. He’s also a brilliant writer. I followed his work for years, and probably
many of you have also. He writes essays regularly for The Nation
and The New York Review of Books. His newest book, Engines of Liberty, is … He’s
going to sign copies at the end of his talk, so please stay. He’ll sign copies at a table over there. Was published in 2016, and this book, I wanted
to show you the cover because unlike most law professors who write books, there’s not
a picture of the Supreme Court. That’s the stock image we all use, or we have
a picture of the constitution, or maybe a judge’s gavel. Those are the things the publisher tells us
to put. Instead, he has protestors and their signs
on the cover of his book, which is meaningful and I think shows that he’s thought very deeply
about the relationship between litigation and social movements, and is the reason why,
I think, his appointment as the legal director of the ACLU is just such a perfect appointment
at this time. We’re lucky that he’s serving in this role,
and we’re really lucky that he had time to come to CCNY today to speak with us. His lecture is entitled Defending Liberty
in the Trump Era. It’s being livestreamed on the CUNY Facebook
page, so I hope many people will have a chance to see the lecture when it’s archived there. Please join me in welcoming David Cole. Thank you, Lynda. I’m delighted to be here to talk about what
I have undertaken at the ACLU, which is to defend liberty in the age of Trump. When I took the job, that was not what I thought
I’d signed up for. I was recruited to the job last summer and
the executive director of the ACLU, Anthony Romero, said to me, “This is your dream job. You will be able to lead the ACLU’s Supreme
Court practice under a liberal Supreme Court,” because of course, Hillary Clinton would win
the election. She would get to appoint the replacement for
Justice Scalia, and for the first time in 40-some years, we would have a Supreme Court
dominated by a liberal majority. That seemed like a pretty good deal to me. I went to law school in the 1980s. My professors were all professors who grew
up and formed their views about law and social justice in the ’60s and the ’70s. What they taught me about constitutional law
was very much framed by the Warren Court, the liberal Supreme Court that gave us desegregation,
that gave us the right of every person, no matter how poor, to have a lawyer in a criminal
case, that essentially gave us the rights that we still seek to defend to this day,
and then I graduated in 1984, and I’ve practiced constitutional law ever since under conservative
majority Supreme Court, so this seemed like a pretty good deal to me. I signed on the bottom line. I forgot to put in a condition that says,
“What if?” Because who thought that there would be a
what if? But of course, there was, and on November
8th, before I started the job, the job changed, so the appointment was made in the summer,
but I didn’t actually start until January 9th. I figured I needed an 11-day head start on
President Trump. So it’s a very, very different job, but in
many ways, I feel deeply privileged to have this job. I think Donald Trump poses really unprecedented
threats to civil rights, civil liberties, and the rule of law. He is, in many respects, dismissive of rights
that people fought for for generations, and that we have come to accept as part of the
fabric of American life, so as a candidate, he promised to ban Muslims from entering the
country, to criminalize abortion, to open up libel law so that the press could be sued
more easily by people like Donald Trump, to revive the kind of aggressive stop-and-frisk
policing that New York City saw for far too long before it was reformed under Mayor De
Blasio, to root out voter fraud. He’s apparently personally observed three
million illegal voters. Nobody else has seen them, but he’s seen them,
and that is a recipe, the call about voter fraud, is a recipe for using an imaginary
problem, the problem of people voting when they don’t have the right to vote, in order
to suppress the vote of those who are unlikely to vote for people like Donald Trump. He promised to jail his opponent, Hillary
Clinton, as a president-elect, he urged that those who burn the American flag should be
jailed and have their citizenship stripped. He proposed to revive the CIA’s practice of
torture. This is a pretty astounding list and it comes
from the man who is now the president of the United States. When you take them in whole, what you see
is just a dismissive attitude towards the fundamental individual rights and liberties
that define us as a nation, so it’s a serious threat, but I think we can stop him. I think we, the people of the United States,
can stop him, and when I tell people that, they often ask me, “What did you just smoke?” Or, “What have you been drinking?” Because, “Tell us how you’re going to stop
Donald Trump. He’s the president of the United States, most
powerful elected office in the country. He has a republican house, a republican senate. When Neil Gorsuch is confirmed to the Supreme
Court, which will probably be this week, he will have a republican majority Supreme Court,
and about two-thirds of the states’ governments are in republican hands. How are you going to stop him?” I think it’s a decent question, but I think
we can stop him, and as I said, if we stop him, it will be the actions of we, the people,
of citizens engaged, and the reason I believe we have the possibility to stop him is that
I have never seen in my career as a lawyer, the kind of citizen engagement that we have
seen since November 8th of 2016, and that is where our salvation lies. So why do I think that? I’ll talk about two examples from the past,
and then some examples from the immediate past, the early days of the Trump administration. The first is I think you might have had the
same question after 9/11. “Who’s going to stop George Bush from doing
whatever he thinks is necessary to protect the American people in the wake of this horrific
attack on the World Trade Center and the Pentagon in which 3,000 innocent civilians were brutally
killed? Who’s going to stop him?” He, too, had a republican congress for most
of his eight-year tenure. He, too, had a republican majority Supreme
Court, in fact it was that Supreme Court that put President Bush into office by deciding
Bush versus Gore, stopping the recount, and ensuring that he and not Al Gore was our president. He had 90% approval ratings in the wake of
the attacks of 9/11, and he had a history of presidents being given essentially a free
hand in dealing with the enemy in times of crisis in the United States, a history of
courts, congress, and the American people standing back and letting the president do
what he deems necessary, whether it be locking people up for speaking up against the war,
something that was done to hundreds during World War I and the Supreme Court upheld the
action, or interning 110,000 people simply because of their Japanese ancestry during
World War II, something that congress did not stop, something that the court blessed. And indeed, President Bush initially responded,
in the War on Terror, by acting as if he could not be checked, and so he authorized things
that really had not been, we had not seen before. He authorized extraordinary rendition, the
practice of abducting someone in country A and delivering them to country B so that country
B could torture them for us. He authorized the disappearance of suspects
into secret CIA prisons where people were held for years at a time without even our
acknowledging that they had been detained. That’s what a disappearance is. It’s an abduction, a detention without acknowledging
that the person is detained. He authorized the CIA to torture. He authorized the detention of over 770 people
at Guantanamo without any hearings, without any access to the courts, and he authorized
warrant-less wiretapping of Americans, something that federal criminal statutes prohibited,
but he asserted the right to override. But by the time President Bush had left office,
he had been forced to curtail all of these measures. He had released 500 of the people at Guantanamo. He had emptied out the CIA’s secret prisons. He had terminated the extraordinary rendition
program. He had suspended the CIA’s torture program,
and the warrant-less wiretapping program was now under judicial supervision. So what accounts for that change? How did we push back against Bush, given that
there was a republican congress, a republican court, strong approval ratings, and a history
of deference? And I think the answer is the work of citizens
who cared about civil liberties and civil rights and engaged in a variety of tactics,
some of them inside courts, but most of them outside of the courts to push back against
President Bush, and it’s not that President Bush changed his mind and decided, “Well,
actually we don’t need to torture. We made a mistake.” If you read President Bush’s memoir, and I’m
not recommending it, but if you read President Bush’s memoir, you will see he doesn’t think
he made a single mistake over the eight year of his tenure. So these changes were not made voluntarily,
he was in one way or another compelled to do so. So what caused that? As I said, I think the answer lies in the
work of citizens coming together in associations that care about liberty, and some of the answer
dates back far before 9/11. So I’ll give one example. I talked already about the Japanese interment
during World War II. At the end of World War II, that went up to
the Supreme Court in a case called Korematsu v. United States, so Fred Korematsu, a man
who refused to be interned and was tried and convicted for his standing up for his rights,
and the Supreme Court upheld his conviction and said that the president can lock these
people up and just because he’s doing it on the basis of their race and ethnicity is not
a problem. Not a problem. And at the time, Justice Jackson, one of the
great Supreme Court justices wrote a dissent in which he said, “This is like a loaded weapon. Upholding this kind of action is like a loaded
weapon because it’s sitting around, waiting for the next president to pull up and use
in the next crisis,” and at the time, Justice Jackson may well have been right, that that
was the danger of that decision, but I think in fact, over time, that decision has changed. The meaning of that decision, the presidential
effect of that decision has changed so that it has become not a loaded weapon that a president
can pick up and deploy in another time of crisis, but rather an anti-precedent, something
that we should not repeat. A mistake. A warning. And so how did that happen? How did this decision which upheld internment
turn into a decision that is seen by virtually the entire Bar, including the justice on the
court, as one of the most shameful decisions in our history? And the answer lies in the action of citizens
who came together, did not accept that decision as the final word, and engaged in a long-term
campaign to overturn Korematsu in the court of public opinion, in the court of history,
and they started small. They did things like fought to get the property
back for people who were interns, so people, all the Japanese and Japanese Americans on
the west coast were interned, put into detention camps, sometimes called concentration camps,
and made to leave their homes, and then people took their homes, so part of the work was
just getting their homes back. Another small part of the work was to get
their citizenship back because many of them were compelled, coerced into giving up their
American citizenship while they were in these camps, and so Japanese American groups and
the ACLU working together got their citizenship back, and then there was a fight to get a
commission of inquiry, just a commission of inquiry to reassess what happened, not to
do anything, but just to study, just to study what happened, and that commission was formed
and it was a bipartisan commission, and it came out with a very critical assessment of
the practice. And then an academic uncovered evidence that
the Justice Department had misled the Supreme Court about the threat that the Japanese American
population posed to the United States. It didn’t actually pose any threat to the
United States, and there was evidence that it didn’t pose a threat to the United States,
but the Justice Department didn’t present that, and that was uncovered and on the basis
of that new evidence, people went back into court, on Fred Korematsu’s case and other
people who had been convicted and sought to overturn those convictions, and then they
got congress in 1984 to enact a statute that formally apologized for the interment and
paid $20,000 in reparations to the survivors, signed by Ronald Reagan, and that statute
was essentially the culmination of 40 years of fighting back against Korematsu so that
today Korematsu is not a precedent, but rather something to be avoided, a lesson in what
you don’t do in time of crisis, which is to defer blindly to the president. And I’ll never forget when I was standing
in line to go hear the argument in the Supreme Court in Rasul v. Bush, which was the first
Guantanamo case to reach the Supreme Court, and that case was filed by the Center for
Constitutional Rights by one of my mentors, Michael Ratner, a man who passed away just
last year, and when he filed that case, he said, I asked him, “What chance do you think
you have of winning this case?” He says, “It’s absolutely hopeless. Completely hopeless.” But he filed it anyway, and he lost in the
district court and he lost in the court of appeals, but then the Supreme Court took the
case, and I was in line with actually my predecessor in this job, a guy named Steve Shapiro, and
I said to Steve, “How do you think the court’s going to deal with this case?” And he said, “Well, I don’t know how they’re
going to come out, but I do know this, they have to have Korematsu at the back of their
minds as they are hearing it.” Why? Because Korematsu was a case in which the
court had deferred to presidential claims of authority and violated basic human rights,
and now President Bush was claiming that the court should defer to his detention of foreign
nationals at Guantanamo without any inquiry into their human rights, and he was right,
and it wasn’t just at the back of their minds. It was at the front of their minds because
Fred Korematsu himself, in his 90s, filed an amicus brief, a friend of the court brief,
in the Supreme Court, saying essentially, “Don’t make the same mistake twice.” So that work, that concerted work of civil
society over time over turned, in effect, a Supreme Court constitutional decision, and
turned a loaded weapon, something that the government could use against the people into
an object lesson in what not to do. So if we could push back, and there were a
whole host of other sorts of activities and campaigns that were engaged in after 9/11
to bring pressure to bear on the Bush Administration. One was colleagues of mine at the ACLU filed
a Freedom of Information Act request, that’s a law that says that you can ask for official
government documents about some subject, but it has all kinds of exemptions, and one of
the exemptions is if the information is classified or it concerns national security, you don’t
get it, so the ACLU decided, “Let’s file an FOIA request, Freedom of Information Act request,
for documents relating to the CIA’s torture interrogation program.” And some of my other colleagues at the ACLU
made fun of the lawyers for filing that case. They said, “Have you cleared away enough space
on your bookshelves for all the papers you’re going to get from the CIA from filing a Freedom
of Information Act request about a secret program?” And one lawyer said, “I’ll give you a dollar
for every page you get from the CIA.” Well, eight years later, they had received
over 100,000 pages of documents. That lawyer never paid up. There wasn’t room on the bookshelves for all
of these documents, and it turned out that they got all kinds of critical information
about the program, sometimes from agencies that wanted to distance themselves from the
program, distance themselves from the CIA program, including the FBI, and sometimes
from the CIA through the courts. But it came out in dribs and drabs over the
course of many years, and every time it came out, there was a new revelation about the
program, a new story in the newspaper, more transparency about the program, and this was
a program that could only be deployed in secret because once you brought it to light, it had
to be shut down. It was not sustainable to be torturing people
once we acknowledged that that’s in fact what we were doing. So by the end of his term, President Bush
had retreated on all of these measures, and it was because civil society groups pushed
back and pushed back in a variety of ways through a variety of forms over a long period,
and I think what it illustrates is that we are a democracy, it turns out. We’re sometimes an odd democracy, but in a
democracy, liberty and rights depend in significant part for their protection on the engaged action
of citizens organized through civil society fighting for those rights. I’ll give you another example. Both of these examples come from my book,
Engines of Liberty, which in some sense, might be seen as a very long application for my
current job, except that it took me about six years to write it and I didn’t know that
this job was available, but because it’s really, the subtitle is The Power of Citizen Activists
to Make Constitutional Law, and the argument is that the work of constitutional law takes
place primarily outside of the courts, not inside the courts, not by the Supreme Court,
but by the people engaged in concerted activity through civil society organizations. So one of the organizations that I talk about
in the book, probably the most powerful civil liberties organization in the United States,
and that’s not the ACLU, but the NRA, the National Rifle Association. In 1991, Chief Justice Warren Burger, a conservative
republican, said that the idea that the second amendment protects an individual right to
bear arms was one of the greatest frauds perpetrated on the American people in his lifetime. For 100 years, the courts had said, “There
is no individual right to bear arms. The second amendment is about protecting the
rights of states to have militias, as a check on federal power. It is not about the rights of individuals
to have guns in their homes.” But that’s not the way the NRA saw it, and
the NRA undertook a campaign, starting in the late 1970s to change the understanding
of the second amendment and to protect an individual right to bear arms, and they knew
they couldn’t win that case by filing a lawsuit in federal court because they would just lose
because over a hundred years, the courts had said, “This is not a right,” and Chief Justice
Burger had said, “It’s a fraud.” So they went elsewhere, and they went principally
to the states, and they went state by state getting state legislatures to either adopt
laws protecting the right to bear arms or amend their state constitutions to protect
the individual right to bear arms, so that by the time, 2008, when the Supreme Court
takes up the question, does the second amendment protect an individual right to bear arms,
in a case called Heller v. The District of Columbia, by that time, because of the political
work that the NRA had done, virtually all the states already protected an individual
right to bear arms under their state laws and state constitutions, making it a much
smaller step for the Supreme Court to say there’s also such a right in the federal constitution. They also supported scholars in digging up
evidence to support the notion that maybe there was some people who thought that the
second amendment protected an individual right to bear arms, and by the time the case got
to the Supreme Court, the consensus in the law schools on this question had shifted from
virtually 100% saying there’s no individual right to a significant polarity saying there
is an individual right. They got congress to endorse an individual
right to bear arms in two pieces of legislation before the case went to the Supreme Court,
and they got the executive under President Bush and when the attorney general was John
Ashcroft to reverse the Justice Department’s decision and say there is an individual right
to bear arms, so by the time it got to the Supreme Court, they’d already gotten the states
on board, the legal academy on board, the congress on board, and the executive branch
on board, and they did that through politics. They did that by engaging their membership. They have five million members. They have another 15 million people who think
they’re members, say they’re members, but don’t pay their dues, and the NRA, I talked
to a lot of NRA people for this book, and they said, “Well, we’d love to have their
dues, but what we really want is their votes, their allegiance, and so we’re happy to have
them say they’re members and think they’re members even if they’re not paying because
the source of our power is that when we oppose a bill, we can mobilize those 20 million people. When we see a candidate who favors who right
running against a candidate who doesn’t favor our right, we can send orange cards to 20
million people and urge them to vote for the one candidate over the other candidate and
they will do that.” They understand the democratic roots of constitutional
freedoms, and whether you agree with that constitutional vision or not, I think it’s
important to see the power of mobilizing citizens to protect and advance a particular right. So these are stories that illustrate the power
of people to protect and advance liberty, and that is what we need to rely on today. I’ve already talked about all the threats
that Trump poses, and they are considerable, but look at the reaction that we have seen
since Trump was elected. Look at the women’s marches across the country,
indeed, across the world, that made the inauguration day crowds look puny. Look at the ACLU. For a decade, we had about 500,000 members,
and it would go up under republican presidents because people would be more concerned and
it would go down under democratic presidents, people would be less concerned, so we would
go maybe up to 550, 550,000 under President Bush, down to 425 under President Obama, but
we couldn’t really change it. For 10, 15 years, we could not really get
out of that 500,000 mark. We are now at 1.2 million and counting. 1.2 million and counting. We have never received more requests and offers
to volunteer. Virtually every law firm in the country, tech
firms, ad firms, ordinary citizens calling to say, “What can we do to help?” And why is that? Why are people coming to us in ways that we’ve
never seen before? Precisely because they see the threats that
Trump poses and they see that those threats are to the very rights and liberties that
the ACLU has been around and fighting for for nearly 100 years, and they say, “Okay,
it’s time to pony up. It’s time to join. It’s time to step up and stand up for the
values and rights that we believe in.” We saw that at the airport demonstrations
on the Saturday after the executive order instituting the Muslim ban was signed into
law. On that day, tens of thousands of people got
up and went out to airports to protest. This is remarkable for two reasons. One, the tactic of targeting foreign nationals
in the name of national security is a tried and true one, and it generally does not engender
must citizen opposition because what the president can say is, “Look, I’m not taking your rights. I’m protecting your security and I’m not asking
you to sacrifice your rights. I’m sacrificing somebody else’s rights,” but
this time, people didn’t accept that, and so tens of thousands of Americans went out
to the airports to protest even though their rights were not directly at stake. Secondly, they went to airports. I don’t know about you, but an airport is
about the last place that I want to be in unless I have to go somewhere. They are sterile, soulless environments. They suck the energy out of you, and yet people
got up off their couches, got in their cars or their Ubers or their Lyfts, probably more
Lyfts than Ubers, but they got in their Lyfts and they went out to the airport to protest
for somebody else’s rights. That is a remarkable thing. The town hall meetings, the town hall meetings
that were held across this country just about a month ago during the congressional break
to talk about ACA repeal, Obamacare repeal, and to push back against the proposal to repeal
healthcare insurance. The calls that congress people received on
the ACA, which ran 10, 15, 20, 25 to 1 against the repeal measures and ultimately led to
the failure of President Trump to deliver on one of the most central promises of his
campaign. These are remarkable responses, and if we
can continue these responses, I think we can push back against President Trump. We can limit the damage that he can do, and
we may actually transform this country in a significant way by coming together and standing
up for many of the principles that we have taken for granted for far too long. So let me say a couple more words about the
executive order because in some sense, that’s been the principal legal fight, the principal
legal fight since President Trump has come into office. The executive order was signed on Friday,
Friday, January 27th, one week from the day President Trump took office. It was his first major effort. By that night, by that night, the ACLU along
with students from a clinic at the Yale Law School and a group called the National Immigration
Law Center had filed the first lawsuit challenging the legality of the executive order, that
night. We filed it at 5:00 a.m. on Saturday. The order came out at 4:00 p.m. on Friday. We filed on behalf of two Iraqis who had visas
to come into the country, had been stopped at the airport because of the fan. That evening, Saturday evening, we sought
a temporary restraining order, an immediate injunction against the order, and the argument
was held that evening, Saturday evening, on a case we’d filed Saturday at five in the
morning, Saturday at about eight in the evening, a judge held a hearing. Over 1,000 people gathered at the Brooklyn
Courthouse to hear the result of the decision, and there’s a video that’s on the web, people
are chanting, “ACLU, ACLU. We will stand with you.” That has never happened before in the history
of this country. Remarkable. That led to the first judicial order enjoining
the enforcement of the Muslim ban. Shortly thereafter, a judge in Washington
enjoined it nationwide in a suit brought not by individuals, not by the ACLU, but by the
attorney general of the state of Washington and the attorney general of the state of Minnesota,
so now you have state attorneys general pushing back against President Trump, and in our case
and in that case, we had support from many other state attorneys general. We had support from 130 Silicon Valley companies,
including some of the biggest companies in the world. Google, Apple, Uber, and others. We had the support of the presidents of all
the major universities in this country who condemned the ban. We had the support of Nobel Laureates of all
of the major science institutions in this country, of retired generals and admirals,
and national security officials. Indeed, on the Saturday after the order was
issued, Michael Hayden, General Michael Hayden, who was the head of the CIA and the NSA under
President Bush, a major defender of the CIA’s torture program, I have debated him on a number
of occasions, that weekend he put out a tweet, interesting that the former head of the CIA
and NSA is tweeting, but he puts out a tweet that says, “How about that? ACLU and I in same corner.” Dick Cheney came out against the executive
order and John Yoo, who was the lawyer who infamously wrote the memo authorizing the
CIA to torture, despite the fact that there were international laws, constitutional laws,
and federal criminal laws prohibiting torture, he wrote an op-ed for the New York Times calling
it executive power run amok. And so with all of that resistance, what did
the courts do? They sided with the resistance and against
the president, and they did so on an immigration case where presidents generally have broad
authority, and they did so where the president claimed he was acting in the interest of national
security, where again, the presidents generally have a great deal of authority. When the Washington judge issues his decision,
President Trump tweeted and called him a “so-called judge”. Not a wise thing for a president to do if
his actions are going to be reviewed by courts. When the 9th Circuit affirmed Judge Robart’s
decision, President Trump tweeted, “Outrageous decision. Will see you in court.” That was our phrase. ACLU was the one that said, “We’ll see you
in court.” He took it from us, but it also made no sense
because he was in court. That’s where he had lost. We’ll see you in court. When I knew that we had hope and that we had
a real shot at pushing back was in the week after the Muslim ban was enjoined. As I said, we had put two days after. I have to go back for one second. Two days after President Trump was elected,
we took out a full-page ad in the New York Times and the Washington Post which said,
“We’ll see you in court. President Trump, congratulations on your victory,
but if you carry out the measures that you promised during your campaign, we will see
you in court.” And we did. We did. So the week after that first victory in the
Brooklyn case, the New York Times crossword had a clue, and the clue was, “Group that
said to President Trump, ‘We’ll see you in court,'” and the answer was ACLU. At that point, I knew we had arrived. All of this, so this is just one example. Then President Trump issued a second executive
order. We filed a lawsuit, the state of Hawaii filed
a lawsuit. Both lawsuits, the district courts have enjoined
the executive order as an act of religious discrimination against Muslims, and did so
the day that the order went into effect. So he can be stopped. Indeed, I think the story thus far of the
first 100 days is that he has been stopped. In those first weeks when this executive order
came out, there were a whole number of other draft executive orders that got leaked. One ordered the CIA to look into reviving
the black sites, the secret prisons, and reviving the torture program, and bringing more people
to Guantanamo. That order has never been issued. Another created a right of people who have
certain religious convictions to not have to follow the law. Which religious convictions were they willing
to protect? Those who believe, by virtue of their religion,
that marriage is only between a man and a woman, that life begins at birth, and that
there shouldn’t be sex outside of marriage. If you have those religious beliefs and you
act on those religious beliefs to deny women access to contraception, to deny equal treatment
to gays and lesbians who are seeking to marry, you are protected under this executive order. It’s never been issued. What happened was they came out, there was
tremendous condemnation and criticism of them, the leaked versions, and President Trump hasn’t
had the temerity to put them into place. I’ve already talked about the repeal of Obamacare,
but in that repeal of Obamacare was a plan to defund Planned Parenthood. That, too, they have failed on thus far, and
the reason, I think, that they have had such difficulty, besides incompetence, is resistance. It’s the fact that we live in a democracy,
and when you are a president who comes to office having lost the popular vote, when
you take office with the lowest approval ratings of any president that has taken office since
we’ve been figuring out approval ratings, when your approval ratings plummet from the
time you take office to now, when they’re in the 30s, you’re not going to be very effective
at doing the things you want to do. And all of that, I think, reflects a deep-rooted
concern in the American people about the values and rights and liberties that we have fought
for as American people for so long, that are reflected in our bill of rights, and that
President Trump threatens to take away. So Learned Hand who was one of the greatest,
is often described as the greatest American judge not to sit on the Supreme Court. He was a judge on the US Court of Appeals
for the 2nd Circuit here. I don’t know if he was the greatest, but he
certainly had the greatest name of any judge not to sit on the Supreme Court. Learned Hand once said, “Liberty lies in the
hearts of men and women. When it dies there, no constitution, no law,
no court can save it. While it lies there, it needs to constitution,
no law, no court to save it.” Now, like many great quotes, this is an overstatement. We actually need a constitution. We need courts. We need laws. Some of what is so disturbing, fundamentally
disturbing about President Trump is his lack of respect for the constitution and the courts
and the laws, but nonetheless, Learned Hand identified a critical truth here, and that
is that ultimately, the protection of liberty lies with us. It lies in our hearts. And so what I think is so critical is the
work of organizations like the ACLU, like the Center for Constitutional Rights, like
Planned Parenthood, like the NRA, who stand up for constitutional visions and bring citizens
together in defense of those visions, and nourish the liberty that lies in Americans’
hearts, and that, in the end, will be our salvation. So let me close with another quote, and then
I’m happy to take your questions, and this is a quote about the relationship between
hope and action. The relationship between hope and action,
and it comes from a book written by Roberto Unger and Cornel West. At the time, they were both Harvard professors. I actually end my book, Engines of Liberty,
with this quote, and it comes from a book they wrote called The Future of American Progressivism. They wrote it about a decade ago. It’s a very thin book. I don’t think they saw much future in American
progressivism, but it has this I think very important notion, and they write, “Hope is
more the consequence of action than its cause. As the experience of the spectator favors
fatalism, so the action of the agent produces hope. As the experience of the spectator favors
fatalism, so the action of the agent produces hope.” And what they mean by that is that the causal
connection between hope and action is not that hopeful people, optimistic people act. It is not that you are born with a hope chromosome,
and that’s why you go and act. The causation is the other way around. By acting, you produce hope. By acting, you produce hope, and in the same
way, by sitting back, you favor fatalism. If you sit back and you spectate, very easy
to be fatalistic, and both of these things have a snowballing effect, that is, if people
sit back and spectate and don’t engage, well then the actions of the few who act will not
likely be very successful and the fatalism will be proven accurate. “Well, there was no point in my getting off
the couch because there’s no point. See?” But it’s also true that action produces hope
in a snowballing way, so the more people take action, the more successful that action will
be, the more they will produce results that are positive, which will then encourage others
to take action, so as I see it, we have two choices if you agree with me that the current
president poses serious threats to the basic rights and liberties that define us as a nation. One is to sit back fatalistically and spectate,
and the other is to act and produce hope, and therefore I think we only have one choice. Thank you very much. We do have a few minutes for questions. We don’t have a moving mic at the moment,
so if you could speak as loudly as possible … We do? Okay. So just raise your hand. David will call on people and the mic is moving
around. Hi, thanks for coming. You spoke a lot about the obvious threats
that President Trump poses to civil liberties and constitutional rights. I was wondering if in your opinion, there’s
any overlooked severe threat that we, as citizens, the media included, are really overlooking
in this presidency. Yeah. I touched on some of them. I touched on the ones that he trumpeted during
the campaign, so to speak, but I think there are many others. We certainly expect that there will be in
the field of national security, in the field of surveillance, in the field of executive
power, serious challenges that we will need to respond to. We haven’t seen that yet. It might come in the wake of a another terrorist
attack. It might come without another terrorist attack. What we do know is that he has surrounded
himself with people who believe in a very, very strong executive, who have a kind of
Islamophobic conspiracy view of the world, and very much want to instantiate that in
policy, so I think we’re going to see the designation of Muslim civil society organizations. We’re going to see more targeting of Islam
and Muslims. I think we’ll see more aggressive surveillance
of mosques and indeed, of ordinary American citizens. We’ll see more aggressive uses of drones and
uses of military authority to respond to terrorist threats abroad. So that’s one area that I think we haven’t
yet seen it come to fruition, but it will. The voting rights, which I talked about before,
we haven’t yet seen the kind of voter suppression measures that the voter fraud myth that Donald
Trump is propagating lead to, but we will. There’s still a year and 10 months or so until
the next critical election, which is the midterms, and you can be sure there will be efforts
during that period to cut back on access to voting by the poor, by people of color, and
the like, and the way that that is done is by putting in voter ID laws and the like,
which create barriers to voting on behalf of the poor. We have already seen, at the state level,
the emboldened state legislatures passing more and more restrictive laws on women’s
reproductive health because President Trump said he’s committed to criminalizing abortion
and overturning Roe v. Wade, and look at his attorney general. He appointed for his attorney general Jeff
Sessions, probably the most conservative member of the senate, somebody who voted against
extending a hate crimes law to hate crimes motivated by bias against women and gays and
lesbians, saying, “I just don’t see that they suffer from any kind of discrimination like
that.” Well, if you can’t see discrimination, you’re
not going to enforce the laws that prohibit that discrimination, and so the Justice Department,
which is now headed up by Jeff Sessions, and which has an office of civil rights, whose
job is to protect voting rights, to protect against hate crimes, to protect against sex
discrimination and sexual orientation discrimination and the like, is now headed up by someone
who doesn’t see those as priorities, someone who believes it’s problematic for the federal
government to go into a city like Chicago after the crises of police abuse and police
killing of people of color and force reforms. He wants to pull back. And so you’re going to see, I think, from
the vacuum of enforcement of civil rights, growing civil rights violations around the
country. Not pushed by the federal government, they’ll
be committed by state actors, but without the kind of break that the justice department
in enforcing the civil rights laws is supposed to provide. Yeah. First of all, thank you for all the work you’re
doing. I know some days even just as a citizen, it
feels like a giant game of outrage whack-a-mole where you think you’ve done something and
you’ve worked to support it, and then he comes out with something else that’s just ridiculous,
and now that I live in New York, it’s great to write to my congressmen or my senators
and I feel like I have a voice and a way to counter them and hold them accountable for
what they do, but previously, I lived in Washington, D.C. where I didn’t have that, and I was wondering
what you’d say to my friends who still there to say, “I don’t have anybody that’s listening
to me. There’s no one representing me in congress,”
and as Indivisible points out that people don’t really listen to anyone who’s not their
constituent, so what can they do to stay active and help resist this president? So I think we can … There’s all sorts of
ways that all of us can be active, so some people, I get a version of this question all
the time. Some people say, “I live in a state where
there’s no way … I live in a district that’s gerrymandered and there’s no way that my elected
representative will care what I say because he’s guaranteed to get reelected no matter
what,” or, “I live in a district where I agree 100% with what my congress person does, but
he’s going to do it without my calling and why bother calling him?” I think they count the calls regardless of
where they’re from. They can’t always determine where the calls
are coming from, and in part, it’s about making noise. It’s about expressing concern by showing congressmen
that this is actually, what you’re proposing to do is something that a lot of people care
strongly about. And yes, they count verifiable constituents
voices more than non-verifiable, non-constituent voices, but I don’t think they count non-constituent
voices for nothing. You can go out and demonstrate. There are many, many efforts, often spontaneous,
to go out and demonstrate, to show our support from Muslims in the wake of the Muslim ban. Those things make a difference and they make
a difference when there are significant showings, and so the more people that go out, the more
they will make a difference. You can appeal to government officials at
the lower levels. Much of what goes on in the United States
in terms of the government’s regulation of us does not come from the federal government. It comes from the state government or it comes
from the local government, and those governments are much more accessible, actually. We don’t pay as much attention to them all
the time, but they’re much more accessible because it’s smaller, a smaller universe,
and so reach out to your state legislature, reach out to your state attorney general. We saw with the Muslim ban that many states’
attorneys general have stood up against Trump. Why are they doing that? They’re doing that because they see that people
care and people want them to stand up against Trump, and so they’re going into court and
that gives a kind of legitimacy to those claims that an individual claimant or a group like
the ACLU doesn’t quite have, and so they can be encouraged to do that. So I think, again, the message of my book,
Engines of Liberty, which is consistent with the message here, is that get involved, get
engaged, get engaged through organizations that stand for the beliefs that you care most
about, and they will identify actions that are important, strategic, and will be effective,
but they need people to respond, and the more people that respond, the more effective they
will be, so I think pick your organization, whether you care about the environment, whether
you care about women’s rights, whether you care about workers’ rights, whether you care
about energy, whether you care about civil rights, pick organizations that have been
fighting this battle, join them, check their websites. When they say, “Take action,” take action. When I was doing the NRA, looking at the NRA,
I talked to a former NRA president and I said to him, “Why is it that your members,” and
because they’re legendarily, the NRA members are legendarily more responsive to these kinds
of requests than the members of almost any other civil liberties or civil rights organization. Everyone says, “How does the NRA do it?” And what this president kept coming back to
is he said, “You have to have the threat. You have to have the threat,” and for the
NRA, the threat is, for gun rights believers and gun owners, the threat is that liberals
will confiscate their guns, and liberals may dismiss that threat, but precisely because
liberals are so dismissive, that just reinforces for their members the likelihood that they
would take our guns if we didn’t stand up for them. So they have that threat. That’s a threat that their members believe
in, they find credible, and they act. Well, we now have the threat. Donald Trump is such a profound threat to
so many rights and values in this country that he has, despite himself, united us in
ways that I think we have not been united before, and it’s interesting. Hillary Clinton ran as the great uniter, but
in some ways, Donald Trump has united us more than Hillary Clinton possibly could, and if
we had been mobilized and united on November 8th, in anything like the way we have been
since November 9th, the election would have come out the other way. Yeah. You. Oh, thank you. The areas that I’m concerned about are those
that don’t have what I would think of as a natural victim who would have standing to
sue, and the three areas I’m thinking of right now are the blatant nepotism going on, which
we all seem to shrug off, but it’s really shocking when you think about it, the enmeshing
of Trump’s business interests that doesn’t seem like there’s really any way for anybody
to enforce that, and what you had mentioned earlier, the idea that consent decrees between
the Justice Department and cities about policing might get ripped off, that one, maybe there’s
some enforcement mechanism since it’s a court-ordered decree, but I’m not entirely sure who would
have standing to try to enforce those, so I was wondering if you could address those
areas, or just pick one of them if you want. Yeah. So it depends. If your view is, can you sue about it? Sometimes you can’t. There are some problems that are not addressable
through the courts, but that doesn’t mean they’re not addressable. The courts are just one forum through which
we can resist rights abuses. Much of the resistance, I mean again, I keep
coming back to the NRA as an example, but I think it’s a good example, even after the
NRA was successful in getting the Supreme Court to recognize an individual right to
bear arms, even after that happened in 2008, today, the most important protector of the
right to bear arms in this country is not the Supreme Court, it’s not the federal courts,
it’s not lawsuits, it’s the NRA, and they protect it politically. So they’re able to stop bills from getting
enacted that would clearly be upheld as constitutional under the second amendment by the Supreme
Court. They’re able to get bills enacted that protect
the rights of gun owners that clearly are not required by the constitution, so they
don’t stop at the courts. The courts are just one other forum, and nor
should we, so there are certain things that are hard to challenge legally, but if we make
them a political issue, we can resist in that way. President Bush, no court ordered President
Bush to release 500 people from Guantanamo. No court ordered him to empty out the CIA’s
secret prisons. No court ordered him to stop the CIA’s torture
program. No court ordered him to cease extraordinary
renditions, and yet by the time he had left office, he had done so. Why? Because citizen activism had made those decisions
and those programs costly, politically costly in a variety of ways, often in terms of our
relations with other countries, such that he had to pull back. He had to moderate his actions, so with consent
decrees, it’s possible, where there’s a consent decree, it’s possible for citizens in that
city to intervene, to try to enforce the consent decree if the initial enforcer has absented
itself in some significant way. On the conflicts of interest, there’s a constitutional
provision that nobody heard of until President Trump became president, called the Emoluments
Clause, which prohibits the president from obtaining any payment or gift from a foreign
state official or a domestic state official, and most presidents prior to President Trump
have sought to avoid that problem by getting rid of, selling all their assets and putting
their assets in a blind trust so there’s a separation of their private interests from
their public responsibilities. Trump has refused to do that. That’s a violation of the Emoluments Clause
in my view, but to answer your question, who has standing to challenge that? A public interest group has brought a lawsuit
to do that. I think it’s unlikely that that suit will
have standing to sue, but a business that is competing against a Trump business in a
particular place, a hotel in Washington, a restaurant in Washington or Chicago that competes
with a Trump restaurant, a Trump hotel, could, I think, bring such a suit. So you have to think a little bit more creatively
sometimes to figure out who can have standing, but I think the principal point, the most
important response is we should think about courts as the only, or even the primary avenue
of defense. They are a significant avenue of defense,
but they are not exclusive by any means. Yeah. This will be the last question. In the front. I don’t know where … Here you go. Thank you for being here, Mr. Cole, and congratulations
on the appointment. Thank you. So a lot was mentioned, your book focuses
on civic engagement to move us forward to either defend or bring about crystallization
of our constitution of rights. There are a lot of people, citizens, who may
not otherwise choose to rally or use political means, but instead choose to use social media
to bring an awareness, and they use social media as their form of engagement. Is that effective, and if those people believe
… There are people who believe that it is not as effective, could you shed some light
on the use of social media to also be engaged politically? Yeah. Great question. Without question, social media has transformed
politics in the United States. The notion that we have a president who tweets
every morning, that gives you some indication. The fact that the White House and even the
CIA had to open a Twitter account to keep up shows that this is an important form of
public engagement, of public discussion, of public mobilization. I think you wouldn’t have had the airport
demonstrations without social media. It was a number of organizations of citizens,
many of them grassroots, that said, “Hey, this is outrageous. Let’s go to the airports.” And they were able to do that and respond
on a dime because of social media, and I think social media is critically important. At the ACLU, we are very strong believers
in the use of social media to push out our ideas, to educate the public, to mobilize,
to notify people of issues that they ought to be concerned about. I don’t think you should limit your activism
to social media. I think there is some concern that people
feel like, “Well, if I like a tweet that says, ‘Oppose the repeal of the ACA,’ well, I’ve
made my voice heard.” No, not really. You’ve made your voice heard to that person
who now has an additional like on his tweet, but that’s not terribly effective, right? But I think social media is useful for getting
the word out, getting the word out quickly, and educating people and mobilizing people,
but then there needs to be followup, and the followup might be a meeting like the huddles
that took place after the women’s march or the group meetings that Indivisible has inspired,
or at the ACLU, we have begun since we have this newfound energy and newfound membership,
we have begun a mobilization campaign for our members. It’s called peoplepower.org. You can see it at the top of our website. It was launched through social media just
a couple weeks ago, but here’s an example. What did it do? What did they do? They held a launch event in Miami, one-hour
event. 2,500 people came, but they didn’t just do
it in Miami for those 2,500 people. They also, through social media, invited people
to hold events in their homes, or in their schools, or in their churches, or in their
synagogues, or in their mosques, to bring people together to watch the event together,
and the event was about how you as a citizen can engage at the local level in political
action to resist Trump and to stand up for the rights and values that we believe in,
and they got 2,200 people with about 10 days notice, they got 2,200 people to hold these
events, and somewhere between 100,000 and 200,000 people attended the events. It was important to have the attendance, because
that’s people coming together physically. I think that builds a sense of identity and
a sense of connection that’s stronger than clicking on your phone, which has some value,
but at the end of the day, it’s as alienating as it is unifying, and that event was livestreamed
on Facebook and over a million people watched it, and we’ve launched now a Freedom Cities
campaign through that, which asks those people who came together to take on this platform
of requests and go to their city mayors or their city sheriffs and ask them to respect
the rights of immigrants, to not enforce the federal immigration law, which states and
localities do not have to enforce and many don’t want to enforce, and to stand up for
the rights of all who live here, as against the kind of ramping up of immigration enforcement
that President Trump has announced. So we couldn’t have done that without social
media. It was social media that allowed us to get
all those people together, but I think it was critically important that we got those
people together and then encouraged them to go out and take action in person, human contact,
not just sending a tweet. Thank you all very much for coming.

Leave a Reply

Your email address will not be published. Required fields are marked *