Radical Lawyering: America's Immigrants Need More Bill Kunstlers
"Gentlemen, I have some information that may be of interest to you ... We have been having some trouble in our town with housing for Negros ... These Negros all have the same lawyer ... It looks like the same old Commie pattern" - 1961 letter in Bill Kunstler's FBI file.
Last week I learned who Bill Kunstler was for the first time. I went to college for four years, law school for three. I've worked as a public interest lawyer since 2006. But still I'd never heard of one of the most influential civil rights lawyers of the last 50 years until I saw the documentary his daughters made, "Disturbing the Universe."
Kunstler represented a string of high-profile defendants over the course of 30 years:
-- 1961 - represented Freedom Riders in Mississippi
-- 1969 - defended "Chicago 7"
-- 1971 - attempted negotiation between Attica prisoners and authorities before NY State Police stormed the prison and slaughtered 28 prisoners and 9 guards
-- 1973 - helped negotiate at Wounded Knee, later represented members of the American Indian Movement
-- 1989 - defended Gregory Lee Johnson's First Amendment right to burn the U.S. flag
-- 1989 - defended Central Park jogger rape defendants, who were later exonerated
Later, he represented the 1993 World Trade Center bombers and the Gambino crime family. His daughters believed that toward the end of his career, he lost perspective and looked for clients who were unpopular, no matter how they got that way.
Even so, the thread running through his career was the idea that when the government throws its resources at a high profile case against unpopular defendants, chances of a fair outcome are greatly reduced. And Kunstler believed the criminal justice system was just another symptom of a flawed society. If the criminal justice system, supposed to be the core of American democracy, was rotten, what did that say about American democracy? Kunstler's advocacy showed that the law, so often used as a tool of oppression, could be used for social change instead.
He never believed incremental change was enough. The cases he fought and causes he promoted advanced that change, but it was never enough for him.
Kunstler was clever enough to avoid the mistake of blaming the problems he saw on a particular leader or political party. Rather, he blamed systems, which is to say he held everyone responsible, including himself.
His goal was to flip the script. Instead of letting the government put his clients on trial, he used his cases to put the government on trial.
Kunstler's view that the legal system covers the government's misdeeds with a veneer of propriety is relevant to contemporary immigration policy. Kunstler said:
And that is the terrible myth of organized society, that everything that's done through the established system is legal -- and that word has a powerful psychological impact. It makes people believe that there is an order to life, and an order to a system, and that a person that goes through this order and is convicted, has gotten all that is due him. And therefore society can turn its conscience off, and look to other things and other times.
And that's the terrible thing about these past trials, is that they have this aura of legitimacy, this aura of legality.
The nativists' greatest achievement over the past 30 years was to tie the entire immigration debate up into one word: "illegal."
Even with his persistent dissatisfaction with the legal system, Kunstler was convinced that things could be better than they were and that what he did made a difference.
As immigration attorneys, we cautiously tread through a thicket of regulations, guidelines, and ever-shifting local procedures. We maintain cordial relationships with ICE attorneys, knowing that the whim of the attorney can mean the difference between exile and freedom, between family unity and forced separation, and sometimes between life and death. We bend and contort to accommodate the caprice of the judge, we rail pathetically against cynical BIA members and federal judges whose hearts have hardened over the years. We are afraid to challenge unjust laws out of fear of making things worse by setting bad precedent. We begin to assume a permanent defensive crouch, we begin to accept the rules we once bitterly complained of, we begin to blame our clients for things over which they had little control.
On tough cases, we celebrate victories, they bring the thrill of surprise. We take defeat in stride because we expect it.
We develop systems to maximize what little advantage Congress and the courts have left our clients. The law doesn't consider a decade of forced family separation to be "extreme hardship," or the even loonier "exceptional and extremely unusual hardship," the standards the nativists in Congress imposed in the name of family values. So the more innovative among us design methods to squeeze every ounce of suffering onto the written page--the detailed psychological reports, the heartfelt pleas from loved ones, the specter of the citizen spouse's health, education, and career in tatters.
For our clients seeking asylum from judges who lost the natural fear of making a deadly error several thousand cases ago, we know the slightest misstep on the stand could mean the difference between life and death. We agonize over the questions the government might ask, we cringe when our clients panic, when our witnesses shut down from nervousness.
We thought our society valued families. We thought our government protected individual freedom like our schoolteachers told us. We thought this legal system produced fair and predictable results.
We were wrong. We shouldn't have trusted so easily.
Many immigration lawyers today could better serve their clients by trusting less and fighting more. This system is wrong, it is unjust, it may be well-intentioned but it still produces sickening results.
Our clients don't need another cog in the machine that grinds up dreams. They need a wrench or two thrown into the works to shut it down.
Let's learn from Bill Kunstler, let's put the government on trial.