From the Mouths of Babes...

Today I met my first client at 9am in court, as she'd been called in for failing to meet with pretrial services after posting bond in a DUI case. The judge was compassionate, but warned her that she was "trying the patience of the court," as she had turned a relatively small problem into a much bigger one First she was charged with DUI, then she failed to appear for diversion, then failed to appear for court (she pleaded to both of these charges before hiring me), and was finally charged with failure to appear again.

So, to not appear at pretrial services was indeed "trying the patience of the court." Fortunately, however, the judge knew a little of my client's story, as almost everyone does in the small town where both she and the judge grew up. Two days before Christmas last year, her father and 15 year old brother were struck by a train at an icy railroad crossing. Both were killed, leaving my client with her mother who is currently on house arrest for conspiracy to distribute both meth and cocaine.

She's doing well now, but I have to find a way to keep her spirit up and "plug her into the appropriate professional, as well as amateur, sources of help such as psychiatric services and A.A. if she decides it's appropriate.

We said goodbye, agreeing that she would meet me at my office later to cancel a warrant in that county for giving false information as well as, you guessed it, failing to appear in court. As I drove, I thought of something to say in court at her next hearing: "I went into criminal defense thinking I would save the innocent from being convicted, but I ended up spending more time trying to save them from staying addicted. A lot who were addicted were also afflicted, with amazingly sad stories or mental illnesses that either grew organically or developed after severe mental or physical trauma.

I also thought of my favorite quote, gleaned from the audiobook The Wisdom of Mr. Rogers: "There isn't anyone you couldn't love, once you've heard their story."

---

Before I stopped at my office, I had another stop to make, to visit another female client, almost the same age, at the Douglas County Jail. This client, I'll call her Amber, I've known for a few years. She landed back in jail a week or so ago on a misdemeanor charge of driving under suspension, which led to the discovery of her current warrant and landed her in the "stony lonesome." I was actually secretly relieved to get a chance to speak with her as she has both felony possession of meth charges as well as a recently filed Motion to Terminate Parental Rights to contend with.

There are three court systems in the Douglas County Courthouse. From the criminal defendant's perspective, she faces misdemeanor charges in County Court, felonies in District and neglect charges, which aren't criminal in nature, in Juvenile Court.

Amber, like a lot of people, has "charges" pending in all three.

When I meet her in jail, her voice is barely audible, a hoarse whisper. We talk for close to an hour, at first reminiscing about how hers was the only termination of parental rights case I have ever "won" out of perhaps 20 cases.

I remind her of the time she showed up at my office after I told her that "if she really wanted to get sober, she should come talk to me." Now, I'd said this to clients in her state before, just as I often offered to create resumes for people who complained of tough job searches. While these offers made me sound like a saint, I had learned from experience that virtually no one showed up. Sometimes I offered it up simply to see if they'd take me up on the offer, but few ever did.

But Amber was different. She showed up, reminding me of my offer, and making me realize that I had no clue about what to tell her. I knew enough to steer her in the right direction and also enough not to give her any money as she'd likely take a detour on the way to the good place if I gave her the means to score at the bad one.

So I called the A.A. central office and gave her directions. When she saw it was a couple miles away, she asked for gas money. It sounds silly now, but I gave her $3, thinking that this would not be enough to buy a "Five piece" which I knew were sold just a few blocks from court. While she was a meth user and not a "crackhead" I knew that while crack was devastatingly cheap, meth wasn't exactly a designer drug.

On the way out that day, feeling guilty about only giving her enough for a gallon of gas, I saw her eyeing the food on our office table, the leftovers of an office "food day." When I told her to help herself, she grabbed a few cookies, stuffing her pockets, the way a kid might at Halloween.

Later, I told this story in court and, combined with her efforts at A.A. and clean drug tests, her rights to her children were not terminated, making Amber one of my few "success stories," at least for the time being.

A few months later, she fell off the wagon again, turned up pregnant and ended up relinquishing the rights to her older children in exchange for a fresh start with her unborn child. Shortly after this child was born, however, she was gone again, turning up occasionally and picking up more charges along the way, and eventually landing her in jail, where I met her today.

We talked for perhaps an hour about her predicament, her myriad cases and her rough life. She assured me that this time she'd truly given herself to God. I'd heard this before and had learned to believe my eyes and not my ears, but still thought of it as a good sign.

I'd heard before that she was raped when she was younger but had never asked her directly. When I cautiously raised the subject, she told me she was raped at age 11 by a stranger. When I asked what happened she told me she "thinks the cops got him" but went on to say that she didn't hear what happened and that "that's when things fell apart. She described hearing voices, cutting her arms repeatedly and eventually even starting fires, before ending up in juvenile detention.

She paused, pulling that orange jumpsuit sleeve down further on her arm, looking up at the block wall, towards the flourescent window, seemingly thinking back on this period of her life for the first time in years.

Then she quietly said, as if she'd just realized it, "Before that, I was a ballerina."

"Lawyers Fear Monitoring..."

...in Cases of Terrorism" is the headline in today's New York Times. It goes on to state that:

Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for the last two years. Every few weeks, he boards a plane in Portland and flies to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces charges here of financing terrorism.

Mr. Nelson says he does not dare to phone this client or send him e-mail messages because of what many prominent criminal defense lawyers say is a well-founded fear that all of their contacts are being monitored by the United States government...

Across the country, and especially here in Oregon, it seems, lawyers who represent suspects in terrorism-related investigations complain that their ability to do their jobs is being hindered by the suspicion that the government is listening in, using the eavesdropping authority it obtained — or granted itself — after the Sept. 11 terrorist attacks.

Steven T. Wax, a Portland lawyer involved in several terrorism cases, said he has told clients to assume that everything they say to him is being secretly monitored. Mr. Wax said he “self-censors” his e-mail messages, even to other lawyers and friends. The situation, he said, has elements of “Kafka and ‘Alice in Wonderland.’ ”

I've written before about Oregon attorneys who fear that their client communications are being intercepted. And we all remember Gerry Spence's representation and eventual $2 mil. settlement in the Brandon Mayfield case, a lawyer who also lives in Oregon. Does the government have something against Oregon lawyers or just criminal defense lawyers in general? Well, judge for yourself, as the NYT article continues:

The Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas.

But in cautiously worded court statements, the [Justice] department says that if there has been surveillance of lawyers involved in terrorism cases, it has been handled in strict accordance with federal law and with the Constitution’s promise of a criminal defendant’s right to counsel.

In other words, "don't you worry your pretty little heads over whether we're eavesdropping on lawyer's privileged communications with their clients. And we're not saying we did, but if we did we followed the law."

I wonder how many people Monica Goodling had to fire or how many hours of overtime John Yoo had to work to get this particular interpretation of the law approved? Don't worry though, even if they are breaking the law, they're not doing it very often and are ensuring that it doesn't affect the client's in court. "We don't torture," in other words:

Two senior Justice Department officials, speaking on the condition of anonymity because the department has not authorized them to discuss the issue with reporters, said they knew of only a handful of terrorism cases since the Sept. 11 attacks in which the government might have monitored lawyer-client conversations. They said they understood that the intercepted conversations were not shared with front-line prosecutors in an effort to be certain that there was no violation of attorney-client privilege.

And...

While the Bush administration insists that the warrantless wiretapping program has ended, Mr. Belew and other lawyers say they are concerned that the government has found another way of monitoring lawyer-client conversations, perhaps through the use of secret warrants obtained through the Foreign Intelligence Surveillance Court, a special court used in national security cases. The earlier N.S.A. program bypassed the surveillance court.

That's the same court that approved the searches of Brandon Mayfield's home and which claimed that Mayfield's fingerprints matched ones found at the scene of the Madrid train bombings. As David Fiege wrote in Slate:

Mayfield, a 37-year-old lawyer, ex military officer, and convert to Islam, was jailed for two weeks after the FBI discovered his fingerprint on a bag of detonators recovered after the deadly Madrid bombing that killed 191 people in March. Mayfield, it was also quickly disclosed, represented a defendant in a child custody case who was linked to terrorism. After matching the print and reviewing the evidence, special agent Richard Werder swore out an affidavit and used it to get a material-witness warrant. Mayfield was quickly arrested and sent to jail. More quick and aggressive police work in a terrorism case, keeping the homeland secure.

Except for the part about how the fingerprint wasn't Mayfield's at all.

At least I won't have to worry about being appointed to one of these cases. You see,

Lawyers who agree to defend terrorism suspects in cases involving classified information are required to undergo background checks that can include an F.B.I. review of their financial and medical records, including records of psychiatric care.

"So," as Carl the groundskeeper once said, "I got that going for me, which is nice."

Land of the Free?

An article in today's New York Times begins with the following:

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

The article goes on to state that:

Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

For decades, our national criminal justice policy- under both Republican and Democratic administrations- has boiled down to "lock 'em up; it'll teach 'em a lesson."

Perhaps, in light of statistics such as those cited above, instead of trying to teach lessons with prisons we should, as a nation, learn the lesson that while crime does indeed pay for the prison-industrial complex, it comes at a price neither our treasury nor our people can afford.

Consider this passage from a 1998 Atlantic Monthly article:

Three decades after the war on crime began, the United States has developed a prison-industrial complex—a set of bureaucratic, political, and economic interests that encourage increased spending on imprisonment, regardless of the actual need. The prison-industrial complex is not a conspiracy, guiding the nation's criminal-justice policy behind closed doors. It is a confluence of special interests that has given prison construction in the United States a seemingly unstoppable momentum. It is composed of politicians, both liberal and conservative, who have used the fear of crime to gain votes; impoverished rural areas where prisons have become a cornerstone of economic development; private companies that regard the roughly $35 billion spent each year on corrections not as a burden on American taxpayers but as a lucrative market; and government officials whose fiefdoms have expanded along with the inmate population. Since 1991 the rate of violent crime in the United States has fallen by about 20 percent, while the number of people in prison or jail has risen by 50 percent.

The previously quoted NYT article also compares incarceration rates of industrialized nations:

[The U.S] has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.) The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

If you want to know how much things have changed since the nation was founded as a "city on a hill," the New York Times includes the following quotes:

“In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”

No more.

“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research."

"First they came for..."

Scott Greenfield today links to a blog post by Jonathan Turley discussing Elena Reichman, a "74-year-old grandmother and Holocaust survivor [who] spent the night in jail over an incident that appears to have been the result of a combination bad judgment and bad manners."

This article from the Palm Beach Post describes Reichman's arrest for "allegedly shoving a sheriff's deputy away" as she passed through security at Palm Beach International Airport, but it involved:

[S]omething about the U.S. Transportation Security Administration screeners asking Elena Reichman to take the safety pins out of her pockets - and the Holocaust survivor worrying about the money the pins held."

Reminds me of an article I blogged about last year involving a woman from Iceland who was detained at JFK in which she said:

"Last Sunday I and a few other girls began our trip to New York…We were screened and… I was told that I had overstayed my visa by 3 weeks in 1995…. A detailed interrogation session ensued.

"I was photographed and fingerprinted... asked questions which I felt had nothing to do with the issue at hand... forbidden to contact anyone... [and] made to wait… on a chair before the authority for 5 hours.

"I saw the officials in this section handle other cases and it was clear that these were men anxious to demonstrate their power. Small kings with megalomania. I was careful to remain completely cooperative…"

I hear many people today say, "I don't mind if they [wiretap, detain, hold without charges, waterboard, etc.] because I don't have anything to hide." But the real question isn't whether we anything to hide, it's whether we have anything to fear from this surrender of rights as absolute power always corrupts absolutely.

There's a Russian proverb that says, "choose your enemies carefully for you will become like them" that rings very true today. [the link takes you to a sermon by Forrest Church, son of the great Senator Frank Church whose name was given the the Church Committee]

I'm also often reminded of the poem that begins "First they came for the communists and I didn't speak up for I wasn't a communist..." As the wikipedia article describes, the poem is about the "inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group."

But that couldn't happen here, could it? As one supposed "radical" put it back in 2004:

"The question is no longer rhetorical. We are not yet living in a total police state, but it is fast approaching. The seeds of future tyranny have been sown, and many of our basic protections against government have been undermined. The atmosphere since 2001 has permitted Congress to create whole new departments and agencies that purport to make us safer – always at the expense of our liberty. But security and liberty go hand-in-hand. Members of Congress, like too many Americans, don't understand that a society with no constraints on its government cannot be secure. History proves that societies crumble when their governments become more powerful than the people and private institutions."

The writer was former presidential candidate and current Republican representative Ron Paul.

"The Weaker the Case, the Higher the Bond"

A couple months back a potential client called, asking if he should take the polygraph the detective requested. I had just read the notice in the local police union newspaper reminding officers that "if an officer is involved with a critical incident and is questioned by an investigator, tell the investigator that "I'm just waiting for my attorney." I also remember what my father, also a lawyer, told me: "very respectfully tell the officer that you don't wish to comment without an attorney being with you."

Of course, the next day the guy was arrested and was told by the arresting officer, "you should have taken the polygraph." His bond was automatically set at $25K for the charges he faced.

At his preliminary hearing, I took a chance that waiving it would be more likely to accomplish getting him out of jail while he awaited trial. I did this because I knew the judge had been on the bench less than six months, that the case involved child sexual assault charges and that winning a "prelim," would be highly unlikely, given the charges and unlikelihood that a brand new judge would not bind over such a case even on the flimsiest of evidence.

Instead, I focused on reducing my client's bond. The prosecutor said, beforehand, that she wouldn't agree to the reduction that I wanted(from $25K to $2.5K) but that she would agree to some reduction. I thought a bird in the hand was better than two in the bush.

And for a minute I thought my approach would work! After I told the story about the phone call to the court, the prosecutor agreed with me that the bond should be reduced to $2.5K. But the judge, confirming my hunch that he'd be difficult to convince, said, "No, these are serious charges; I'll reduce it to $10K."

Thinking I could try again in District Court, I filed a motion for a bond review and went to court Friday morning. I laid out, in addition to what I discussed previously, the following reasons:

1. The felonies that were mentioned in the pretrial services report were not convictions, but dismissals, something the judge was being told for the first time!

2. The fact that my client had previously been acquitted of raping, making terroristic threats against, and pointing a gun at his ex-wife, mother of the child involved by a well-known conservative judge named Ronald Reagan at a felony bench trial a few years earlier.

3. That, while my client had refused a polygraph, my client's ex-wife had taken one and failed it!

The judge interrupted me once, telling me to "cut to the chase." I almost asked him if he was at all worried about the possibility of keeping an innocent man in jail, but I instead apologized, telling him that my previous involvement before the arrest made me feel bad about where he now found himself.

Knowing that I better "cut to the chase," but also knowing that I needed to make a good record, I wrapped up my plea by asking for the electronic monitor to be ordered, so that not only could the court monitor my client's whereabouts but that he would also have an alibi if his ex-wife accused him of violating the no contact order.

What the judge said next reminded me of what Tommy Lee Jones' character said to Harrison Ford's in The Fugitive. Remember the scene where the Fugitive says, "but I'm innocent!" and Jones says, "I don't care?"

Judge [redacted], looking relieved that I'd finally stopped talking, said something truly stunning: "Well, I'm not going to try the case today. And in my experience, the weaker the case, the more likely the defendant is to run. So, I'm leaving the bond as it is."

I guess, by that logic, he probably releases the people caught with the smoking gun on their own recognizance, right? I mean, they're not likely to run since it's a strong case. But the ones held on weak evidence, who might be the victims of people trying to use the criminal justice system to fight their own petty battles and to retaliate, those are the ones who need high bonds, since they're "more likely to run."

As depressing as it is to run into a judge who not only applies this logic but openly says it on the record, it's also motivating, at least for me. Imagine the result such thinking would lead to in the absence of the limitations on governmental power laid out in the Bill of Rights. Imagine if we had to try the case to a judge who thinks along these lines rather than to a jury of my client's peers? Imagine what the criminal justice system would look like without the Constitution's ban on excessive bail?

Now imagine what it would be like to be innocent and forced to await trial in the max mod of a jail for at least six months with a bond that's half your annual salary, dealing with a "justice system" that applies such logic?

Not exactly motivating, is it? I guess I better be motivated to convince the jury of what I couldn't convince the judge to do: Let my client go home!

"Liberal" Views of Crime?

Looking around the blogosphere today I stumbled across an interview between two people who seemed like "strange bedfellows." One was Jeralyn Merritt, author of the blog TalklLeft, which bills itself as "The Online Magazine with Liberal coverage of crime-related political and injustice news." On that blog, Jeralyn describes herself as:

"[a] criminal defense attorney in Denver representing persons accused of serious federal and state offenses. She served as one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case.

She has served as Secretary, Treasurer and member of the Board of Directors of the National Association of Criminal Defense Lawyers as well as on the ABA Criminal Justice Section Council and the Board of Governors of the American Board of Criminal Lawyers."

The other "blogginghead" was Ann Althouse, a law professor from the University of Wisconsin, famous for her reaction to the picture of Jose Padilla being transported to the dentist in blackened goggles and wearing other sensory deprivation equipment. Ann's answer to the question of why Padilla was treated this way: (scroll down to the 6:30 a.m. comment):

Perhaps there is a fear he will communicate in code by blinking.

and later, after a commenter asks her "With who? Mr. Padilla has been held in solitary confinement for years, and it's hard to imagine who would know he was going to the dentist and who and how they could continue to communicate with him... Frankly, I believe the blacked-out goggles and the attached sound suppressing device (so that he also couldn't hear anything) are a sadistic way of continuing his sensory deprivation" Ann responds:

Since he was being filmed, anyone might get to see him. I think there's good reason to think that members of conspiracies have a code for signalling to each other after they are captives. (9:48 am)

and later, Ann responds:

I'm not saying Padilla deserves to be treated the way he has over the years, but I am responding to the assertion that there is absolutely no conceivable reason for blindfolding him. Plainly, I have refuted that.

I thought it odd as it is to hear a law professor react to an American citizen's being described by the Attorney General as the "Dirty Bomber," be held without charge for years, and who is goggled, gagged and deprived of sound on a trip to the dentist with, "perhaps there is a fear he will communicate in code by blinking."

But I thought it even more odd that a high profile criminal defense attorney would appear with such a person without at least raising the subject. After all one of the Public Defenders assigned to represent Padilla described him as:

"remain[ing]s unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government’s interrogation scheme... During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body... The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel."

Not exactly the kind of thing you just laugh off with "perhaps they had a good reason," is it?

Then I went to another blog, in the spirit of "knowing thine enemy" where supposed Libertarian law professor Glenn Reynolds links to various right wing blogs.

Strange though, that in scrolling down the page I see two links to Talkleft, Jeralyn Merritt's supposed "magazine of Liberal coverage" of crime and politics.

I was even surprised to see the Right Wing gateway Instapundit with a blogroll to the supposed liberal, left wing Talkleft. Now, admittedly there is a lot of cross-linking of left and right wing blogs all over the place, but take a look at Instapundit's links and see if I'm wrong that he doesn't market his opposition unless they're carrying his water.

So I decide to comment at Jeralyn's "online magazine of liberal coverage" to ask her what her thoughts are on a friendly Althouse interview, where one of the topics is "an appreciation of Charlton Heston, actor and activist," as well as a lot of mentions and even a link on Instapundit.

I don't remember what I wrote exactly but it was short and sweet. I would tell you exactly except my comment/question was deleted within a couple minutes. I wrote something like:

I saw your interview with Ann Althouse. As a criminal defense lawyer was it at all difficult to sit down and talk to someone who is on record saying that Jose Padilla likely had to be blindfolded and deprived of other senses because of a "fear that he might communicate by blinking in code?"

Also, I saw that you're mentioned repeatedly and even blogrolled at Instapundit. Is it difficult to be a "liberal online" and to be so lauded at such a right wing site?

I'm not being flippant. I really want to know hif you can explain this."

But my comment was deleted straightaway and Jeralyn explained that "the comment thread was cleaned up and three commenters have been banned."

I would duplicate the quote exactly, but the banning means that I can't even access the comment thread anymore. I'm a man without a comment thread, shunned by my liberal, criminal defense brethren at Talkleft who say "no soup for you."

My screen name at Talkleft is "Lennonist" and all I am saying is give talk a chance. After all if you believe in "talk," the "left" and "liberalism," are you living up to these principles if your response to someone daring to ask why those who believe in the opposite of these values holds you up as a model is to delete the question?

Matt Diaz Working As Substitute Teacher

Caught the end of a story on NPR yesterday where Matt Diaz, who is described below, was interviewed on All Things Considered by NPR's Robert Siegel. As great as it is to see him getting the publicity and accolades he deserves, I was sorry to hear that he was working as a substitute teacher in Florida. Nothing against teachers, but substitutes don't make much and I know Matt has a family to take care of and feed.

Not exactly the best job for a Navy Lieutenant Cmdr. with a law degree who took a tremendous personal risk to release the names of the detainees at Gitmo.

I know people have varying opinions about the question of whether this act was an example of disobeying an unjust law or of failing to follow orders.

I just hate to see a man whose own father is on death row and who tried to do the right thing have to lose everything as a result of his decision.

Matt Diaz Receives Truth-Teller Award

Today Scott Horton writes about Lt. Cmdr. Matt Diaz, who last Thursday received the Ridenhour Prize for Truth-Telling at the National Press Club. I've written about Diaz several times previously and have exchanged several emails with him as he searches for jobs and adjusts to life as a civilian lawyer.

It's great to see that he's finally getting some badly needed recognition. Hopefully he's also found a job along the way.

I got interested in Diaz' courageous act and subsequent plight after finding this article in the New York Times. The article described the events leading up to Diaz' release of the Gitmo names:

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office."

What I found most fascinating and tragic, however, was the article's description of Diaz' past. When he was about 16, his father was arrested and charged with capital murder. As I wrote previously, while quoting the Times article, "his father, who worked as a nurse that the time :

"...had never been in trouble with the law. No one had seen him inject the patients with lidocaine. Nor, despite the high levels of unmetabolised lidocaine in their bodies, was it certain they had been murdered. But Robert Diaz was the only nurse who was on duty when all of them died, and he sometimes carried preloaded syringes of lidocaine in his pocket. Two vials of the drug were found in the search of his home. (Robert said he had simply forgotten to empty his pockets before leaving work.) Prosecutors never offered a motive for the killings, but Diaz was arrested in November 1981 and charged with the murders of 12 patients.

“That’s when things started falling apart,” Matthew Diaz told me. At 16, he was left to fend for himself. He drifted back to Indiana, where his mother lived, but returned to California the next summer as his father’s trial approached. He soon dropped out of high school, found a job washing dishes and moved into a San Bernadino motel with a 28-year-old woman who had become his girlfriend.

Diaz stood by his father, but Robert Diaz’s legal defense was a debacle. Because he could not afford a private attorney, his case fell to a public defender’s office that was beset with dissension and budget problems. Robert’s attorneys persuaded him to forgo a jury trial and take his case before a judge — a move that was almost unheard of in a capital murder case."

Nice. Waive the jury in a capital murder case. Guess what? His father was convicted and still sits on California's death row.

My last post covered MLK's "Letter from a Birmingham jail," and contained the quotes "an unjust law is a code that is out of harmony with the moral law" as well as "we can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.”"

Describing Diaz' "lawbreaking" and contrasting it with the lawbreaking he was witnessing every day, Scott Horton writes:

Matthew Diaz served his country as a staff judge advocate at Guantánamo. He watched a shameless assault on America’s Constitution and commitment to the rule of law carried out by the Bush Administration. He watched the introduction of a system of cruel torture and abuse. He watched the shaming of the nation’s uniformed services, with their proud traditions that formed the very basis of the standards of humanitarian law, now torn asunder through the lawless acts of the Executive. Matthew Diaz found himself in a precarious position—as a uniformed officer, he was bound to follow his command. As a licensed and qualified attorney, he was bound to uphold the law. And these things were indubitably at odds.

Diaz resolved to do something about it. He knew the Supreme Court twice ruled the Guantánamo regime, which he was under orders to uphold, was unlawful. In the Hamdan decision, the Court went a step further. In powerful and extraordinary words, Justice Kennedy reminded the Administration that Common Article 3 of the Geneva Conventions was binding upon them, and that a violation could constitute a criminal act...

One of the crimes the Administration committed was withholding from the Red Cross a list of the detainees at Guantánamo, effectively making them into secret detainees. Before the arrival of the Bush Administration, the United States had taken the axiomatic position that holding persons in secret detention for prolonged periods outside the rule of law (a practice known as “disappearing”) was not merely unlawful, but in fact a rarified “crime against humanity.” Now the United States was engaged in the active practice of this crime.

The decision to withhold the information had been taken, in defiance of law, by senior political figures in the Bush Administration. Diaz was aware of it, and he knew it was unlawful. He printed out a copy of the names and sent them to a civil rights lawyer who had requested them in federal court proceedings.

Diaz was aware when he did this that he was violating regulations and that he could and would, if caught, be subjected to severe sanction. What he did was a violation of law, even as it was an effort to cure a more severe act of lawlessness by the Government. Diaz violated the law in precisely the same sense as Martin Luther King reminds us, in the Letter from Birmingham Jail, that his arrest was based on a violation of law. That everything the Nazis did in Germany was lawful. And that every act of the Hungarian freedom fighters was a crime. In terms of the moral law, however, Diaz was on the side of right, and the Bush Administration and the Pentagon had, by engaging in the conduct that the Supreme Court condemned, placed themselves on the side of lawlessness, corruption and dishonor.

The last time I heard from Mr. Diaz he seemed concerned not with awards but with finding a good job to take care of his family. I tried to help by contacting a former teacher, now Hollywood writer, who I hoped might have some leads in New York. But I didn't hear back from him. I should have done more, but at least he's back in the news where hopefully someone will now help him out if he needs it.

Hopefully he's either found a job or the publicity that accompanies this award will prompt someone to offer him one. After what he's been through, he certainly deserves it, just as he deserves the award and more.

***

The people at Trial Lawyers College have also very generously offered to give Matt a scholarship to attend the three-week summer session at Thunderhead Ranch, as soon as he's eligible. I hope he takes advantage of this as I can think of no one more accurately described as a Warrior.

UPDATE: Diaz' remarks can be found here. Joe Conason also wrote about the award here.

Unjust Laws

On the 40th Anniversary of Martin Luther King, Jr.'s, assassination, Scott Horton writes at his Harper's No Comment blog that...

Forty-five years ago, the Birmingham News — then as today the powerful voice of an intolerant conservative establishment in Alabama’s largest city—published a letter authored by eight clergymen. The letter, framed in polite and even “Christian” tones attacked and challenged the authority and voice of King. In order to still his powerful voice, Birmingham authorities had arrested King on Good Friday and imprisoned him in the Birmingham City Jail. King’s response, which had to be smuggled out of the jail in installments by his attorneys, was published in the Christian Century, The Atlantic and other publications.

Ask yourself what would happen today if a lawyer smuggled letters out of jail and delivered them to the press. What do you think would happen?

Rereading the "Letter," I remember the frequently quoted parts of it, but didn't remember lines like this:

"An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. . .

There are some instances when a law is just on its face and unjust in its application. For instance, I was arrested Friday on a charge of parading without a permit. Now, there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust...

We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany during that time, I would have aided and comforted my Jewish brothers even though it was illegal."

I used to have the Anatole France quote "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread" posted on my wall, but there's no better quote that I know of than the following, also from MLK's Letter:

I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider.

Fourth Amendment Abrogated by Footnote

As a follow up to my earlier post about the memo written by John Yoo on March 13, 2003, which opened the door to torture at Abu Ghraib, the Washington Post reports on a footnote in which Yoo declares that:

"[O]ur Office recently concluded that the Fourth Amendment had no application to domestic military operations." (see footnote 10)

The memo Yoo refers to still remains classified. However, it's conclusions are obvious. As Ryan Singel writes at his Wired blog:

Citing cases that prevented companies from suing the U.S. government for losses they sustained overseas during wartime, You writes "These cases and the untenable consequences for the President's conduct of a war that would result from the application of the Due Process Cluse demonstrate its inapplicability during wartime--whether to the conduct of interrogations or the detention of enemy aliens."

Lest it not be clear enough that Yoo is arguing the President is King in wartime, thanks to the Constitution's Article II powers, two footnotes surrounding the former sentence make it clear.

In footnote 10, Yoo writes "our Office recently concluded that the Fourth Amendment had no application to domestic military operations."

Remember that Bush said the wiretapping program was part of his war on terrorism.

And there it is. In the war on terrorism, the bill of rights does not apply.

Footnote 11 adds to it: "We conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies."

No due process clause. No restriction of searches and seizures. No declassification of this memo which nullifies the Constitution's applicability to "Domestic Military Operations," whatever that means.

Wow. No wonder Bush likely said, "Yoo had me at hello," upon meeting the man who's now a tenured law professor at UC Berkeley. He was willing to "fix the law around the policy" and provide the means to justify the end of torture restrictions, or any restrictions, for that matter.

The question is, will anyone besides a few bloggers talk about this?

"America is [finally] at the Mall"

Scott Greenfield at Simple Justice describes the events that unfolded at the Smith Haven Mall in Lake Grove, NY when, as Newsday describes it "an 80-year-old church deacon was removed... in a wheelchair and arrested by police for refusing to remove a T-shirt protesting the Iraq War."

I don't have anything to add to Scott's analysis, but did want to point out the picture above (which is worth a thousand words) and which shows the way some soldiers in Iraq view the level of attention that's being paid to their plight. The picture was described by Rep. James McGovern (D-Mass.) in an article in the Boston Globe from last October. As Rep. McGovern describes the sign:

I RECENTLY came across a photo of a handwritten sign in a US military facility in Ramadi, Iraq. The sign read, "America is not at war. The Marine Corps is at war; America is at the mall."

The sign reflects a perception among many US soldiers and their families that the American people are not sharing in their sacrifice.

It is a perception grounded in reality. President Geroge W. Bush recently called upon the nation for "more patience, more courage, and more sacrifice." But outside of the military, who is really sacrificing?

I know one 80-year old church deacon who can say he is.

But the good news is that the sign is, like the man arrested, is quite old. And, times have changed since last October. While the sign it was probably intended sarcastically, it's now become true in quite a different sense.

In other words, while America was shopping at the mall for the first five years of the war, many Americans, perhaps nervous about the economy, are now there not only to shop. As the Newsday article puts it:

"Activists with dueling opinions had gathered [at the mall] to support and oppose America's five-year campaign. As Zirkel was being wheeled to the police car, the crowd chanted "We shall not be moved!" Moments later, they moved; police and mall security had ordered them off the property. Many joined a larger anti-war crowd assembled by the mall's entrance, off mall property, on Veterans Memorial Highway. They were complemented nearby by protesters saying the Iraq war is vital for security."

No wonder the mall's owners are nervous. Something about assembled protesters and images of people dying that makes imported, unnecessary, sweatshop-produced crap a little less alluring.

Maybe President Bush is right. Perhaps we have "turned a corner" on Iraq and have finally arrived at the mall dressed properly and focused on the right things.

John Yoo's Torture Memo Released

Today's Washington Post describes the declassification and release of the infamous "Torture Memo" written by then Assistant Attorney John Yoo.

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Although the existence of the memo has long been known, its contents have not been previously disclosed.

Marty Lederman at Balkinization, writes that:

the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo.

Two parts of the memo have been released and can be found here and here. As stated above, the memo makes up 81 pages, but what stands out to me in reading the first part is the way Yoo applies his brilliant research skills to the terrible task of justifying torture and providing a rationale for its use. He found a way to rise up quickly in the Bush administration and was willing to leap over the Geneva Conventions and justify techniques that have been prosecuted in the past as torture, no doubt realizing that his "client," the President desired a justification rather than a sound legal analysis.

Like the Downing Street Memo, the intelligence was once again being fixed around the policy. Only then the policy was war; now it was torture as an implement of this war.

Note the way Yoo "leaps" from defining torture as involving "severe ... pain," as it's commonly understood, and eventually ends up defining it as involving only "death, organ failure, or serious impairment of body functions."

--The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering."...

--Significantly, the phrase "severe pain", appears in statutes defining an emergency medical condition for the purpose of providing health benefits....

--These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part."

--Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment.

--Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

The memo was written in March 2003 and the "trickle down" effects occurred quickly. Barely 7 months later, Army Specialist Sabrina Harman arrived at Abu Ghraib prison. As this excellent article in the New Yorker describes it, Spec. Harman wrote many letters home to "the woman she called her wife." Spec. Harman, however, is not famous for her letters as much as her photographs which, when released, were worth a thousand words toward showing the type of abuse (that Yoo would not call torture) occurring at Saddam's former prison.

On October 20, 2003, Spec. Harman wrote this letter to her "wife:"

Okay, I don’t like that anymore. At first it was funny but these people are going too far. I ended your letter last night because it was time to wake the MI prisoners and “mess with them” but it went too far even I can’t handle whats going on. I cant get it out of my head.

I walk down stairs after blowing the whistle and beating on the cells with an asp to find “the taxicab driver” handcuffed backwards to his window naked with his underwear over his head and face. He looked like Jesus Christ. At first I had to laugh so I went on and grabbed the camera and took a picture. One of the guys took my asp and started “poking” at his dick. Again I thought, okay that’s funny then it hit me, that’s a form of molestation. You can’t do that. I took more pictures now to “record” what is going on.

They started talking to this man and at first he was talking “I’m just a taxicab driver, I did nothing.” He claims he’d never try to hurt US soldiers that he picked up the wrong people. Then he stopped talking. They turned the lights out and slammed the door and left him there while they went down to cell #4. This man had been so fucked that when they grabbed his foot through the cell bars he began screaming and crying. After praying to Allah he moans a constant short Ah, Ah every few seconds for the rest of the night.

I don’t know what they did to this guy. The first one remained handcuffed for maybe 1 ½-2 hours until he started yelling for Allah. So they went back in and handcuffed him to the top bunk on either side of the bed while he stood on the side. He was there for a little over an hour when he started yelling again for Allah. Not many people know this shit goes on. The only reason I want to be there is to get the pictures and prove that the US is not what they think. But I don’t know if I can take it mentally. What if that was me in their shoes.

Note how she closes the letter. If her descriptions about the present she was living through seem chilling, imagine the implications of her prediction about the future these techniques will lead to:

These people will be our future terrorist. Kelly, its awful and you know how fucked I am in the head. Both sides of me think its wrong. I thought I could handle anything. I was wrong.

Sabrina