Categorised by Time magazine as “legendary”, Garbus has made a career out of supporting the unsupportable. Many of his clients, political dissidents that have cried out for his help as a last resort in the face of harsh and heavy sentencing. He has also represented many well known 20th century icons, such as, Vaclav Havel, Andrei Sakharov, Nelson Mandela, Salman Rushdie during his “Satanic Verses” period, Lenny Bruce, Al Pacino, and many more.
Perhaps it is the foreboding influence his father had over him, having escaped Nazism, that helped shape his unshakeable conscience. This is a man who has seen the deepest, darkest failures of humanity through to the triumphs of the human spirit. We were honoured to chat with Martin and discuss the many aspects of his fascinating career, as well as his most notorious case, representing ‘the Pentagon Papers’ – Daniel Ellsberg – who effectively helped bring down Richard Nixon.
You work primarily within the area of free speech. Obviously, this is a topic that’s been debated and discussed for many centuries. What are your thoughts on free speech as a universal principle at the moment, where would you say that we are at this point in the journey for free speech?
When you say it’s a universal principle, it’s an American principle; the idea of absolute free speech comes out of the American experience. How well it translates to other areas is a very different question. For example, France would have less protection for hate-speech or Nazi sympathisers who talk derogatorily about Jews. Those groups would get a great deal of protection in the united states – I represented Nazis – those same groups would not get as much protection in France. We all know of Charlie Hebdo, one of the very profound questions there is, ‘do our views on free speech allow us to publish anything, even if we know it’s going to alienate some members of society?’ The whole question of domestic free speech is one thing, free speech in Europe is another, and free speech in countries who don’t pay homage to the concept is a third question.
I watched the documentary about you, Shouting Fire, made by Liz Garbus, and one of the things that I thought was very interesting was your development as a child. The documentary mentions your father’s history and the tumultuous period he went through in coming over to the U.S.A. Do you think that growing up and seeing things through the lens of your father has shaped the way that you see free speech?
When I was growing up, I don’t think I fully appreciated my father as someone who came over from Poland when he was 16 or 17, going through Cuba then coming to the United States and trying to make a life for himself; I think it was only later that I saw the heroic nature of it. With respect to his idea of ‘keep your head down’, clearly that didn’t stick with me. He felt, coming out of the culture he came from, that ‘he who is best says nothing’ and you don’t speak out or demonstrate against governments because there’s no way you can win. For him, in order to earn an income in the United States, given the fact he was a foreigner who had no training, he had to work around 18 hours a day for endless decades in a candy store. He didn’t see how speaking out about things would help his life – he had a very limited view of the country he was in. I think he would have been offended – he was offended – when I represented Nazis in the United States; he had no concept of why I was doing it, and his view was shared by most of America.
One of the things that astounded me in the documentary was that there were mass Nazi rallies in Madison Square Garden taking place in 1939. I didn’t know Nazism was so pervasive in the USA at that time.
There was a wonderful book by Philip Roth called The Plot Against America, in which he discusses the extraordinary pro-Nazi feelings in 39, 40 and 41, when the Nazis in America were some very reputable people, for example Charles Lindbergh, and were against America getting involved in the war on the side of the allies and, in fact, really, wanted to have America support the German cause. There were endless rallies in 39, 40 and 41; they were a significant part of the American electorate. What I was involved in many years later, they were seen a slither or a fanatic group. This was of course before the holocaust was known, but it should have been enough time for everybody to realise what was going on.
"I think that Snowden has shown the same courage and the same awareness of what a governmental power can do and how it can mislead."
Perhaps you can give me an idea of what the discussions were like with your father, if there were any, about the very complicated and interesting cases that you would take on.
Well, he was totally hostile to the cases I would take on defending Nazis or racists, defending people whose beliefs I don’t share and certainly he didn’t share their beliefs. He saw the dangers of those groups, he saw what Nazism had done to Europe, he saw what racism had done to large parts of the United States, so he was perplexed. Given all the other people I had helped legally, he didn’t understand why I extended any efforts on their behalf.
You’re known for representing larger-than-life personalities. You’ve worked with people like Nelson Mandela, Vaclav Havel, and the estates of Igor Stravinsky and Marilyn Monroe, and also prisoners of conscience. Can you think of one case that truly changed the way you thought about your work early on.
Well, I was in the army and I was court-martialled – this was before law school, and it’s what committed me to go to law school – this was over a series of speeches I gave asking that the United States to recognise Red China, as it was called at the time. I was an information and education officer in training and the army wanted to hear some speeches I would give in training to see whether I would be qualified to do it. I gave speeches that upset the army very much and I was told over and over again not to do it, but I still did it.
During that time I really thought in great detail about the question of speech and free speech. Ultimately the court-martial was dropped and a deal was made with the army, but my security clearance was taken off and I sat in front of a desk, and it was sitting in front of a desk for a year and a half that allowed me to go to law school – I didn’t have the money otherwise. I think that experience had a great deal to do with my feelings; I was not a radical in college or high-school. I was left, but not on the barricades. I think that what happened in the army had a very significant affect on me. I looked at what could have happened to me had I been court-martialled; had I been kicked out the army; what a dishonourable discharge would have meant – I recognised the helplessness of somebody in my positions. Fortunately, I was saved by circumstances, but they were just fortuitous.
I guess you could call yourself a prisoner of conscience at that point.
One of the cases that I’m really fascinated by, a case that I would say defines you, is the one with Dan Ellsberg. Perhaps you could discuss the mood at that time, looking back on it now. Did you think at the time that the case with Ellsberg would have such a long lasting, pervasive influence as it now does?
When Dan and I first met, he had just gotten the Pentagon papers and he was asking the question of what his legal liability would be. I indicated to him that I thought he would be found guilty, that it was not a defence to the charge in America as to the reason why he did it, and that if he was found guilty it would be affirmed on appeal; he would get a very long sentence and he would be put in a very very bad prison – not only a maximum security prison, but a prison far from his family, with large drug dealers who would be totally out of sympathy with him – and that he would have a very difficult time.
He told me that the release of the papers would end the Vietnam war. I told him that I didn’t think so, I said it would have some consequences but I didn’t believe that it would end the Vietnam war. One of the reasons I thought that was because the papers were written in a kind of bureaucratese, and I didn’t think that the public would get it. As it turns out, The Times took it, Neil Sheehan, and he spent three months explaining the Pentagon papers, so that it was all understandable – an enormous investment of time by The New York Times, who also felt tension amongst their lawyers because they felt they would be prosecuted. Some of the people in The Times didn’t even think The Times should publish it. I didn’t foresee that the Ellsberg’s arrest would lead directly to Nixon’s resignation because it was Nixon’s people looking into Ellsberg’s psychiatrist’s records which they would use against him at the trial, that ended up being a catalyst to the end of Nixon.
He was acquitted because of fortuity; Nixon reached out and offered the judge who was trying the case the job as the head of the F.B.I, this was a clear attempt by Nixon to buy a conviction, so that also lead to Nixon’s downfall. Again, when you’re sitting at the beginning of something and trying to look at something, it’s impossible to see all the consequences.
Dan Ellsberg’s case seems eerily similar to what’s going on with Edward Snowden. How do you feel about the snowden case and the information that he leaked? Perhaps there are similarities to the Dan Ellsberg case?
I think that Snowden was given the same legal advice that I gave Ellsberg initially; that if you do this, you’re probably going to go to jail and it’s going to be for a very long time and it’s going to be a very unpleasant jail, and you’re not going to be allowed to say why you did this, because that’s not going to be an issue in court. The issue is going to be ‘did you release this classified information?’ Period.
I think that Snowden or Bradley Manning and so forth, I think they were all made possible by Ellsberg, that they are his children, that he was a man who could defend his position, showed the intelligence behind his decisions, and the courage. I think that Snowden has shown the same courage and the same awareness of what a governmental power can do and how it can mislead. So, I’m totally sympathetic to Snowden. I wrote an article not so long ago stating that the United States ought to give Snowden amnesty, an admission basically; he would be admitting that he committed a criminal act, but the government should pardon him.
I think each month that this goes on, we recognise that the military’s claim that so many people were hurt or that part of America’s foreign policy was hurt is shown not to be true. We had the same arguments with Dan Ellsberg, the same arguments with Manning, and now you have the same arguments with Snowden and you had them with Assange as well.
This brings us back to the first point you made about free speech being primarily a construction of the American experience. With Julian Assange and Edward Snowden , I’m reminded of a saying, “A country’s future is built upon its values.”
I think a government has the right and obligation to protect itself. The government has the right to decide, perhaps, that there are certain documents that need to be classified, but the classification system, as Ellsberg, Snowden, etc, showed, has gone so far overboard. The amount of stuff that they now classify and blank out is extraordinary. With Ellsberg and the Pentagon papers, top-secret internal documents, when the government was ready to indite everyone, including The New York Times, no one was ever shown that one person was harmed by it. There was a claim with Assange and Snowden, particularly with Assange, that people all over the world, America’s undercover agents, America’s informants, were harmed – that’s never been proven. Now the government has basically walked away from it and said they can’t prove any one particular case.
"He [Daniel Ellsberg] told me that the release of the papers would end the Vietnam war. I told him that I didn’t think so, I said it would have some consequences but I didn’t believe that it would end the Vietnam war."
Technology plays such an important role in this discussion. In one article you wrote you talked about the military industrial complex that Dwight Eisenhower had discussed extensively, you said that, “it was once the armed forces, then the NSA, then the CIA, then it was Lockheed and today it is Google.”
Yeah, I think that’s exactly right. I think we need to come to understand that the military industrial complex is now probably the military industrial technology complex, as Eisenhower said.
Just going back to your cases, it would be great to get your feelings on this Nazi case you reference quite a bit. You said that it was the most horrendous experience you ever went through. Do you ever look back on it and think perhaps you got it wrong?
I don’t think I got it wrong. The reason it was horrendous was the constant interfering with my private life afterwards; calls to my children, calls to me, packages with faeces in it. The kind of abuse I got professionally, even from free speech people who thought it went too far, was very difficult. I’ve represented a lot of other people, but nothing has had as much feedback. The question of what my limits are: anything can be said that doesn’t directly lead to violence. That may mean that a speech in front of five people should be stopped and a speech in front of two-thousand people should not be stopped. It really is very specific to the circumstances. It’s hard to establish rules, and that’s why in America we have the case system in which you look at each thing.
I had a conversation a long time ago with Andre Sakharov, a Russian dissident who I represented, and he was talking about how America had progressed so much further in research on the atomic bomb than either Russians or Germans had, and his point was that it’s because in America you could always challenge your superiors. That if you can say anything then you can think anything, and you need the freedom to think anything to really reach your maturity or your goals as a society.
You were selected by Jimmy Carter to observe and report on elections in Venezuela and Nicaragua, and one of the stories I read which really struck me was the case of Alberto Bachelet, the general imprisoned and tortured by Pinochet. How do you have the emotional stamina for these cases?
Well, I had just represented the Cuban Five, who were sent back to Cuba when America and Cuba reached an accord on December 17th. My clients, who were innocent, had spent 16 years in jail – Gerardo Hernández had spent 2000 days in solitary. When I’m going into Chile or South Africa or the Soviet Union, I’m not walking and seeing these conditions for the first time; I’m not relating to people in horrific situations for the first time – I think I had a perspective about it. It’s not a fresh new thing for me. Each time the suffering is enormous. I feel, generally, that whatever discomfort I have is something that should been born, because I think that generally something good comes out of what I do. Not always and not quickly, but good comes out of it.
In terms of Bachelet, 1973, his daughter became the president of Chile, and I met her about ten years ago – I had never met her before – and I was one of the only people who had observed the trials, I had also done some work with the political parties who were opposing the Chilean government, I also met the Bachelet family, not the daughter, in 73 and I was able to tell them what was going on against the blockade that the Chilean government had put against all information coming out; they put the trial in an obscure place – I found it and got in; they couldn’t ban the press from coming in, but they made it so impossible that I was the only one who got in. What Mrs Bachelet told me, 4-5 years ago, was that my going in at the time when the Chilean had a chokehold on everybody, showed that somebody could get through.
"If you can say anything then you can think anything, and you need the freedom to think anything to really reach your maturity or your goals as a society."
If we can move on to the present and the future, what’s your opinion on America at the moment, as it stands in the wider world?
Well, I adore Obama. I think his attempt, in a way – although not as much as I might like it – to get rid of the idea of American exceptional-ism is a great step forward. I think his attempt to put America in its proper place as it deals with oversees events is wonderful. I think it will be hard for the next Bush to get us into Iraq – if there is a John McCain or somebody like that elected it may happen, but I don’t think there will be a John McCain elected. So, I think that he has tried to sail the American people on the limits of American power, it’s not been entirely successful, and I think that if a republican comes in 2016, the lessons Obama taught us will be sorely tested. I think he’s made a great contribution. Can he solve all these problems? No. But, he’s the most intelligent American president since Franklin Roosevelt.
What are the issues that cause you concern at the moment?
My fear is that the America will create so much pressure that we may do things in Ukraine that we shouldn’t do, that we may send in troops now who will train Ukrainian soldiers. I would hate to see something that causes an outbreak of war between American troops and the Soviet Union. I think it’s a high possibility. It’s a place where America is weakest, it’s a place where it can fight, and there are so many people in America who are still caught up in the cold war, and it’s very easy to demonise the head of Russia and make analogies about former heads of Russia, although they’re inaccurate.
We briefly touched on the Charlie Hebdo case. With that at the forefront right now people are terrified. So, what’s at stake for free speech? Can people even draw a cartoon? What’s your response to it all?
I see it as extraordinarily complex. Before, you could have something done in America and would not reach into the nooks and crannies of the smallest African or Asian town, that has now changed, and I think that we have not figured out a legal or moral system to deal with it. It may well be that one has to realise the uniqueness of the first amendment, or the concept of free speech, as it exists in Western countries, and some others, and not expect it to be honoured or advanced in other countries where the cultures are so different, whether they be muslim countries or places like China, where it’s not based on religion but politics. I think there are irreconcilable differences and those irreconcilable differences are going to play out, often in tragedy.
This recent documentary about an extraordinary singer and political figure.