Sunday, April 26, 2009

Quotes Worth Reading: Torture Edition

I just watched a You Tube video in which Pat Buchanon, who was debating with Jonathan Turley and Chris Matthews about whether prosecution of Bush administration officials was warranted, made this astounding statement in support of his position that torture, although against the law, was nonetheless proper:

"There's a higher moral law here, that's what Dr. King was all about."

After that, it's refreshing to read Frank Rich's perspective on this issue in the New York Times this morning:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.
. . .
President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won’t vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don’t need another commission. We don’t need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

Another seemingly similar quote came from Newsweek's Jonathan Alter, who, when appearing on Countdown last week to discuss whether officials should be prosecuted for sanctioning torture, called out Dick Cheney:

And what's so fascinating is that Dick Cheney stands almost alone. You don't see former president Bush out there pursuing this. You don't see Condi Rice or Domn Rumsfeld or others. It's the former vice president who is becoming a forlorn and I think soon to be further disgraced figure.

As Digby pointed out, however, Jonathan forgot what he was saying back in 2001 when he wrote:

In this autumn of anger, even a liberal can find his thoughts turning to... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren't talking at all.

Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists.

So from media hypocrisy to media courage, we go to my second favorite quote of the week, from, of all places, Fox News. Shepard Smith said, during a debate with Judith Miller (yeah, that Judy Miller):

"We are America, we don't torture! And the moment that is not the case, I want off the train! This government is of, by, and for the people -- that means it's mine....
"They better not do it," he said. "If we are going to be Ronald Reagan's Shining City on the Hill, we don't get to torture. We don't do it."

Will he keep his job? If they were looking for a reason to fire him after that statement, he gave them one shortly thereafter when he spoke out during Fox News online show, The Strategy Room. After the debate was framed in terms of whether torture works, Shep had had enough and said:

"We are America!" he shouted, slamming his hand on the table. "I don't give a rat's ass if it helps. We are AMERICA! We do not fucking torture!!"

The worst quote of the week, and the one that criminal defense lawyers should consider quoting from at sentencing, comes from the WaPo's David Broder, who said, when writing of the call for prosecuting torture enablers:

But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As the Monty Python character once remarked, "This is supposed to be a happy occasion! Let's not bicker and argue about who killed [tortured?] who."

Sunday, April 19, 2009

First Improv Class

I haven't blogged much lately, but plan to get "back on the horse" soon. My wife, who works in banking, needed one more class to finish her Masters, which has meant a busy semester for both of us, especially her. She finishes in about ten days and walks across the stage at Drake University in early May. That was one reason but I also fell behind in the administrative side of the practice of law and have been using my non-work time to catch up on billing.

But I did something this year that I've wanted to do for a long time. I signed up for an Improv class. Don Fiedler brought many of these techniques to NCDC and his stories about using these techniques in trial, and even before the Eighth Circuit, piqued my interest. Then, getting the chance to work with the great Josh Karton at TLC taught me how much actors have to teach lawyers. Finally, this post by Mark Bennett prompted me to buy the book and finally take the plunge.

Last Tuesday, at our first class, I felt a little like Michael Scott at his Improv Class, hoping not to be the "old guy" who nobody wanted to hang out with afterward and whose improv revealed more issues than laughs.

But I loved it. What was amazing was that the best things happened when I didn't have time to think. When I tried to be funny, I wasn't, but when I didn't try, it was not only fun for me but (at least slightly) funny for the class.

I was impressed by the way the instructor listened and wonder if doing improv helps improve listening skills, which Gerry Spence describes as one of the most important skills a trial lawyer can learn.

I'm not quitting my day job and am glad it's only a small class. "Whose Line" will have to wait a few years, I guess. But I can't wait for the next class and hope that I can use it in court, if nothing else but to make work more playful, and hopefully more effective. I'll keep you posted.

Saturday, April 11, 2009

`Win-at-all-cost' behavior

From today's Miami Herald:

Accusing federal prosecutors of knowingly and repeatedly violating ethical guidelines in a high-profile narcotics trial, a Miami federal judge Thursday reprimanded multiple assistant U.S. attorneys who took part in the case -- and fined the federal government more than $600,000.

While prosecuting Shaygan, the U.S. attorney's office began a secret, undisclosed side investigation of Shaygan's legal team, citing a suspicion of witness tampering on the part of the defense.

No evidence surfaced that the defense team was manipulating witnesses. On the contrary, defense attorneys rejected bribery invitations floated on tape from government informants...

Prosecutors later called the same informants to the stand as key witnesses in their case against Shaygan, while saying nothing of the recordings. The government falsely introduced those informants -- former patients of the doctor -- as impartial, neutral witnesses.

Jurors, and the judge presiding over the case, found out about the tape recordings by accident, when one of the informants blurted out their existence while testifying.

Wouldn't you have loved to have seen the look on the prosecutor when the snitch blurted out the existence of the tapes and implicated the prosecution? Talk about being "hoisted with your own petard."

On a related note, yesterday Attorney General Eric Holder "told assistant US attorneys for the District of Columbia that they must respond to negative perceptions of federal prosecutors by doing "the right thing."

"Your job as assistant US attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing. Anybody who asks you to do something other than that is to be ignored. " Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that."

A nice idea. However, as I frequently tell my clients, judges are going to believe their eyes and not their ears so the question is whether Holder's words will truly change actions, and stop tape recordings of defense lawyers conversations.