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."

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.

`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.

Greatest Generation

My wife lost her aunt yesterday and found about it today. I knew it would hit her hard as Marsha had been there for her during rough times growing up. Her uncle is a former County Sheriff in a small Nebraska county and lost his wife of nearly 50 years yesterday.

I'd known that his wife, Marsha, had married "Uncle Wilbur" after he lost his wife suddenly in the early 1960's. I also knew that the loss had left him with young kids while he was working as a sheriff. But tonight, googling their names for information, I ran across the story of how my wife's uncle lost his first wife: (Scroll down to "SHERIFF GEWECKE: Murders and Threats")

On January 7, 1960 a local intoxicated man shot into the home of a neighbor of Sheriff Gewecke, thinking it was the Sheriff's home. "The next evening I was out following some leads on the shooting and the man called my wife and informed her that he had killed me, and was coming to our house to kill her and the three kids, "Gewecke said." He returned home to find his wife lying dead of a heart attack in the hallway and the phone torn off the wall.

It was learned later that the man had been trying to shoot the Sheriff's house the night before but got the wrong one. So when his wife answered the phone the next night, alone with three kids, she had to know that these words weren't an empty threat. When she heard that he'd killed her husband, and believed it, it was more than her heart could take.

As we read a little more, we also stumbled across this article about this same uncle and his first wife:

After the war was over, Gewecke was at an airbase in Arizona watching over airplanes that had returned from war. He spotted an airplane with the name Enola Gay and posed for a picture next to it to send home to his first wife, Linola Faye, because of the name similarities. He didn’t find out until after he was discharged that the plane he stood next to was the one that dropped the first atomic bomb

.

The same article, from last November, describes my wife's Uncle Wilbur's excitement at being selected to fly to Washington DC to view the World War II memorial as part of the Heartland Honor Flight of Omaha:

Wilbur R. Gewecke, 86, and John E. Dier, 87, served in the same war, worked together while county attorney and county sheriff, consider themselves friends, and live just a few blocks away from each other. Now, the two will share one more experience as they fly to Washington, D.C., to view the National World War II Memorial. The World War II veterans will fly to Washington Wednesday as part of the Heartland Honor Flight of Omaha. “I just can’t imagine that I was selected,” Gewecke said. “I think it’s a wonderful thing.”

The story just gets better and reminds me how important it is to simply talk to people if nothing else to hear the amazing stories they might have never been asked about. In fact, each time I hear an NPR story from "Story Corps" I vow to ask "Uncle Wilbur" about the time he survived an airplane crash. I'd heard it "second hand" but never asked him. How amazing that his likely response would be, "Which one?" As the article continues:

"As an in-flight mechanic in charge of making sure that Norden bombsight equipment was working before it went overseas, Gewecke crisscrossed the country working on equipment, transporting aircraft, and training others. He was in five airplane crashes."

When asked about his experience in the Army, my wife's uncle Wilbur avoided the usual cliches and revealed a quick wit, especially for an 86-year old:

“I had a million dollars of experience while I was in the Army, and when they discharged me, I didn’t want a penny more,” Gewecke said.

"All Four of Them"

I've been reading the newly-released OLC memos and spending a lot of time at Emptywheel's site lately, commenting rather than blogging. I highly recommend Emptywheel's posts on the Al-Haramain case as well as the many comments, including some amazing descriptions in the comments by some of the lawyers involved in that case.

So, after a few hours spent reading John Yoo's twisted legal logic and realizing the truth of Scott Horton's description that "in the period from late 2001-January 19, 2009, this country was a dictatorship," it was nice to find this article in the news today:

"First daughters Malia and Sasha Obama got a big surprise after school Wednesday: a brand-new swing set. They squealed with delight upon seeing it, a spokeswoman for the first lady said. President Barack Obama and his wife, Michelle, went to work while the girls were at school, having the set installed on the south grounds of the White House within sight of the Oval Office, where their father spends plenty of time."

But here's my favorite quote: ""They ran right for it. They were really, really excited. All four of them," McCormick Lelyveld said.

"We're All Gonna Die"

That's the name of this exhibit by Simon Høgsberg. From a link at the Daily Dish, the work was "shot from a bridge overlooking a railroad platform in Berlin in the summer of 2007. 178 people have been captured in this impressive 100 meter wide image."

What's amazing is the way you can scroll across the images of 178 people and the way it captures their moods. I also loved the contrast between the (mostly) "happy" images that were captured and the title. It really has to be seen to be believed.

Invoked the "What Geneva Conventions?" Defense Lately?

Last night I finally got around to watching "Torturing Democracy," a documentary that appeared recently, albeit slowly and controversially on PBS stations after the election.

It was shocking and I highly recommend it, especially in light of yesterday's news that the Court of Appeals for the Ninth Circuit has rejected the Bush and now Obama Administration's position that the case could not go forward because of the threat of "State Secrets" being released. Glenn Greenwald and Marcy Wheeler both describe the background of that case and Monday should be an interesting day as Judge Vaughn Walker, assuming that an appeal is not filed by the Obama administration with the Supreme Court, will likely rule that the wiretap of communications between Al-Haramain (a now dissolved Islamic fund raising organization) and its Oregon lawyers was in clear violation of the law. As Marcy notes:

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

I encourage everyone to watch the documentary. I plan on watching it again since it was late when I watched it and, with Sam Adams and a bowl of popcorn beside me, I dozed off a few times as it was a long week.

But there was one line from the narrator that stood out. In a documentary that features interviews with many criminal defense lawyers who are standing up against the outrageous policies practiced at Gitmo and elsewhere, wouldn't you think a little respect for criminal defense attorneys would be in order?

While I'm never truly surprised when people criticize criminal defense attorneys, I didn't expect it in the middle of a PBS doc about how the Bush administration worked the "dark side" and ultimately ended up not only ignoring but blatantly violating the Geneva Conventions, international law and federal statutes that criminalize torture.

Here's the exchange that woke me up:

NARRATOR: In Washington, Secretary of State Colin Powell – the most experienced military man among the President’s top advisers – stepped up his defense of Geneva’s half century of war-fighting rules.

RICHARD ARMITAGE: We were trying to wrestle with how to fight both an enemy and
an idea, and I think came up with a wrongheaded solution - opting out of Geneva. We,
after all, want our soldiers, should they be unfortunate enough to be captured, to be
treated in a proper way. And yet, we weren't willing to afford that to others. That seems a little counter-intuitive to me. It did at the time, and it does now.

NARRATOR: Before the Secretary of State could make his case to the President
personally, he was undermined by the Vice President. In a blunt memo written by
Cheney’s counsel, David Addington – but delivered by White House Counsel Alberto
Gonzales – Bush was advised that the war on terror: “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”.

NARRATOR: And in an argument that could have been written by a criminal defense
lawyer, the President was told that opting out of the Geneva Conventions:
“substantially reduces the threat of domestic criminal prosecution under the War
Crimes Act.”

RICHARD ARMITAGE: If you were twisting yourselves into knots because you're
fearful that you may be avoiding some war crimes, then you're probably tripping too
closely to the edge.

Let's break down that sequence:
1. Two former military men, Powell and Armitage, fought against violating Geneva.
2. Cheney and Addington, via Gonzo, undercut these former military men, telling W that Geneva is not only "quaint" but inapplicable.
3. Bush is further told that claiming Geneva does not apply "reduces the threat" that anyone could be prosecuted for war crimes for treatment of detainees.
4. This is the sort of argument that "criminal defense lawyers make."

Perhaps the point the writers are trying to make is that this laughable justification is the role criminal defense lawyers often find themselves in, trying to convince a fact finder that black is white, but it seemed an odd place to imply that "criminal defense lawyers" are similar to Addington, Cheney and former judge and Attorney General Alberto Gonzales.

The documentary goes on to describe how important John Yoo's memos were to these justifications as they allowed the other players to operate with a stamp of approval granted by a prosecutor, as Yoo was a Deputy Attorney General at the time.

It's possible that the authors were implying that the parties' criminal defense lawyers might later be in a terrible position in trying to justify these actions and might be forced to resort to arguing that the President's decision to "opt out" of Geneva meant that war crimes prosecutions were inappropriate against those who carried out the President's orders.

But, considering that they were describing Cheney, Addington, Yoo and Gonzales' laughable position that the President could simply ignore the Geneva Conventions and that doing so could also protect Americans from possible prosecutions at the Hague, it seemed a ridiculous time to imply that "criminal defense lawyers" are the typical proponents of these positions.

Had any luck in court lately advocating that your clients can't be prosecuted because the Unitary Executive retains that Constitutional Authority to render international treaties void?

What, that isn't what we do?