Michael Steven Smith is an attorney, a former board member at the Center for Constitutional Rights, and the cohost of the nationally broadcast radio show Law and Disorder. He is the co-author, with Michael Ratner, of Who Killed Che?

From the Introduction

What Is Law?

Though the challenges leftist lawyers face today are great, they are not unprecedented. And we can learn much from radical lawyers of the past. Martin Luther King's courageous attorney William Kunstler and Federal District Judge Jack Weinstein both received awards from the New York State Association of Criminal Defense Attorneys in 1994. But each had a very different view of the law. In his acceptance speech, Kunstler said that he thought Judge Weinstein believed that law was "that considered response of a civilized society to the problem of reaching a reasoned conclusion to disputes between the state and its citizens and among the latter themselves. Whatever its shortcomings, they are patently aberrational and remediable". Kunstler believed this was the liberal's view of the law.

Kunstler's own view was different. He said that the law, "in fundamental essence, is nothing more than a method of control created by a socio-economic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible". When asked about democratic rights, Kunstler's friend, the late and deeply respected attorney Leonard Weinglass, said he did not believe, ultimately, that capitalism and democracy were compatible. We are seeing the consequences of this contradiction unfold at an accelerated pace.

Lawyers for the Left take an activist and oppositional, albeit auxiliary, role. We recognize that great movements of the people "from below" are fundamental to social change. And the need to protect our democratic right to speak out, educate, organize, associate, and demonstrate is more crucial than ever, as the Bill of Rights is increasingly threatened. We use our legal training to carve out a space for, defend the legitimacy of, and give legal expression to the fundamentally political movements for social transformation. On a more mundane level, we provide legal services and hence some possibility of justice to individuals who would otherwise have to suffer.

What Can We Learn from Left Lawyers of the '40s and '60s?

Opposition to the rightist insurgency in the United States is growing, as is support for Socialist organizations and ideas. Recent polls find that nearly half of Americans have a favorable view of Socialism. Bernie Sanders would have likely won the presidency had he not been thwarted by Hillary Clinton’s pro-corporate forces in the Democratic Party. The election of Socialists Kshama Sawant in Seattle and Alexandria Ocasio-Cortez in Queens and the Bronx demonstrate the popularity of Socialist proposals for health care, housing, education, employment, and women’s, immigrants’, and LGBTQ rights. As Glen Ford, the editor of Black Agenda Report, has written, “The central reality of late-stage capitalism [is its] inability to offer the people anything but widening wars and deepening austerity.” As a consequence, radical consciousness is growing in our country. Socialism is no longer a dirty word.

We know from our experience in the ’60s that the government, through the FBI and other intelligence agencies, acts as a secret political police force that will try to destroy any Black, Socialist, or radical organization threatening those who benefit from the socio-economic system about which Kunstler spoke. The FBI recently revealed that it was spying on and likely attempting to disrupt and destroy those whom it labeled “Black Identity Extremists,” that is, Black people who organized to oppose systematic police abuse in their communities.

In 1971, the Socialist Workers Party (SWP), represented by Leonard Boudin, an attorney profiled below, brought a lawsuit against the government’s secret political police, including the FBI and CIA, for the government’s massive, systematic violation of its members’ Constitutional rights. I was a member of that organization and attended much of the trial, reporting on it for several magazines. At stake was nothing less than the right to advocate Socialist ideas and put them into practice. The government claimed it had the right to spy on, harass, blacklist, and deport those whose political views it disapproved of, even if those political activities were completely legal and protected by the Constitution and/or the Bill of Rights.

The FBI launched its COINTELPRO (COunter INTELligence PROgram) operation against the SWP in 1961. The party sued the FBI, enlisted wide support, and after fifteen years of litigation, several appeals, and a trial, it accomplished something unprecedented in American history. It won the first citizens’ case against FBI spying and disruption. What was the extent of the victory? The FBI’s stated aim in the operation was revealed: to “expose, disrupt, and otherwise neutralize the activities” of groups it perceived to be a threat to the established order.

The methods it used to harass and suppress the SWP—which will surely continue to be used against organizations as the struggle heats up—included physical and electronic surveillance, burglaries, poison pen letters, trash covers, mail covers, manipulation of the media, deportation of non-citizens, and surprise “visits” to members’ relatives, employers, and landlords. From 1960 to 1976, the FBI paid its informers and agents $1.6 million. Fully three hundred informers infiltrated the SWP—a relatively small organization—alone. Altogether thirteen hundred agents were deployed. The government maintained that even if the Socialist group did nothing illegal, the government “has the right to keep itself informed of the activities of groups that openly advocate revolutionary change in the structure and leadership of the government of the United States, even if such advocacy might be within the letter of the law.”

The case remains extraordinarily important today. It protects the right to legally advocate Socialism as crucial to countering capitalism’s threat—both nuclear and ecocidal—to life on the planet. The case affirms that any attempt by the FBI to destroy Socialists and their organizations is illegal. Boudin wrote, “This lawsuit represented the first wholesale attack upon the entire hierarchy of so-called intelligence agencies that had attempted to infiltrate and destroy a lawful political party.”

Further, “For the first time a court had to really examine the FBI’s intrusions into the political system of our nation and, in unmistakable language, has condemned the FBI activity as patently unconstitutional and without statutory authority or regulatory authority. The decision stands as a vindication of the First and Fourth Amendment rights not only of the SWP, but of all political organizations and activists in the country to be free of government spying and harassment.”

Michael Steven Smith is an attorney, a former board member at the Center for Constitutional Rights, and the cohost of the nationally broadcast radio show Law and Disorder. He is the co-author, with Michael Ratner, of Who Killed Che?

From the Introduction

What Is Law?

Though the challenges leftist lawyers face today are great, they are not unprecedented. And we can learn much from radical lawyers of the past. Martin Luther King's courageous attorney William Kunstler and Federal District Judge Jack Weinstein both received awards from the New York State Association of Criminal Defense Attorneys in 1994. But each had a very different view of the law. In his acceptance speech, Kunstler said that he thought Judge Weinstein believed that law was "that considered response of a civilized society to the problem of reaching a reasoned conclusion to disputes between the state and its citizens and among the latter themselves. Whatever its shortcomings, they are patently aberrational and remediable". Kunstler believed this was the liberal's view of the law.

Kunstler's own view was different. He said that the law, "in fundamental essence, is nothing more than a method of control created by a socio-economic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible". When asked about democratic rights, Kunstler's friend, the late and deeply respected attorney Leonard Weinglass, said he did not believe, ultimately, that capitalism and democracy were compatible. We are seeing the consequences of this contradiction unfold at an accelerated pace.

Lawyers for the Left take an activist and oppositional, albeit auxiliary, role. We recognize that great movements of the people "from below" are fundamental to social change. And the need to protect our democratic right to speak out, educate, organize, associate, and demonstrate is more crucial than ever, as the Bill of Rights is increasingly threatened. We use our legal training to carve out a space for, defend the legitimacy of, and give legal expression to the fundamentally political movements for social transformation. On a more mundane level, we provide legal services and hence some possibility of justice to individuals who would otherwise have to suffer.

What Can We Learn from Left Lawyers of the '40s and '60s?

Opposition to the rightist insurgency in the United States is growing, as is support for Socialist organizations and ideas. Recent polls find that nearly half of Americans have a favorable view of Socialism. Bernie Sanders would have likely won the presidency had he not been thwarted by Hillary Clinton’s pro-corporate forces in the Democratic Party. The election of Socialists Kshama Sawant in Seattle and Alexandria Ocasio-Cortez in Queens and the Bronx demonstrate the popularity of Socialist proposals for health care, housing, education, employment, and women’s, immigrants’, and LGBTQ rights. As Glen Ford, the editor of Black Agenda Report, has written, “The central reality of late-stage capitalism [is its] inability to offer the people anything but widening wars and deepening austerity.” As a consequence, radical consciousness is growing in our country. Socialism is no longer a dirty word.

We know from our experience in the ’60s that the government, through the FBI and other intelligence agencies, acts as a secret political police force that will try to destroy any Black, Socialist, or radical organization threatening those who benefit from the socio-economic system about which Kunstler spoke. The FBI recently revealed that it was spying on and likely attempting to disrupt and destroy those whom it labeled “Black Identity Extremists,” that is, Black people who organized to oppose systematic police abuse in their communities.

In 1971, the Socialist Workers Party (SWP), represented by Leonard Boudin, an attorney profiled below, brought a lawsuit against the government’s secret political police, including the FBI and CIA, for the government’s massive, systematic violation of its members’ Constitutional rights. I was a member of that organization and attended much of the trial, reporting on it for several magazines. At stake was nothing less than the right to advocate Socialist ideas and put them into practice. The government claimed it had the right to spy on, harass, blacklist, and deport those whose political views it disapproved of, even if those political activities were completely legal and protected by the Constitution and/or the Bill of Rights.

The FBI launched its COINTELPRO (COunter INTELligence PROgram) operation against the SWP in 1961. The party sued the FBI, enlisted wide support, and after fifteen years of litigation, several appeals, and a trial, it accomplished something unprecedented in American history. It won the first citizens’ case against FBI spying and disruption. What was the extent of the victory? The FBI’s stated aim in the operation was revealed: to “expose, disrupt, and otherwise neutralize the activities” of groups it perceived to be a threat to the established order.

The methods it used to harass and suppress the SWP—which will surely continue to be used against organizations as the struggle heats up—included physical and electronic surveillance, burglaries, poison pen letters, trash covers, mail covers, manipulation of the media, deportation of non-citizens, and surprise “visits” to members’ relatives, employers, and landlords. From 1960 to 1976, the FBI paid its informers and agents $1.6 million. Fully three hundred informers infiltrated the SWP—a relatively small organization—alone. Altogether thirteen hundred agents were deployed. The government maintained that even if the Socialist group did nothing illegal, the government “has the right to keep itself informed of the activities of groups that openly advocate revolutionary change in the structure and leadership of the government of the United States, even if such advocacy might be within the letter of the law.”

The case remains extraordinarily important today. It protects the right to legally advocate Socialism as crucial to countering capitalism’s threat—both nuclear and ecocidal—to life on the planet. The case affirms that any attempt by the FBI to destroy Socialists and their organizations is illegal. Boudin wrote, “This lawsuit represented the first wholesale attack upon the entire hierarchy of so-called intelligence agencies that had attempted to infiltrate and destroy a lawful political party.”

Further, “For the first time a court had to really examine the FBI’s intrusions into the political system of our nation and, in unmistakable language, has condemned the FBI activity as patently unconstitutional and without statutory authority or regulatory authority. The decision stands as a vindication of the First and Fourth Amendment rights not only of the SWP, but of all political organizations and activists in the country to be free of government spying and harassment.”