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Michael Tigar joined AUWCL in 1998 as a professor of law. He later founded the UNROW Human Rights Impact Litigation Clinic, a student litigation and advocacy project that develops and advances human rights litigation by training students in a manner unlike the typical law school clinical program.  UNROW’s students propose and prepare new cases, determine litigation strategy, draft motions, argue in court, and travel internationally, if necessary, to support their clients and cases. UNROW Clinic members have had a multitude of litigation experience both internationally and in U.S. federal courts, where students advocate for indigent individuals and vulnerable communities. Giving both practical and academic experience, UNROW prepares students for advocacy positions in a variety of settings from international tribunals to academia, and top tier law firms.

On February 15, 2017, Professor Tigar spoke at an AUWCL event on the current political climate, suggesting ways the legal community can defy societal stereotypes, biases, and prejudice by “Resisting Trumpism.” Following his presentation on the ways lawyers can win the battle against “stereotype thinking,” two members of the Human Rights Brief had the opportunity to interview Professor Tigar.  The following is a brief synopsis of his presentation and interview:

Professor Tigar began his presentation by framing the current human rights climate. Those in the field acknowledge that human rights advocates are currently facing increasing challenges. Professor Tigar acknowledged this dilemma and presented the audience with three potential methods of combatting increasingly prevalent issues of discrimination and prejudice. When presented with the question of how the legal community can confront these injustices, Professor Tigar advised the audience to look to the past for guidance.

There are multiple approaches to combat the current divisive climate, however, not all of these approached lead to actual change. Lawyers could choose to stay up to date on the news, absorbing the inherent negativity in current discourse. However, this method leads to burn out before creating meaningful impact. On the other hand, advocates could also shut out all of the bad news and lock themselves away, pretending none of the atrocities are occurring. Professor Tigar compared this second approach to that of the Spanish during the 1930’s Revolution. To keep out the negativity, Spaniards literally shut their doors to the chaos. While this approach may be less strenuous, it will not create meaningful change. Progress will only come from an active fight in which lawyers, as zealous advocates, resist stereotype thinking every day. Lawyers have the training, experience, and ambition necessary to fight this battle. Therefore lawyers must realize that they actually “had the power all along.” Professor Tigar argues that members of the legal community, advocating on behalf of those oppressed, can transform the present-day culture to emphasize equality and justice over hate and oppression. Lawyers are well equipped to expose these biases. Ultimately, the rhetoric of Trumpism is narrow-minded and will only lead to further division in American society.

There are three main ways legal advocates can confront society’s prejudice, according to Professor Tigar. First, we must debunk the mythologies surrounding those on the receiving end of discrimination. We must deconstruct and dismantle these biases by picking them apart for others and explaining why crucial parts of the stereotyping thought process are untrue and irrational. Professor Tigar quotes the book, Mythologies, by Roland Barthes: “Law is not what it says, but what it does.”  He elaborated by discussing past examples in which lawyers were able to deconstruct myths surrounding their clients by changing the overarching narrative. Professor Tigar specifically mentioned Sweat v. Painter, a case that addressed racial segregation in the United States.  In that case, the lawyers advocated on behalf of their clients, but also informed the public about the realities these men faced. Ultimately, they used clients’ personal stories to dismantle bias and shed light on their experiences.

Secondly, clients must take priority. “It is not about you, but about the clients,” explained Professor Tigar. Lawyers exist to protect victims of injustice, specifically those who are ostracized because of an immutable characteristic. Leading the fight against social injustice are those who are impatient with the status quo, and refuse to allow prejudice to prevail. Lawyers must be conscious of the conflicting desires between serving one’s ego and listening to the client.  Always remember that the client comes first, Professor Tigar emphasized.

Thirdly, lawyers must remember that we have the tools to fight and “unmask everyday biases.” Law school, legal training, and life experiences all provide lawyers with an understanding of what it takes to deconstruct an argument and change a person’s way of thinking.  We must employ this strategy in our daily routines. When a group of people want to change a society, they must start with small changes and build upon successes. As advocates, lawyers must remember history and look to what has succeeded in the past. Challenges that may seem daunting can be conquered in small pieces. As Nelson Mandela famously stated, “it always seems impossible until it’s done.”

Q: How was UNROW founded?

A: I’ve always thought law students are a great addition to complex litigation. In the Angela Davis case, the first draft(s) of the Motion(s) to Dismiss were written by law students. I was appointed to Nichols’ case and then recruited law students to help.

So I thought, why can’t law students do important litigation? There are student-practice rules in the district court, appeals court, and other tribunals, so we can make this work. The first thought was how to pay for it. Sending people around the world to do impact litigation is expensive. There was a large settlement against the tobacco industry in Texas – over a billion dollars. The Bush Administration was trying to bar attorneys from receiving their legal fees. My wife and I represented the different attorneys who, in all, had spent over fifty million dollars litigating this case. It became clear to us that these attorneys were in positions to receive bonuses and they offered millions of dollars to us. My wife and I requested that the money be used to set up an endowment in AUWCL and a law school in Texas to support impact litigation clinics. The income from the endowments would then be used to fund the litigation. The independent committee would consist of three members of clinical faculty, myself, and my wife. We wanted the money to go only toward litigation and meaningful work for students, so it could be a good experience. UNROW has proven a successful program. This was – and is – about meaningful student participation. Many of whom have gone to do amazing things in their careers.

Q: What roles have WCL students played in the past?

A: Brittany Benowitz, who now works with the ABA, presented an oral argument in District Court and said, “Good morning your honor. I’m Brittany Benowitz a law student…”  The judge interrupted her there to say, “Not anymore you’re not. You’re the lawyer.”

Q: How did you and UNROW become involved in litigation on behalf of General Rene Schneider, filing a Petition with Inter-American Commission on Human Rights?

A: Everyone knew the kidnapping had been staged. We saw a program on “60 Minutes” featuring the Ambassador to Chile, Edward Korry. Amb. Korry said he had information concerning General Schneider’s kidnapping and death. The CIA at Amb. Korry’s own embassy had been involved. He went to Washington, D.C. to try and tell the government to stop what was going on. He essentially communicated, “I don’t like Allende but you people are seriously off the rails.”

Q: How did UNROW prepare for the litigation on behalf of General Schneider’s family before the Inter-American Commission?

A: Amb. Korry had terminal cancer. Two students and I went to the Ambassador’s home and got his statement on the CIA’s involvement in the kidnapping of General Schneider. We now had the statement of someone who had been in the Administration.

Our first objective was to stay close to the cable traffic as it started to be declassified.   These cables would be admissible in litigation, as reports of public officials, under Federal Rule of Evidence 803.  Our second objective was to draft a complaint. I believe in drafting a complaint that says ‘we’re ready for you.’ That is, the complaint should tell the story, and with enough detail to make clear that we are ready to make our case.  We knew about the potential issue of qualified government immunity, but thought that the legal rule would overcome it. The political question doctrine might be invoked, but it seemed to us that this case involved matters within judicial competence.  This was a killing by way of a kidnapping, which sounded to me like felony murder. This was a death, nothing beyond the reach of the judiciary. Felony Murder: death is foreseeable when a number of armed militants enter a place and death results. We also had the precedent of the Letelier case.  In that case, Chile would not admit having directed the assassination of Orlando Letelier and Ronni Moffitt, but it claimed that regardless, it was a discretionary act for which they could not be held accountable. Judge Joyce Hens Green, of the United States District Court, District of Columbia, rejected this assertion, “You have the discretion to come into another country and kill somebody? No!” So we thought that this precedent might overcome an argument based on the political question doctrine.  However we did not win the litigation.  We did bring to light the issues and lay the basis for further litigation in other cases. One must remember that the IACHR does not take every case presented to it, so a rejection in one case should not deter us from bringing other cases.

Q: What was the final decision from IACHR on the Schneider Case?

A: No decision yet. Sometimes the system is slow. The IACHR wants to be right when it rules and it wants to be relevant. The times have changed. When it comes to international law, the challenge used to be whether it existed at all. For instance, the British almost backed out of the European Convention on Human Rights because they didn’t like the ECHR ruling holding that the UK had acted unlawfully in torturing prisoners in Northern Ireland. Human rights tribunals in various parts of the world are finding their way to legitimacy and acceptance.

I see this process of human rights advocacy as part of this broader question: “what do you think of international law? Is there such a thing?” And the answer is, yes, but only if there are ways in which the norms can be enforced. In the United States, the Supreme Court’s decision in Paquete Habana held that customary international law is part of federal common law and therefore part of the “constitution, laws and treaties” that federal courts can and must interpret and apply. To be sure, in the 19th Century, the Supreme Court sometimes took a backward-looking view of international law that, for example, upheld the slave trade because some nation-states still engaged in it.  This view, seen most clearly in Chief Justice Marshall’s opinion in The Antelope, made international law a kind of race to the bottom – if any nation was doing a terrible thing, how could it be unlawful.  I have written in detail about this history in the second edition of Law and the Rise of Capitalism.  But as human rights lawyers, we must learn how to define and present international law claims in U.S. courts.

Q: What does the future of U.S. cooperation with international law look like?

A: It’s too early to tell. We have reason to be pessimistic, because of Trump’s early actions and pronouncements.  On the other hand, these actions have spurred protests all across the country and abroad.  Even the intelligence community is pushing back.  Ultimately, the battle for human rights will be waged by popular movements who demand adherence to basic norms.  Lawyers and tribunals have a role to play, but progress in this area depends on these movements for change.  This is what I was saying in my talk today:  it’s all about people, not about the lawyers.

Q: What do you think about the future of immigration from Mexico?

A: Immigration from Mexico is a long-standing issue. Building a wall or border has been a topic of discussion for as long as I can remember. Mexico needs to hire lawyers and push back. Prejudiced constituencies are pushing for the wall to be built, but the job of the lawyer is to bring the human aspect into focus. It is a human issue. When the story becomes a human story, then you have a shot to prevail. The issue of immigration involves the lives and well-being of millions of people, millions of human stories.

Q: Regarding lawyers’ efforts to combat present-day prejudices and biases, will strong litigation prevail over the political agenda?

A: Making litigation the centerpiece of the struggle against injustice puts the matter upside-down.  We the lawyers are responsible for hearing, understanding and expressing demands for justice.  We don’t want to “prevail over the political agenda.”  We want to make respect for human rights into the political agenda for social change.  Lawyers have an important role to play, and they must be persistent and courageous, but they must hear and express their clients’ concerns.  Our best chance of winning is to expose the mythologies that lie behind injustice, and to get the court to say, “I can’t ignore that fact” or “This state practice is based on a false view of issues, events and consequences.”  In my talk today, I gave some examples of just that kind of judicial response, based on lawyers exposing the falsehoods that were used to justify injustice.  In my blog, tigarbytes.blogspot.com, I have been doing many posts on this topic.

Biography: Michael Tigar is emeritus professor of law at American University Washington College of Law (“AUWCL”) and founder of the UNROW Human Rights Impact Litigation Clinic. He is also emeritus professor of law at Duke Law School.  He holds expertise in Constitutional Law; the Supreme Court; the French legal system; criminal law and procedure; and human rights. One of the most renowned lawyers in the country today, he has argued seven cases before the U.S. Supreme Court and more than 100 appellate cases. He is also known for representing Terry Nichols in the Oklahoma City bombing trial and training black South African lawyers during the Apartheid regime.

Tigar has written extensively about litigation, trial practice, criminal law, the death penalty, and the role of the criminal defense lawyer. His books include Fighting Injustice (ABA, 2002); Law the the Rise of Capitalism, Federal Appeals: Jurisdiction and Practice; and Examining Witnesses. Throughout his career, Tigar has been active in pro bono cases, the American Bar Association, continuing legal education programs, and international human rights. Prior to joining AUWCL, Tigar served as a professor at the University of Texas Law School.