This Washington Post article (1/31/05) is about Michael Chertoff, the new Director-designate of the Homeland Security Department, formed in the aftermath of 9-11 by Pres. G.W. Bush, formerly headed by Tom Ridge.
Chertoff is a former federal prosecutor in N.Y. and N.J., who led the DOJ's response to protecting against a potential second blow after 9-11.
Is there a different legal standard when we're all calm, not expecting another attack such as Pearl Harbor or 9-11, and prosecuting a criminal case, and when we have reason to believe that the next shoe may fall at any moment?
When the Empire of Japan sank our Pacific Fleet at Pearl Harbor on Dec. 7, 1941, the West Coast was defenseless. Why would Japan so unexpectedly attack and destroy our main line of defense if not to take advantage by invading by sea?
Hence the panicky response and the internment of the Japanese-Americans on the West Coast (but not in Hawaii or elsewhere in the U.S.).
How far can we go to protect ourselves?
Is the Constitution a suicide pact? Of course not.
Or is panic-time when we need to hold most closely to our Constitution?
And on other fronts, it appears that Mr. Chertoff's candor is being called into question by a former colleague.
This reminds me of an incident with a prosecutor in a multiple murder case, in which I was representing the person suspected of being the head of the Chinese youth group blamed for a terrible crime. Because the case was so tragic and notorious (five innocent people were shot to death and eleven wounded in a San Francisco Chinatown restaurant frequented by the opposing gang), one of the prosecutors decided that he'd like to write a book about the case he was prosecuting.
We decided to ask him about that, under oath.
My questioning turned to notes of interviews in which the prosecutor had participated, with police, of some of the gang boys who would be called by the prosecution as witnesses against my client. Were there any such notes, I wanted to know.
The prosecutor stated that he'd produced all of the notes of witness interviews by handing over various police reports. Under questioning, however, he admitted possessing other notes that he'd not turned over to defense counsel.
Why hadn't the prosecutor turned over the notes?
Because those were not "official" notes, he explained, they were unofficial or private notes that he was keeping in a separate, personal file cabinet at home in preparation for writing the book that he acknowledged intending to write about the case. The judge forced him to cough up the withheld notes and provide them to defense counsel. Someday I'll be interested to read the prosecutor's book. Perhaps I'll learn even more about the Golden Dragon Massacre.
To this prosecutor, the fact that he was privately in the process of writing a book meant that since his interview notes were allegedly "unofficial," they were "off the record," not discoverable, and, essentially, non-existent. Work-product privilege? Not if you're taking notes, not for case purposes, but for the purpose of writing a book to sell to the public.
The lesson for me was that with cagey people, and prosecutors who rise to the top are nothing if not cagey people, it is fairly simple to stick to what they think is the literal truth when denying a specific portion of it. This is why witnesses are sworn to "tell the truth, the whole truth, and nothing but the truth." In another oath, the person being sworn-in is asked to affirm that he possesses no "intent to evade."
It's those mentally concealed "other compartments," comprising an intent to evade, which some folks think provide a license to steal.
How does one combat such mental gamesmanship? It's called cross-examination, the greatest means of uncovering the truth ever invented, provided you know how to ask the right questions, which is a whole other subject.
This is why prosecutors haul people before grand juries, put them under oath under penalty of perjury, have a certified court reporter take down all the words, and produce a written transcript. Not having a grand jury at my disposal, this is why I called the DA to the witness stand, which is about as good as it gets for a defense attorney and former prosecutor himself.
Remind me to tell you of the time I walked into a judge's chambers and handed him a subpena along with an airline ticket to appear in a distant city to testify about his role as that prosecutor's supervisor in the same case.
Jessalyn Radack, the whistle-blower who writes the commentary, below, objects to Michael Chertoff's confirmation as head of the Homeland Security Department, and seems to be pointing out this sort of mind-game when it's not something worse.