118th Commencement Address to American University Washington College of Law

Mr. Aryeh Neier

May 23, 2004

A few days ago, America marked the 50th anniversary of one of the great events in our history: the unanimous decision of the United States Supreme Court in Brown v. Board of Education. Yet, in the press accounts I read and heard about that anniversary, one of its most important elements was barely noted. There was little mention of the foreign policy considerations that were at stake in the case or on the impact of the Supreme Court's decision on the role of the United States in world affairs. As we are again at a moment in American history when it seems to me that there is a close connection between domestic policy - and what the United States Supreme Court will do in a matter of domestic policy - and America's role in the world, I think this is a god occasion to recall the connection that was made in the Brown case.

In 1952, when the U.S. Supreme Court accepted the Brown case for review, the Truman Administration was still in office. President Harry Truman had ordered desegregation of the armed forces in 1948, but could do nothing on his own about the schools. Congress could have exercised its powers under the Fourteenth Amendment, but, in that era, it was dominated by southern segregationists who would not act. The schools were controlled by the states, financed by state and local tax revenues and so the executive branch of the federal government lacked the ability to exercise influence by placing conditions on the use of funds. Accordingly, the Truman Administration turned to the Supreme Court for relief. Over a period of a few years in cases leading up to Brown, the Truman Administration filed briefs informing the Supreme Court of the international consequences of racial segregation in the United States.

In December 1952, U.S. Attorney General James P. McGranery filed a friend-of-the-court brief with the U.S. Supreme Court in the Brown case telling the Court of the Truman Administration's urgent foreign policy interest in ending segregation. At the time, the United States was engaged in an intense Cold War competition with the Soviet Union for the loyalty and friendship of nations in Asia with non-white populations that had newly become independent and nations in Africa that were about to become independent. In that competition, the Soviet Union was successfully exploiting racial segregation in the United States to win allies. Accordingly, of the seven pages of the Truman Administration brief that stated, "the interest of the United States," five were devoted to an account of the way school segregation handicapped the United States in its competition with the Soviet Union. "It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed," the Justice Department brief said. "The United States is trying to prove to the people of the world of every nationality, race and color, that a free democracy is the most civilized and most security government yet devised by man.... The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills." This was followed by a long excerpt from a letter by Secretary of State Dean Acheson that was described in the brief as, "an authoritative statement of the effects of racial discrimination in the United States upon the conduct of foreign relations."

This city, Washington, D.C., had a special role in the Brown case. When the Court agreed to consider Brown and three other cases challenging state-enforced segregation, a case challenging segregation in Washington, D.C. was pending in the lower courts but had not yet been decided by the Circuit Court of Appeals. In an extraordinary move, the Supreme Court reached down on its own initiative and placed the case on its own docket so that the Washington, D.C. case could be argued and decided together with the challenge to segregation in schools operated by the states. "This city," the U.S. Attorney General told the court in the government�s brief, "is the window through which the world looks at our house. The embassies, legations, and representatives of all nations are here." James M. Nabrit, Jr., the attorney who represented the African-American school children of Washington, D.C., made the same point in his oral argument. "Here," he said, "we are dealing with the capital of the free world."

On May 18, 1954, the day after Brown was decided, The New York Times commented editorially that, "When some hostile propagandist rises in Moscow or Peiping to accuse us of being a clas society, we can, if we wish, recite the courageous words of yesterday's opinion." The same day, The Washington Post and Times Herald as it was then called said, "It will help us to refurbish American prestige in a world which looks to this land for moral inspiration." The San Francisco Chronicle was more explicit, saying, "Great as the impact will be on the states of the South, still greater, we believe, will be its impact in South America, Africa and Asia, to this country's lasting honor and benefit." And The Minneapolis Tribune, in a statement repeated in substance in the editorial of many other newspapers, wrote that, "The words of Chief Justice Warren will echo far beyond our borders and may greatly influence our relations with dark-skinned peoples." The St. Louis Post Dispatch thought the impact of the decision on American foreign policy would be more important than at home. Its editorial said, "The greater significance is the affirmation in the eyes of millions of people in India, Pakistan and Africa, in China, Japan and Burma, in Indo-China, Thailand and Indonesia that the pledge in the United States of the worth and integrity of the humblest individual means exactly what it says. Had this decision gone the other way, the loss to the free world in its struggle against Communist encroachment would have been incalculable." African-American leaders saw it the same way. Congressman Adam Clayton Powell spoke for many when he called the Brown decision "communism's worst defeat" and "democracy's shining hour."

In our time, President George W. Bush has proclaimed that the way to win the war against terror is to promote democracy and freedom in the Middle East. As is evident from the way things are going in Iraq, this is a tall order. The task will be all the more difficult if the United States lacks credibility as a champion of freedom. Yet, even before the recent scandal over the abuse of Iraqi prisoners, our government did not seem to understand the connection between domestic policy and foreign policy that was clear to the Truman Administration half a century ago. All around the world, our long-term detention of several hundred persons at Guantanamo without trial, charges, access to counsel or to members of their families, in a legal black hole, is seen as American abandonment of our traditional respect for civil liberties. Guantanamo looms especially large in the Middle East because it is exploited there by those who oppose our policies as an example of America's unwillingness to recognize that Muslims also have rights. Guantanamo, and the attitude towards rights that it symbolizes, deprives us of credibility as a proponent of democracy and freedom in a region where the President has told us that we must succeed in promoting those goals if we are to win the war against terror.

As you know, the United States Supreme Court now has before it the Guantanamo case, and two other cases in which American citizens have been designated by the President as enemy combatants without any opportunity to challenge that designation in an independent forum. Unfortunately, the posture of the Justice Department in these cases is diametrically opposite to that of the Justice Department in the Brown case. But, perhaps the Court on its own will give some thought not only to the consequences of its decisions for civil liberties at home, but also to their impact on America's role in the world.

The Washington College of Law of American University has been in the forefront among American law schools that have integrated the study of human rights internationally into a curriculum that prepares its graduates for the practice of law in the United States. The administration and faculty of this school, like the Truman Administration half a century ago, has understood the connection. As you, the graduates, take up your professional responsibilities - whether in private practice, government service, in the academy or in the service of a non-profit organization - I trust that your own work will reflect what I take to be the philosophy of this institution: that is, that fidelity to American values at home, and commitment to the promotion of those values throughout the world, go hand in hand. The need to recognize that connection may be as important today as it was during the early years of the Cold War when the United States Supreme Court decided Brown v. Board of Education.