Special of the week; Issue 7-70 "Revolt in the Justice Department"

The national educational radio network presents special of the week from WG you will see the University of Cincinnati Part 1 2 September 1969 was the date set by the United States government for all school systems to complete the process of racial integration. When it was announced this past August that 33 Mississippi school districts would not be forced to meet the deadline. The reaction was immediate. Among educational systems civil rights groups the media and the public in general. Most unexpected however was the reaction which arose within the U.S. Department of Justice itself. Several line attorneys in the Civil Rights Division the lawyers who prosecute such cases for the department issued a statement of protest against the decision of their superiors. One attorney Gary Jay Greenberg was no longer with the department when the immediate controversy died down. Mr. Greenberg a graduate of the University of Chicago and the Harvard Law School and a member of the New Jersey bar has been called the leader of the lawyers revolt in the Department of Justice. He spoke on the

University of Cincinnati campus recently and explained his group's action in the light of the facts as he saw them. And in light of his view of the responsibilities of the United States attorney we present his remarks to you now. Here is Gary J Green Bird. I'd like to. The Sky asked with you questions of. Professional Responsibility. Because in a large sense that was the overriding concern of the attorneys in the Civil Rights Division. And a major reason for the revolt of the protest. Whatever you want to term it. I think a way to do that. Is to present you with the. Situation as we saw it with some of the factual background. With the choices we made and give you an explanation of why we made the choices we did and why for example we rejected other alternatives. And then get your reactions

and. The Scots. In. That case and just others in general. Now. To begin with. I think. You have to appreciate. That when after graduation. You. Go through the ordeal of taking a bar exam. And when you. Pass it. You become. A member of the bar of whatever jurisdiction you join. And that is more than just a license to practice law within that jurisdiction. In almost every jurisdiction certainly in New Jersey. You take an oath. And that oath pledges you to uphold and defend the Constitution of the United States. Being a member of the bar also. You become a member I an officer of the court. You become. An agent in the administration of justice. And you have responsibilities to the court. And to the law

which really transcend any responsibility one may have to a particular client. Now furthermore. Attorneys in the Department of Justice are more than federal employees. And to the extent that. Some have this Berridge. What we did is the. Disgruntled reaction of a group of employees. Which I. Saw on a bulletin board in the school today. That really is being unfair to the attorneys because. We were all we they who were still there and I were officers of the United States. In the same category as the attorney general. Except the difference in the gree. He of course was a presidential appointee. The attorneys within the department are appointees of the attorney general. And before embarking upon this office. The attorneys take the very same oath of office that the attorney general takes. And I'd like to read it to

you because I think it's an important criterion what happens. That oath reads that I solemnly swear that I will support and defend the Constitution of the United States against all enemies foreign and domestic. That I will bear true faith and allegiance to the same. That I take this obligation freely without any mental reservation or purpose or evasion of evasion. And that I will well and faithfully discharge the duties of the office on which I am about to enter so help me God. That I reiterate as the very same oath of office that John Mitchell. Or Assistant Attorney General Leonard took. Indeed it is the same oath. That all of the Cabinet officers and all officers of the United States take. So therefore upon becoming a member of the Department of Justice. An attorney. Has a variety of oaths and obligations. And the overriding consideration of these variants. Is that the attorney is pledged to. Support and defend the Constitution.

Now. In the situation in the Civil Rights Division and with specific reference. To the Mississippi. School desegregation case. We attorneys. Were faced with the following situation. And. Let me emphasize that the action that was taken was only taken after a thorough and detailed. Study of the facts and the circumstances. Discussion with people who were on the scene and who had firsthand direct knowledge. This wasn't merely a reaction to things we had heard about or read about. But it was a. Considered response. To a factual situation. To begin with the law of school desegregation was very clear. Although I. Will give you some background about it now I think the unanimous 2 page per curiam decision of the Supreme Court handed down

six days after oral argument would tend to back that up in the court uses that very language saying that our previous decisions have made it clear. The law as we. Understood it. Was that. The school boards. In Nineteen sixty four were told in the Griffin decision. That the time for mere deliberate speed had run out. The Congress had the same attitude when it passed the 1964 Civil Rights Act and gave for the first time the attorney general the power to bring school desegregation litigation. In 1968 in the green decision. And when the court considered the freedom of choice plans. It said that school boards were under an obligation to come up with effective and workable desegregation plans and to do so now. And the word now was underlined in the court's opinion.

The various circuit courts that CONSIDERED. What the court. Practically meant by using the word now. Unanimously came to the agreement that. The school board should be given one more year. So that the 68 69 school year would be the final year of transition. That would have to be the year in which plans were devised. And preparations may for the conversion of dual school systems to unitary systems. The fifth circuit. In considering a group of. 60 or so school desegregation cases which the government and the NWC Legal Defense Fund had brought to it in the summer of 1968. Had said so in explicit terms. It said that. If. An all black school persists. And if only small percentages of blacks are informally all white schools. That was an unconstitutional system. And

that in the Fifth Circuit there could be no all black school come September 69 they said this in August of 1968. Now another important criteria. Is a rule of law which is a long standing. And specifically on matters of school the segregation was made explicit. In the. Brown opinions. And most dramatically in the Kuiper against Aaron Littlerock school decision in which. All of the nine justices signed their names to the opinion. And that is that. Opposition or hostility. To the vindication of constitutional rights has no legal bar. To the immediate enforcement of those rights. You can't ask for delay in court. On the basis that there is opposition to these constitutional rights. And that that opposition is likely to produce as the secretary of a tree W.

said chaos and confusion. That is just no legal. Valid basis. For seeking the lead. Yet. In the Mississippi case. After the government. Had taken the initiative of bringing the district court opinions to the Fifth Circuit. After the government had asked the Fifth Circuit to summarily reverse. Had asked the Fifth Circuit to treat the case as expeditiously. Had in open court. Affirmed to the Fifth Circuit one that the job of conversion. Two unitary systems could be done this September. Two that the resources and were available under the federal government was committed to this. After having taken that position in open court. The administration sought an about face. Now the tactics of how they sought this were important. Because the secretary of AGW. Sent a letter to the three district judges who were without jurisdiction

in the matter since the Fifth Circuit in ordering school desegregation had retained jurisdiction of the matter and set out very explicit guidelines. And in effect were using the district judges as special masters. This letter from Secretary Finch was addressed to the district court. Secretary Finch of course was not a party to the litigation and had no standing to ask the court for anything. Furthermore and this is really the most incredible thing of all. The letter was not serve the pan any of the parties to the litigation such as school boards or the Legal Defense Fund which was plaintiff in many of the cases. Nor did any of the attorneys in the Civil Rights Division know about it. Indeed. We did know. That political considerations played a large role. We did know from talking to the people involved that they had gotten a call on the same day that the ABN vote was held in the Senate telling them to hold up the filing of these school plans in court. Our attorneys

did see the vice president and Senator Eastland talking to the district judges. The day after the secretary's letter was sent. There for we found ourselves in a situation in which. There was no legally justifiable argument. Not even an argument as far as we were concerned that could be made to support the government's call for delay. It was clearly unlawful without any support. And furthermore we became convinced that the decision was responsive to political pressures. In fact. After the fact of the revolt of the president and senators that is very much acknowledge the nature of their conversations. And the nature of the pressure that Senator Stennis brought to bear on the administration. Now faced with this situation. Bring that. Up against the various powers of office that the attorneys have taken. We were.

Duty bound to support and defend the Constitution. Yet we found a situation where the government sought in our view to violate the Constitution. We then considered what our professional responsibilities should be in this situation. An Initially we considered really what was our job. We there to represent the attorney general. Who is there to represent the. United States in the sense of a government or a bureaucracy and institutional decisions. Or will be there representing the United States in the sense of a public interest. And a public commitment to constitutionalism. One of the first things we considered were. Judicial. The surgeons and judicial. Writings about professional responsibility and I'd like to read to you from a opinion written by a District Judge Bork when

in 1917 in a case called in Roy Kelley. He says counsel must remember. That they too are officers of the courts. Administrators of Justice oath bound servants of society. That their first duty is not to their clients as many suppose but as to the administration of justice. That through this their client's success is wholly subordinate. That their conduct. Ought to and must be scrupulously observant of law and ethics. And to the extent that they fail there and. They injure themselves. Wrong their brothers of the barbering reposed reproach upon an honorable profession and betray the courts and defeat justice. This was one consideration. When we look to the canons of professional ethics. We found for example that Canon 15. Told us to obey our conscience. Canon 29.

Indicated that part of our responsibility was to the administration of justice. And then especially cannon 30 to echo Judge Bork whens words. It reads in part. No cause civil or political. However important. Is entitled to receive. Nor should any lawyer render any service or advice involving this loyalty to the law. Whose ministers we are. Or disrespect to the judicial office. Which we are bound to uphold. When rendering any such improper service to the lawyer and rights and merits Stern unjust condemnation. Above all a lawyer will find his highest honor. In a deserved reputation for fidelity to public duty as an honest man. And as a patriotic and loyal citizen. Now these were the various competing

considerations. There was no question. But a certain sense of. Loyalty to the part mental superiors was involved. Indeed. This certainly tempered to a great extent. What we chose to do. But notwithstanding this bureaucratic concept of loyalty. We felt here we were in peril. To make a choice one way or another. We felt choice was inherent within the situation. Especially in this administration. Silence is taken as acquiescence or support. That being the case to say nothing. We would feel would be taken as support for the administration's position. Yet we were convinced that to do so we would be violating our oaths of office. Our roles as members of the bar and our professional responsibilities.

We felt compelled. To act. Now the next question I think. For us was. How should we act. Our goals were. About the following. If we could we would have certainly like to. Reverse the decision in the Mississippi case that the government had made. We didn't think that was likely or very practical. Second of all our major concern. Was that these types of political pressures. Are not the normal politics that's always involved in law enforcement and the prosecutor's use of his discretion. But the politics of the blackjack and the politics of Senator stand is threatening to abandon defense appropriations and in mid-course. Should be removed removed removed and should not be a consideration in making civil rights law enforcement decisions. What we wanted. Was that in the future. The. Law enforcement decisions of the division would

be responsive to the dictates of the law and not to various politicians on Capitol Hill. We wanted to serve as sort of a deterrent to future Mississippi type cases. We wanted to make sure that that type of cell out. Of which Mississippi was not the first. That never happened again. How did should we go about doing that. Well to begin with we were hard pressed to think of an alternative other than some kind of a statement of protest. We certainly were not going to go down to Mississippi and picket the federal courthouse in Jackson. Nor were we going to march on the White House or Capitol Hill. We thought it very important to maintain. The the aura of professionalism. We thought it important that our image should be one of the very statesman like concern for the law. As opposed to the very political considerations of the administration. Because we did

recognize that notwithstanding the. Our concern for law. To a certain extent we were going to get involved in politics. Of a very high nature and we thought it important if that were the case that we be able to maintain public support for our position. We thought that it was necessary to have this public support if we had any chance of success. And therefore we clearly moderated the various actions that we could do. We decided that initially a statement of protest was really the only recourse. Furthermore. We decided that it really didn't matter very much what we said in the statement. The only thing that counted was that we could get almost unanimous support for the position. And that the use of moderate and reasonable language as opposed to fighting language I really meant no made no difference. Any time you could get

65 people. Individuals. Strongly committed people with various different points of view on. All kinds of things. To come together in a period of a few days agree upon a statement of principle and. You would achieve a great deal you demonstrated resolve demonstrated commitment and that's all that we really needed to do. So again considerations of language. The criticism that has been rendered that it was really a pretty much wishy washy protest. I think are invalid. So what the attorneys did is they drafted a statement of protest which. I venture to say few of you have read because. The administration was. The administration at least was prepared to try its case in the press and that while we kept our responses are. Our documents very much within House and so on. The Administration for example released their replied to the public. And then we decided the

public should have the benefit of both sides of the controversy. That was the day we picked to release Mr. Leonard pick for his. Notorious news conference where he said the Supreme Court decision wouldn't change anything. Of course. That buried. In. Our statement although it did say a great deal for what the administration's point of view was. Now the attorney's statement was a very brief document. And I think it demonstrates the concerns the motivations. And the very important goals that we sought to achieve. It reads We the undersigned attorneys in the Civil Rights Division are gravely concerned by events of recent months which indicate to us the disposition on the part of responsible officials of the federal government to subordinate clearly defined legal requirements to non legal considerations when formulating the enforcement policies of this division. In particular. We are concerned with recent policy decisions relating to the enforcement of constitutionally

required school desegregation. We are of the view that the decision to withdraw desegregation plan submitted by the United States Office of Education in a group of Mississippi school cases is a clear example of the subordination of the requirements of federal law to other considerations. Based on our experience we are convinced the decision reflects a disregard for the merits of each case. A careful study by the attorneys directly involved including consultation with the Office of Education personnel led them to the conclusion that the plans were sound and capable of implementation. It is our fear. That a policy which dictates they clear legal mandates are to be sacrificed to other considerations. Will seriously impair the ability of the civil rights division and ultimately the judiciary to attend to the faithful execution of the federal civil rights statutes. Such an impairment. By a rotting public faith in our constitutional institutions is likely to damage the capacity of those

institutions to accommodate conflicting interests. And ensure the full enjoyment of fundamental rights for all. We recognize that as members of the Department of Justice we have an obligation to follow the directives of our departmental superiors. However we are compelled in conscience. To urge that henceforth the enforcement policies of this division be predicated solely upon relevant legal principles. We further request that this department vigorously enforce those laws protecting human dignity and equal rights for all persons and by its actions promptly assure our concerned citizens that the objectives of those laws will be pursued. Now the administration responded to this document. And its response was. Given out with the following. A dent them. This was the final articulation of policy. You either take it or you get out. Now. This articulation of policy basically defended what had been done in

Mississippi. It came before the Supreme Court decision and furthermore very. Bluntly admitted that political considerations. Were involved and said indeed they always are involved. Indeed on Tuesday Mr. Leonard appearing before the House Education subcommittee said the very same thing. Now we could not accept this type of. Reply and response in this type of attitude as to. Law enforcement within the Civil Rights Division. It was hardly the same attitude that prevailed in the enforcement of the various criminal laws. But nor did we feel. That our only option at that point was resignation. Let me discuss this for a minute. We felt that the various oaths and duties we were under were more than just negative commands. It was more than just that thou shalt not don't support the government. It imposed affirmative obligations. We felt. That resignation

would be counterproductive. Certainly it would remove us from the ranks of the supporters but it would do nothing affirmatively. It would do nothing to ensure the constitutional rights would be enforced. So resignation was rejected as an alternative. And indeed the attorneys issued a second statement. In which we. Said basically. It was a very short statement. As line attorneys in the Civil Rights Division we believe the reply has been the reply of the administration. Indicates an intention to continue with the policy of civil rights law enforcement toward which our August 29 statement was directed. A policy which in our view is inconsistent with clearly defined legal mandates. The attorneys adhered to their point of view. They remained within the system to continue where possible to fight for that point of view. Now it is important to remember that. Where there has been a retreat where there

has been a slowdown where there has been a sellout. These instances are limited and few in number. They're spectacular they receive wide coverage and publicity in the press. But they certainly are not things that occur on a daily basis. As such attorneys are only brought into conflict with the administration. Over issues such as the Mississippi case over matters such as. School desegregation which has caused the most controversy. And within that framework so far the conflict has been won over timing. Although. There is on the horizon the potentiality for conflict over the question of what constitutes a unitary system when is the job of transition. So it's not a constant situation of. The internees seen warfare within the Civil Rights Division. It's not a situation of daily the attorneys in Mr. Leonard locking horns. It certainly is possible for them to

stay there to perform their daily duties. Where conflict occurs. Is where the administration decides for political reasons to seek. To follow one course of action as opposed to another and where the attorneys feel that their oath will not permit them to. Go along. So far of course this is happened only in. The Mississippi case. Indeed. However though the revolt to a certain extent has been driven underground because. Again primarily for political reasons. It was decided to. At least silence the revolutionaries and not drive them out. I was asked to resign and simultaneously a gag memo was issued to all of the attorneys but. A real sense of the revolt goes on. And for example the way it goes on is that. The Legal Defense and Education Fund is desperately in need of money. So the attorneys in the division decided that

since they have to now take up some of the slack legal defense fund. The attorneys in the Civil Rights Division should support them financially and the campaign was organized whereby the attorneys would contribute the equivalent of one day's salary to the Legal Defense Fund which. Campaign is now in progress and just on Monday over a thousand dollars in contributions were sent to the fund in New York. There was some within the administration who did not look kindly upon this action. From mining attorneys to read the Hatch Act about solicitations and that they thought the hatchet had been buried and so on. Although they may have been referring to my head as a place for being buried. But these are the types of things that are going on. And let me just. Read one more thing to you which at least loomed large in my mind. Once John Kennedy said. A man does what he died of personal consequences spite of obstacles and dangers and pressures. And that is the

basis of all human morality. You've been listening to Gary J Green Bird so-called leader of the lawyers revolt in the Civil Rights Division of the U.S. Department of Justice. In a talk you gave recently on the campus of the University of Cincinnati next week at the same time we will present the question and answer period which followed Mr. Greenberg's remarks. This program was produced at the University of Cincinnati radio station WG you see this is Bob Stevenson speaking. Our thanks to WGN season so now to you for the recording of this program. This has been special of the week from NATO are the national educational radio network.