Tuesday, May 10, 2011

Enforcing the Bill of Rights

When your only tool is a hammer, everything looks like a nail.
* * * * *
Paul Kennedy went first.
Maybe the evidence was overwhelming that the suspect was guilty as charged. We'll never know for certain because the police played the role of judge, jury and executioner. The dead man was, by law, presumed innocent. He was entitled to due process of law. He was entitled to a trial before a jury. He was entitled to consult with an attorney before making any statements once taken into custody. He was entitled to confront the witnesses against him and to put on evidence in his behalf.
Of course that's right.  It's how we're supposed to do things.  But you know, just another police shooting.
Except this wasn't that.  Kennedy was setting up this, a few paragraphs later.
The Constitution makes no distinction between the rights afforded to citizens and noncitizens. The Constitution makes no distinction between the rights afforded to a man accused of murder and a man accused of DWI.

Osama Bin Laden was accused of masterminding a criminal act of horrific magnitude in the United States. Mr. Bin Laden was unarmed at the time he was killed. No matter how heinous the crime of which he was accused, Mr. Bin Laden was entitled to his due process rights.

But the Navy decided to take justice into its own hands. The deprivation of rights is never anything to be cheered. Particularly by men and women who swore to defend the Constitution. If Bin Laden is not entitled to the protections afforded by the Constitution, who's next in line to lose their protection?
Jamison Koehler wasn't convinced.
I respect Kennedy and his blog, and I agree with the overall point of his blog entry; namely, that the need to preserve our rights is even more important when the alleged crime is particularly “heinous.” Writes Kennedy:  “We don’t defend an individual as much as we defend the Bill of Rights. We don’t defend what a person may or may not have done so much as we defend his rights under the Constitution.  Sometimes it can be distasteful, but even the worst among us deserves his rights.”

But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.
When your only tool is a hammer, everything looks like a nail.
See, these guys are lawyers.  So they argue about rights and quibble about whether the protections of the Bill of Rights extended to Abbotabad and the unarmed bearded guy in the robes.
A couple of decades and more ago, Daniel J. Kornstein wrote an essay in the New York Law Journal explaining that Shakespeare's Measure for Measure "is really a play about theories of legal interpretation."  I had just completed my first year in law school at the time, but if I'd had a year of law, I'd had 15 years of graduate study and teaching English literature.  I'd taught Measure for Measure a number of times.  
I wrote a rather lengthy letter to the editor.  I accused (there's no other word for it) Kornstein of "legal myopia."  I ended the letter this way.
Measure for Measure may be, as Mr. Kornstein avers, "a legal classic." Certainly, understanding the rechness of its legal allusiveness is rewarding.  But to see the play and marvel primarily at Shakespeare's awareness of legal matters is to see far too little.
But when your only tool is a hammer, everything looks like a nail.
Jamison is probably right in a technical way.  The courts (and it's they who decide these things) would not likely have said that Osama bin Laden, hiding in plain sight in a mansion in Pakistan, had a legal entitlement to the protections of the Bill of Rights.
Equally, and more importantly, Jamison is wrong.  He's suffering from that legal myopia thing.
In a comment on his post, I took Jamison to task.
The Bill of Rights isn’t just a set of prescriptions and proscriptions. No more than the rest of the Constitution is just a set of rules. Sure, the Bill of Rights is those things. But it’s also a statement of values, of the kind of people we are (or at least want to be), “our better angels” to steal a phrase from Lincoln.
Of course, maybe it is.  Maybe the Constitution is just a contract, to be narrowly read and applied only where it must.  Certainly, that's very close to how Clarence Thomas (Antonin Scalia, too, but less rigidly) tends to view the protections of the Bill of Rights.
But if that's all it is, if our freedom and liberty, our very existence as a nation, are to be measured exclusively in contract law, then things are even sadder than I'd thought.  Sadder, for sure, than I'm willing to think.
When people invoke their fright to free speech whenever anyone tries to shut them up, the message is clear that the First Amendment's prohibition on Congress "abridging the freedom of speech" is much more than that.  When they insist, "It's a free country" they're not finding it in the Constitution's text.  
Freedom, generic freedom, the freedom to do and be, you won't find those in the Bill of Rights.  And you probably can't enforce them in a court of law.  
But we have an innate belief in them.  As our rights.
We're not very good at it.  For most of us, alas, freedom is much more appealing as an abstract concept than as actual rights to speak our minds, refuse to worship, or tell the cops to fuck off when they come without a warrant.  We laud the right to eccentricity as long as we don't have to sit next to the eccentric guy on the bus.  And if the terrorists really hate us for our freedom, then the government's use of terrorism to invade our freedom really does hand the terrorists a portion of victory. 
But the test of our values is in the values themselves, not in how successfully we honor them.  The latter is the test not of the values but of ourselves.  
The latter, how successfully we honor those values, is important.  Are we as good as we claim?  Do we live up to who we say we are?  Do we mean this stuff or just pretend.
And so we come to bin Laden in the mansion.  
Look, there was never a chance that we were going to bring this guy to the US, put him on trial in federal district court in New York or DC (or Des Moines, for that matter) with the full panoply of legal protections, scrupulously honored.  And if, by some absurd chance, he was found not guilty, then let him go.  Not a chance.  
And it's a damn shame.  What a lesson that could have been.  Civics for the world.  We mean what we say.  We are who we claim to be.
And if we can do it for him . . . well, then, we can surely do it for some homeless guy charged with a low level drug offense.  Or the guy charged with capital murder.
And if we can't won't?  Well, that says something, too.
So maybe Jamison is right and bin Laden had no legally enforceable rights to assert.
But he had rights to assert.  They're the rights that say,
This is who we are.  And we mean it.  It doesn't matter who you are or where you are or what you're said to have done.  We honor and respect and enforce those rights for you because that's who we are.
But that's not (or maybe not) law.  That's principle and values and ideals.  It's the idea.
The alternative?
The only tool we have is a hammer, so everything looks like a nail.

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