Which Values Are Those, Eric?

OK, so I've said (see here) that the Bill of Rights in particular and the Constitution in general express our values as a people and that we reveal important truths about ourselves when we do (or don't) apply those values and principles across the board.  Even when a strict reading of the Constitution doesn't mandate it.  Even when the Five Who Decide would say they don't apply.

Those values?

They involve due process, public trials with rights to counsel and confrontation.  They involve adherence to rules of evidence, demands that the government prove its case beyond a reasonable doubt.  They involve prohibitions against warrantless searches and seizures and respect for free speech.

Or maybe they just involve shooting first and asking questions later.

Attorney General Eric Holder, last week, before the House Judiciary Committee according to Nedra Pickler of the AP.

"It was a kill-or-capture mission," Holder said. "He made no attempt to surrender. And I tend to agree with you that even if he had, there would be a good basis on the part of those very brave Navy SEAL team members to do what they did in order to protect themselves and the other people who were in that building."

Holder said the SEALs minimized the loss of life as much as possible. "I'm proud of what they did," Holder added. "And I really want to emphasize that what they did was entirely lawful and consistent with our values."

I really do understand that Holder couldn't have said that the plan and its, er, execution was illegal and violated our values.  And as I understand it (I'm not even close to an expert on international law or the law of targeted assassination [is there such a thing?] or the laws of combat), there's at least a case to be made that it was perfectly legal to do what the SEALs did.

But "consistent with our values"?  Kill him in self-defense even if he tried to surrender?

Because the order was to kill?  (And look, see, afterwards we turned up evidence that he was still being an evil mastermind even though we pretty much thought he had become just a figurehead by the time we actually did the killing.)

I get it, really, I do, that he was a bad guy who bore major responsibility for much death and destruction.  And who wished to accomplish still more.  I understand, even if I don't share or particularly approve, the schadenfreude.

His values aren't mine, aren't those we proclaim as ours.

All the more reason, then, to treat him in a manner consistent with ours.  Even if it wasn't necessary.  Even if it wasn't required.  Even if they could be lawfully ignored.

To show him. 

To show the world.  

To show, most of all, ourselves.

Of course, Eric Holder says we did.

Except he didn't say just what those values were.  

Inquiring minds want to know.

Somehow, I don't think it's me.

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?

Hmmm.

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.

The Sausage Factory

"Shit happens."

One of my clients was alleged to have said that, dismissively, after watching on television the news story about a murder he had committed a couple of hours earlier.  

Shit happened to him, too.  He'll have to serve 30 full years in prison before he's first eligible for parole.  If the law at the time had allowed a sentence of life without the possibility of parole, he'd have gotten it, but the reality is that the Parole Board will almost surely see to it that he serves something very close to that.  It certainly won't let him out after "just" 30 years.

It's been a long time since I handled that case, probably 17 years or so ago.  I haven't tracked my client's progress through Ohio's prison system, and I'm not looking him up now.  But I'd lay odds that he's at the Toledo Correctional Institution.  That's where most of the serious bad guys from Toledo end up.  For its own reasons, the prison system mostly prefers to put prisoners close to their homes.

Shit also happened to Keith Dressel, too.  He was a detective in the Toledo Police Department.  The shit in his case was Robert Jobe who shot Dressel to death while Dressel was trying to arrest him.  Although Jobe was only 14 at the time of the killing, the state tried him as an adult, attempted to convict him of aggravated murder so that he could get sentenced to life without the possibility of parole.  The jury said no, it's simple murder (plus a firearm specifiction).  That means 18 to life.  His first parole hearing will be in 2024. The Parole Board won't let him out then, either.  Shit happens.

Then there's the officer's widow, Danielle.  Her husband's murder was obviously traumatic.  Shit that happened to her.  I've heard stories about her continuing bitterness.  She wanted, they say, young Jobe to get death, which wasn't a legal option.  She's embittered at the system, they say, that insists on giving rights to people who are charged with hurting cops.  These are stories, word on the street.  I've never met her.  I don't pretend to know the depth of her pain and the bitterness she feels.  But some of it is public.

I wrote this, in a different context, back in October.

In Toledo, the other day, some guys were on trial for assaulting cops. The verdict didn't go as the state (and the cops) hoped. See, the jury just didn't believe the police version of what happened. That led to considerable community outrage, including this letter to the editor of the Blade from Danielle Dressel, the widow of an officer killed on the job. She writes:

The detectives were doing their jobs, working on an ongoing investigation, when they were called names by these attackers. The detectives identified themselves as police officers. These men not only physically attacked the detectives, but attempted to steal their guns and badges. Out of the seven men who attacked our officers, only three were tried, and only one was convicted of misdemeanor assault. This is tragic.

Don't misunderstand me. I feel for her. But she wasn't there. She doesn't know that the officers were called names. She doesn't know that they identified themselves. She doesn't know that the defendant's tried to steal guns and badges. She believes it because it's the police version. She believes it because she's on their side. She believes it because to her, all cops are victims. I understand why she might feel that way given her history. But her blind belief that whatever the police say is true, that infallibility (if not invulnerability) comes with the job, doesn't make it so.

The jury knew better. So the jury must be at fault.

Like I say, shit happens.

Jobe has been in prison for a couple of years.  He's been held in a youth facility because he was under 18.  But now he's legally an adult, so they're putting him in adult prison.  Toledo Correctional.  Danielle Dressel is, according to WTVG-TV, the local ABC station, "furious."

One of our comforts was knowing that, okay, he's going to get out in 17 years, but he's not here. He's away from us. And now we have to deal with the fact that he's right down the street.

Frankly, and I don't mean to be callous about this, I don't know what there is for her "to deal with." It's not like she's going to be bumping into Jobe at the grocery store or the gym.  They'll be "neighbors" only in the most attenuated sense of the word.  She won't see him.  He won't see her.

He's taken away my son's father. My son will never get to see him again. We will never get to see Keith again, yet Robert Jobe has the ability to see his mom anytime she wants to come visit.

So maybe that's it.  It'll be easier for Jobe to see his mother when she wants to see him.  But really, that's about Jobe's mother, not about Jobe.  I've lost a husband and my children have lost a father.  So the killer's family should suffer just as much.  Shit should happen.

The Hatfields and McCoys might have understood.  (Disclosure, I know some descendents on both sides of that feud.  Good people who don't hold a grudge.  That was then, this is now.)

And it's not just Danielle.  Dressel's mother is furious, too.  But she's not just fuming to the media.  

Keith's mother, Lorraine, is furious the family wasn't notified before Jobe was moved. But the state doesn't have to do that. Lorraine says she plans to take action and contact state lawmakers.

Make way for Dressel's Law.  Coming soon to a state near you.

I'm not sure what it will be.  

• Permanent banishment from the community where the crime occurred?
• Permanent banishment from the community where the criminal lived?
• The right of the putative victim or survivor of crime to determine the location of the punishment?
• Crime victim control over conditions of confinement?

Something else?

Whatever it is, shit will happen.

Because, you know, it does.  And it's not something to treat dismissively.  But do they have to dump it on everybody's lawn?

Holier than who?

Jonathan Turley this morning reports and links to this story you may remember from March 2008. Aisha Ibrahim Kuhulow, a 13-year-old Somali girl was stoned to death in a football (I assume that means soccer) stadium in Kismayo by order of the radical conservative Islamists who control the town. Her infraction? Premarital sex. The evidence? She reported having been raped by 3 men in an effort, unsuccessful, to have them charged.

This is not a post about the horrors inflicted by radical Islamist law or in the name of whichever god to whom one might pray or pay obeisance. It's not a post about the treatment of women or of children in Islamic society. It's not, in fact, a post about anything to do with Islam or Islamists or religion or the religious at all. It's not even a post about a strife-torn, anarchic, sometime nation where people live without rules except those imposed by whoever happens to be in power in this or that town this afternoon.

It could be about any of those things, and perhaps another day I'll talk about some of them. But not today.

This is a post about us, you know, the civilized ones, the ones who are outraged by this sort of thing, the ones who condemn this as evil and barbaric, the ones who say we must stop it lest it spread. It's a post about who we are.

And it's about slippery slopes.

It was just three years ago, in Roper v. Simmons, that the Constitution stopped permitting the execution of juveniles. It was just a year ago, in Kennedy v. Louisiana, that the Constitution said that unless there's a homicide, there can't be an execution (Obama thinks that's wrong, by the way). According to Refuge House, it was just 1993 that marital rape became a crime in all 50 states. The Supreme Court is going to decide this year (Graham v. Florida and Sullivan v. Florida) whether the Constitution will begin prohibiting LWOP sentences for juveniles who have not committed homicide. In Florida, there are six children doing LWOP who were 13 or 14 at the time of their crimes. (Story here.)

Statistics compiled by the National Center on Crime and Delinquency, indicate that with about 5% of the world's population, the United States has about 23% of the world's incarcerated people. Not surprisingly, we have the highest rate of incarceration in the world.

Do we, officially, stone children to death for being raped? No. Do thousands watch while we do that? Well, we don't do that, so I guess not.

But when it's not quite official? Well, you might look here or here or here or; hell you can find more on line yourself.

What we, who think ourselves enlightened, see as civilization and progress is damned recent. And held up by a mighty slender reed. And it's worth remembering that the folks who ordered the killing of Aisha Ibrahim Kuhulow thought they were the enlightened, civilized ones, doing God's will.

Legal Reasoning and Legal Reality

I want to write about legal reasoning and the realpolitik of courts and about oral argument.

Defending People's Mark Bennett is pushing a discussion about the Boucher case which involves a grand jury subpoena and the effort to get Boucher to unlock the z drive on his computer and show the grand jury that he has child porn on that drive. It's an interesting case on the merits and might prove important.

I'm not interested, here, in talking about the Boucher case itself. (You can learn about it - and if you've got something incriminating on a computer you probably should learn about it, from Bennett's site, where you can also find, in the comments, my take on it.)

What does interest me here is the underlying jurisprudential question Bennett raises: How do judges decide things. I'm not talking here about how they decide who to believe (the cop in a criminal case, for instance, just because he's a cop) or principles of constitutional interpretation. This is both less grandiose and, on a day-to-day basis for practicing lawyers and their clients probably far more important.

Here's the model of a legal argument presented in the form of a brief oral argument on a motion before a trial judge - and the sort that too often shows up in law school textbooks and, phrased differently, on law school exams.

ATTORNEY A: Your Honor, this case is just like Humpty v. Dumpty. My client's leg is shattered and cannot be put together again. Therefore the defendant must pay for the loss of my client's leg.

ATTORNEY B: Your Honor, that's just silly. This case is nothing like Humpty. First, we're talking a leg, not a whole body. In fact, this case is exactly like and controlled by the outcome in Jigsaw v. Puzzle. The leg is broken, but any competent surgeon can put the pieces in order and bind them together.

ATTORNEY A: Body, schmoddy. The thing is shattered and can't be repaired, which is the essence of Humpty.

ATTORNEY B: No, no, no. Humpty is about total loss. This is Jigsaw.

The argument, you see, isn't ordinarily about whether Humpty or Jigsaw correctly states the law. It's about whether this broken leg is more like the story of Humpty Dumpty or more like a jigsaw puzzle, knowing it's not actually all that much like either. It's about analogies.

And when we argue to the court that it should do this or that, what we're mostly doing is finding the analogy we like and explaining that it's the one the court should think is closest to the case at hand, not the analogy the prosecutor is pointing to. But it's complicated because the analogy is not the thing itself, and you can usually find something for just about any point.

[In this way, law is to be distinguished from, say, Swedish society as described in the crime fiction of Maj Sjowal and Per Wahloo. In one of their books (I'm doing this from memory and don't have the book before me, so I may have a detail wrong), a character explains that in Sweden "all things are either required or forbidden." In the law, by contrast, and as a consequence of the sheer mass of case law out there, it's not much of an exaggeration to say that all things are both required and forbidden. You can, that is, find authority to support almost any argument if you can just figure out how to shoehorn your facts into the right analogy.]

A couple of hours before Bennett posted about Boucher yesterday, a friend and I were speaking about oral argument. He observed that if a case is well briefed and if the judges read the briefs before argument (neither a sure thing, but it was in the case he had and the court where he most practices), the judges have already made up their minds before oral argument, so why not waive it. You're more likely to dig a hole or say something stupid or give the prosecutor a chance to save his case than to benefit from argument, he said.

Of course, the first rule is that there are no rules. Everything depends on the particular case and the particular court. But for reasons I've never fully understood, appellate judges really believe oral argument matters. As them and they'll say so. Poll them and the results are overwhelming. Typically, what you hear is that argument makes a difference in something like 20% of the cases. I've always found that figure astounding, but as another appellate lawyer once speculated, "Maybe 20% of the time the briefs are so bad that the judges don't have any idea what the case is about until oral argument."

Actually, I think it means something more like, 20% of the time an individual judge finds that oral argument helps clarify the decision that judge has already reached. It's a confirmatory 20%, not an outcome changing 20%. And it's probably easier to lose a case during argument (by saying something really stupid) than to win one.

Here's what Justice Scalia and Bryan Garner have to say in Making Your Case: The Art of Persuading Judges:

Many lawyers view oral argument as just a formality, especially in courts that make a practice of reading th briefs in advance. Sure it gives counsel a chance to show off before the client. But as far as affecting the outcome is concerned, what can 20 minutes or half an hour of oral argument add to what the judge has already learned from reading a few hundred pages of briefs, underlining significant passages and annotating the margins?

This skepticism has proved false in every study of judicial behavior we know. Does oral argument change a well-prepared judge's mind? Rarely. What often happens, though, is that the judge is undecided at the time of oral argument (the case is a close one), and oral argument makes the difference. it makes the difference because it provides information perspective that the briefs don't and can't contain.

Well, maybe. Scalia operates in a pretty rarified world - one where judges may (do they, really?) actually read, underline, and annotate hundreds of pages of briefs before argument. And his is a world where the Court decides few cases, and those raising issues that have often split lower courts. Most of what we do in the appellate courts isn't like that. Mostly we're arguing for some sort of error-correction. We get 30 pages to the side for the brief. No amicus in all likelihood. And the case is likely something close to a sure loser.

That much said, the process is the same. Humpty is like this case. No it isn't, Jigsaw is.

Except that the court has probably already decided whether it's Humpty or Jigsaw that controls. And I'm not likely to get far in changing their mind unless I have some fresh approach or focus or something. And that goes to the underlying question I started with: How does the judge decide which analogy to buy?

There are two possibilities. The judge can reason forward or backwards. If the judge reasons forward (which is what all judges claim to do and most believe they do), it looks at the facts and studies the law and determines, ultimately, whether this is more like A or like B. If the judge reasons backwards (which is what a very large percentage of judges do much of the time - often subconsciously, I think), the judge looks at the facts and decides what the right outcome will be and then concludes that of course the case is more like A or like B.

If that's so, if my real world understanding of how judges decide (or commonly decide or something) is so, then my job as appellate advocate is complicated. Because while I have to make the argument going forward, I have to convince the judge going backward.

You want, Your Honor, to find for my client. And here's the case law/legal reasoning that lets you do it.

And that, when you get down to it, is why I go to oral argument.

What's in a name?

I recently finished reading Neil deGrasse Tyson's The Pluto Files: The Rise and Fall of America's Favorite Planet which explores the background to and public controversy over the decision to remove Pluto from the collection of things astronomer's call "planets" and confer upon it the lesser status, "dwarf planet." (Publisher's blurb here.) Then Dick Cheney, in his speech the other day explaining that Obama's embrace of American values would lead to the deaths of thousands, maybe hundreds of thousands, said, "You don't want to call them enemy combatants? Fine. Call them what you want - just don't bring them into the United States. Tired of calling it a war? Use any term you prefer." (Text of speech here.)

Whatever Pluto was, it didn't become something different when the International Astronomical Union changed its status. And Cheney is right that keeping prisoners locked up at Guantanamo without meaningful legal protections is the same whether you call those prisoners "enemy combatants" or, say, "forensic accountants" (or "detainees," by the way, which is a word I'm not using) and that war by any other name kills just as many people. Things are what they are, no matter what you call them.

As Juliet said,

What's in a name? That which we call a rose
By any other name would smell as sweet.

On the other hand, words do matter and what we call things makes a difference. If Juliet was right, so was Hamlet. So when Polonious asked what he was reading, Hamlet's snarky response was "Words, Words, Words." Well, sure. But the (non) answer, while perhaps true, also obscured and obfuscated. That's what Orwell was talking about in "Politics and the English Language." (Here.) And it's what he let us see in action through the "Doublespeak" of 1984.

"Enhanced interrogations" may have the same referent as "torture" in the context of waterboarding, but the insistence of various folks on the term of their choice makes exactly the point that the two aren't the same. Michael Ratner, president of the Center for Constitutional Rights, referring to Obama's plan to establish a system of "prolonged detention" in the U.S. for the prisoners at Guantanamo, said, "Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name.” (Quoted in NYTimes here.) So maybe it does matter what we call things.

But it also matters what we actually do.

And whatever we call holding people in prison forever without trial (or after acquittal, if that should happen), it's not something we ought to feel good about. Obama's insistence that he can do it consistently with "our values" is true or false, I suppose, based on what those values are.

Here's one that's been with us a long time: You're innocent until found guilty by proof beyond a reasonable doubt. It's enshrined in the Constitution. See In re Winship, 397 U.S. 358 (1970). It's tied to the presumption of innocence, a value with roots that apparently go back at least to Deuteronomy. (See discussion here.)

Here's another: If you're innocent, the government has no business holding you in prison forever.

So what's the real problem? What truth do we fear? That we can't actually prove these guys are as bad as we're quite sure they are? That our "proof" is based on evidence so shoddy that nobody would believe it? That our proof came only from torture which gives unreliable results so even we don't really know if it's right? Then maybe, just maybe, we ought to reconsider that "prolonged detention." Maybe we ought to acknowledge that what we're really dealing with, no matter how we try to pretty it up, is a star chamber and that we're just planning to keep a bunch of innocent people locked up forever 'cause, well, 'cause we can.

But consistent, of course, with our values.