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November|December 2003
unbecoming CONDUCT By Steve Weinberg
Trials, but Mostly Tribulations By Wade Chow
Delusions of Grand Juries By Niki Kuckes
Ramsey Clark's Prosecution Complex By Josh Saunders
The Diplomat's Dance By Romesh Ratnesar

Ramsey Clark's Prosecution Complex

How did Lyndon Johnson's attorney general come to defend dictators, war criminals, and terrorists?

By Josh Saunders

IN 1971, THE U.S. JUSTICE DEPARTMENT, LED BY ATTORNEY GENERAL JOHN MITCHELL, prosecuted seven antiwar activists in Harrisburg, Pa. The activists, who came to be known as the Harrisburg Seven, were led by the well-known Catholic priest Philip Berrigan, who had already spent several years in jail for burning draft records in Maryland. The charges against them ranged from smuggling letters out of prison to plotting to kidnap Henry Kissinger, then national security adviser to President Richard Nixon.

The prosecution took five weeks to present its case, which it based largely on the testimony of an informant recruited by the FBI. The defense, for its part, took less than five minutes. Asked by the presiding judge to call his first witness, Ramsey Clark said, "Your Honor, the defendants shall always seek peace. They continue to proclaim their innocence. The defense rests."

The unorthodox move "shocked the court," as The New York Times put it, in part because of the lawyer who made it. A mere three years earlier, Clark, then Lyndon Johnson's attorney general, had overseen the prosecution of the Boston Five, a set of antiwar protesters similar to the seven activists he was now defending.

Yet Clark has gone far beyond defending the sort of activist he once prosecuted. He has served as counsel to some of the world's most reviled figures, from alleged former Nazi concentration camp guards Karl Linnas and Jack Reimer to former Serbian president Slobodan Milosevic, currently on trial at The Hague for genocide and crimes against humanity. After the Reagan Administration bombed Tripoli in 1986, Clark met with Libyan leader Moammar Qaddafi and later filed an (unsuccessful) lawsuit against the U.S. and British governments on behalf of the Libyan civilians killed and wounded in the attack. In 1995, he was part of a team that defended Sheikh Omar Abdel Rahman, the blind Muslim cleric eventually convicted of seditious conspiracy in the 1993 World Trade Center bombing. This summer, he filed a motion in a suit brought by the surviving Branch Davidians against the U.S. government for damages suffered in the Waco showdown, which he called "the greatest failure of law enforcement in the domestic history of the United States."

Few Americans and perhaps no other former high-ranking U.S. government officials have Clark's standing with America's enemies. After Sept. 11, when Iraqi deputy prime minister Tariq Aziz wrote a letter to express his condolences "to the families of the victims of those events," he mailed it to Ramsey Clark.

To the extent that the American press has considered Clark's work, it has been to excoriate him. He's been vilified by the right (The Washington Times has suggested that Clark move "his Terrorists 'R' Us law practice" to Afghanistan) and by the left (Salon has called him "the war criminal's best friend"). The federal government, meanwhile, has threatened to prosecute its former chief law enforcement officer at least twice, based on visits he made to North Vietnam in 1972 and to Iran during the hostage crisis of 1980.

Clark's practice can hardly be said to be thriving. Handling most of his work for no charge, he has trouble paying his travel expenses, not to mention his rent; and with many of his cases unwinnable, his record is less than impressive. But Clark can't be dismissed as an intellectual lightweight, and he occasionally wins important victories. In 1971, he successfully represented the Alaska Federation of Natives in the largest lands dispute claim in U.S. government history. Clark helped negotiate a record $962.5 million settlement.

In the Harrisburg Seven case, Clark's decision not to mount a defense was unconventional, but it was also shrewd. Suspecting that the jury was favorably disposed to his Irish Catholic defendants—on St. Patrick's Day, the jurors had entered the courtroom wearing green carnations—and knowing that his clients were pacifists who would proudly admit to burning draft cards (though not to planning to kidnap Kissinger), Clark decided against putting them on the stand. The jury deliberated for 59 hours before declaring itself hung.

CLARK IS CORDIAL AND HOSPITABLE, but he's not an entirely obliging or reliable interpreter of his journey from son-of-the-establishment attorney general to defender of America's enemies. Conversations with Clark have a character that reflects his Texan heritage more than his legal training. He tends to proceed in a slow, roundabout way, often making his points through anecdotes and counterexamples. At 75, he peppers his speech with obscure facts—the alma mater of a minor official in the Kennedy Administration, the number of civilians killed in the U.S. invasion of Grenada, salient details of Ukrainian history. He is less free, however, with details about himself. Mel Wulf, who was one of Clark's law partners for five years (until he found it financially unviable), said that Clark is "on the surface very congenial, but he's actually quite unforthcoming." A former Kennedy Administration colleague called him a "pretty laconic fellow."

Clark is the son of Tom C. Clark, who was appointed attorney general and later a Supreme Court justice by Harry Truman. Ramsey grew up in Dallas, where his father was in private practice and worked for the county district attorney's office before leaving for Washington. After attending the University of Chicago Law School, Ramsey Clark returned to Dallas to enter private practice, and took up a specialty in antitrust. He was drawn to antitrust work, he said, because he believed that "massive concentrations of power and wealth" were "incompatible with democratic government and individual freedom." The work, however, frustrated him. Feeling that he was "basically arguing over other people's money," he decided to pursue a career in public service.

He used his father's connections and parlayed his nine years of experience in Dallas into a post in Robert F. Kennedy's Justice Department, where he was appointed assistant attorney general in charge of the Lands Division. At 33, Clark was the youngest assistant A.G., though the attorney general himself was only 35. Clark quickly became known for speaking out in senior staff meetings. Kennedy had no qualms about using wiretaps, especially as part of his obsessive effort to indict the Teamsters leader Jimmy Hoffa, but Clark spoke consistently and forcefully against them. His uninhibited idealism and fervent defenses of civil liberties earned him the nickname "the Preacher."

Clark was at the Lands Division before the birth of the environmental movement, but he hadn't been there long when he was called upon to do more pressing work. Kennedy's civil rights division was having problems in the field because, in Clark's view, "they couldn't pass in the South." Kennedy's team was composed largely of Northerners, and Clark's Texan drawl and Southern manners made him a valuable asset. In 1963, after James Meredith successfully sued to become the first African-American admitted to the University of Mississippi, Kennedy sent Clark to do reconnaissance on integration there. Soon after, Clark wrote a memo to Kennedy suggesting that it was time for the federal government to enact sweeping civil rights legislation; it was an outline of sorts of what would become the Civil Rights Act of 1964.

Lyndon Johnson made Clark deputy attorney general in 1965 and attorney general in 1967, cutting short the term of Nicholas Katzenbach. Clark had made something of a name for himself in civil rights work, but the appointment probably had more to do with Johnson's own political machinations than Clark's record. In Mutual Contempt, an account of the rivalry between Johnson and Robert Kennedy, the writer Jeff Shesol suggests that Johnson trusted Clark, a fellow Texan, more than Katzenbach, a Kennedy favorite. Victor Navasky, the author of Kennedy Justice, believes that Johnson hoped Ramsey's appointment would force Tom Clark to step down from the Supreme Court, making room for Johnson to appoint Thurgood Marshall, who would be the court's first African-American justice. Johnson got his wish: After swearing in his son, Tom Clark left the court, and the president installed Marshall.

As attorney general, Ramsey Clark was known for his defense of civil liberties. As Navasky explains in his book, Clark issued "serious, sweeping orders against bugging" that so frustrated FBI director J. Edgar Hoover that he took to calling Clark a "jellyfish." Clark also declared a moratorium on federal executions. "I couldn't stand the idea that the government could kill somebody who was powerless," he said. He also opposed new prison construction, shifting funds instead toward prison rehabilitation programs. "Prisons are usually little more than places to keep people—warehouses of human degradation," Clark wrote in Crime in America, a book he published in 1970. "The history of penology," he went on, "is the saddest chapter in the history of civilization."

Clark also earned a reputation for efficiency. During his two years in office, he halved the backlog of some 32,000 cases he inherited from his predecessors, while at the same time asking Congress to reduce the size of the A.G.'s staff and decrease his budget by $22,000.

The bulk of Clark's work as A.G., in civil rights, civil liberties, and penal reform, is consistent with his postgovernment career, if not exactly a foreshadowing of it. But not all of the cases he championed as A.G. make sense in the context of his subsequent work, and it's the ones that don't that perhaps best explain his unexpected trajectory after leaving office.

IN 1968, CLARK OVERSAW THE PROSECUTION of the pediatrician Dr. Benjamin Spock, Yale chaplain William Sloane Coffin Jr., and three other men accused of conspiring to undermine the Selective Service laws. The charge was "conspiracy to aid and abet draft resistance," though the five, called the Boston Five because they were tried in federal court there, had never been in the same room together before the trial. Coffin was the only defendant who even knew all of the others. Michael Foley, an assistant professor of history at CUNY-Staten Island who has written extensively on the case, said that many activists saw it as the first attempt to decimate the antiwar intelligentsia.

Clark says now that he opposed the Vietnam War and claims that Johnson was aware of his views. But if Johnson knew, no one else seemed to, and Clark appears to have been far from vocal about his antiwar stance. In Dean Rusk's memoirs, the former secretary of state mentions that he sat next to Clark in cabinet meetings for years and never heard him express opposition to the war. Nor did the activist community think of Clark as an antiwar figure. Coffin, who is now 79 years old, said that he "had not heard that Clark was opposed to the war." Foley agreed that Clark "wasn't known at all among peace activists as being opposed to the war."

The Johnson White House was sharply divided over the war, and Clark admits that he was at the time uncharacteristically willing to keep his opinions to himself. Robert McNamara, the secretary of defense (who would later regret having escalated the war), asked Clark to talk with McNamara's children because they respected the A.G.'s opinion. "I tried to explain to them that their daddy is doing his duty and that it's a difficult situation," Clark said. "It just means he's got to do what he's doing. Not that I believed that, but he asked me to talk to his kids and that's what I did."

If he was privately opposed to the war, though, why did he prosecute protesters? Sipping hot water from a mug in his sparsely furnished Greenwich Village law office, which was decorated with a portrait of his father and political posters demanding justice for the people of El Salvador, Clark said that he felt obligated to file charges against the activists. "I feel strongly that the law has to have integrity," he said, sounding more like an attorney general than an antigovernment radical. "The law either has to do what it says or change what it says, and there was no chance of changing the draft laws." Clark said he believed in the power of the law in part because he had seen the positive effects of civil rights legislation. Roger Wilkins, a professor at George Mason University who was the director of the U.S. community relations service in the Johnson Department of Justice, said that Clark told him at the time that "we can't pretend there's no law, or that because good people are against it we won't enforce it. You have to enforce the laws so that they are meaningful."

Yet his fealty to the rule of law doesn't fully explain why Clark pursued the case. Low-level prosecutions of draft resisters had been occurring throughout Clark's term, but this was the first prosecution directed at the leaders of the antiwar movement. Why did he pursue this case? Clark contends that he had discovered that men in minority and working-class districts were getting the longest sentences for draft evasion. So, he says, he decided to focus attention on people who he believed could defend themselves more adequately.

Coffin and Dr. Spock were respected, if controversial, public figures who could afford legal counsel to fight back for them. Clark said he believed their cases would take a long time and would "focus attention on the problems of the draft." Clark says that he hoped to show Johnson that opposition to the war wasn't limited to draft-dodging longhairs but included the most admired pediatrician in America, a prominent and revered patrician minister, and a respected former Kennedy Administration official (Marcus Raskin, who had been a special staff member on the National Security Council).

Coffin asked Clark about the prosecution years later and was told that he "had a choice to arrest a hundred students or select five people who could take financial care of themselves." The explanation convinced Coffin, who now counts Clark as a close friend. (He officiated at the wedding of Clark's son in 1980.) Foley, however, has done extensive research in an effort to verify Clark's claim, and he's not sure that it can be corroborated. "I could not confirm that this was his main motivation," he said, "either because he kept it to himself the whole time or because he's making it up now." Robert Dallek's Flawed Giant, the second volume in his biography of Johnson, states that Clark told Johnson that the peace movement had been infiltrated by Communists. Whatever Clark's motivation, four of the five defendants were convicted and sentenced to time in prison.

In his office recently, Clark said that he didn't regret the case against the Boston Five. In 1998, though, he told Foley that he wished the case against Spock, Coffin, and the others had turned out differently. He had hoped that the case would "ventilate the issues," providing a public forum for a debate over the merits of the draft. But the presiding judge declared most arguments about the legitimacy of the war or the draft inadmissible before the trial even started. The first major trial of antiwar intellectuals ended up being more about legal nuance than political morality.

Two of the four convictions were eventually overturned on appeal because of a lack of evidence and improper jury instruction. The remaining two defendants, Coffin and the novelist Mitchell Goodman, were ordered to be retried, but the government dropped the case. Still, observers of Clark's career have tended to see the Boston Five case as Clark's "Lord Jim" moment, in which Clark, faced with a choice to act morally or amorally, does the latter, only to spend the rest of his life repenting for his mistake. David McReynolds, a longtime member of the War Resisters League who has worked with Clark on antiwar campaigns, thinks that Clark is "haunted" by his indictment of the Boston Five. Both McReynolds and Mel Wulf think Clark may have felt guilty enough about the prosecution that he decided to spend his career doing penance.

Clark says that he wasn't disappointed with the verdict and that the case didn't change his politics, and contrition over one prosecution, no matter how symbolic, might seem an unlikely explanation for over 30 years of battling the U.S. government. Yet the case clearly troubled him. Though the conspiracy charge was weak—Foley reports that John Wall, the assistant U.S. attorney who prosecuted the case, later acknowledged that it looked like "a jerry-built thing . . . put together at the last minute"—it worked, convicting men with whom Clark now insists he agreed.

The outcome of the trial had to have been demoralizing for a man whose civil rights work had led him to believe that the law could be a force for social good. Over time, it may have come to seem to him more like persecution than prosecution and may have left him with a newfound suspicion of the power of the state. After the Boston Five trial, Clark's fears of government power became more acute and his hopes for a peaceful, lawful society seem to have dimmed.

CLARK LEFT OFFICE IN 1969 WHEN NIXON WAS SWORN IN. Later he mounted two fruitless campaigns to represent New York in the U.S. Senate, losing in the general election in 1974 to the popular Republican incumbent Jacob Javits (after setting a limit of $100 per person on campaign contributions in a proto-campaign-finance-reform measure) and in the Democratic primary in 1976 to Daniel Patrick Moynihan, who would go on to serve four terms in the Senate. Unsuccessful in his bids to serve the public in Congress, Clark turned back to his law practice.

Much of Clark's work as a lawyer seems entirely appropriate for a leftist concerned with social justice. He's represented Leonard Peltier, whose 27-year-old conviction and campaign for parole have made him a martyr to Native Americans, and he's worked on behalf of dozens of death row inmates. He's also served as counsel for Lori Berenson, the young New Yorker imprisoned in Peru for allegedly aiding Marxist guerillas. These kinds of cases, said Alan Levine, another former partner, show that Clark is "committed to real issues of justice." Cases like these, Levine maintained, "make up 90 percent of his work."

The remaining 10 percent, however, is confounding. The defendants are war criminals and terrorists, and most of them are not from the political left. "Clark represents people that I would never represent," Levine admitted. Maria T. Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York, said Clark was a "cordial, able lawyer," but added that she "would rather not have a legal practice than have those clients." Vullo met Clark when he defended the Bosnian Serb leader Radovan Karadzic in a suit she brought against him on behalf of Muslim women who had been enslaved in rape camps. Thousands of Muslim women were tortured in the camps, where, according to a Human Rights Watch report, sexual violence was "used deliberately as an instrument to terrorize the civilian population."

This 10 percent of Clark's cases has also placed him in the middle of a spirited ethical debate over whether lawyers should be identified with and held accountable for the sins of their clients. Traditionally, a lawyer's primary duty has been to his or her client: Performance was to be judged on the quality of the representation provided. In the last 15 years, however, scholars of legal professionalism have begun to argue otherwise. It is unethical, some academics maintain, for a lawyer to act against his or her own opinions in pursuit of a client's goals. A lawyer who helps a crooked corporation avoid paying taxes should not be able to excuse his actions by arguing that he was simply acting in his client's best interests.

But what about an attorney who defends mass murderers? David Luban, a professor at Georgetown University Law School who has written extensively on legal professionalism, believes that, "in general, lawyers are responsible for their choice of client and what they do on behalf of clients." Luban exempts criminal defense lawyers, however, suggesting that there is "constitutional value" to criminal defense, "even of people who are pretty horrible." Elisa Massimino, an attorney for the Lawyers Committee for Human Rights, a progressive legal advocacy group, maintains that it is a "fundamental fallacy that lawyers are somehow complicit in the crimes or alleged crimes of their clients."

Clark often makes similar arguments suggesting that he should not be connected with the horrors committed by his clients. Asked at a United Press Club luncheon about his defense of Karadzic, he said that to condemn him for that defense is "a form of guilt by association." Clark contended that he took the Karadzic case because no one else would, and that "if no one else who is capable will take a case, I will." He used a similar justification for his defense of Omar Abdel Rahman. "He had no lawyer. I couldn't stand the idea that an Islamic scholar, a Ph.D. from Al Azhar University in Cairo, who spoke no English, had no legal background, would go to trial without a lawyer."

Yet Clark has also said that he won't defend someone if he doesn't "believe in the morality of what the person has done or is accused of having done." "Take antitrust," he said recently. "If a corporation came to me and I thought they were abusing smaller competitors, I wouldn't take the case." Clark admits, however, that there is an important exception to his rule against representing people he believes are morally reprehensible, one that allows him to say no to a Microsoft and yes to a Karadzic or a Rahman: "The exception," he said, "is if the person is being persecuted."

It is, more than anything else, this distaste for persecution by the state that has motivated Clark's career. Suspicion of government power is a legitimate and understandable concern—particularly for someone who observed J. Edgar Hoover's FBI from the inside. But Clark tends to see persecution in places few others do, and he has become, in a sense, as much an anti-prosecution attorney as a defense attorney. It seems as if he lets his outrage at the abuse of government powers blind him to the odiousness of his clients.

CARLA DEL PONTE, THE CURRENT PROSECUTOR in the ongoing trial of Slobodan Milosevic, has said that the former Yugoslavian leader's military campaigns were marked by "medieval savagery" and that he is guilty of countless violations of the Geneva Convention. Prosecutors charge, among other things, that in July 1995 Milosevic ordered the mass murder of some 7,500 Muslims at Srebrenica, at the time a U.N.-protected enclave. The Srebrenica killings are widely acknowledged to be the worst massacre in Europe since World War II.

In Clark's eyes, however, it is Milosevic who is being persecuted. Milosevic is defending himself before the U.N. tribunal, but in 2001 Clark volunteered to be one of his legal advisers, and Clark has since met with him several times at The Hague. Clark has offered a series of largely procedural objections to the case against Milosevic, the kind of objections that might be expected of a lawyer who is trying his hardest to find a way to defend a client. He alleges that the tribunal is both one-sided and illegal. "The U.N. charter did not vest the power in any instrument of itself to create a criminal court," he maintains. "There never would have been a U.N. if it had—the U.S. wouldn't have joined, nor would the U.K., France, or China."

Legal or not, the Hague tribunal has turned up plenty of evidence linking Milosevic to war crimes. A former secretary to a paramilitary commander testified that he had received phone calls from Milosevic's subordinates ordering attacks on unarmed Bosnians. A document uncovered in June linked Milosevic to the dispatch of paramilitary forces to an enclave in Bosnia where 7,000 Muslim men were killed.

Clark's focus isn't on these facts, however. He concentrates instead on the unfairness of the prosecution, claiming that it is politically motivated and outlining a vague scenario in which NATO breaks up the Yugoslav federation and makes Milosevic a patsy. In 2000, Clark told DAN, a daily newspaper published in Montenegro, that Yugoslavia was "deliberately dismantled" by "U.S. and other foreign interests who want to divide and conquer the country economically." He believes that the American government "wanted to demonize leadership in Bosnia, and the best way to do that is to say that an international body has found them to be war criminals." Clark holds that Milosevic is innocent of the 66 charges he faces and said recently that he doubted very much whether Milosevic had anything to do with Srebrenica. When he talks about the case, he sounds less like a zealous advocate than a political zealot.

The strain of idealism that helped Clark play a role in the civil rights movement and that made him an enemy of J. Edgar Hoover has not disappeared. On the contrary, at a time when most of his colleagues from the Johnson Administration are either retired or deceased, his idealism continues to inspire him to travel the world fighting for mostly lost causes. He's defended the unpopular against prosecutions that have almost universal support, perhaps in part because he feels that he himself once naively, or unwittingly, represented the face of the persecutory state. He may have come to believe that anyone—even the most noble-seeming person with the best motives—could repeat his mistakes. To think that even the most vile-seeming target of the state could actually be in the right is, in a way, just the flip side of that logic.

Josh Saunders last wrote for Legal Affairs about comic-book lawyers.

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