Civil Rights in America

10:30 A.M. EST

MS. ARCHIBEQUE: Okay, I'd like to welcome you today to the Washington Foreign Press Center. Today we have with us Professor James Feinerman, the Associate Dean for International Graduate Programs at Georgetown University Law Center.

MR. FEINERMAN: Thank you. As the Associate Dean for International Graduate Programs, I'm in charge of the -- of post-first degree students at Georgetown Law Center. We're the largest law school in the country. We have about 2,500 students - 600 of them are in our graduate program, which is the size, actually, of many other law schools: Yale or Chicago or Stanford.

And of those 600 graduate students, about one-third of them are foreign law students who come to the United States for a second degree in law, which we call an LLM, a Master's in Law degree. And one of the reasons why I'm in charge of it is that I teach, among other subjects, the basic comparative law course, which compares the civil law and common law systems, and my expertise is generally in areas of comparative law with a special focus on Asia. And I also teach corporate law subjects.

I was trained at Harvard Law School and I have a Ph.D. from Yale, which is where I also went to college. And I have been a Fulbright recipient in both China and Japan, and studied and taught in both places. Those are the two foreign languages that I command most fluently. I can also speak reasonable Spanish. I lived in Madrid as a teenager.

But my purpose here today is to talk to you about civil rights law in the United States, and I'm going to give you a very broad overview, but I'll be happy to address particular questions that you may have when I finish that and I'll try to be reasonably brief to leave time for questions.

Before I start that, though, I just want to say how glad I am to be meeting with you on Lincoln's birthday. I am a native of Illinois. I was born and raised in Chicago. And the license plates in Illinois say, "Land of Lincoln" on them. Although a couple of other states can lay claim to him. He was actually born in Kentucky. But he was most famous for his career as a young lawyer and then eventually, a politician in Illinois and there are still many shrines to him: places where he worked and lived, and his gravesite, which are all in and around Springfield, Illinois, the capital of the state. And obviously, his role in the Emancipation Proclamation and also as the leader of the United States during the Civil War was an important point along the way in the development of civil rights law in the United States. Some would say it was almost the starting point, and others would say that it was along the beginning, but not necessarily at the very start.

Obviously, much of the work remained to be done and I'll talk a bit about that this morning, as well. But just a little over -- a little less than 150 years ago, President Lincoln proclaimed on January 1st, 1863, the Emancipation Proclamation, which, interesting to note, freed the slaves that were held in states that were still fighting in the Civil War. So it freed the slaves in the southern states that had seceded from the United States and formed the Confederate States of America.

It did not free slaves who were still legally enslaved in the North. They were freed at the end of the war by the adoption of the 13th Amendment to the Constitution in 1865, which, in effect, outlawed on a constitutional basis, slavery or other forms of servitude.

And some have speculated, especially revisionist historians, that one of Lincoln's goals in freeing the slaves was to try and undercut and hopefully destroy the economic basis for the southern economy, which was largely a plantation economy that depended on large farms that were overseen by white owners and slave masters, but where most of the labor was actually carried out by enslaved blacks.

But let me just step back for a moment before the 1860s to go back to the 1780s when our Constitution was written because it's still a matter of some shame to most thinking Americans today that in our original Constitution, which we revere as the basis and foundation for most of our law and our freedoms today, there actually was a provision, which modern Americans find quite obnoxious, that for census purposes, counted black slaves as three-fifths of a free, white person.

And this was a concession -- there are many others in the Constitution, including the one you may be most familiar with, our bicameral legislatures, which gives every state two senators, and then representatives apportioned on the basis of population. That was a compromise between small states and big states because the small states with small populations knew that if all the representation was on the basis of population, they would always be outvoted in the Congress.

So, we divided the legislature into two bodies, somewhat along the model of the British House of Lords, but the Senate was not a hereditary institution, and then gave every state equal representation -- two senators in the senate; you have the check on in the House, which had the proportional representation based on population.

So today, California may have more than 50 representatives, but it only has two senators. The same as Delaware, which has two senators, but only one representative, because that's all its population entitles it to.

Likewise, the three-fifths provision in the Constitution was a recognition of the much smaller free, white population in the southern states of the United States and the states that were subsequently admitted up to the beginning of the Civil War, because in those states, the majority of the people who lived there were, in fact, black slaves, but to give them a greater proportional voting right than they would be entitled to if we just counted the free, white population, this three-fifths provision was written into the original Constitution so that they could bump up their population figures and improve their representation in the lower house, the House of Representative in our Congress.

Obviously, that was a product of those times and a very different mentality, but it's something that when we export the rule of law and sing its praises around the world, we have to explain about the very beginnings of our American democracy.

It did establish, though, the idea at least, which was never much implemented and practiced, that those slave populations were entitled to representation, even if it was a lesser proportionate representation. They were not completely without a basis for their representation in the Congress, and some of the things --

QUESTION: But they wouldn't vote?

MR. FEINERMAN: They would not vote. They would not select the representatives, but their interests might be advanced by the representatives who were elected by the free, white people who were able to vote in those states.

But the Emancipation Proclamation changed all of that. It said that all of those people in the southern states were free. And then two years later, with the adoption of the 13th Amendment, slavery was outlawed, in effect, in the United States following the lead of some of the European countries that had previously outlawed slavery.

And the 13th, 14th, and 15th Amendments, I think, can be seen in our Constitution, which has only been amended 26 times since it was created, as an important step forward in the goal of achieving equal representation under the law for all American citizens. And I think it's important to note this because there were promises made in the original Constitution of essentially equality under the law for all citizens, but the basis of citizenship, the nature of citizenship, wasn't completely spelled out as it later was under these, these three Amendments.

And beginning with the 13th Amendment, which abolished slavery, and then a couple of years later with the adoption of the 14th and the 15th Amendments, these made clear that any person who was born in the United States or was subsequently naturalized as a citizen had to be granted equal protection under the law.

And so this meant that regardless of even where you -- where your ancestors originally came from, you were entitled to equal representation. Any child of an immigrant born in the United States on U.S. soil automatically became a U.S. citizen. And likewise, anyone who was naturalized subsequently, even if they were born a foreign citizen and came to the United States not as a citizen but was naturalized and became a U.S. citizen could not be discriminated against because of their foreign birth or heritage.

Now again, many of these provisions were not always honored as a practical matter, but the basis was established in the Constitution that we were then able to build on.

The 15th Amendment, which was subsequently adopted in 1879, it was the last of these post-Civil War Amendments, made it against the law to deny any citizen the right to vote because of his or her race or color, or because that person was previously enslaved.

After the white populations recovered political power in the South, for several years after the Civil War ended, many of the former Confederates were essentially disenfranchised and often, white Northerners came down to the southern states and took over politics there. Also, in some states, free black citizens became power holders. In fact, in many of these states there was a 100-year gap between the time the first black was elected as a congressman or governor, and then the next time it happened a century later because of this brief period in what we call reconstruction after the Civil War.

But when we realized that abuses were beginning to creep in again after reconstruction ended following the Civil War, the 15th Amendment was passed to make it clear that there could be no disability -- no citizen could be disadvantaged by the fact that he or she was of a minority race or had previously been a slave.

And even though in the ensuing almost century after the end of the Civil War when slaves and their descendants, along with other racial and ethnic minorities -- I should point out that at the same time the United States experienced incredible in-migration, especially from Western and Southern Europe -- so that in addition to racial minorities, who had lived in the United States for a long time, there were new European and other foreign immigrants coming into the United States who also suffered discrimination, including racial minorities on the West Coast who came from China and Japan and various laws were passed to try and disable them and deny them of their democratic rights.

There was the basic constitutional requirement that they be given equal treatment under law. And in a famous decision that the U.S. Supreme Court handed down in 1896, the name of the case, in case you want know it is Plessy versus Ferguson, the United States Supreme Court held that as long as the races were treated equally, they could be kept separate. So this allowed a kind of legal protection, if you will, for an idea called segregation -- separating the races.

But because the constitutional principle had already been established in those three Amendments that equality was also necessary, the phrase, it almost became a kind of mantra, was "separate but equal." In reality, as the Supreme Court later decided, "separate" often meant "not equal," but the legal basis for allowing separation was that there was supposed to be equal treatment even though there was racial separation.

This doctrine actually lasted for another 55 years. It was overturned, and this year we're celebrating the 50th anniversary. There are many commemorations. Every American law school is having a conference, or several. There are various events organized by the Bar, the courts, and other groups, associated groups that were most responsible for bringing about the end of "separate but equal," the NAACP, the National Association for the Advancement of Colored People, which provided the legal counsel for the important lawsuits that were brought to the Supreme Court, are all having 50th anniversary celebrations of the decision known as Brown versus Board of Education. There actually were several parallel cases that were brought at the same time where the Supreme Court overruled the previously the ruling.

And I know that this may be a, a somewhat a foreign concept to you, but in the United States, we believe that our Supreme Court has the power to overrule previous decisions made by the Supreme Court, and it often does, particularly when the underlying circumstances that justified the previous ruling have substantially changed.

And the Supreme Court's rationale in Brown versus Board of Education, a 1954 lawsuit that overturned these prior decisions, including its own decision of Plessy versus Ferguson was that, in practice, over the more than half a century since the Plessy decision, people had come to understand that separate facilities were never equal, that equality was not enjoyed as long as segregation was enforced. And it ordered, assisted by federal laws that were passed over then next decade, a rapid desegregation of all separated facilities.

Now, I don't know, it may be very hard to imagine today, but in Washington in the 1950s, before this decision came down, in Washington D.C., there was a completely separate black school system. There were black schools for black children and white schools for white children. And the school systems were parallel. And in fact, some of the schools for blacks were actually quite excellent schools. They produced a lot of the black leadership in this city and in the United States Government today.

But it was also often the case that the facilities were poor, the students had to endure a different situation: More cramped library facilities, less access than students in the white school system had. Those school systems had to be combined. They had to be merged into a single school system, not only in Washington, but throughout the United States.

There also were decisions by courts, state and federal courts throughout the formerly segregated parts of the United States: Kansas, South Carolina, Virginia and Delaware. And this includes some states that were not part of the Civil War Confederacy, but where there was legal segregation.

Delaware, for example, was a northern state. It remained in the Union, but it had a segregated system. And the system, by the way, went all the way up to universities. There were even state-run universities that were segregated on the basis of race. And some of the most famous instances of hostility to the desegregation came at the famous southern universities: The University of Mississippi, known as "Ole Miss," or the University of Arkansas because those had been historically white schools.

The state also ran a parallel system of historically black colleges and universities, which the states' black citizens attended.

There also was an attempt to increase the access of black citizens, and otherwise disenfranchised citizens, to the right to vote. And one of the things that was used to keep them from voting up until the laws were passed in the 1960s were what were known as poll taxes. These required people to pay a certain tax in addition to all the other taxes they paid: income tax, property taxes, in order to have the right to vote. And the Supreme Court outlawed this and was fortified by a federal law that said that no person could be asked to pay a separate tax in order to be able to cast a vote.

They also outlawed various tests that had been used, sometimes tests of general knowledge or even English language that were used to keep people from voting in various states throughout the United States. And the final element of this was the Voting Rights Act that was passed in 1965 when Lyndon Johnson was President.

Now, let me just mention a couple other high points in the Civil Rights history, and then, perhaps I should turn to the present and your questions.

One of the most famous incidents in the history of modern Civil Rights in the United States was in December of 1955 when a woman who was a black cleaning lady refused to give up her seat on a public bus in Montgomery, Alabama, to a white man who had boarded the bus after her.

And at that time in the South, public facilities were segregated so that on a bus or a similar conveyance, even a train, blacks sat in the back of the bus or the back of the railroad car, and whites sat in the front. But if there were more white people than could be accommodated in the white section of the bus or the railroad car, the black person was expected to give up his or her seat to any white person who was still standing, even though they would have to sit in the black section of the bus.

And Mrs. Parks had worked a long day. She was very tired. She'd been on her feet for 11 hours, and she said, "No, I just won't." You know? "It's bad enough I have to sit in the back of the bus, but I'm not giving up my seat to some white person." And she was arrested because this violated the law in Alabama. And as a result of her arrest, a few days later on December 5th of 1955, the black citizens of Montgomery, Alabama began a boycott of the public bus system. And it was led by a minister, Dr. Martin Luther King, Junior, who became the most famous of various Civil Rights leaders of that era. We have a national public holiday here in the United States that just recently passed; it's the third Monday, I believe, of every January, now by federal law. He was actually born on January 15th.

And this boycott continued for more than a year. It went on for 381 days, during which period, 90 percent of the black citizens of Montgomery refused to use the buses. Now, this may not sound like much -- so, they refused to use the buses. Well, the bus system, as was the case with most public transportation in the United States operated very close to losing money. So losing the fares that would have been paid by those black citizens was the difference between solvency and bankruptcy for the bus system, and it became a very high priority to get those riders back on the bus.

And as a result of this, this boycott, the bus system in Montgomery and public transportation throughout the United States was eventually desegregated. That was reinforced, of course, in 1964 when the Civil Rights Act of 1964 was passed, now codified in Title 42 of the United States Code. But this contains most of the provisions that provide for equal opportunity, equal public access to any public facility, it creates an Office of Civil Rights in the Department of Justice and other federal government departments. So the Department of Education, for example, has an Office of Civil Rights, as well. And it creates a National Civil Rights Commission whose members who are appointed by the President to oversee Civil Rights and Civil Rights enforcement throughout the United States.

And I think that the changes that have been made since the 1960s have been, have been particularly striking. Children, my children, and even the generation of students I teach in their 20's at law school now really have no idea of the kind of both legal and what we call de facto segregation that existed before the middle of the 1960s when racial separation was taken for granted, when certain things were just accepted that were unthinkable, as a result of these changes, today.

And in a very important way, we have President Lincoln and the crafters of those three Amendments to thank because many of the arguments that are made and were made in the Civil Rights movement are based in the language that was contained in those Acts.

Let me just mention a couple of important things before I close. One is that the 14th Amendment, if it had done nothing else, was very significant because it made clear that the obligations with regards to equal treatment under law applied to the states as well as to the federal government.

One of the questions in our Constitution from the time that it was created was, how much the Constitution, which was, of course, a document about federal law and about the structure of the federal government, was enforceable against the states. Because when the United States were created under the Constitution, all the states thought of themselves as sovereign -- sovereign the same as say, Germany and France. And their position -- this was one of the bases, in fact, for the South seceding in the Civil War was that, you know, we gave up our sovereignty to create the Union, but we can also withdraw from the Union because that's within our power.

The Civil War pretty much established that that was not the case. But it did not make clear how much federal law bound the states. And the 14th Amendment is the legal basis forever after that the states must follow the federal Constitution with regard to equal treatment under the law. And it made it clear -- and eventually this was decided by various Supreme Court decisions -- that with regard to all sorts of other things, aside from Civil Rights and individual liberties, but things like freedom of religion, freedom of speech, that all of those things were obligations not just of the federal government, because the First Amendment, for example, says, "Congress shall make no law abridging freedom of speech, freedom of religion, et cetera." It doesn't say states may make no law. But now it's established that because of the 14th Amendment and the -- we say incorporation of those rights under the 14th Amendment, the states are also bound and can make no law that contravenes the federal Constitution with regard to those things.

And this was fought out on many battlefields. There's a famous case, a man who later became the Governor of Georgia, where under the 1964 Civil Rights Act, public accommodations, including things like hotels, restaurants, but also things like buses and railroads, were required to give accommodation to everybody regardless of race or any other characteristic.

And this man who later went on to become the Governor of Georgia owned a small hotel, motel they called it -- a motor hotel, in the center of Atlanta, it was actually called The Heart of Atlanta Motel. And he refused, even after the federal law went into force, to accept black guests.

He said, you know, "I'm the owner. This is my property. It's not public property. It's my private property, and I don't want to have any black people stay in my motel." And the Civil Rights Division of the Justice Department brought an enforcement action against him and said, "You're a public accommodation. If you want to operate a motel or a restaurant or anything like that, you must accept any paying customer, regardless of race." And he threatened to close down his hotel rather than accept non-white guests. And there was a famous television, you know, still picture footage of him standing there with an axe handle. He pulled the handle off of an axe and was trying to fight with the federal government officers who came to arrest him because of his refusal.

And when he ran for Governor of Georgia, shamefully, he was elected by the people, he -- his campaign symbol was the axe handle. He used that as an expression of his defiance. Luckily, after one term, he was voted out of office. And his successor as Governor of Georgia was, of course, Jimmy Carter, who became the President of the United States, and had a very different view about Civil Rights.

Let me say two last things. The Civil Rights battle, of course, did not end even ten years after the Brown versus Board of Education decision with the Civil Rights Act. There have been a number of lawsuits and other developments so that civil rights battles keep on being fought.

Some of them are fought about the same issues, about equal rights for people of different races. Most famously there are two decades', or three decades' worth of lawsuits involving desegregation of schools to achieve racial balance that is sometimes subsumed under the heading of "busing," taking students by bus from one school district to another to make sure that the schools are racially integrated. And these battles were started in the 1960s and they've barely ended in the 1990s.

But there also are new fronts opening up in civil rights and civil liberties, not necessarily restricted to race. There have even been -- new statutes have passed trying to guarantee civil liberties regardless of religious preference. In the 1990s a federal statute was passed about that.

In the first President Bush's Administration, a law was passed called, "The Americans With Disabilities Act." That was a law to give equal rights and guarantee certain protections to disabled citizens, people with handicaps, physical or mental, so that they would be able to have equal access in U.S. society.

We were talking just before the formal session began about Massachusetts and the fight in the legislature right now about whether or not they will allow gay marriage, and civil liberties on the basis of sexual orientation is also a new front in the civil liberties struggle. So there -- just as one battle seems to be over, new battles can almost always start.

And I also want to leave you with two other points about civil rights. I've focused in my discussion so far mostly on the federal experience, the federal government's experience with civil rights and civil liberties. But the states and even local governments also play an important role below the federal level, including passing often much more expansive civil rights legislation than has ever been passed by the federal government. For example, we were unable to amend the Constitution to guarantee equal rights for women as a matter of constitutional law.

There are federal statutes that do try and guarantee that, but many state constitutions, as well as state laws and local government laws provide those kinds of protection. The District of Columbia, where we are now, has very extensive human rights ordinance that provides much more extensive civil rights and civil liberties protection than the federal, or even most state laws do.

And above the federal level, I'll close with just mentioning the international dimension because the existence of civil rights and civil liberties that are recognized internationally by agreements and declarations, starting with the famous UN Declaration of Human Rights shortly after the United Nations was founded.

But the international covenants of civil and political and economic and social rights: the various conventions against torture, against genocide, and for the elimination of all forms of discrimination against women, against racial discrimination -- all of these things inform, even when the United States is not necessarily a party to those treaties. In fact, sometimes the argument is made in the United States that our law is so superior or is so much better in terms of the protections it affords that we really don't need to sign on to these international agreements, whereas other countries could actually benefit from it.

It's sometimes a little embarrassing when we can point out countries whose civil rights protections we consider to be weaker than our own have signed on to these agreements but the United States hasn't. And maybe the only argument I can make in defense of my country on that ground is that because we take law so seriously and because we mean to enforce every obligation that we undertake, we may sometimes be very slow to sign on to agreements, at least until we recognize all the ramifications, whereas, in some other countries, they may be much quicker to sign the agreement, but the enforcement, the implementation on the ground, of those treaties can take quite a while to come about.

QUESTION: There are cases in which the American President signed and then withdrew, right? The Kyoto, for instance.

MR. FEINERMAN: Right.

QUESTION: They signed it and then --

MR. FEINERMAN: Well, the President's signing is never the final step in any kind of treaty or international agreement. The Senate still has to ratify them. And so, in the case of Kyoto, although President Clinton signed it almost as he was going out the office door, he knew, as did any other, sort of, national figure, that the U.S. Senate was never going to ratify the Kyoto Protocol.

Now you can question whether or not it was wise, you know, or diplomatic of President Bush to withdraw from it after President Clinton had agreed to sign it, but no President was never going to be able to bring the Congress along. In fact, just before President Clinton signed the agreement, the Senate had taken a voice vote to see what the support was for the Kyoto Protocol. It was 95 to nothing against it.

There may have been five people who abstained, but there was no single person who was willing to vote in favor of ratification of the Kyoto Protocol. Constitutionally, no treaty becomes effective in the United States until the President has signed and the Senate has ratified, so, President Bush's withdrawal may just be a recognition that that's the reality in the United States.

People who are interested in environmental protection may be unhappy with that result, but it's still the political reality up to today.

QUESTION: Why is it that, as you say, the United States takes the law so seriously? And I suppose you mean by that, human rights, incorporating it into international law as well?

MR. FEINERMAN: What I meant specifically, just to make it clear, is that we mean that, you know, law should not be a dead letter. It's not just going to be law on the books, so when we pass a law, we're going to take it seriously and we're going to enforce it.

QUESTION: If that is the case, if that is supported, in -- you know, by the people, why is it that other countries have so many problems with what's happening in Guantanamo Bay, whereas in the United States, there doesn't seem to be a lot of unrest about it?

MR. FEINERMAN: I would say two things about that. One, the general arguments made, even by some of my law professor colleagues, is that in times of war and with regard to enemies, whether they're enemy aliens or even U.S. citizens who have taken up arms against the United States in a conflict, there is a feeling that a different standard applies. And this has been true even with President Lincoln, who famously made the most sweeping suspension of civil liberties in connection with people who opposed the Civil War in the North, not just against the Southern Confederates.

In the 1860s there were riots in American cities of people who were drafted or about to be drafted to go fight in the Union Army who refused to go fight. And the President had them all rounded up and incarcerated, forcibly sent some of them who were the age to fight in the military to the front.

So even a great civil libertarian like Lincoln had a somewhat different view with regard to a series of conflicts that he faced. And Franklin Delano Roosevelt, who, along with his wife Eleanor Roosevelt -- I should have mentioned that she was probably the single greatest force behind the creation and the enactment of the UN Declaration on Human Rights -- she became, for almost two decades America's Human Rights Ambassador to the world.

They were certainly great friends of civil liberties and worked tirelessly to advance civil liberties for black Americans during the 1930s and '40s, but Roosevelt sent all the Japanese-Americans to the military camps that they were held for the duration of the war, later, a decision that our own Supreme Court decided was wrong, but which was supported at the time.

And I think that that in some ways is a normal human impulse, but it also is a very predictable American impulse to say, you know, in times of war, all the other bets about civil liberties are off, at least with regard to people who are actively out to attack it.

The other thing, though, which I would say, and this is maybe a clever stratagem on the part of the Banda Administration officials, who are holding the people who are in Guantanamo, that in some ways, and this is a very technical legal argument, which I don't necessarily accept myself, once they are off American soil, and this is the reason why people were shipped from third countries to Guantanamo without passing through the United States, different rules do apply.

I mean, jurisdiction, even as a matter of international law, is territorial. And because Guantanamo is in this curious sort of netherworld, it's not U.S. territory, but it's not really under the sovereignty of Cuba, either, the rules that apply there are really left to the American military that controls the base there.

QUESTION: But the American military, isn't it under federal law and --

MR. FEINERMAN: It is.

QUESTION: -- doesn't it apply to the human rights, which are insisted on?

MR. FEINERMAN: And I think they would argue that whatever those rights are, that more than minimal protections under those laws are being provided to the people who are being held in Guantanamo.

QUESTION: Well, the Geneva Convention is --

MR. FEINERMAN: But the Geneva Convention is not applicable with regard to the people who are being held in that facility because they're not -- again --

QUESTION: Prisoners of war?

MR. FEINERMAN: Right. But see, they would argue that they are not prisoners of war pursuant to the Geneva Convention. As I say, I don't completely accept that argument myself. I think that they are, and that they should accorded the right. I don't think it would cost the United States a whole lot to provide them lawyers to satisfy the minimal protections that the Geneva Convention expects.

But I can't say that the claim that the Administration makes is completely without a legal basis. Although I would agree you that it complicates our negotiations with other countries, and it may make -- sometimes seem hollow, the preaching that we do about the rule of law and other countries around the world. We can't criticize others for their failings when you have some, as we say, colloquial English skeletons in your own closet.

QUESTION: Do you expect this to be the source of shame in, you know, 10 years time or 20 years time, like, just like, you know, the Japanese camps?

MR. FEINERMAN: I think it might. I mean, a lot depends on the perception and the -- also the ability to eventually prove, at least with regard to some of those who are held captive, that they actually were involved in attacks on the United States, that they worked alongside foreign forces in attacking the United States either here or in Afghanistan or Iraq.

But my guess is that it can't possibly be the case that all of them are, and for those who would subsequently be absolved, be proved innocent if they were given the proper process. That's an embarrassment. That's a difficulty for us.

The Bush Administration officials that I've talked to about this would say, well, it's the price we pay because we weren't vigilant enough before, you know, when we saw major attacks on two of America's leading cities. We just can't afford to let that happen again. So we're going to err on the side of caution. And, you know, we don't feel that, as repressive as it may appear to others, that this is over whatever that balance should be.

Others would say, well, yeah, that sort of parses liberty in a way that makes us uncomfortable, particularly, if our professed reason for, maybe our only professed reason now for having gone into Iraq, was to free people from oppression. Floss for the goose should be floss for the gander. But at the same time, I don't know what they know. So I'm a little hesitant about saying that there's absolutely no basis for whatever they're doing.

Also the -- what the Japanese interment cases reveal is that, you know, as a benefit of historical hindsight, a lot of things become clear that were not clear at the time. I was just mentioning, you know, there are parallels, the situation in Canada to the United States. Canadians also returned all their Japanese-Canadian citizens in the western part of Canada in almost identical ways to what the United States did. And I don't think they did it because of the United States.

They had what they regarded as a well-founded fear at that time, which both countries subsequently decided, you know, worked an unfairness. And the other big difference between them, the Canadians and Americans of Japanese origin, at the time of World War II, and the people were detained today, except with one or two exceptions, they were all citizens, whereas, the people who were in Guantanamo today are -- you know, with those very few exceptions not -- not U.S. citizens.

And even with immigrants or illegal immigrants, sometimes even seeking refugee status in this country, we treat them in a different way, which we believe is consistent with international law, than we treat people who hold U.S. citizenship.

Most of what I talked about in my general introduction about civil liberties was actually with the focus on people who are already claiming or had a reason to claim U.S. citizenship that were born in the United States. They were U.S. citizens by naturalization or birth.

QUESTION: Wouldn't you say that many countries treat their immigrants differently than their citizens?

MR. FEINERMAN: Oh, yeah, although it's a contentious issue in international law. One of -- I just finished reading a long series of things yesterday about trying to change the status under European Union law of refugees throughout the European Union because different countries in the European Union treat refugees very differently. And some countries like Germany and the UK, tend to have what they regard as an "excess burden" of refugees because they treat them differently than, say, France.

And the idea of having a uniform norm creates -- first of all, you know, who's norm is it going to be? Is it going to be the lower norm or the higher norm? Because that's a contentious issue among the members of the European Union which is about to become much larger very soon.

And also, it runs up against questions of international law because there are international treaties and conventions that deal with the status of refugees, but also give you some flexibility to determine who makes legitimate claims for refugee status, as opposed to others.

I mean, we seem to forget in the United States the influx of Haitian boat people in the early 1990s during the Clinton Administration. Are they political refugees or economic refugees? Why should that make a difference? But as a matter of international law, it does.

Also, you know, what the principles are with what's called in international law, non re fuma (ph), not sending someone back to a territory where the very act of having fled may subject them to additional or separate punishment.

But then what are you supposed to do if you are not obligated to receive them because they don't really deserve refugee status, but sending them back to their home country or Third Country will subject them to bad treatment?

You know, (inaudible) state to the American west that the people who had come to our borders under those circumstances.

QUESTION: (Inaudible.) Would you say that all these laws which have been passed after September the 11th, that they apply to the civil rights tradition the United States had before?

MR. FEINERMAN: The Patriot Act?

QUESTION: Yeah.

MR. FEINERMAN: Well, I'd say that they draw on two strands. In some areas, they relate to the civil rights and civil liberties tradition. But there's another strand of what might be called national security laws, for want of a better term, that they're probably much more strongly a part of. I mean, it maybe sometimes hard to piece this out of laws like the Patriot Act or the Patriot II was opposed by Attorney General Ashcroft.

But it's clear that, you know, at their base, they intend or they hope to, by using these provisions of law, protect the enjoyment of civil liberties by the majority of law-abiding citizens. And what comes into attention there, as it did, you know, with what happened during and after World War II is how much of the sacrifice of one you have to make to accommodate the other. And that's where I think there will be a wide-ranging debate in this year's presidential election, besides the -- about that.

And what some of the defenders of the Patriot Act have said is, "Look in the way it's actually been employed. Don't look at what it says on paper. Don't look at it in the abstract, but see how the Federal Government has actually used it since it came into law." It really hasn't been that threatening to civil liberties, but it's made a great improvement in our national security.

I really don't have information personally to be able to judge those claims. But I think that there is some validity to the argument that the worst fears of the critics of the Patriot Act have not been realized.

But that still leaves a question that came up in the 1950s, for example, when we were prosecuting people who were members of the Communist Party in the McCarthy Era. How free can people be without presenting a threat to national security?

Just because someone's political position or other views are unpopular, with regard to the accepted majority, does that make them a threat to national security? Where do we draw the line that protects people's other civil liberties but make sure that the security of the vast majority of people is not threatened?

And I think that there's where there's a great possibility for making global -- again, by benefit of hindsight, it seemed like terrible errors and we really do go overboard.

And to be fair to President Bush, with whom I don't always necessarily agree, I think he's made an attempt to reach out, even right after September 11th, but in connection with subsequent fears about the Patriot Act and other legislation, to make it clear that, you know, this was not anti-Muslim. It's not anti-groups that come or people of national origin from Middle Eastern countries that, you know, really are trying to separate out those things.

But inevitably, complaints will come. You just look at airport screening. It's an objective fact that all the people who hijacked planes on September 11th were from the Middle East, and the vast majority of them from Saudi Arabia.

So if every Saudi Arabian who boards a plane in the United States, or abroad coming to the United States receives additional scrutiny, is that a denial of the civil liberties or is it just wise precautionary measures? And how do you do it? Do you screen the 82-year-old Saudi Arabian grandmother the same way you screen a 22-year-old fitness instructor?

There's got to be some reasonable balance there as well.

QUESTION: I'd like to hear your opinion about what's happening right now in Massachusetts. I'm sorry, I meant an important --

MR. FEINERMAN: Legislature, you mean, or the --

QUESTION: I mean, the gay marriage and their rights. What do you think about it?

MR. FEINERMAN: Well, this is a classic situation. The courts first took the lead, because the Supreme Judicial Court in Massachusetts now seems to have ruled, although they still have some room, I guess, to make a final, final ruling that the state must allow gay marriage, that even a civil union, similar to what they have now in Vermont, would not be consistent with the requirements of the Massachusetts state constitution. And so they've basically said that the state must allow gay marriage.

In order to overturn that, if they have the power to do it, a state legislature is now meeting to pass a state version of what was passed in the federal government, the so-called the Defense of Marriage Act. And the idea there would be that they would overturn the court ruling with a more broad-based statutory enactment that would say state law requires that marriage is between a man and a woman.

Now, even after the legislature passes that, there are two bases for possibly overturning it. One would be a state case, based on the state constitution, in which the court determines that, although the legislature has passed this law, it still violates the state's constitution, and therefore it must be overruled; or a state or a federal case that says the statute violates the U.S. federal Constitution.

I'm not sure how that case would turn out. But I could see that, for example, a federal court in Massachusetts at the lower might say it did violate the U.S. Constitution, and then it would work its way up to the U.S. Supreme Court, which would have to decide, since it has the final say in this, whether or not it is constitutional or unconstitutional to have different standards for heterosexual and homosexual unions, whatever those might be.

So this is the next step, what's going on in the Massachusetts legislature right now, but it won't be the end of the story. And I think it can be, you know, replicated in the states around the union. There are other places where, after Vermont, Hawaii was about to pass -- again, through a court decision -- what seemed like was going to be the first state to allow gay marriage. And the legislature quickly stepped in and passed a statute there that outlawed gay marriage and the state court stepped back and said we're not going to touch this now.

But there are many other states where, I think in almost every state in the union, groups, gay activist groups, and other civil liberties groups that just think this is a general matter of civil liberties, not particularly limited to gay rights, are going to bring lawsuits and we'll see how they turn out.

The big sticking point with regard to marriage is that -- and I don't know if I mentioned this before you came in or after, but because of the Full Faith and Credit clause in our Constitution, if any one state allows gay marriage and if not overturned by a subsequent court decision, then any citizen of the United States would be able to go to that state and get married and all the other states of the union, including their home state, would be forced to recognize their marriage, because although family law and marriage is a matter of state law in the United States, the Full Faith and Credit clause of the Constitution says that every state must recognize any legal act.

That's why a corporation can be incorporated in Delaware, but do business all over the United States; or I can have a driver's license in Maryland, but I don't need to get a driver's license when I cross the river to Virginia or when I cross the District line and come into Washington, D.C.

And so that's why there's kind of this widespread opposition to any jurisdiction allowing gay marriage, because there's this fear that it will become the haven from which, you know, every state in the United States will be forced to accept gay marriage. And obviously, there are still big regional differences in the United States. I know from outside the United States, it can look very homogenous. To those of you who live here, it probably isn't, so you've seen some of the variety, even if you're just in Washington, D.C.

But the attitudes in a small town where everyone's a Mormon in Utah, compared to, you know, Greenwich Village in New York City, there's a wide spectrum of different opinions about, you know, what should and shouldn't be and this is perhaps one of the touchiest areas. And there are others. Abortion is clearly one. There are some other areas of controversy along similar lines, but this has become the current flashpoint.

It's also coming up right at the beginning of an election year cycle. And Senator Kerry, who looks like he's the presumptive Democratic nominee, is from Massachusetts, so you can believe that there will be considerable attempts to link those things, you know, put him on the spot about what his view is.

QUESTION: But if all these Democratic candidates, as they seem to do, say they are against gay marriage, I mean, is it something that's going to have much traction during the election year?

MR. FEINERMAN: Well, it's hard to say. I think the reality is that most gay Americans are probably likely to vote Democratic. They don't see much -- although there are some gay Republican groups. And I think they have made the calculation that, for many other reasons and other issues, the gay vote will not desert them if they oppose gay marriage. But they still want something short of marriage, like civil unions, to be available for gay citizens.

And I don't think the Republicans are going to say, well, if the Democrats won't give you gay marriage, we're going to give it to you. They're, I think, much more ideologically opposed.

President Bush has already come out, and I think those statements have been a little difficult to our party. But it seems like he would support a constitutional amendment to ban gay marriage, which might -- might actually be necessary.

I mean, as long as there's nothing like that, I think it would be a stupid thing to put in the Constitution, from my own personal point of view, I think, one that, glory to the American Constitution, so the big comparative point to the constitution of other countries all around the world is that our Constitution is very bare-boned.

It has the most general sorts of principles and it doesn't say much about specific things. And if we were to put in a specific provision that outlawed gay marriage, or said marriage is limited to one man and one woman in a union, that would be so out of step with all the rest of the kind of principles that are enunciated in the Constitution, that it will be silly. It would make us look silly.

But without having that in the Constitution, it would always be open to the Supreme Court to say that because of the Equal Protection provision in the 14th Amendment and in the basic Constitution itself, not giving gays the same ability to marry that heterosexuals have is a violation of the Equal Protection clause.

So the only sure way to close that door is to amend the Constitution.

QUESTION: And how difficult was that? Because you need --

MR. FEINERMAN: It's very difficult. You need to get -- first of all, you have to pass the basic constitutional language, and then you have to get three-fourths of the states to ratify it. And if three-fourths of the states wouldn't ratify something that I consider relatively uncontroversial, like equal rights for women, I think it's going to be very difficult to get three-fourths of the states to ratify a ban on gay marriage. I may be wrong.

QUESTION: And it would be the main stumbling block to states, not in the Congress?

MR. FEINERMAN: No. I think in Congress, they're clearly -- well, there are stumbling blocks. I think the Democrats are -- you know, they're not in the majority, but they're a very sizeable minority, will generally oppose, even if they say they're opposed to gay marriage, they will oppose attempts to amend the Constitution with regard to this.

And I think there are some Republicans, too, who have already come out and said, so it might actually be a majority in one or both houses of the Congress that will say, "This is not a matter for constitutional amendment. Regardless of what my own personal position is on the issue, don't amend the Constitution to deal with it."

QUESTION: When was the last time an amendment to the Constitution was done?

MR. FEINERMAN: I believe it was an amendment -- the last time was an amendment to deal with what happens in the succession to the presidency if the President is disabled. The only time it's ever been used is when Ronald Reagan was shot. It determined whether or not the Presidential power automatically gets handed over the Vice President, if the President is still alive but not able to carry out his or her duties.

MS. ARCHIBEQUE: We have time for one question.

QUESTION: Can I --

MS. ARCHIBEQUE: Sure.

QUESTION: How do you see the future of the traditional civil rights movement?

MR. FEINERMAN: Well, I'd say two things about that. One is that there's a sense --

QUESTION: Curious -- I mean, defined as equal rights for the black population and --

MR. FEINERMAN: Yeah. I would say that there's a sense of having maybe reached a plateau there. And it's been a very long period of that, maybe almost 20 years now, where all the basic battles have been fought with regard to freedom of choice of where to live, where to go to school, access -- even, you know, the battle that was fought most recently in the U.S. Supreme Court was upholding affirmative action at the university level, two cases against the University of Michigan that the Supreme Court decided in the last term.

And in all these cases, I think there's a fairly well-accepted American consensus, both in the majority population, but also among the minorities that we have achieved certain things in the status quo that nobody will question now. It's impossible to go back, in effect. But there's also a sense that there's still a need to go forward in various areas.

For example, although there's no longer what we call de jure, by law, segregation of the public schools, what's happened in many places, including even this city, is a kind of de facto resegregation just on the basis of school district lines so that, in the city of Washington, D.C., for example, almost every school system is…

MR. FEINERMAN: -- people's housing choices and other sorts of things. And that's a much more difficult question to deal with. Because, I mean, I have two school-aged children of my own. They're both adopted from China. So they're racially different from me and my wife. If somebody wanted to bus them, you know, 20 miles away to go to school just so they could have the races mixed in school, I'd say, well, that's a pretty stupid reason to, you know, transfer my children.

On the other hand, we live in a district, even though it is close in the suburb of Bethesda, which is very heterogeneous, because we value having different races. We don't want our two children to be the only non-white children in their school, and they aren't.

So that's -- those are the kind of more difficult challenges, I think, that faces the civil rights movement for the next 20 or 30 years. And there is a sense of "insensitiveness," particularly, rather satisfied citizens in the majority population who feel like, okay, we've done everything now. There is no need to do anything else. You know, everything else is just sort of nitpicking or self-seeking, some way of trying to get additional advantages.

And, you know, we've done enough. There is that kind of mentality. And I think most people who are involved in the civil rights movement still today would say, no, you know, we have made progress, but there's still a long way to go. And it's those kinds of areas.

A second area that I think is worth noting though, is that there is the shift in what was historically the struggle for minority rights for the largest single minority in the United States, which was the black minority population descended from the slaves. It's not the largest minority population anymore.

The largest minority population just last year became the Hispanic minority, which, in some ways, is an ill-defined minority. I mean, if you define them on the basis that Spanish is their first language, I mean, I can tell you that Mexicans and Salvadorans and people from Madrid have very different -- they don’t even speak the same Spanish, among other things.

But they have very different interests and aren't necessarily homogeneous, as the black population was thought to be, even though, you know, Colin Powell will tell you that Black Jamaicans had different interests than Black Dominicans and blacks who came from the American South.

And, likewise, there are these other, you know, ethnic groups that are entering the mix now. There's been a huge influx since the 1960s of new American citizens and immigrants from Asia.

So that in a state like California, there is no majority population anymore, no single race accounts for 50 percent of the California population. And California is sort of the bell weather, in may ways, for what's happening or going to happen, 10, 15 years from now, in the rest of the United States.

And I think if that happens, it then becomes a much more kind of contentious haggling because it isn't -- you know, the majority has certain obligations to this clearly defined single minority. It's like, okay, what's for the black population and their needs, the Hispanic population and their needs, the Asian population and their needs, and maybe other groups.

I'm telling you, it's almost unknown. Even when I was in law school, 25 years ago, the Native American population, which has, probably because of gambling and Indian casinos, now require a certain amount of economic power which it's using to push a rights agenda across the United States that, you know, adds another factor to the mix.

And I'm not saying that that's a reason for ignoring or soft pedaling some of the human rights and civil liberties concerns that we talked about today, but it makes it very much more complicated to figure out what you should do, what you must do, and just how high to set the bar for the next round.

So, I think the people in the civil rights movement have their work more than cut out for them.

And then just the last thing I would say, in regards to that question, is the United States has to recognize, as well, and I think we have, but maybe not as we -- not as much as we will increase in our future -- that this is going on in a global conversation.

If you saw the commentary, which I'm sure many of you must have read in the U.S. press about the French law with regard to head scarves for Muslim women. And it's almost a superior attitude, which is usually what we think the French adopt towards us. But it's expressed in the American press. You know, how can they be so backwards? How can they be so, you know, disrespectful of religious diversity? I mean, we don't have this problem in the United States. We have religious freedom.

And, you know, the sense that, well, if you're going to throw stones at other people's derogations or freedoms that you hold dear, you'd better be ready to receive as well, the stones that are thrown by others who say, look, you criticize us. We criticize you. And, you know, we're all trying to make progress on different issues at different times.

And that I think maybe somewhat difficult for the United States to accept because, particularly with the successes of the 1950s and the 1960s, right up to today, there's been this feeling of, for want of a better word, "smugness," which, we solved our civil rights problem. We did the right thing, and, you know, that's taken care of. We can, you know, put that one to rest. And I think that, clearly, that's not the case, and it's not the way others are going to view us, even though we may have that -- some of us may have (inaudible).

MS. ARCHIBEQUE: Okay. Well, I want to thank you for coming, Dean Feinerman. I think that was an interesting discussion.

MR. FEINERMAN: First of all, thanks for your questions.

QUESTION: Thank you.

MS. ARCHIBEQUE: Okay. We're out now.

Thank you.