Tuesday, September 16, 2014

Legalism: No foul, no harm

Spoiler alert: I'm going to be working my way down to Obama here, but it's going to take a while...

Antonin Scalia. "The law is the true embodiment/Of everything that's excellent./It has no kind of fault or flaw,/and I, my lords, embody the law."
As everybody knows, in August 2009, when the Supreme Court ordered a Georgia judge to examine evidence that Troy Davis, convicted of murdering an off-duty police officer in 1989, was innocent, Justice Antonin Scalia dissented on memorable grounds:
Scalia argued that the 1996 federal law limiting federal habeas review of state criminal convictions — the Anti-Terrorism and Effective Death Penalty Act (AEDPA) — barred any federal court from hearing Davis’ claim because there was no error at his trial that violated any prior Supreme Court decision.
Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
In Scalia's view, if you're innocent of a capital crime but a prosecutor, judge, and jury convict you anyway according to all the proper forms, and put you to death, you can't complain. They didn't do anything wrong, so nothing actionable has occurred. Legally speaking, you may be dead, but nobody killed you: no foul, as it were, no harm.

To a lot of people (me too!), this reasoning is extreme and perverted. And it's obviously so, but let me lay out the argument here for a minute.

A criminal trial is not a damn game, as Speaker Boehner would say, where the object is to have one of the lawyers go home with a trophy; it is supposed to provide justice.

Soccer is a game, and when a team loses a match on a bad call, it's a shame, but you don't know how it would have turned out otherwise—the other team might have won anyway—because it's not about one team being intrinsically better than the other, and besides the stakes, even in a cup final, are not that high, nobody's going to go to prison or die (even in North Korea). But whenever people are punished for crimes they didn't commit, a serious injustice has been done; it is intrinsically wrong that they were convicted, and the stakes are too high, especially when the punishment is death (you can't order a prisoner's release from the grave).

Such an outcome is a serious failure of the system, and if it happens with any frequency at all, as it does in the US, it needs to be rectified. "The law says I don't have to" isn't an illegal response to the problem, but it is an immoral one.

Abridged concert version of Gilbert & Sullivan's political opera, Iolanthe; a cast list is here.
The greatest sequence in all of G&S, in my view, the Entrance of the Peers ("Bow, bow, ye lower middle classes") and Lord Chancellor's song ("The law is the true embodiment"), is at 11:50-19:40. If you watch the whole thing, the baritone who plays Lord Mountararat looks quite a bit like a more serious and yet more clubbable twin of Jonah Goldberg, singing (at 48:12)
When Britain really ruled the waves
(In good Queen Bess’s time)—
The House of Peers made no pretense
To intellectual eminence,
Or scholarship sublime;
Yet Britain won her proudest bays
In good Queen Bess’s glorious days!
So Scalia was in the minority, anyhow, and the only important effect of his perversity in In re Davis was that he exposed himself as a vicious clown. Nevertheless, there is more of this kind of bizarro legalism around than you might like to think; the latest example being that case of the anti-abortion meta-PAC Susan B. Anthony List going to federal court to strike down Ohio's law against political campaign lying.

What is startling isn't so much the legal arguments in the decision—I can understand why it's a First Amendment issue, and that it would be very hard to explain how speech can be unprotected just because it's false—but the remarkable chutzpah of the plaintiffs: "Preventing me from telling lies about my enemies imposes an undue burden on my ability to get my way." No, they didn't actually say that, I don't imagine, but that's the logic.

I've been thinking for a long time, and having trouble finding a language to say it in, that we all have to stop thinking like attorneys. The law is an instrument for obtaining justice; it's not justice in its own right, and it's often not even just, as in this case, where it is possibly quite true that the Constitution allows SBA List to say that former Rep. Steve Driehaus voted to fund abortions with tax dollars although he did not (indeed, I'm sorry to say, he strongly opposed such a compassionate and sensible idea), in order to stop him from getting elected, but it's wrong. It's wrong to tell lies about people in order to harm them simply because you want to.

The left, or what often passes for a left in this country, where your right to hide dodgy income against electronic scrutiny seems to be regarded as more important and radical than workers' right to organize a union, can be caught making arguments that are just as bad, and they are often made specifically to condemn President Obama: I'm thinking, for instance, of the case of Anwar al-Aulaqi, the American preacher who was killed in Yemen by a drone bomb because he was, maybe or maybe not, organizing jihadi attacks against the United States (i.e., not because he was "judged" to have committed a "crime" but because he was believed to be conducting a belligerent operation; not being "punished" but rightly or wrongly stopped).

The argument I'm interested in here isn't one about the justice or morality of targeted assassinations, which I really can't approve of, but can nevertheless understand as a kind of sicko cost-benefit better way of conducting war (because I think of war as immoral in the first place and it's a kind of bottom line), like as I always say sincerely it's better to drone-bomb Hitler than firebomb Dresden.

Nor is it about the question of whether Aulaqi received due judicial process before he was executed, because excuse me, what part of war don't you understand? War is when states kill people without due judicial process, it's as good a definition as any. (bmaz, cited below, says it isn't war because the assassination bureau in question, the CIA, is a civilian organization, which is a legalism too absurd to bother with here, since the CIA has been conducting war operations since it was an infant OSS.)

It's the argument you hear everywhere—Obama killed an American citizen! Or in its most inflamed form, Obama claims a right to kill American citizens whenever and wherever he wants, without putting them on trial!!!

One of the things that makes me crazy is something I've discussed before—the implication that it's OK to assassinate foreigners without the benefit of a trial, or at least somehow less evil in some very important way. It's not! If you're killing an innocent person, it's just as bad no matter what passport they're carrying!

But the legalism aspect, which is what I want to focus on here, is the one about 18 U.S. Code § 1119—Foreign murder of United States nationals, a federal statute making it a crime to kill American citizens on foreign soil. Forgive me for citing from the evil OLC memo by David Barron (July 2010) which was used to justify the killing of Aulaqi , but
The origin of section 1119 was a bill entitled the "Murder of United States Nationals Act of 1991" which Senator Thurmond introduced during the 102d Congress in response to the murder of an American in South Korea who had been teaching at a private school there. See 137 Cong. Rec. 8675-77 (1991) (statement of Sen. Thurmond). Shortly after the murder, another American teacher at the school accused a former colleague (who was also a U.S. citizen) of having committed the murder, and also confessed to helping the former colleague cover up the crime. The teacher who confessed was convicted in a South Korean court of destroying evidence and aiding the escape of a criminal suspect, but the individual she accused of murder had returned to the United States before the confession.... The United States did not have an extradition treaty with South Korea that would have facilitated prosecution of the alleged murderer and therefore, under then-existing law, "the Federal Government ha[d] no jurisdiction to prosecute a person residing in the United States who ha[d] murdered an American abroad except in limited circumstances, such as a terrorist murder or the murder of a Federal official."
That is: unlike the case of Congressman Leo J. Ryan, murdered by religious cultists in Jonestown, Guyana, in 1978, whose killers could be prosecuted under 18 U.S. Code § 1114, when Ellen Casey, 28, of Bellingham, WA, stabbed Carolyn Abel, 26, of Lafayette, IN, to death in her Seoul apartment in 1989 and then absconded home to Bellingham before the Korean police could arrest her, the American police were unable to arrest her as well, because they had no legal jurisdiction over the crime. Thurmond's bill was meant to rectify that situation.

(Thurmond's proposal was ultimately passed—with some tightening—as part of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355 § 60009. Does that mean all the presidents up through early Clinton could kill US citizens on foreign soil at their pleasure?)

In arguing that this statute permits the Obama administration to assassinate Anwar al-Aulaqi, Barron was being a lawyer, which is certainly bad enough (it would be better to say that the statute fails to forbid the administration from assassinating him), but that's his job. In taking issue with Barron on the subject, commentators like the highly respected bmaz are thinking like Scalia. They use the words of the statute without regard to their context (CIA goons conducting a military operation in Yemen, good or bad, are nothing like young English teachers after hours in Gangnam).

In so doing, they shift the conversation from the very important question of whether the US should engage in targeted assassinations to the purely technical and self-evidently moot question of whether Attorney General Holder would be able to charge President Obama with murder if he were so inclined, which he obviously isn't.

And they do it with the singular purpose of making Obama appear to be "worse than Bush"—even though it was the Bush administration, not David Barron, that came up with the idea in the first place:
Using the war paradigm for counterterrorism enabled government lawyers to distinguish lethal attacks on terrorists from prohibited assassinations and justify them as lawful battlefield operations against enemy combatants, much like the uncontroversial targeted killing of Japanese Admiral Isoroku Yamamoto while he was traveling by a military airplane during World War II.  According to reports, President Bush also gave the CIA, and later the military, authority to kill U.S. citizens abroad if there was strong evidence that an American was involved in organizing or carrying out acts of terrorism against the United States or U.S. interests. (Gabriella Blum and Philip Heymann, 2010, "Law and policy of targeted killing", citing reporting by Dana Priest)
It is not only unfair to Obama to suggest in this way that he is a particularly wicked person when his views on this subject, however questionable, are actually entirely conventional; it is unfair to the whole discourse about war and counterterrorism. It is trivializing something that deserves a serious discussion, as Scalia does to the question of capital punishment.

The sublime Canadian contralto Maureen Forrester as the Queen of the Fairies at the Stratford Festival in 1988. Note: Knowlton Nash, mentioned in the second verse, was anchor of the CBC's nightly late-evening news program The National, from 1978 until his retirement in 1988. (Thanks as ever, Wikipedia.)

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