Thursday, March 11, 2010

Archimedes to Ben Franklin

It's not certain just what Archimedes said.  We don't have his written version (if there ever was one), and if we did it would no doubt lend itself to varying translations.  But the idea is clear enough.  With a sufficient lever and a fulcrum and a place to stand, one can move anything.
Archimedes was speaking literally.  He was concerned with physical objects and physical forces.  His fulcrum and lever were imagined, not metaphorical.  But metaphorical they might have been.  For pressure properly applied can work amazing changes.
Consider, then, the power of the question.
It's Rhetoric 101.  If you get to choose the question, you can control the answer.  Opinion pollsters know this.  Ask Americans if they believe in the Bill of Rights, they say they do.  Read them the provisions and support goes way down.  It's a variation on the idea that words matter.
Which brings us to terrorists and enemy combatants.
Liz Cheney, daughter of he who favored ("I'm a strong believer in it," he said at the National Press Club last year) and still favors (it should have been an option for use on the alleged underwear bomber) waterboarding, says (through her organization, Keep America Safe, that those who chose to represent prisoners at Guantanamo are supporters of Al Qaida.
The perhaps aptly named Andrew McCarthy, in Room For Debate at the NY Times on-line agrees.  So does Rush.
Pretty much everyone else disagrees - from the other commentators at Room for Debate to the New York Times Editorial Board to conservative signatories of a letter condemning the KAS video.  Dahlia Lithwick  called her out.  So did Orin Kerr.  Nearly everyone has mentioned John Adams and his defense of the British soldiers.  (McCarthy acknowledges the propriety of what Adams did but says it doesn't apply.)
More than a few have noted, although in different language, that the lawyers at issue weren't defending terrorists and enemy combatants, they were defendant those accused of being terrorists and enemy combatants, which is something rather different.  As we tell jurors, the indictment is no more than a statement of the charges; it's not evidence of anything.*  On the other hand, the implication that it's only OK to defend up until the point where guilt is established and after that defense is treason is remarkably dangerous and, er, unAmerican.
Scott Greenfield talks about how war trumps all and how everything is now a war.  That's true, but like the focus on whether or not the Gitmo prisoners are actually what they are alleged to be, it's too limited a way to talk about it.
It is, I think, ultimately about the rule of law (make that Rule of Law) and the underlying point behind the Rule of Law.  It is about insisting that principles matter and the first principle isn't j'accuse.  Nor is it Ed Meese's "If a person is innocent of a crime, then he is not a suspect."  It's not even innocent until proven guilty.
The first principle is about standing up to the abuse of power.  It's the Declaration of Independence, which, you'll recall, is a document of revolution.  Our country was founded on rejection to tyrrany, on refusing to be victims of unreviewable decisions by those in power. 
Despite what many think, the Declaration isn't law.  It's a document of no legal consequence today.  But there's no more powerful statement of just who we are and what we want to be.  And like Magna Carta, it stands for the basic principle that the Rule of Law beats the rule of power and announcement.  Every time.
I wonder some, and have written more than a bit, about just what it is that lawyers do.  Who we are.  Why we do what we do.  What keeps us going.  I'm not going to link to those posts here.  Root around the blog and you'll find them.  I believe in the client and the work.  I am a criminal defense lawyer and a capital defense lawyer and there's nothing I take more seriously.  But when I think about how I got into this line (beyond serendipitous chance), I think about power and taking it on, which I did, in my own ways, long before I ever considered the idea of going to law school.
Because, really, the Rule of Law is about standing up to the Law of Rule.
Liz Cheney and her people want to live in a dictatorship.  They don't say that.  They'd probably disagree.  But they do.  Except, see, they don't live in one.  Damn frustrating for them.
Franklin, is said to have remarked on coming out of the Constitutional Convention and being asked what they had wrought, "A republic if you can keep it."
Take that, Liz.
*I used to grumble all the time that the media would report that so-and-so pleaded "innocent" to the charges.  Nobody pleads "innocent."  It's not one of the options.  Even if you say it (OJ did), it doesn't go down that way.  The plea is "not guilty."  Then Eleanor Clift (or maybe it was her husband, Tom Brazaitis) explained to me that there's a real danger of accidentally leaving out the word "not" so they go with innocent instead.

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