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2014 / Frederick A.O. Schwarz, Jr.
Courage Prize Recipients
Frederick A.O. “Fritz” Schwarz, Jr., Chief Counsel of the Brennan Center and former Chief Counsel of the Church Committee, is the recipient of the 2014 Ridenhour Courage Prize.
Formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, the Church Committee was formed in 1975 in the wake of the Watergate scandal to investigate illegal intelligence gathering by federal agencies including the CIA, the FBI and the NSA. Chaired by Frank Church (D-ID), Schwarz acted as its chief counsel. The committee revealed shocking activities such as the CIA hiring the Mafia to help in its attempts to assassinate Cuba’s Fidel Castro, and, for 30 years, that the NSA received copies of most telegrams leaving the United States. Furthermore, in an eerily analogue premonition of what Snowden would later reveal, these federal agencies also intercepted, opened, and photographed mail without warrant or notification, deceiving the United States Postal Service and the American public.
“As a result of the Church Committee, two institutions were created to check the enormous powers of our secret government: intelligence committees in both houses of Congress, and the court established under the Foreign Intelligence Surveillance Act. Over time, each has become a less reliable check,” Schwarz writes in The Nation.”
In reflecting upon its decision to award Fritz Schwarz the Ridenhour Courage Prize, the awards committee said, “Spanning more than four decades, Fritz Schwarz’s remarkable career exemplifies the true spirit of the prize. In the mid-1970s as the Chief Counsel of the Church Committee, Fritz engaged in the most wide-ranging, effective and famous investigation of the intelligence community that our nation has ever seen. Those hearings were instrumental in placing checks upon the power of the intelligence community. In light of the challenges from today’s surveillance state, and in recognition of his life-long commitment to strengthening democracy and rule of law, we can think of no one more deserving of the 2014 Ridenhour Courage Award than Fritz Schwarz.”
Upon hearing that he had been awarded the prize Schwarz said, “I am honored to receive the Ridenhour Courage Prize and hope that my experience with government surveillance will serve as an example of how Congress and the American people can continue to stand up against mass surveillance.”
2014 Courage Prize Speech
Transcript of Katrina vanden Heuvel’s speech
KATRINA VANDEN HEUVEL: Thank you. Just a word. What a great room this is. This is one of the few rooms I think every year people leave it feeling more inspired and dedicated. To everyone in this room, a roomful of conscience. [applause]
Fritz Schwarz. “Fritz Schwarz is one of the most decent men I’ve known. He is the quintessential straight arrow,” so wrote Bob Herbert, a former Ridenhour winner in the New York Times. I second Bob Herbert’s emotion. Since the dawn of his professional life, Fritz has demonstrated a remarkable and consistent commitment to public service. He has always sought out the hard issues. As early as 1965, he was an antiapartheid advocate ahead of his time urging U.S. companies to stop doing business in South Africa. And while his private practice has long been based at an establishment law firm, Cravath, Swain and Moore, where he has served for decades as litigation partner, Schwarz’s remarkable career has been punctuated by a series of vital public service assignments, the most memorable of which was Chief Counsel to the Church Committee.
The committee, as many of you, perhaps not all of you know, was formed in 1975 in the wake of the Watergate Scandal to investigate a legal intelligence gathering by the CIA, the FBI, and the NSA. And as counsel, Fritz engaged in the most prominent investigation of the intelligence community that our nation has ever seen. Some highlights of our government’s illegal activities that this bipartisan committee unearthed: the CIA had hired the mafia to help in its attempts to assassinate Fidel Castro. The FBI had wiretapped members of Congress. The FBI had tried to pressure Martin Luther King, Jr., into committing suicide.
Moreover, the committee revealed the existence of COINTELPRO, the widespread domestic surveillance of U.S. citizens, an analog version of the revelations brought forth by this afternoon’s fellow prizewinner Edward Snowden. Here is a video clip of Fritz Schwarz describing how the FBI tried to undermine the work and smear the reputation of Martin Luther King, Jr.
KATRINA VANDEN HEUVEL: The Church Committee not only revealed the enormous powers of our secret government, it then set forth reforms to restore constitutional checks and balances, ones we’ve seen brutally eroded over these last years. Fritz Schwarz went on to serve as New York City’s chief lawyer under Mayor Koch. And as he left that office the New York Times in a rare goodbye editorial noted that, “Mr. Schwarz met the challenges of his office from potholes to human rights. And in New York, he has raised aspirations in performance in city government and made City Hall cleaner and livelier.” And his civic activism in his beloved city continued as chair of the Vera Institute of Justice, he championed new policies to end the use of deadly force by the NYPD. He headed the much-lauded New York City Campaign Finance Board. And if I were to tell you about the articles and books Fritz Schwarz has written and the scores of boards, public interest and educational groups, criminal justice, philanthropic and government commissions that he has participated over these last decades, we’d be here, well, until the day that the intelligence community becomes transparent. [laughter]
Let me just close. Fritz Schwarz is currently chief counsel of the Brennan Center involved with all facets of that good organization’s work, especially its commitment to ending the metastasizing money polluting our political system. And he is characterized by his colleagues at Brennan as our MVP and the person who best exemplifies how the highest ideals of the legal profession can be brought to bear on public service. So now when we are again faced with our government’s fearsome technological powers to monitor our lives at home, undertake a legal, covert action abroad, we need voices like Fritz Schwarz’s. He is, as Randy Fertel said, a transparency warrior. His call for a full, wide and no holds barred investigation of the abuses of the NSA and other intelligence agencies would have come about, but I’m happy to say that I called Fritz Schwarz a few months ago. And though he was lying in his bed with frozen pea packets on his knees because of knee surgery, he agreed to write a piece as to why in light of the recent revelations of abuses, ones we’ve known about for years but recent, we need a revival of the Church Committee, a new Church Committee for these times.
So, let me end by saying Fritz is that quiet patriot, that quintessential straight arrow who spreads the word that our fragile democracy will be lost if the nation’s commitment to the rule of law is allowed to weaken. He understands how vital oversight is to a functioning democracy and he also believes that a legitimate need for secrecy must not be used as a cloak to hide official crimes and our government’s violation of our constitutional rights.
“Legislation,” he has said, “seldom comes unless the public is convinced of the need for change.” And he said, “Change needs teachers. And what needs to be taught is that good policy is more likely when delved through transparency.” So in one of those wonderful twists of history, Fritz Schwarz, who told me he turned down two offers to become a professor at Harvard Law School, has turned out to be one of our great teachers. And he is still teaching us and guiding us and for that, it is a great honor to have him here to honor him today. [applause]
Transcript of Frederick A.O. Schwarz, Jr.’s speech:
FRITZ SCHWARZ: So Katrina, thank you so much, that was really nice. I’m deeply honored to be here with the other winners. I’m deeply honored to win this award. I was so pleased to learn about Ron Ridenhour. I mean, it’s a great story, what he did particularly with My Lai and then all his investigative journalism after that.
I couldn’t be here, of course, without having worked through the years with extremely talented people starting in Nigeria where I went to work for the Nigerian government before the Peace Corps., at Cravath in my three stints there, at the Church Committee, in all my different jobs with New York City. And today, at the Brennan Center for Justice at NYU where I’ve been privileged to be for 12 years now.
And I’ve had the privilege of working with incredibly talented and dedicated people at nonprofits particularly the Natural Resources Defense Council and the Vera Institute of Justice. I’ve been very, very lucky.
I should also thank 1935. You say why 1935? Well, 1935 was the year I was born. Now, what was special about it? But it was special. It had the lowest birth rate in the history of America. So, if I’ve achieved anything in my life it’s because I’ve had no competition along the way. [laughter and applause] Loving friends have helped me and loving family have helped me, too.
I want to tell a little story about a piece of advice I got from Judge Learned Hand. For those of you who don’t know who that was despite that amazing name, Learned Hand, he was probably the most respected judge in the country in the 20th century who didn’t get to the United States Supreme Court. Anyway, I was making up my mind between going to Nigeria to work for the Nigerian government, newly independent, and starting at Cravath, Swain and Moore. And a number of establishment lawyers said to me, “Don’t go to Nigeria. If you do that, you’ll never become a real lawyer.” It didn’t seem to make much sense to me, but I went across the hall to the chambers of the 80 year old Judge Learned Hand and I said, “Judge Hand, I’m getting all this advice not to go to Nigeria because I’ll never become a real lawyer. What do you think about that?” He paused, he was about to die in a few months, he paused– that’s irrelevant to the story– [laughter] he paused and he said, “Sounds like pure bullshit to me.” [applause] And I’ve given that advice in similar form to a lot of young people. Go for it, go for it.
The other thing I’d like to mention is the real debt of people of my era and ever since owe to the civil rights movement, it opened the doors not just for blacks, but for everybody in the United States. And that was really important as a part of my life and many other people here in this room, it was important.
So now I’d like to talk a little bit about some comparisons and some differences between the Cold War world that the Church Committee reviewed and the post 9/11 world that we face today. Now, they’re both the same and very different. The basics are identical; fear is the underlying motive for government going too far. And secrecy is the key implementing device for the government accomplishing what it does. But while the basics are the same, the circumstances are very, very different.
One enormous difference is the technology available to the government. Early in our investigation, Frank Church had a press conference to talk about the NSA in which he warned that its capabilities were so great that if turned on the American people, there would be no place to hide. And then he said we need oversight and we need controls.
But we now know today that the technological power that Church found so terrifying is a mere bagatelle compared to what there now is. It was the Stone Age of technology compared to today. Now, we know from Edward Snowden’s revelations the nature and breadth and the amazing nature and the amazing breadth of NSA’s power today. And those revelations by Edward Snowden helped mount and keep going a debate in this country that is vital to our future. [applause]
Paradoxically today, however, while the technology is much more powerful, and much more scary, and the material collected is much more massive, actually secrets today because of technology, have a much shorter shelf life. It’s harder to keep things secret today than it was during the era that we looked at at the Church Committee. The shelf life of secrets is shorter. I tried to develop this point in the book I’m writing called Democracy in the Dark, which I hope is going to be coming out in about 11 months. I hope it’s going to be the most detailed discussion of secrecy there’s ever been anywhere. And it’s being published by the wonderful Diane Wachtel at The New Press. And when the story was given about Sherri Fink continuing to write until the last minute, she gave me a big wink. [laughter] Well, the last time I got a big wink like that was from Nino Scalia when I was arguing a case before the Supreme Court and he then– I knew him at law school and that’s why he winked at me– but he then wrote the opinion that slammed us down in the case. [laughter]
But there are a couple of other reasons why the shelf life of secrets is shorter. One is there’s much more oversight infrastructure today than there was before. Now, that oversight infrastructure is clearly imperfect. The committees that the Church Committee got created, the FISA Court that the Church Committee got created, have since 9/11 become much less powerful and maybe much less motivated. But nonetheless, the infrastructure that has been established does help reduce the shelf life of secrets.
Now, I’ve been talking about secrets a lot, probably because I’m preoccupied with the subject in that book I’m trying to finish. But, secret government programs continue to challenge our values, American values, and secrecy remains hard to tame. The Church Committee warned that the United States must not adopt the tactics of the enemy. Well, the most recent administration, right after 11, did explicitly adopt the tactics of the enemy by deciding upon torture, and there’s no way of escaping that’s what it was. It was not enhanced interrogation as they called in a euphemism, it was torture. [applause] And we did adopt the tactics of the enemy. Water boarding, which they employed viciously, the Bush Administration did, water boarding was used by the Japanese against American soldiers and we prosecuted the Japanese as war criminals. Did we forget that when we decided to use water boarding.
Also, all of the techniques that our government used to torture people came from a manual the military had called “SERE,” I don’t know what it stands for, S-e-r-e. And it took techniques the Korean, our Korean opponents in the Korean War, had used to torture American soldiers and used the training based on what the Koreans had done to prepare our soldiers for possible torture when they were captured by some opponent.
Now, again, amazingly the most recent, the prior administration, directly took their tactics that they used for torture out of the SERE manual which came from what the North Koreans had done in order to elicit false confessions from American soldiers; hardly something to be proud of. And, you know, there’s more there that we haven’t yet discovered.
So, the Obama Administration in one of its first and admirable acts, abolished torture and released the opinions about torture which had justified it and said it wasn’t really torture, it was just like a doctor doing a bad job in a hospital or something like that. That was by John Yoo, who was a little off in his legal analysis. But the Obama Administration, while abandoning torture and releasing the truth about what we were doing, has nonetheless applied the states secrets doctrine to prevent the courts from hearing cases by people who were tortured. And there’s something wrong about a doctrine that says– even the name, states secrets doctrine. It does not sound like a great piece of American jurisprudence.
So, now, much more information is classified than was true even under the Church Committee. It’s much more classified beyond top secret with a code word protection more stringent than top secret. And actually, secrecy begets more secrecy and higher levels of secrecy because government, individual government people, have to fight to have their document, snowflake, noticed and they figured a was to get it noticed is to increase the level of secrecy or else it’ll just be cast aside.
Now, for generations bipartisan reports have found that there is too much secrecy. All those reports have met the same fate, wise words into the wind. It’s far easier and less personally risky, as my colleague Elizabeth Goitein reported recently. It’s far easier and less personally risky to classify than declassify. Secrecy is seductive. It has many powerful psychological lures. Again, this has been seen by the difficulty President Obama’s had in establishing his goal of more transparency. But a more fundamental flaw was the failure by Bush II when he established the NSA meta data program and by Obama when he continued it to have an open, democratic dialogue about whether we should have those programs. That’s what we should be fighting for. That before the government does something which by the way that wasn’t kept secret in order to fool al-Qaeda, that was kept secret in order to fool the American public. That happens much too much. [applause]
So, now to finish, what we need to do is to go back the basics of American democracy. In the Declaration of Independence, Thomas Jefferson said, “A just government depends upon the consent of the governed.” Well, the consent of the governed is not meaningful unless the governed are informed. And Abraham Lincoln in the Declaration called for the keeping alive government of the people by the people and for the people. Well, you can’t have government by the people unless the people are informed.
So, what is America going to do? Is it going to have the courage to face up to the facts, to find out and face up to the facts? Or is it going to continue to let things slide on without pushing for more disclosure and facing up to what we’ve been doing? I personally believe, maybe this is just naïve, but I think all Americans have in their heart that we do believe in democracy and I believe this country has the strength to hear the story and to learn from it, that if we do so, we will remain a people who confront our mistakes and resolve not to repeat them. If we do not, we will decline. But if we do, our future will be worthy of the best of our past. Thank you. [applause]