February 2010

Tribe, the Carl M. Loeb University Professor at Harvard Law School, will serve as "a senior counselor for access to justice," The Post reported. NPR noted in its coverage that "one of the top constitutional lawyers in the country is taking a leave of absence from Harvard to spearhead" the "Access to Justice" initiative. The announcement of the position follows a recent Justice Department "National Symposium on Indigent Defense," which explored ways to improve the nation's faltering indigent defense system.

Tribe (pictured) will start work at DOJ next week and "will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer - a circumstance known in legal terms as indigent defense." Listen to NPR's full story here.

In 1963, the U.S. Supreme Court ruled in its landmark Gideon v. Wainwright decision that the Sixth Amendment provides a fundamental right to counsel for defendants, including those unable to afford legal representation. Writing for the majority in Gideon, Justice Hugo Black maintained, the Sixth Amendment means that "in federal courts, counsel must be provided for defendants unable to employ counsel unless that right is completely and intelligently waived."

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.