Sunday, January 23, 2011

Law Review about The Wire

I read a great law review article recently about The Wire, which is available here. I have only watched a few episodes of this highly-reviewed show, but even these few gave me new insights into a system that I work in every day from but typically only see from one angle. I don’t remember the specific scene or story that hit home with me, only that, after watching it, I felt as if I had more insight into the motivations of the other players in the system, as if I had, however slightly, “reversed roles” (a term associated with psychodrama) with police officers or prosecutors after watching and thinking about this rare, non-melodramatic portrayal of a complex system.

The article made me want to watch the entire series, calling it, “a riveting show: the greatest television series ever made.” While “riveting” shows with compelling drama are important to draw viewers in, what’s often missing from “cop shows,” at least in my view, is truth. I’m not complaining about a lack of nonfiction shows on t.v., only pointing out that, of the vast majority of “cop shows,” most feature some variation of the same old story which essentially places a black hat on the defendant to match the white one given to the pure-hearted prosecutor, or the evil-fighting cop. You know the story, the poor, toiling cop or the outgunned prosecutor, the one who fights for justice all alone, who would have gotten to the killer if it wasn’t for that meddling Constitution, as quoted by the slick defense attorney who clearly wants to put the guilty pedophile back into your kids’ school. It’s the same old story and it’s running in several slightly different versions across cable reruns as we speak.

Thus, the problem isn’t that there are too many fictional shows, only that the one-sidedness of this story, and the repetition of it create archetypes within viewer’s minds and thus create something potentially dangerous: people who stumble into the system for the first time (as jurors or observers, or people who question you at a party about “how do you defend someone you know is guilty?”) with preconceived beliefs, stories which feature defense attorneys as pro-crime, and systemic problems as simple, and solvable, if we’d simply stop that pesky Constitution from getting in the way of “the good guys” who work for the government.

But the system I see, and that these people typically pre-judge, is nothing like the one featured on t.v., (at least outside of The Wire and a few exceptions, like Raising the Bar) in this heavily cliched genre. Here’s one example: since Omaha’s Police have a very powerful union, their contract is correspondingly generous, giving them (the last time I checked) 4 hours of overtime for each court appearance. Thus, when I appear in traffic court in the morning I see less of a call for justice as I do a call for overtime.

These police officers aren’t necessarily greedy, they simply understand that the quickest way to make the most money, to maximize their payment under their contract with the least possible time commitment, is to make a lot of minor traffic arrests. Here’s how it might work: You’re an officer and you work the night shift, getting off in the early morning. If you appear in court, you have to appear in court at 9:00 a.m., but you get overtime pay for four hours for simply showing up. If you arrest someone for driving under suspension, it doesn’t take long and the case is usually wrapped up in under an hour.

In fact, I’ll never forget the look on my client’s face when he told me he had a good case since “even the officer said I should plead not guilty at arraignment and take it to trial.” I had to educate him about the system by explaining that the officer wasn’t giving that advice for his benefit but simply needed him to enforce his right to trial for the four hours of overtime he needed. His shining face in the second row proved it, and also meant the driving during suspension case against my client was a slam dunk, sending the officer home in about fifteen minutes. The City, however, paid him four hours of overtime for that appearance and, who could blame him, he laughed all the way to the bank almost every day.

Sadly, however, hardly anyone within the system was in a position to change it, to save this clear waste of tax dollars In fact, the prosecutor’s attempt to curtail this, which involved asking for money to hire another prosecutor whose job it would have been to secure early pleas and whose salary would be paid many times over in cost savings to the city was met with resistance, likely by the city councilman who knew how powerful the police union was and how they treated politicians who tried to cut into it. In short, the system I saw was complex, driven both by a desire for self-enrichment as well as its obvious goal of law enforcement.

But, while the latter goal was visible, and retold on television many times a night, the less visible goal, that involved the officer who knew how to work the system to maximize his income, was never seen on t.v. In fact, even when I try to tell it here, it likely doesn’t resonate, as it’s complex, not very dramatic and has difficulty competing with the “last honest cop” story that’s deeply imbedded on our minds, put there as we watched Southland, or Blue Bloods, (or fill in the blank) last night.

But the Wire is different. The law review article describes it as “in the business of telling America truths about itself that would be unbearable even if it were interested in hearing them.” While the fact that America isn’t even interested in these “unbearable” truths is depressing, the fact that the Wire ran so successfully is reason for hope. In fact, if the writers and producers of the Wire have figured out a way to tell these stories that captures the attention of us modern “t.v. babies,” who naturally like our drama to reinforce stereotypes rather than uncovering hidden truths, that creates the possibility of a happy ending to this sad story. As the article puts it, the Wire pulls this off as it “demonstrates that complexity and social context can make for a gripping tale.”

Maybe television can educate rather than inculcate, I thought. Then I read further and discover that The Wire educates us about something I see all the time but that is rarely discussed:
The Wire shows us something truly frightening about systemic dysfunction- that most of the harm done is neither dramatic nor venal. Sometimes individuals make heroic or repugnant choices, but the Wire insists on complicating not only the notion of villainy, but also the notion of heroism. It repeatedly presents individual choice as severely constrained, even dictated, by the logic of the system. Harm is done, day in and day out, by regular people trying to do and keep their jobs.

... the viewer is shown how how moral choice is shaped and constrained by systemic forces.... Those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished, demoted, forced to resign, banished, murdered...

This reminds me of the Supreme Court case Garcetti v. Ceballos, in which a Deputy District Attorney did his job as a prosecutor and investigated the truth of an affidavit sworn out to secure a warrant. When he found inaccuracies, he recommended dismissing the case, but was met with resistance. When he complained further, he was denied promotion. Shortly after that he transferred, or banished, to the Palookaville Division. His “mistake” was in making an individual choice, rather than a systemic one. If he would have simply passed the potential harm onto the the defendant, ignored his oath and letting the officer’s lie lie (as the system likely demanded) he would have kept his job, perhaps even received a promotion.

While this truth that the Wire reveals, and the real example of it, are depressing, what’s exciting about the show is simply that it was made and that it was successful, running for years on HBO. Thus, while the Wire illustrates that “those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished,” it somehow survived what was likely a similar organizational structure, lived to see the light of day, and told important stories that still circulate. In a world filled with the melodramatic stories of which Law and Order is composed, is people’s minds are still open to stories that go beyond the stereotypical, melodramatic stories that make up most of primetime.

Sunday, January 16, 2011

Benjamin Wittes' Prefers "Civility" over Law, English Language

Glenn Greenwald wrote this week about Benjamin Wittes of the Brookings Institution, quoting Wittes as calling the Obama Administration’s decision not to investigate the Bush Administration for approving torture “one of the more courageous things ... it has done.”

That’s a common sentiment, but Wittes goes further, claiming that “there has actually been a great deal of accountability for past detention policy -- the disclosure of internal memos, for example.”

Imagine making that argument in court, after your client was convicted of, oh, say obstructing justice for destroying the videotapes that documented Khalid Sheikh Mohammed being waterboarded 183 times in March 2003.

Or imagine that your client was convicted of simply waterboarding KSM one of these 183 times, as occurred during the Reagan Administration, when the DOJ prosecuted, and convicted, a Texas Sheriff, and his deputies (whose “only following orders” defense was unpersuasive to the jury) for waterboarding suspects.

Imagine beginning your sentencing argument, “Your Honor, a lenient sentence is in order here because ‘there has actually been a great deal of accountability’ because of ‘the disclosure of internal memos.’” The judge put your client in prison, a place which, to Wittes, “has only the most limited role in transitions of power in a democracy,” (More on this later) after laughing out loud.

But Wittes continues, with a straight face, stating that “What [Human Rights First] calls “accountability for torture” is, in my book, the criminalization of policy differences–nothing more or less.” Wow. Let that sink in for a second. He first disputes use of the word torture by HRF (ignoring Gen. Taguba’s conclusion that “"there is no longer any doubt that the current administration committed war crimes") and substitutes his own term of it, “policy differences.”

Imagine stating that in your sentencing argument, or your jury argument for that matter, “Ladies and Gentlemen of the jury, my client didn’t torture KSM when he simulated drowning 183 times in a month, he just had a “policy difference with U.S., International law, and the Geneva Conventions.”

What becomes crystal clear is that Wittes believes strongly in Equal Protection, as long as some people are “more equal than others.” If you’re a sheriff in Texas, the law applies, but if you’re one of the people, like Dick Cheney, who approved of “enhanced interrogation techniques” enforcing existing law is “criminaliz[ing] policy differences.”

The point here is not to attack Dick Cheney as the decision to not prosecute him, and others, would clearly have implicated people on both sides of the aisle and perhaps stretched to members of the Obama Administration, who have been praised for breaking campaign promises and continuing Bush Administration “detention” policies. In fact, even Michael Hayden, head of NSA during the Bush Administration, praised Obama’s similar policies, describing that “[y]ou've got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram.”

Instead, the point is that to people like Wittes, the law is for people like you and me, who would, if we were convicted, have to deal with harsh sentencing guidelines and the most incarceration-oriented criminal justice system in existence, a system that was clearly created on a bipartisan basis. What an American general calls a “war crime” isn’t anything for us to worry our pretty little heads over; it’s just a simple “policy difference.” Torture of not only human beings, but also language.

But the most disgusting part of Wittes’ argument is his praise for the Obama Administration key position, which Wittes “believe[s] correct,” not to “do violence to the two-century-old tradition in American life of incoming presidents’ not prosecuting outgoing ones.”

Notice that rhetorical trick? The word “violence,” which carries a negative connotation, isn’t used to describe waterboarding a person more than 3 times a day for a month, (or to destroy the evidence of it) or to describe the more than 100 prisoners who died in U.S. custody in Iraq and Afghanistan between 2001 and 2006.

Instead it’s cleverly employed to describe what Obama would have been doing if he had fulfilled his campaign promise to investigate and prosecute people who committed war crimes during our “War on Terror.” Thus, it is not “violent” to securely bind a person’s feet, elevate them and bind him securely “to an inclined bench, approximately four feet by seven feet.[to place a cloth] over the forehead and eyes, [and then apply water] to the cloth in a controlled manner [to produce] the perception of 'suffocation and incipient panic'."

But to prosecute someone who performed this, or ordered it, that would be to “do violence.” Doublespeak at its finest.

With this double standard and clear doublespeak in mind, consider how Wittes would confront the “policy differences” he would have with someone like Julian Assange. Writing, in another post, about the problem in holding someone like Assange, an Australian citizen, accountable under U.S. law, issue, Wittes openly admits to a belief in hypocrisy:

If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

“Awkward?” Seriously? I don’t think that’s how foreign governments, or people like Assange (who last week raised, as a defense against extradition, his fear of extrajudicial detention by the U.S.) would describe a law is an admitted double standard, do you? “Very sorry to disturb you, Sir, but your blatant hypocrisy in detaining me indefinitely for doing something you routinely do and condone is making me feel, well, awkward.”

Getting past the “awkwardness” Wittes acknowledges, he at least admits the problem inherent in holding Assange accountable under American law for what the press in the U.S. routinely does by disclosing classified material given to them by third parties. He writes that he is “tentatively persuaded that some jurisdictional limitation is probably appropriate” and goes on to state that he “suspect[s]” that such a limit on U.S. law would “probably get Assange off the hook.”

So, to recap, Wittes believes:

1. The Obama Administration’s decision not to investigate what U.S. General Taguba called “war crimes” on our part is “one of the more courageous things ... it has done.”
2. The Obama Administration’s disclosure of internal memos composed during the Bush Administration describing torture is “a great deal of accountability for past detention policy.”
3. There was no need for this “accountability” anyway since “‘accountability for torture’ is... the criminalization of policy differences–nothing more or less.” “
4. Obama rightfully decided that waterboarding someone 183 times in a month and destroying evidence of this was not worthy of prosecution and, if he had done so, he would have done violence to tradition.
5. Wittes is “not against double standards” and the “right answer” is possibly “hypocrisy,” even though this could be “awkward.”

All of which leads to Wittes’ belief in the best way of dealing with Julian Assange, who might object to the “awkwardness” of indefinite detention for violating U.S. law, which even Wittes admits “probably” doesn’t apply to him. Wittes writes:

[T]hat sex crimes case in Sweden is looking better and better as way of neutralizing Assange.

Got that? As if the cries to simply assassinate Assange (by numerous U.S. officials and future Presidential candidates) weren’t enough, Wittes openly acknowledges how convenient it would be for the most powerful nation on the earth, (with vast resources, available hypocrisy, immunity from war crimes prosecutions, and against whom the disclosure of internal memos brings “great... accountability”) if Julian Assange were neutralized due to a “sex crimes” prosecution.

We need a well-functioning judicial system to protect the public from people who break the law and also to protect those accused of violating it from wrongful conviction or punishment. But what should also be clear, but often isn’t, is the need to also protect people like Julian Assange from those who would use the criminal law to “neutralize” him, people like Benjamin Wittes of the Brookings Institution.

In fact, have you ever seen a clearer example of someone who does not believe in the Equal Protection clause? Or, for that matter, the meaning of words such as “courage,” “accountability,” “torture,” “violence,” or even “awkward?”

Jefferson “consider[ed] trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.” Wittes shows the importance of such a right for people like Assange (or you and me) as well as how easily, and cavalierly, the government- or the think tanks that support it, no matter which party is in power- can stray, claim immunity from, or simply disregard, the principles of its Constitution.

Wittes' response to Greenwald, however, reaches a new low, accusing Greenwald of a "simple-mindedness with respect to wrenchingly difficult questions and a very ugly eagerness to attack honorable people in government, in the press, and in public life more generally who are trying to do their jobs or to express views that differ from his."

You see, when you take issue with those who take Gen. Taguba's conclusion that "war crimes" were committed in our names seriously, you should be civil about it to avoid "awkwardness," I guess.

The man who, very civilly, mind you, calls Obama's decision not to investigate the "interrogation policy" (or what Gen. Taguba called "war crimes") of the past administration "courageous," who equates "accountability" with memo disclosure, and waterboarding with "policy differences," who isn't afraid to employ "double standards” or "hypocrisy," despite its awkwardness, you must comply with one request when you visit his blog, lest you lapse into an attack on the "honorable people," like Wittes, who hold such beliefs:

We have no purity tests here–just a preference for civility and decency.

Thursday, January 13, 2011

Audiobook Recommendation #2: Faithful Place

Just finished the audiobook to Tana French’s Faithful Place, and loved it. Francis “Frank” Mackey, the narrator, is a 40-something Detective in the undercover Division of “The guards,” Dublin’s Police Force. The discovery of a suitcase, found during the demolition of an abandoned flat in “Faithful Place,” a tenement section of Dublin, where Mackey grew up, leads him back home, where he hasn’t been since leaving as a teenager some twenty-two years ago.

The book draws you into a web of family lies and secrets, most of which stretch back generations and remain unclear even to the characters- or the narrator- until they search their own histories, psyches and memories for other things the discovery of the suitcase, or the return of Frank, uncovers. I finished this book today, just as I turned into my own neighborhood and, as I write about it tonight, I’m reminded of my friend Simon, who I met in Coventry, England at the University of Warwick in the early 90’s. Because he studied film history, we talked films a lot and when I asked him what he thought about the one we just watched, he’d say, “I need to think about it for a day or two and then I’ll let you know.”

Like Simon, maybe I should wait a day before I call this a great read, but I think I’m safe in predicting that the strength of the story and the wit and snap of the dialogue will hold up after a few days, or even years. It’s a mystery, but it’s more than that too, as, at its core, it’s a noir story about loyalty to family, to profession, to quick-passing childhood and to clashes between these roles. I wouldn’t call it particularly deep reading, as it’s a fast moving mystery/detective story.

But it’s deep enough, at once both intense in terms of its depiction of alcohol-fueled rage and its effects and intriguing in terms of its ability to make you think deeply about the motivations and techniques of an experienced undercover officer who laughs at the falsely clean morality of the “murder squad.” I don’t know for sure whether, like the best stories I read, I’ll still be thinking about this one in a year. But I’d guess that I will be, and wouldn’t be surprised if, in that same year, it hasn’t been turned into a film.

Wednesday, January 12, 2011

Back from Break with Book Reviews

I took what I thought would be a short break from blogging, but didn’t realize it would last for years. My big plans, to write a play or a book instead of a blog, are still that, plans, so I’m back, hoping to make a habit out of this once again. I’ve done a lot of reading too, in the meantime, mostly in those hours I spend in the car every day, driving to courthouses in different counties, if you can call an audiobook reading, that is.

Because most people don’t spend nearly as much time in the car as I do, here, over the next few days, are the top five audiobooks I’ve found over the past year. Some are law related and some aren’t, but they’re all good.

Matterhorn, by Carl Marlantes: It’s described as “A novel of the Viet Nam war” and to me it was like listening in on the actual conversations and adventures of Marines, most of whom were still teenagers, around the time I was born. Marlantes, who later became a Rhodes Scholar after serving as a Marine officer in Viet Nam, has been working on this novel for 40 years. It’s his first, as he’s rewritten and reworked it since he initially put it on paper shortly after coming home from Viet Nam. Thus, it combines the authentic dialogue that only a witness with a fresh memory could record with the wisdom that comes from forty years of looking back. I enjoyed the descriptions of battle, the adventures, but also was intrigued by the soldiers’ dialogue about the changes taking place back at home, particularly race relations, in the 60’s. I was born in 1967, so it was valuable to hear what was “in the air” at that time. I’ve always sort of regretted not joining the military, and this book made me both more regretful about missing out on that opportunity as well as very thankful that I didn’t end up being commanded by some of the officers he portrays. Bronson Pinchot, of Perfect Strangers, does an amazing job reading as well.

Next, Dublin cops and their drunken families. (I haven’t actually finished this one yet, but unless the ending greatly disappoints, it’s a great book.) I have a long trip tomorrow morning and a motion to suppress in Omaha in the afternoon, so I’ll finish it up. It’s nice to be back, if there’s anybody out there...