A Visit With Vince
An interview with Constitutional attorney Vincent Warren.
An exclusive interview with Vincent Warren, Executive Director, Center for Constitutional Rights
The Center for Constitutional Rights (CCR), founded fifty years ago in 1966 by attorneys who defended civil rights movements in the southern U.S., was created as a non-profit litigation, advocacy, and education organization. Throughout its history it has stood as one of the primary avenues of defense to fight for Constitutional Rights for those with the fewest protections and with issues representing some of the most important Human Rights issues of our times.
Some of the current issues of focus for the Center include dealing with Abusive Immigration Practices, Corporate Human Rights Abuses, Criminalization of Dissent, Discriminatory Police Practices, Guantanamo, Racial Injustice, and Sexual and Gender-based Violence.
Vincent Warren has served as the Center’s Executive Director since 2006 and was a member of its Board before that. He oversees all the organization’s advocacy and litigation work. He is also one of its most prominent public spokespersons as well, including numerous television appearances including the Melissa Harris Perry Show on MSNBC, The Reid Report, Up with Chris Hayes, Moyers and Company, and Democracy Now!
Prior to joining CCR, Mr. Warren was a national senior staff attorney at the American Civil Liberties Union, where he litigated multiple civil rights cases in the areas of affirmative action, racial profiling and criminal justice reform. He is a graduate of Haverford College and Rutgers School of Law.
Trillions interviewed Mr. Warren at the Center for Constitutional Rights’ New York City offices on June 20, 2016.
Trillions: The Center for Constitutional Rights is one of the more important human rights litigation and advocacy organizations in the United States, and has been so going back to its founding in 1966. What brought you to the Center and your current role as its Executive Director?
Vince Warren: I am a lawyer and I have been practicing for close to 25 years at this point. When I was in college in the mid-1980s, I was very involved in my local college’s divestment campaign, looking to get my school to divest from business and corporations that were supporting the apartheid regime in South Africa. That was my first political awakening.
During that work, I became aware of the Center for Constitutional Rights, which had a really great reputation for taking on cutting-edge issues in the International Human Rights arena. They were going after dictators. They were going after the U.S. government for meddling in the affairs of Central America in the 1970s. So I first became aware of them as a legal organization that was doing great work.
When I was in college, I [already] had the general sense that I wanted to become a lawyer, and after working for five years, I ended up going to Rutgers Law School in Newark, New Jersey. One of the founders of the Center for Constitutional Rights, his name was Arthur Kinoy, was a law professor there.
I began to understand a little bit about his philosophy,
and the different take on the Constitution that CCR was going after. Serendipitously, I think it was the spring of 1991, I attended a community forum in New York City, where I’m from. One of the speakers was Bill Kuntsler, another one of the founders of CCR. After hearing him speak, I decided that that’s the place I really wanted to work.
So I applied for a summer internship. I did that in 1992, and it really helped to catapult me towards a career in civil rights and, ultimately, human rights work.
When I graduated from law school, my first job was working as a public defender in the Legal Aid Society in Brooklyn. I did that for five years. I loved the work, but after five years I thought I wanted my lawyering to make a slightly bigger impact. So I left for a year worked in a Federal clerkship for a judge here in Manhattan.
From that clerkship I went to the American Civil Liberties Union, ACLU, at the national office, where I worked on criminal justice and racial justice issues, which were really what I’m about. While I was at the ACLU, I was asked to be on the Board of CCR, which I gladly accepted. Then in 2005 the Executive Director for CCR left. There was a recruitment process, and I ended up getting the job. And so I’ve been here; this will be my tenth year in September.
One thing that I think is kind of key for me is that in 1997, I had an opportunity to go to South Africa to monitor the Truth and Reconciliation Hearings that were going on, after apartheid was over, after Nelson Mandela was President. It was my first foray into the sphere of International Rights. And the combination of working on Constitutional Issues as a Public Defender, having that international experience, and working on larger Constitutional Issues in the United States, I really formulated my world view. It kept me propelled to try to do good work, not just domestically, but also in the international context.
So that’s the short version of my past and how I got here.
Trillions: How do you see the primary role of the Center and how it differs from things like the American Civil Liberties Union and other Human Rights organizations that are also legally-based?
Vincent Warren: We are a legal and advocacy organization, like some of the others. But we’re also much smaller. Significantly smaller than the ACLU or even the NAACP, both in terms of staffing and in terms of budget. What that requires us to do is to make sure that we are moving forward on issues that other organizations generally do not.
Our role in the field is to do two things. One is to fight power, particularly problematic forms of power that end up constituting illegal activities, whether that be from the U.S. government or from international corporations or other actors. And then the second role is to build power. And this ‘build power’ is what separates us from a number of other organizations. What I mean by build power is, our theory of the way the international human rights and domestic constitutional law and civil rights should operate is: that the people who are the most affected by the problems that we’re challenging need to have a very clear concrete leadership role in the type of change that they want to see.
Most lawyers in most legal organizations will approach cases from an issues-based perspective. So the ACLU works on First Amendment cases, Freedom of Speech cases, Freedom of Religion cases, regardless of who is asserting them. The NAACP will work on cases and issues that traditionally have been a challenge for the African-american community in the United States, like voting rights and the death penalty and different things like that.
What our organization does is that we will look for the type of pivotal cases that other organizations are afraid to take on. Because in the legal framework, if you take on a new issue [and do not win your case], you can end up creating bad law for everybody else. And that has a limiting effect on the ability to innovate in legal jurisprudence. But if everybody is afraid to take on the hard case, because if they lose it they make things worse for folks, that means the hard cases don’t get taken on. So our organization’s role is to take on the hard cases, the big cases. Even as a small shop, we try to be very nimble in finding out where these issues are, and [then], in addition to finding the issue, we look to partner with the community or group that is most completely impacted by it, using their voices as part of the solution in the legal and advocacy framework.
Trillions: Your point about the possibility of creating bad law – and precedent – is an important one for our readers to understand more fully, I think. One of the issues that I remember the current Chief Justice, Justice Roberts, saying during his confirmation hear-
ings for the Supreme Court was that there are cases he considers ‘settled law’. Whether he agrees with it or not, whether or not he would have made the same decision doesn’t matter. It’s done, it’s been decided, and it’s over.
So one of the things that the average person in the American public doesn’t understand how powerful that is. When there is a legal precedent that has been decided, even though nine different people might decide differently on the Supreme Court at a future time if it was a brand new item, if it’s already been decided, they won’t look at it again. Am I stating that right? For our readers it might be something good to clarify why it’s so important that you don’t screw it up when you take on one of these big cases.
Vincent Warren: You’re stating it well. Yes, absolutely, the role of precedent in the legal sphere is something that people need to understand. And that, at some level, the Supreme Court is [often] looking for a new issue or going more deeply into an issue that lower courts are split over, with different opinions. They’re looking to provide the last pronouncement on that particular set of legal issues.
[On the issue of precedent], I tend to think that there are circumstances where the court has made a pronouncement as to what the law is. Courts are as susceptible to the turmoil of any particular time as the rest of us are. And so you can look through history and see how courts have determined cases [in the context of the time]. For example, looking at the Japanese internment in World War II, the Supreme Court essentially found that there was no constitutional problem with it. [Yet] you would like to think that if the circumstances arose today, that the court would look at it differently.
So where Justice Roberts and I disagree is that ‘the past is not always the past’. And in fact in a thriving democracy we will –and should – constantly be revisiting issues that we have visited in the past, in light of evolving standards, of evolving culture within the United States, [and] evolving standards of law that we’re developing, so that we don’t ‘double down’ on mistakes that we made in the past and have that be the future that we’re facing. And I think about the Korematsu Case [the Japanese internment case during World War II] as a great example. What I would say there is that we – and this relates to the question of democracy that you’re writing about [in this issue of your magazine] –is that the law should be a demo- cratic touchstone but it shouldn’t be something that pins down how we looked at an issue 50, 60, 100 years ago [and can never look at it again]. Because then that means the law is out of step with evolving democratic principles.
You find these kinds of challenges when you have ideological splits on the court [that are very much tied to the current times]. So if you think about how you think this court would [have dealt] with the issue of gay marriage -- decidedly rightly in my view -- if that case had come up 30 years ago, we might have had a different decision.
So the law that CCR is here to do is to narrow the gap between what the law says and what justice actually means. It can be a very controversial decision in the field of law, but it’s one of those things where we look ahead 50 to 100 years and say, what are the things that we’re doing now that seem to fit within a societal and constitutional framework that says, these things are okay, but when we look at them 100 years from now we’ll say, we cannot believe that we ever did anything like that.
Amongst those things I see [from the past where decisions have been made involve] things like slavery, things like segregation, things like women not being allowed to vote, things like Japanese internment, gay marriage. Those are things that, looking at the long view, we don’t want to live in a society where the law ends up limiting rights – democratic rights – and constitutional rights of people who are minorities in the democratic context in terms of not being full players in our society. So it’s a constantly evolving scenario.
In terms of how we move into those spaces at CCR, there are a couple of examples that other folks wouldn’t take on that are worth taking on, such as when we filed the first cases involving the first men who were sent to Guantanamo. At the time, the dominant narrative was that these men were the worst of the worst, and that we get to suspend virtually all of our constitutional principles in order to keep them outside of the law, because the law was only going to screw it up. Over the last 15 years, of course, we’ve been able to show that the vast majority of the men that were brought to Guantanamo were far from being the worst of the worst. A lot of them were totally innocent. [We also were able to demonstrate] that having judicial review of the men in Guantanamo was not actually a threat to national security. [Not having] it was actually a larger threat to our democratic and constitutional rights.
So that’s an example where no one wanted to represent those men, and we had to go it alone.
Other examples, not so stark, would be challenging the ‘stop and frisk’ program here in New York City, against the New York City police department. While it was far from the first racial profiling case and the ACLU had been doing it for a long time, [we picked the case in part because] the New York City police department is the largest police department, I believe, in the world, with 35,000 people. The idea was that that battle needed to be fought in New York City, because a change in New York City policy would have a ripple effect around the country. And we were able to, after a nine-week trial, get a judicial finding that the New York City police department practice of ‘stop and frisk’ was unconstitutional. It did have that ripple effect, and deterred other police departments around the country from using race as the dominant factor in terms of determining whether to ‘stop and frisk’.
And then I guess lastly, another more recently example is in the challenge to solitary confinement in Cali- fornia. California had the most people in solitary confinement of any state in the country. In 1985, there had been a lawsuit that was moderately successful, but didn’t answer the question of long-term solitary confinement and what we do about people who had been in solitary for ten to twenty years, 23 hours a day on lockdown with no human contact. So looking at it, we decided to move into that space because California had the largest program. People had been in solitary for decades. It was time for the courts to look again at that practice, which we defined as torture – and which medical professionals [also] define as torture. So you ask the question, is this how we should be treating the people we are incarcerating? Of course the answer to that from our view is ‘no’. The state of California agreed, but they wouldn’t have agreed unless we had entertained to take on that lawsuit. Solitary confinement cell. Photo: Dan Lee / Shutterstock.com
Trillions: Those are excellent examples of what you do, what’s different and where it touches on areas no one else would typically touch. Guantanamo at the time that you were involved in it was one where
I think the majority of the American public was probably scratching their heads and saying, ‘Why are you wasting your time with these horrible people?’. Yet at the same time nobody had given them a chance to defend their right on any issue. The ‘innocent until proven guilty’ thing was standing on its head at least from a public standpoint, and was effective operating as ‘guilty until proven innocent’. With us as an American public saying, ‘Oh, and by the way we’ll leave you in Guantanamo until we figure it out.’
But one of the things that does come to mind about what you are doing in such things is something that used to be in the press more a few years ago than recently, but it’s still present. It’s the refrain of, ‘That may have been an important decision, but the courts really shouldn’t be in the position of ‘making law’, right? They should only be interpreting law.’ How do you respond to that? Because the nature of the decisions you are looking towards effectively at least redirect the law, or they clarify the law in a new way. But for some it’s as if they’ve actually changed the law.
Vincent Warren: Yes, that’s a big refrain. And I do agree that Congress and not the Courts should be in the business of making law. But there are circumstances – and these come up particularly around times of great strife and turmoil – where there are times when one branch of government decides that they’re going to overstep their boundaries. In the last 15 years, and certainly since George Bush’s Presidency, we’ve seen the Executive Branch overstepping their constitutional authority, in order to address the post-9/11 terrorism phenomenon. And I think, generally speaking, I think citizens – people – are inclined to give the Executive the benefit of the doubt and some leeway, if they feel that it makes them safer.
So at some level what that means is that we figure out our ‘balance of powers’ in favor of the Executive in times of war and in times of fear. And if we look back, even in the United States, going back to the Vietnam war, we would be hard-pressed to find a time where the Executive Branch was not identifying some external threat to the United States, against which it sought to increase its power. So you can go back to the Afghanistan war, the Iraq war, you can go back to Vietnam, [and you see the same thing]. [Today] we look at this under a terrorism framework. [But all] of these have been opportunities to expand Executive Power.
When that happens, the Legislative Branch will very often defer to the Executive Branch, [especially] dur- ing times of war and great fear. And very often the Courts will [also] defer to the Executive Branch. So the question isn’t so much whether the courts are making new law. The question is really whether the Courts are holding the Executive Branch inside the constitutional box that the Constitution created.
Alternatively, we will see now, when we think about the terrible shooting in Orlando, the shooting in San Bernardino, things like that, we’ll see there are times when the Legislative Branch – well, they won’t [ever] exceed their authority because they can make whatever laws they want – but they will very often move into creating legislation that responds to the question of the day but will [also] contravene the Constitution. In those moments, we need the judiciary to review these laws that are coming out of Congress to determine whether they comply with the Constitution or not.
So I would say, in answer to your question, that, I think if you look back throughout – certainly over the last 50 years – we’ve seen more that the Executive Branch and the Legislative Branch have sought to move into the space of leadership, sometimes at the expense of the Constitutional analysis, and that the Courts are one of the key bodies that are supposed to keep everybody in the Constitutional box. It’s a difficult role for the Courts, and sometimes I think that people will interpret that role that the Courts have as ‘making law’, particularly if they disagree with the Court’s analysis.
Going back beyond to the 1960s and the Warren Court, there’s a narrative about how the Warren Court was an activist Court that made all these rules and laws that were not specifically written down in the Constitution. In the 1970s you can make the same argument about the Rehnquist Court. But ultimately what the Courts were doing was, they were ‘sussing out’ in that period, what were the fundamental democratic due process issues that were being applied during those periods of strife. So in the late 1960s, a lot of the issues were criminal justice issues and that’s when the Fifth Amendment rule against self-incrimination became a national imperative. That’s where the Fourth Amendment rule against unlawful searches and seizures became key. That’s where in the 1970s, there was a real discussion about the death penalty as ‘cruel and unusual punishment’.
And so it’s our view – and my view – that Courts should not sit actively by and pretend that the world isn’t changing. What they need to do is they need to engage in facts, and also the impact on the communi-
ties that are subject to some of these unjust rules and unjust procedures, and to ameliorate them. Otherwise, we have a legal framework that is separate from what we might consider justice. And that’s one of the biggest threats that we have.
Trillions: And there’s also the paradox that another role for the Courts is also to remind us that, when we do get under stress as a nation, sometimes we begin leaning toward giving up some of our rights, because – as you said before – we think it makes us safer. But actually it is at those times when it may be most critical for the courts to put their feet down and say, ‘No, that’s not what the Constitution is all about’. In fact, when things are at their toughest is when you need to make sure you know what your values are and what the fundamental rights are that this country was built on.
Vincent Warren: Exactly. I would follow up by saying that, what we do at the Center is we try to take a more visionary approach, to be attendant to the values that underlie our democracy. We do that at those times of great peril, with the understanding that [some of what we do] will be very unpopular, with the understanding that we as an organization may receive death threats, after Guantanamo and some of the other cases. But [we need to do this] also understanding that, with the benefit of hindsight, our job is to make sure that the Constitution and the Constitutional protections remain as strong and robust as possible. Because we will all down the road rue the day that we watered down our democratic rights in one context. Because there will be another context down the road in which we will really need them. And they won’t be there unless we’re vigilant about it.
Trillions: That very point leads to one of my last questions. A lot of people worry about the state of democracy these days, especially after the last 16 years, as you had said it, as the Executive Branch has expanded its authority in a lot of the things it does. As time has passed and rights seem being challenged everywhere, people wonder, is the Constitution fundamentally flawed, is democracy something that has a fault line running through it that is eventually going to give and destroy everything? What do you see as the state of democracy in the United States these days?
Vincent Warren: I see where we are now as a pivotal point in determining whether we want to adhere to the values that we had at the time when those values don’t seem to be as expedient as we might need them to be. What I see as some of the trouble spots are particularly over the last 16 years, because the level of fear was so high. Quite honestly, I think that both the Executive Branch and the Legislative Branch stoke and foment a lot of that fear. But because that fear exists, the tendency is for people to sacrifice their core democratic rights in order to feel safer. That’s what I’m seeing.
But what I’m encouraged by is, there is still a lively debate in our society about the very question that you raised. Which is, if there is a fault line in our democracy, what might that be? And how have we navigated those faults over the last 250 years in this country? Have we come to the right decision all of the time? Can we believe that we can come to the right decision as we begin to move forward?
I see no fundamental challenge when adhering to our democratic values in this time as we’re moving forward. The challenge that I do see is that, in the emotions of the day, people don’t always see how those fundamental values actually support whatever political views they happen to have at the moment. Even when those political views are things that try to damage our democracy. They’re really two sides of that framework. Because of the democratic values and principles that we have, it allows people to either further try to diminish the democratic principles, or it allows people to further enhance them.
And that is the nature of the debate that’s happening. And we shouldn’t pretend that it’s happening outside of the context of those core democratic values to begin with. So for example whether you are a Trump supporter or a Hillary Clinton supporter, or whether you believe in either one of the policies that they’re moving forward on their platforms, what supports our ability to push for one or the other is that it’s a democratically safe space for us to move forward in either direction. And that’s what gives me confidence.
Our job at CCR is to maintain the buoyancy of that fundamental democratic platform, so that we can continue to have these kinds of debates. Further to that, our job is to challenge the Courts out of complacency, challenge them into looking in a visionary way about some of the issues that we’re confronting today, and preserve those democratic values and principles for the next generation.
Suffragette putting up posters for the right to vote. 1910-1915