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Munyonzwe Hamalengwa Barrister and Solicitor > Law Times
● Justice Delayed: Cassius Clay Versus The U.S.
● 'Opening Statement': "Lessons Of History"
'OPENING STATEMENT': "Lessons of History" [top of page]
September, 2001
Should the law fall silent during times of war and other states of emergency? In the wake of the bombings in the U.S. on September 11th 2001, the overwhelming response of opinion makers all over the world to this question has been a resounding 'yes'.
Writing for the National Post on September 17th, 2001, Luiza Chwialkowska speculates that the Supreme Court of Canada, which is currently seized with an important case dealing with alleged terrorism and whether those persons should be allowed to remain in Canada, cannot ignore the current atmosphere emanating from the terrorist beginning in the U.S.A. The extent to which courts are influenced by external events has been a perennial question in legal circles. It has now become central in the referenced case and other related cases.
If Canada and the U.S. were not given to overreaction in the curtailment of civil liberties during war and other states of emergency, the first question above would not even be relevant today.
In the recent past, in reaction to a few (two at best) horrendous crimes, Canada brought in the 'danger to the public law' under the Immigration Act which oversaw the wholesale deportation of small time criminals from Canada, while big time war criminals remained hardly touched. It took the Federal Court of Canada several years before it came to terms with the overreach of this law and quashed a lot of opinions. The law is now hanging by its teeth. It will soon give way to an even more insidious concept of 'serious criminality' – a person sentenced to two years or more will have no right of appeal in Canada because that person will now be regarded as a serious criminal.
All civil libertarians regarded the invocation of the War Measures Act law in 1970, which was due to the crisis triggered by the FLQ (Front for the Liberation of Quebec) in which a minister was killed, as an overreaction. This law led to the arrest and detention without charge or trial of many innocent individuals. The suppression of civil liberties was horrendous. The reverberations from that law are still being felt.
The internment of Japanese Canadians during the Second World War has also been assessed as an overreaction. During all the three periods, the law was made to be silent. The executive branch inflated its powers at the expense of civil liberties and fundamental rights.
The silencing of the law during war and other states of emergency has been more prevalent in the United States than in Canada. There, the courts, including the Supreme Court of the United States became subordinate to the executive branch.
William Rehnquist, Chief Justice of the United States Supreme Court in his book, All the Laws but One has shown that civil liberties in the U.S. during war and other states of emergency crumble. He shows that the right to habeas corpus was tasted during the civil war of 1861-1865.
President Abraham Lincoln revoked the right to habeas corpus. The courts tried to offer resistance but it was to little or no avail. The Supreme Court of the U.S. ended up saying that the President needed congressional approval before revoking the right to habeas corpus. In times of war or other crisis, congress and the senate always give the President or executive branch whatever is desired and requested. It is not any different now.
During the First World War the U.S. arrested, detained and deported over 5,000 people. It also arrested two Italian immigrants, Sacco and Vanzetti, who were then illegally executed.
The Second World War gave the United States an excuse and an opportunity to clamp down on civil liberties by interning the Japanese Americans after the attack on Pearl Harbor. The Japanese Americans turned to the courts including the Supreme Court for protection. The Supreme Court in absolute deference to the executive branch sided with the government. Chief Justice Rehnquist in his aforementioned book has expectedly largely justified the Supreme Court decisions. As Chief Justice of the current Court he would be expected to rubber stamp executive action.
However, during a 1980s Commission of Inquiry to examine the events and circumstances of the internment of Japanese Americans during the 1940s, evidence emerged that the government in justifying the internments, lied to the courts including the Supreme Court of the U.S. Evidence also emerged that the government had overreacted. In the event, the cases approving the interment of Japanese Americans during the Second World War were set aside and the government apologized and compensated the Japanese Americans. During the same decade, Canada did the same (without a commission of inquiry) to its Japanese Canadians.
Drawing from the above lessons, should civil libertarians allow the governments to silence the law in their response to the bombings in the U.S. on September 11th, 2001? Should courts allow themselves to be duped by the executive branch? This can be done by 'execute fiat' or practices.
Should civil libertarians also allow governments by <legislative fiat> to impose a 'constitutional dictatorship' – a term coined by Clinton Rossiter in his book Constitutional Dictatorship to denote government curtailment of civil liberties or imposition of illegal emergency powers by constitutional means – dictatorial laws passed by parliament with our very eyes wide open? If we cannot learn from history in these clear matters, what can we ever learn?
Benjamin Franklin, a founding father of the U.S. stated in 1759, 'they that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety'. This statement is very apt under present circumstances. We will see illegal surveillance and searches, arrests and detentions, violations to right to privacy, convenient criminalization and racial profiling, bombings of churches, houses and businesses, racial and religious hate speech and other crimes of the state.
It is time for the legal profession and the civil liberties community everywhere to side with a great English judge in the famous civil liberties case of Liverside v. Anderson who said that the 'law is not silent' in times of crisis or war. The law must be upheld. The next several months and years will be a trying time for all of us in the areas of civil liberties and fundamental freedoms. Heroes and villains arise during times of crisis. Heroes now may be villains later and vice versa. Heroes will always be those who side with the rule of law in spite of shifting weather conditions.
* Munyonzwe Hamalengwa is a Toronto lawyer specializing in criminal, constitutional and immigration law. He was illegally detained for seven months during a state of emergency in Zambia in 1976. He detailed his experience in his book, Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General (1992). His LLM thesis was entitled, Danger to the Public in Canada Under the Criminal Code and the Immigration Act: A Comparative Constitutional Analysis (2001).
JUSTICE DELAYED: CASSIUS CLAY VERSUS THE U.S.A. [ top of page]
September, 2000
This is a review of Hombeward Binghams and Max Wallaces new book entitled Muhammad Ali's Greatest Fight: Cassius Clay vs. The United States of America (New York: M. Evans and Co. Inc., 2000, 271 pages).
Alex de Tocquiville, a greater French philosopher wrote in his monumental book, Democracy in America, 150 years ago, that in the U.S.A., every political question turns into a legal question. In contemporary legal parlance, this is referred to either as judicialization or legalization of politics.
Hollywood has taken de Tocquivilles characterization a step further. Every compelling legal question becomes a Hollywood production. The O.J. Simpson trial became a movie before the case ended in acquittal in courts. The Mike Tyson crime story turned into a movie. Don King’s legal sagas were turned into a movie. And so have so many other legal stories involving celebrity sports and other figures.
So why Muhammad Ali's legal battles never became a Hollywood production is more surprising. Every aspect of his case became a Hollywood or other production, except the legal issues central to his rejecting the draft, the conviction, suspension of his boxing license, reacquisition of his boxing license and the overturning of the conviction. Muhammad Ali's life between 1967 and 1971 was disrupted pursuant to law but this legal saga has escaped legal analysis and a Hollywood or other production. Is there any reason for this omission?
Howard Bingham and Max Wallace, in their book Muhammad Ali's Greatest Fight: Cassius Clay vs. The United States of America (New York: M. Evans and Company, Inc., 2000, 271 pages) do not answer this question but provide pertinent information that has eluded the general public to date. All productions about Muhammad Ali have made references to the court cases but not exactly to what were the inner workings and processes of these cases. The court cases are extremely compelling examples of the inadequacy of the U.S. criminal justice system and how it is more driven by politics in high profile cases than legal principles, on which it should be based. In the U.S.A. the line between politics and law is very fine indeed.
For example, the New York Athletic Commission stripped Muhammad Ali of his license to fight, hardly a minute after he had been convicted for declining to serve in the U.S. Army. They hardly waited for him to appeal the decision and have a chance at vindication. He was denied licenses to fight throughout the U.S.A. while his appeal cases were proceeding. The normal procedure is for a stay of suspension until the final Court of Appeal (in this case, the U.S. Supreme Court) has disposed of the case. Political correctness trumped the law.
The book under review provides the explosive context in which the Muhammad Ali saga unfolded. It would have been impossible to expect any forum to allow Muhammad Ali to fight after refusing the draft and being convicted by a criminal court. This was a period of heightened racism and anti-racism, strong support for the war in Vietnam and civil rights and student rebellions. The Muhammad Ali saga provided the lightning rod to all that was divisive in American society: Civil rights versus oppression; war versus peace; young versus old; racism versus non-racism; uppity black versus docile black; conformity versus non-conformity; justice versus injustice; Muslim versus non-Muslim and so on. But then the U.S. claims to be a nation subservient to the due process of the law. The Muhammad Ali case shows that this is a charade.
Bingham and Wallace detail that there were two parallel cases Muhammad Ali was pursuing in the U.S. courts. One was to overturn the conviction for refusing the draft on religious grounds. The other was to reacquire the rights to fight in the ring while he was awaiting the final decision of the courts on the issue of a criminal conviction. Each one of these court cases could have been blockbuster Hollywood productions, as they would have examined the workings of the U.S. justice system. It wasnt done.
In relation to the criminal conviction, the book reveals that Muhammad Ali would never have overturned the conviction in the Supreme Court of the United States and he would never have been able to fight George Foreman and others, and he would never have had a second life and the accompanying modern acclaim, had it not been for the intervention of some law clerks at the Supreme Court of the United States. Law clerks are gatekeepers to the world of the Supreme Court. They vet cases. They draft opinions. They screen cases for inclusion and exclusion.
After the case was argued and certification was granted for the case to go forward, five of eight Supreme Court Judges voted to affirm the conviction and three dissented. Thurgood Marshall, the lone Black justice recused himself because he was Solicitor-General when Muhammad Ali was convicted.
As is customary, the Chief Justice, Warren Burger at the time, assigned a judge to write the majority opinion. He chose Justice John Harlan to write the majority opinion to uphold Muhammad Ali’s conviction. If the conviction was upheld, then Muhammad Ali would have been sent to jail for 5 years. This means that the second coming of Muhammad Ali would never have happened. Those epic battles with Joe Frasier, Ken Norton and George Foreman would never have occurred. However, fate, perhaps Allah, intervened. Justice Harlan’s clerks persuaded him to take home a copy of Elijah Muhammads book, Message to the Blackman in America, to gauge for himself the Muslim teachings, especially in relation to the Muslim’s conscientious objection to fighting in wars. All along, the government had portrayed Ali as only opposed to the war in Vietnam and not to war in general. But that was a misinterpretation of the Muslim religion. All government lawyers and courts below had deliberately misapprehended this point.
When Justice Harlan read the book for himself, he reversed his earlier stand to uphold the conviction. The book made clear that Muslims are opposed to war in general. After many fierce battles within the ranks of the Supreme Court justices, Justice Harlan prevailed. The credit should go to the law clerks, as well as the Justice Harlan. He had to convince his majority colleagues that they should not send Muhammad Ali to prison just because they were afraid of the political consequences of setting him free. If the clerks were pro-war or not in touch with their generation, Muhammad Ali would have been lost to history. This legal saga ought to be a Hollywood production.
On the second parallel case of reclaiming his license to fight, Muhammad Ali's lawyers discovered that only Muhammad Ali had been stripped of his license to fight because of a criminal conviction. The lawyers unearthed several hundreds of cases where murderers, rapists, crooks, bank robbers, etc. continued to fight in the face of conviction for serious criminal activity without having their licenses taken away. The lawyers argued that Muhammad Ali was discriminated against, contrary to the 14th Amendment to the U.S. Constitution, which provides for equal treatment under the Constitution. Thus Muhammad Ali could have continued to fight despite the conviction.
The District Court in New York was persuaded to reinstate Muhammad Ali's license to fight as a result of his argument. This case also could have been a Hollywood production. It portends for myriad lessons in law.
Justice was finally served, albeit very delayed. Close to five years had elapsed since Muhammad Ali's entanglement with the law started.
The book under review is a fascinating read of why Muhammad Ali will remain the greatest in the ring and perhaps in the court of law as well. For in both, he slayed formidable forces of opposition which were bent on consigning him to the dustbin of history.
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Last Modified: August 16, 2007
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