By Alan
Dershowitz | Washington Examiner
A
group of people hold up signs during a meeting called "The Resistance
Training" hosted by the American Civil Liberties Union on March 11, 2017
in Coral Gables, Fla.
(Luis M. Alvarez / AP)
The American Civil Liberties Union, on whose national
board I used to serve with pride, raises vast sums of money claiming to defend
the civil liberties of all Americans.
Unfortunately, however, over the last
several years it has turned from being a neutral civil liberties organization to
a left-wing, agenda-driven lobby group that protects its contributors and
constituents while ignoring the civil liberties of Americans with whom it
disagrees.
Sure, it occasionally defends a Nazi or Klansman as an easy
pretend-show of its willingness to protect the free speech of the most
despicable racists.
But it has been scandalously silent when it comes to
the real current threats to civil liberties and free speech, especially on
university campuses where the hard left demands suspension of free speech and
due process rights for those with whom it disagrees.
Now, since the election of President Trump,
it has sunk to a new low, becoming a cheerleader for the violation of the civil
liberties of those on the other side of the political spectrum.
Consider the recent raid on the law office and hotel room
of Trump’s lawyer, Michael Cohen.
In that raid, it appears as if FBI agents may
well have seized material protected by the lawyer/client privilege, including
communications between Trump and his attorney.
On the day of the raid, I said that if a similar raid had been conducted on Hillary
Clinton, had she been elected and a Special Prosecutor appointed to
investigate her emails, the ACLU would have been up in arms.
I condemned its doubled-standard silence. When I said
that, I couldn’t possibly imagine that the ACLU would actually go out of its
way to justify and defend the raid, even before all the facts were known.
But
that is exactly what it has done. David Cole, who identifies himself as the
ACLU Legal Director, said the organization relies on the good faith of the
Justice Department, the FBI, and the judge who issued the warrant to assure all
Americans that this raid on a lawyer’s office, is “a sign that the rule of law
is alive.”
The ACLU acknowledges that material covered by the
lawyer/client privilege will be shown to a “privilege team” – sometimes called
a firewall or taint team.
This team consists of FBI agents and government
lawyers who will get to read communications between lawyers and clients that
are privileged, and not subject to any exceptions.
They will then turn over
to prosecutors only those communications that are not privileged, but these
government agents will have read communications that are privileged.
It is
enough for the ACLU that these privileged communications will not be used in a
criminal case against the client.
But the ACLU does not discuss the
violations of the Fourth and Sixth Amendments that occur as soon as government
agents read communications that were supposed to be protected by the Fourth and
Sixth Amendments.
Imagine that the search was of your lawyer’s
office, or your doctor’s office, or your spouse’s computer, or
the rectory of your priest.
And imagine that government agents got to
read the most intimate privileged communications between you, your lawyer, your
doctor, your spouse or your priest.
Would it be enough that the government (and
the ACLU) told you that the information wouldn’t be used in a criminal case
against you?
Would you believe that your civil liberties had been violated as
soon as government agents read this material?
Would you trust government agents
not to leak embarrassing information about your conversations, especially if
you were a controversial public figure?
The ACLU does not address any of these questions, because
the person whose lawyer’s office was searched was Donald Trump. And
virtually every contributor to the ACLU voted against Trump, as I did.
It is understandable in our hyper-partisan age that
many Democrats, liberals, and leftists are so outraged at Trump that they are
willing to ignore violations of his civil liberties, even if these violations
establish a precedent for future use against all Americans.
It is
inexcusable that the ACLU should ignore these potentially blatant violations of
the right of privacy under the Fourth Amendment, the right to counsel and
confidentiality under the Sixth Amendment. But for the ACLU, getting Trump
trumps civil liberties.
It is precisely because the ACLU has abandoned its role
as a neutral defender of civil liberties that I have had to speak up so loudly
and repeatedly in opposition to the criminalization of political differences
and to the violation of President Trump’s civil liberties.
I wish I didn’t have
to, but the hyper-partisan nature of American life, reflected by the ACLU’s
decision to justify potential intrusions into Trump’s Fourth and Sixth
Amendment rights, makes it necessary for someone to take over the traditional
role of the ACLU.
I hope others, both Democrats and Republicans, liberals
and conservatives, will join me in protecting the civil liberties of all
Americans.
Alan Dershowitz (@AlanDersh) is a
contributor to the Washington Examiner's Beltway Confidential blog. He is the
Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author
of "Trumped up! How Criminalizing Politics is Dangerous to
Democracy." This article was originally published by The Hill.
