Sheridan: Con-Law

OUR SOUL AT STAKE

I'm not sure, exactly, where my soul is located; you won't find it in Gray's Anatomy.  My guess is that soul is the thing that makes me me and not you.  And vice versa.

The Nation has a soul.  It's what makes us us, and not Nazis, for example.

So there's this question about how we should treat people we think are trying to kill us when we capture them.  Why not torture them to see if they've got any useful information about their friends and then kill them so we don't have to be bothered by them any more.

That was the Nazis.

We didn't want to be like the Nazis.  They were the bad guys in WWII, which is when I set foot on the scene.

We were the good guys.

We want to stay that way.

So it's disturbing to see people advocating for the mistreatment of prisoners no matter what you call them.  We treat serial murderers humanely, so why not your average terrorist, once he stops being an effective terrorist because we've got him behind bars.

Some don't see it that way.  No coddling terrorists for them.

So there's this debate.

Military people say there's another reason for not mistreating prisoners.  Unless we take the high ground, morally, on the treatment of prisoners, what happens to our people when they fall into the hands of the enemy.  It happens a lot.  Every time we undertake a military action, we risk losing our people who step in harm's way, and we have a lot of people who do that.  We don't like seeing them paraded or dragged, beaten or starved when captured, as many inevitably are in war.  War is a chaotic mess when the bullets and missiles fly.  Anyone who does these things to one of our people is no better than a Nazi, and our determination to make war on latter-day Nazis increases.

The White House appears to have been willing to relax the strictures against mistreatment of prisoners as the result of the 9-11 attacks on innocent civilian people.  That seems to provide the justification, along with the idea that we ought to be able to use any means, however harsh, to extract information out of prisoners because it might save more of us.  The more the prisoner resists, the harder we try.  The result is Abu Ghraib and Guantanamo.  The problem for me is that I grew up reading and watching accounts of Japanese atrocities in China and the Philippines.  I knew this was wrong and that we wanted no part of it.  At least that's what I thought and believed.  Naive American, I guess.

As all serious controversies seem to do, this one finds its way to the U.S. Supreme Court.  That's what the Hamdi case was, on due process.  Even prisoners we dislike intensely get some sort of due process, such as being brought before a court, told what the charges are, and given a chance to refute them before some allegedly neutral tribunal.  We have a long way to go.  Today's news (NYT, front page) recounts how military tribunal prosecutors have opposed stacking the deck with hand-picked judges, that is,  officers anxious to convict prisoners of being enemy combatants so they can be further held and interrogated.  You would not like to undergo military interrogation, from what I can see reported so far.

Sen. John McCain (R-AZ) is an American hero, shot down over Hanoi and held in the Hanoi Hilton POW camp, where he was tortured repeatedly, along with many other American fighting men.  He thinks prisoners should be treated humanely.

During a Senate debate over this, an advocate for relaxed standards on prisoner abuse observed how really bad these people were.

It's not about them, McCain replied, it's about us.

You can read the column by Bob Herbert of the NYT below, and then you'll get what I mean when I say that Conlaw is not only about the direction the Nation ought to take, but about its soul.

COINTEL: MARK FELT

Suppose your job was to protect the United States.  That's how you saw it.  You were protecting the country you loved.

That was Mark Felt's job.  He was the No. 2 guy in the FBI, right behind J. Edgar Hoover.  If you were a kid growing up in the '40s and '50s, J. Edgar Hoover was a hero.  Radio stations played stories about how the G-men (for government men, the guys who captured John Dillinger, the bank robber) fought against Nazis during the war (WWII - for people of a certain generation, when we say the war, there's only one war we mean, despite Korea, Vietnam, the Persian Gulf, and the current unpleasantness having to do with terrorism and oil, not necessarily in that order, in Afghanistan and Iraq).

Mark Felt was an intelligence operative for the FBI during WWII.  He ran a turned German agent to provide disinformation to Hitler.  That was way cool.

A supervisor I once worked under in a public agency had made a career of the FBI, starting in WWII.  He was assigned to Buenos Aires or a neighboring city where his job was to conduct counter-espionage against German agents in that strategically critical area of the world. 

In a later era, Mark Felt ran a program called COINTELPRO.  This was during a period of major unrest in this country, the late '60s, early '70s.  The Civil Rights Era was morphing into the Anti-Vietnam War era.  Between the Black Panthers and the Radical Anti-War protesters, the FBI and local police intelligence agencies, successors to the former Red Squads of the McCarthy era, had their hands full trying to keep up with what was going on.

A law school classmate went into the FBI, and went from being seemingly straight-laced to turning into a stone dope-smoking hippie.  The white-shirt-and-tie guys from Washington would come out on inspection trips to see this fellow riding around in his peace-sticker van wearing tie-died t-shirt, beard, and smelling of marijuana.  He wound up infiltrating a gang of murdering bombers and putting an end to a gang of killers who'd gone way off the deep-end in the name of some higher principle known only to them.  He's a hero in my book.

Did he cut corners in doing so?

His boss was Mark Felt.

At that time, with the country divided and the good guys in charge, with the protesters resorting to terror, it was easy to side with law enforcement.  I was a young prosecuting attorney at the time and I didn't want peaceniks on any jury of mine when I was relying on the testimony of police officers to convict some lawbreaker.  That's how the country divided, the forces of law and order versus the radicals and protesters.  This explains so many of the legal controversies that came before the Supreme Court during the era after the Warren Court when President Richard M. Nixon appointed the conservative judge Warren E. Burger to be Chief Justice of the United States in 1968 I think it was.

After that, the civil rights revolution and the revolution in cleaning up law-enforcement began to slow down.  Women's lib was also coming in with its famous bra-burnings and the like.  Cases began coming before the high court, led by Ruth Bader Ginsburg, a women's rights advocate who knew how to do Constitutional Law.  Heading the ACLU's Women's Rights unit, she carefully picked her cases, such as Reed v. Reed and Mississippi University for Women vs. Hogan, and persuaded the Court that there was a new way to look at the world.  Women were people.  They had rights.  They needed to be recognized.  Another revolution.  Ask any old guy about Women's Lib and watch his eyes roll.

Ask any old conservative about civil rights or Vietnam war protests and watch the eyes roll, unless there's a recognition that the changes in these fields were for the better.  Sometimes at the time it's hard to tell.

My supervisor, above, did the Black Bag job on Martin Luther King, Jr.  J. Edgar Hoover, it is reported, disliked MLK, Jr., and had him watched. Hoover got along with Thurgood Marshall, who had figured out how to deal with Hoover.  Marshall worked through the legal process.  Marshall didn't appreciate Martin Luther King very much either.  Marshall thought that agitating on the streets was a form of taking the law into your own hands and being lawless at the same time.  He didn't appreciate marches and violence.

A Black Bag job is where a police detective, which is what FBI agents are (my friend in the Bureau referred to himself as "just a cop.") enters a home or office to see what you've got, or to plant a bug so they can continue to gather information after they leave.  They have no warrant from any court to do this, of course.  At the time, they might enlist the local police brass to make sure no beat cop or sector car interfered with the operation.  You never heard of an arrest, at least not until Watergate, a 3rd rate burglary, as it was called, in which agents of CREEP, the Committee to Re-Elect the President, got caught entering the Watergate Apartment building in Washington where Larry O'Donnell, the late JFK's speechwriter and the head of the Democratic National Committee, had their offices.  It was a little intelligence-gathering mission, a black bag job on behalf of the president of the United States and the Attorney-General.  Nixon resigned over this and Mitchell, the A-G, went to prison, along with a handful of others.  Nixon, the law-and-order president who appointed the law-and-order Chief Justice, it was said, solved the problem of crime in the streets by putting it in the White House.

Whenever I, as a criminal lawyer, think of this, I feel good, because I like the idea that members of my end of the legal profession are relied on so heavily by members of the White House.  It adds luster to my modest efforts to represent lesser beings in criminal court.  Just think, the next case called may be the U.S. versus the Attorney-General, and with any luck, the president himself.  We've had more than one A-G go to jail.  There must be something about climbing to the top of the legal ladder that gets to people such that they wind up in jail.

So, my supervisor did the Black Bag job on MLK.  What was he looking for.  The goods on King.  Maybe King liked to relax a bit.  Maybe it would be inconsistent with the legend what he did for relaxation.  The tapes went to Hoover, who made sure the word got around, according to things I've read or heard, and they eventually reached the press, as intended, no doubt.  A few folks still have problems regarding MLK as the civic saint he may be en route to becoming.  Some folks don't like to observe the holiday for a number of reasons, including this.  So MLK was a human, not a holy saint.  I don't believe in saints and angels, so it doesn't make a difference to me that he was just a human.

But what a human.  He did a lot, is all I'm going to say, from his Letter From a Birmingham Jail, to his march on the Edmund Pettus Bridge from Selma to Montgomery, to his "I Have a Dream" speech in Washington.  He galvanized the nation into realizing that the time had come for civil rights.  After JFK was assassinated, LBJ made it come, starting in 1964 with the Civil Rights Act, and its partner, the Voting Rights Act of 1965.  Once black people were protected by the federal government for the first time in the right to vote, the tide began to turn.  Tides turn slowly, as we may notice on our Bridge Walks.  But tides are irresistible, regardless of the time it takes, and anyone who wishes to fight the tide is going to have his hands full.

Below is the article that inspired this rumination.  It's another take on Mark Felt, who, this past week, revealed himself as the source of Woodward and Bernstein (who brought down Darth Vader, Nixon) of the Washington Post, the famous mystery person, "Deep Throat," named after the porn star of the day, Linda Lovelace, of Behind the Green Door fame.  I don't know how I missed that movie.  Perhaps for academic purposes I should look it up someday, to fill out my knowledge of Con-Lore...

Well, the point of all this is this.  Since you don't know at the time which side is going to emerge winners in any national controversy, you have to place your bet and hope for the best.  If you were an isolationist before World War II, you had better come around after Pearl Harbor or there was something wrong with you.

Civil rights were fine if you were black or young, but not if you were older, owned a piece of property that you lived in, and had this fear of blacks, that somehow they would move into your neighborhood and drive down property values and their kids would make the schools unsafe.  This attitude was as common as the air you breathed and it was easy to get into an argument if you said something wasn't right about this.  If you didn't want to see a heated family discussion over racial issues, you didn't bring it up.  And you didn't see any blacks in your neighborhood in New York, either.

But when you saw fire-hoses and police dogs attacking blacks in Selma on TV, you knew this wasn't right.  As a law student in NYC at the time, I watched with interest as an Irish judge sentenced a black protester, judging him harshly for some outrage.  The Irish judge was grand marshall of the Irish parade on St. Patrick's Day in New York, where they painted the traffic stripe on Fifth Avenue green.  He was all in favor of Irish protests against the Brits, but not the blacks against the whites.  Peculiar how this works, what we can see and what we cannot.

But that's Constitutional Law for you.  What you can't see today, you may be able to see better tomorrow, after it's brought home to you through the likes of Martin Luther King, Jr. and the kid hauled before the Irish judge in New York in 1965.

You can study all the Con Law in the world, but it's the Con Law that lives in your heart when push comes to shove that counts.

Constitutional Law is not just a subject you study in law school because they make you, it's a means of identifying what you believe in, how you want to live, how you want to see others live, and how the country ought to be.  That's why Con Law is said to be the Queen of Legal Subjects, and why I call it the National Operating System, running all the applications programs like torts, contracts, crimes, procedure, etc.  We're running Ver. 20.05 right now.  Patches are coming in daily, as long as the Court sits.

See the article below.