Staying engaged.

Spending time in Washington, D.C., these days poses an almost existential problem: How do we stay hopeful during this bleak season? David Cole, the renowned First Amendment lawyer, offered an answer recently, at a reception in his honor hosted by Justice Ruth Bader Ginsberg at the Supreme Court. A small group of progressive lawyers, ACLU members, refugees from Democratic Administrations, and other like-minded folks were in attendance. Quoting Cornel West and Roberto Unger, Cole said, "It is not hope that gets people engaged in struggle. It is being engaged in struggle that gives people hope."

Cole himself seems to embody this idea. He radiates enthusiasm despite doing the kind of work that could easily get anyone down. Author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, Cole has fought overbearing government power throughout his career. His client Nasser Ahmed, an Egyptian dissident, was freed in 1999 after being detained by the INS for three and a half years on what turned out to be flimsy secret evidence. In the wake of September 11 and the Patriot Act, Cole has continued to fight an emboldened federal government as it criminalizes dissent and denies prisoners of the "war on terror" their most basic legal rights.

Cole received the Thomas Jefferson Center's William J. Brennan Jr. Award for free expression, in honor of his First Amendment work. That includes two landmark flag-burning cases and the famous case involving performance artist Karen Finley, whose work was deemed obscene and denied funding by the NEA. Nowadays, Cole is doing more work on due process and immigrant rights as a pro-bono attorney for the Center for Constitutional Rights. But there is "some overlap" between his First Amendment and civil rights cases, Josh Wheeler of the Thomas Jefferson Center noted dryly: "Being able to speak with your attorney, we think, is a First Amendment right."

Today, two of Cole's clients, Khader Hamide and Michel Shehadeh, face deportation because of a retroactive clause in the Patriot Act, punishing them for distributing PLO propaganda in Los Angeles in the 1980s, when it was legal to do so. The current political climate, Cole said, makes it easy to focus on the negative. The same week he received his award, he argued a case in California in which the other side asserted that "in the wake of 9/11, the federal government has the right to criminalize all support of any foreign organization, even the Nobel Prize Committee, on purely ideological grounds."

Still, as bad as things look, staring down a second Bush term and a new Attorney General who may top John Ashcroft in his contempt for the rule of law and human rights, Cole sees reasons for optimism. Historically, he says, the courts have not been a reliable brake on government overstepping during a national security crisis. In World War I, they supported the persecution of protesters. In World War II, they upheld the internment

of Japanese Americans. And in the McCarthy era, they upheld actions against communists, he notes. "In light of the history, the courts have been unusually willing to stand up to the Bush Administration."

The most surprising example was the Supreme Court's ruling in June against the Administration's designation of certain people as enemy combatants who could be stripped of their due process rights. Cole cites other examples, too: The D.C. district court ruling that military tribunals are unlawful, and another district court decision that found that government demands for information from Internet service providers without a warrant were illegal.

"So the courts have held parts of the Patriot Act unconstitutional," he says. "But you can't rely on that. It depends on a confluence of factors, including whether the popular culture insists on protecting people's rights, or on security above all else. The decision on enemy combatants has to be understood in light of virtually unanimous condemnation in the press of the Bush Administration position. The Court doesn't act in a vacuum."

Comparing our current moment to previous repressive eras, including the Palmer Raids and the McCarthy years, he points out that the press is far more willing to report egregious abuses of power than it once was. (In 1919, responding to the mass round-up of immigrants in California by Mitchell Palmer and J. Edgar Hoover, The Washington Post opined, "This is no time for hairsplitting over lost liberties," Cole noted.) The ACLU is not rolling over the way it did during the Red Scare (though it nearly caved on screening employees against a government list). University professors are still free to speak out. Courts are willing to stand up to overzealous prosecutors. And, Cole pointed out, local citizens all over the country have formed 367 "Bill of Rights Defense Committees" to oppose the Patriot Act.

Then there is the sense of camaraderie among those who share a common fight. Tiny Justice Ginsberg gave voice to that feeling, warmly remembering her predecessor on the Court, Justice William Brennan. Brennan loved people and was famous for treating others with dignity and respect. Besides being a gleeful fighter for justice, he was a true humanitarian and just a good guy.

In a tribute to Brennan upon his death in 1997, Lawrence Tribe wrote that Brennan reshaped our worldview and was the "principal architect of the nation's system for protecting individual rights." His vision grew from his "genuinely lovable personality--he treated the Court's janitors with as much respect as he did his fellow justices." Because of Brennan, government can no longer kick someone off welfare or repossess a car without explaining why. Sex discrimination and racial desegregation suits were made possible by Brennan's vision of the Constitution.

Bob O'Neil, director of the Thomas Jefferson Center and a former Brennan clerk, remembered that when the center gave its 1996 award to Joyce Meskis, owner of Denver's Tattered Cover bookstore and a tenacious resister of censorship, the enfeebled justice, sitting in his wheelchair, squeezed O'Neil's hand and said, "I like this award!"

Listening to the tributes to Brennan, the other good guys in the room smiled--among them, Norman Dorsen, former president of the ACLU, Bruce Sanford, the constitutional lawyer, and Peter Edelman, who resigned from the Clinton Administration in protest over welfare reform and is now Cole's colleague at Georgetown University Law Center. For all of them, engaging in struggle is enlivening. It's encouraging to see such a group gathered together in the heart of Republican Washington, seeming to be, as Cole said, full of hope.

I asked Cole later how he manages to stay so upbeat.

"It's really challenging," he said. "I have days when it's really depressing. It's almost overwhelming, the number of cases I get approached on, which involve serious Constitutional issues, and serious abuses, and sad stories of this war on people's lives. The vast majority I can't do anything about."

Still, he keeps in mind that quote from West and Unger in their book, The Future of American Progressivism.

"I do think that, if you are engaged and feel like you're doing something to respond to what concerns you, you're much more likely to feel hopeful about the situation than if you sit back and read about it and then feel powerless," he says. "There are many groups out there standing up for basic principles of equality and liberty in the wake of September 11. The more you engage with those, the more reason there is for hope--both within the individual psyche and in the broader community."

Outside the Supreme Court building, the sunset illuminated the colonnade, and the motto "Equal Justice Under Law." Despite the hostile takeover of our democracy, the ideals still hold.

Ruth Conniff is Political Editor of The Progressive.