Michael Steven Smith is an attorney, a former board member at the Center for Constitutional Rights, and the cohost of the nationally broadcast radio show Law and Disorder. He is the co-author, with Michael Ratner, of Who Killed Che?

From the Introduction

What Is Law?

Though the challenges leftist lawyers face today are great, they are not unprecedented. And we can learn much from radical lawyers of the past. Martin Luther King’s courageous attorney William Kunstler and Federal District Judge Jack Weinstein both received awards from the New York State Association of Criminal Defense Attorneys in 1994. But each had a very different view of the law. In his acceptance speech, Kunstler said that he thought Judge Weinstein believed that law was “that considered response of a civilized society to the problem of reaching a reasoned conclusion to disputes between the state and its citizens and among the latter themselves. Whatever its shortcomings, they are patently aberrational and remediable.” Kunstler believed this was the liberals’ view of the law.

Kunstler’s own view was different. He said that the law, “in fundamental essence, is nothing more than a method of control created by a socio-economic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible.” When asked about democratic rights, Kunstler’s friend, the late and deeply respected attorney Leonard Weinglass, said he did not believe, ultimately, that capitalism and democracy were compatible. We are seeing the consequences of this contradiction unfold at an accelerated pace.

Lawyers for the Left take an activist and oppositional, albeit auxiliary, role. We recognize that great movements of the people “from below” are fundamental to social change. And the need to protect our democratic right to speak out, educate, organize, associate, and demonstrate is more crucial than ever, as the Bill of Rights is increasingly threatened. We use our legal training to carve out a space for, defend the legitimacy of, and give legal expression to the fundamentally political movements for social transformation. On a more mundane level, we provide legal services and hence some possibility of justice to individuals who would otherwise have to suffer.

What Can We Learn from Left Lawyers of the ’40s and ’60s?

Opposition to the rightist insurgency in the United States is growing, as is support for Socialist organizations and ideas. Recent polls find that nearly half of Americans have a favorable view of Socialism. Bernie Sanders would have likely won the presidency had he not been thwarted by Hillary Clinton’s pro-corporate forces in the Democratic Party. The election of Socialists Kshama Sawant in Seattle and Alexandria Ocasio-Cortez in Queens and the Bronx demonstrate the popularity of Socialist proposals for health care, housing, education, employment, and women’s, immigrants’, and LGBTQ rights. As Glen Ford, the editor of Black Agenda Report, has written, “The central reality of late-stage capitalism [is its] inability to offer the people anything but widening wars and deepening austerity.” As a consequence, radical consciousness is growing in our country. Socialism is no longer a dirty word.

We know from our experience in the ’60s that the government, through the FBI and other intelligence agencies, acts as a secret political police force that will try to destroy any Black, Socialist, or radical organization threatening those who benefit from the socio-economic system about which Kunstler spoke. The FBI recently revealed that it was spying on and likely attempting to disrupt and destroy those whom it labeled “Black Identity Extremists,” that is, Black people who organized to oppose systematic police abuse in their communities.
In 1971, the Socialist Workers Party (SWP), represented by Leonard Boudin, an attorney profiled below, brought a lawsuit against the government’s secret political police, including the FBI and CIA, for the government’s massive, systematic violation of its members’ Constitutional rights. I was a member of that organization and attended much of the trial, reporting on it for several magazines. At stake was nothing less than the right to advocate Socialist ideas and put them into practice. The government claimed it had the right to spy on, harass, blacklist, and deport those whose political views it disapproved of, even if those political activities were completely legal and protected by the Constitution and/or the Bill of Rights.

The FBI launched its COINTELPRO (COunter INTELligence PROgram) operation against the SWP in 1961. The party sued the FBI, enlisted wide support, and after fifteen years of litigation, several appeals, and a trial, it accomplished something unprecedented in American history. It won the first citizens’ case against FBI spying and disruption. What was the extent of the victory? The FBI’s stated aim in the operation was revealed: to “expose, disrupt, and otherwise neutralize the activities” of groups it perceived to be a threat to the established order.
The methods it used to harass and suppress the SWP—which will surely continue to be used against organizations as the struggle heats up—included physical and electronic surveillance, burglaries, poison pen letters, trash covers, mail covers, manipulation of the media, deportation of non-citizens, and surprise “visits” to members’ relatives, employers, and landlords. From 1960 to 1976, the FBI paid its informers and agents $1.6 million. Fully three hundred informers infiltrated the SWP—a relatively small organization—alone. Altogether thirteen hundred agents were deployed. The government maintained that even if the Socialist group did nothing illegal, the government “has the right to keep itself informed of the activities of groups that openly advocate revolutionary change in the structure and leadership of the government of the United States, even if such advocacy might be within the letter of the law.”

The case remains extraordinarily important today. It protects the right to legally advocate Socialism as crucial to countering capitalism’s threat—both nuclear and ecocidal—to life on the planet. The case affirms that any attempt by the FBI to destroy Socialists and their organizations is illegal. Boudin wrote, “This lawsuit represented the first wholesale attack upon the entire hierarchy of so-called intelligence agencies that had attempted to infiltrate and destroy a lawful political party.”

Further, “For the first time a court had to really examine the FBI’s intrusions into the political system of our nation and, in unmistakable language, has condemned the FBI activity as patently unconstitutional and without statutory authority or regulatory authority. The decision stands as a vindication of the First and Fourth Amendment rights not only of the SWP, but of all political organizations and activists in the country to be free of government spying and harassment.”

The Necessity Defense

Len Weinglass, an attorney profiled in this book, was lead defense counsel in a significant case. It involved the CIA and the use of the “necessity defense” by students and their supporters, including ’60s radical Abbie Hoffman and Amy Carter, President Jimmy Carter’s daughter.

When the CIA tried to recruit members at the rural University of Massachusetts campus, they were foiled by the students who held sit-ins. The protesting students were arrested and tried. Len raised the “necessity defense.” It permits the commission of a crime if it is used to stop a larger crime. Len alleged that the CIA was a criminal enterprise. He called ex-CIA agent Ralph McGehee to testify about the CIA’s illegal overthrow of the democratically elected governments of Iran (in 1953) and Guatemala (in 1964). Testifying about his own experiences in Vietnam, McGehee described the agency’s assassination of Vietnamese nationalists and Communists in its Phoenix Program in the 1960s. In that operation, twenty thousand people were murdered.

The local folk on the jury returned a not-guilty verdict. The potential importance of this tactic was underscored recently when the Supreme Court of the State of Minnesota opined that the necessity defense should be allowed in an upcoming trial of climate activists charged with obstructing a tar sands oil pipeline. On the eve of the trial, Judge Robert Tiffany walked back his initial decision to allow the necessity defense. But then, after the prosecution finished its presentation, Tiffany dismissed the case against the defendants on the grounds that the prosecution could not prove that the defendants did any harm to the pipeline.

With Brett Kavanaugh confirmed as a Supreme Court Justice, there will be an un-moderated and unmitigated hard-right majority on the U.S. Supreme Court for decades to come. Predictably, it will further erode the two central pillars of American democracy, the Bill of Rights and the separation of governmental powers, which were intended to ensure that the legislative branch share equal power with the executive branch.

We cannot count on the courts to effectively oppose an authoritarian president’s extreme-right agenda to roll back social gains and destroy the democratic right to defend and extend them. Six years ago, the Center for Constitutional Rights board discussed how we might advance our clients’ interests without having to rely on the courts. In his book, Success Without Victory, CCR president Jules Lobel advocated using the courts to expose the government and publicize movement clients’ issues, including the illegality of many of America’s undeclared wars.

“[T]he law generally is designed to maintain the status quo and maintain state power,” writes Lobel, “but it is a tension, particularly in modern capitalism, that power is maintained through the use of laws that can be used by the oppressed to challenge that power. The key task for social movement lawyers is to use the law in a radical way to empower people to help build movements, and to challenge in fundamental ways how state power is used.”

Moving Forward

A founder of the Washington, D.C. Partnership for Civil Justice, attorney Mara Verheyden-Hilliard won significant cases against the police there and in New York City. She obtained verdicts that protect masses of people and their right to demonstrate in the streets. “The core of the work we do is that we recognize the underlying social justice movements and their ultimate goals for human liberation,” Verheyden-Hilliard noted on a segment of our radio show, Law and Disorder. “When we take on a free speech case, for example, we’re looking not just at a technical violation of the First Amendment—not merely that someone’s rights have been violated. As critical as it is to defend the Bill of Rights, there are also larger issues. We want to keep the streets the sidewalks and parklands open, because all historical and social change in the United States that has made a difference for people has come from below. It has come from popular movements and popular struggle—not because the politicians decide to give people rights. [It happens] because there is a feeling that the people are demanding [change] and they are going to force it to happen.”

The central fact of our political and legal lives is the overwhelming power the corporate capitalist state has accumulated, especially since 9/11. In a previous era, during the time of fascist dictatorships, Antonio Gramsci wrote from his Italian prison cell that we need “Pessimism of the intellect, but optimism of the heart.” My friend Peter Weiss, a former vice president of the Center for Constitutional Rights, now in his nineties, added to Gramsci’s resolve:

Denial is not an option,
Despair is not an option,
Resistance is the only option.

“You have to have hope,” Ramsey Clark, also in his nineties, told me. “Otherwise you don’t do anything.”

The attorneys whose lives and achievements are celebrated in this book have worked all their professional lives for the expansion of human rights as opposed to property rights. In so doing, they have worked for true democracy and the rule of law.

But for me and many radical lawyers, there is another crucial step. Capitalism ultimately and increasingly is not compatible with democracy and the rule of law. Marx studied law. Both Castro and Lenin were lawyers. For them and for me, there’s one way out of the impending catastrophe—the ongoing ecocide, the heightened threat of nuclear annihilation, the crushing of democracy. And that is the building of a mass movement that will take political power to replace our current system with a genuine economic and political democracy. Imagine living in a Socialist United States of America.

• “Donald Trump Acquittal, Going Forward” — LAWYERS FOR THE LEFT author Michael Steven Smith interviews Chris Hedges on Law & Disorder (2/23/2021)
• “Makes clear what we’re facing and what lefty lawyers are doing, or have done, to fight the fight… An excellent resource” — LAWYERS FOR THE LEFT reviewed by CounterPunch (6/30/2020)
• “You can’t do a keystroke on your computer, or make a call on your cell phone, or even go to the doctor without the government knowing exactly what you’re doing.” —MICHAEL STEVEN SMITH, author of LAWYERS FOR THE LEFT during an interview for Economic Update (5/7/2019)
• “ You’ll find yourself plunged into the contradictions and swirling through the vortex where that question—what is the law?—is on everyone’s mind all the time.” —Portside on MICHAEL STEVEN SMITH’s LAWYERS FOR THE LEFT (4/19/2019)
• “I’ll believe that a corporation is a person the day it gets a colonoscopy.” —MICHAEL STEVEN SMITH, author of LAWYERS FOR THE LEFT on radio show Leonard Lopate at Large (3/29/2019)