Declaring "emergency rule," Pervez Musharraf suspended Pakistan's Constitution, replaced seven justices of the Supreme Court and placed the chief justice under house arrest. Immediately, thousands of Pakistani lawyers, in their black suits, took to the streets demanding that justice be restored. Many were beaten and arrested; and in solidarity, American lawyers rallied in protests, leaving courtrooms to show Musharraf and the world why they became lawyers.
On Nov. 13 in New York, some 700 lawyers gathered in front of Manhattan's State Supreme Court building. Also present were the deans of three law schools as Catherine Christian, president of New York County Lawyers Associations, heralded Pakistani's lawyer's fight "for liberty and an independent legal system."
Nationally, the American Bar Association reported that "many state, local and specialty bar associations" were issuing statements and planning events to honor their Pakistani colleagues' embodiment of the rule of law.
Moreover, The New York Sun reported (Nov. 14) that "the American Bar Association has called for lawyers to march around the U.S. Supreme Court in Washington, D.C., and attend a rally on the courthouse steps."
And in New York, Barry Kamins, president of the New York City Bar Association, announced that he had received an e-mail from students and professors at Lahore University from the battleground for justice in Pakistan. Appreciating the encouragement from America's lawyers, the message from those on the front line said: "What Pakistan faces today is the subordination of every independent organ of state to unchecked and unaccountable military executive power."
This heartening bonding of defenders of the rule of law also made me realize that there is an important lesson for what American lawyers can do for restoring accountability at home from an administration that, with regard to our Constitution, has been acting as if the president, as commander in chief, has certain military powers in dealing with terrorism to revise the Constitution all by himself.
Many American lawyers and law professors have spoken and written about the consequences to our rule of law when both the Republican and now the Democratic-controlled Congress fail to uphold the separation of powers.
One of many examples: President Bush has given the CIA extralegal authority to operate secret prisons and conduct kidnapping "renditions" that allow the enemy and even some of our friends to mock our pride in being a global model of constitutional democracy. There has been no investigation by Congress, even with its subpoena powers.
Yet, this weakening by the administration of the very structure of our founding document (along with our individual liberties in the Bill of Rights as we become a surveillance nation) is not an issue among most prospective voters in the presidential election, as is evidenced by the indifference to it by most of the candidates.
Even Joe Biden, whose knowledge of the Constitution and proposed legislation to repair it makes him an exceptionally qualified candidate, does not cite it nearly enough on the stump.
By contrast, during the Vietnam War, the increasing controversy about the lack of debate among the general public was accelerated when college professors and students held teach-ins on campuses. Supporters of the war had counter-sessions, and the public got involved until Congress felt the impact.
And right now, having admirably instructed the citizenry here about the breakdown of law in Pakistan, American lawyers on the streets could be a valuable instructive force about our breakdown of law as the presidential elections near by having sit-ins, including debates, not only at colleges but also at community centers, on television and the Internet (and why not on YouTube?).
The homicidal threat of terrorism against American targets, including people, will not abate once we have a new administration. Nor will the continuing threat from within to our institutions and values if the strong precedents for unitary executive power set by Bush and Cheney are adopted by the next president, and Congress accedes to them.
With Rudy Giuliani in the Oval Office, for instance, unaccountable executive power might well increase. I am not at all confident that any of the other front-runners in either political party are eager to let go of the expanded authority bequeathed to the next president by George W. Bush.
And the John G. Roberts, Jr.-Samuel A. Alito, Jr. Supreme Court — unless it is suddenly converted to an "originalism" based on the clear statement of separation of powers in the Constitution — may not be a dependable shield against a sincere but misguided commander in chief convinced he or she has no time to deal with delaying judicial supervision.
American lawyers taking to the streets, rallying the citizenry to support the rule of law, could convince the presidential candidates and the next Congress to prevent the terrorists from using fear to change who we are as Americans.
