Friday, September 26, 2003

Kafkaesque Konstitution

Ashen Justice: Charges Dismissed, Arrest Him!

What's going on here? Kafka? Der Prozess? Ja?

I admit it: I am a johnny-come-lately. But this (see below) is really too much.

Flash!: NYTimes, p. 1 September 26, 2003 (as paraphrased & disbelievingly interpreted by Prof. P. Tillers) :

In the unlikely event that the U.S. Court of Appeals for the Fourth Circuit upholds the federal trial court's apparent ruling that the U.S. government's refusal to allow Moussaoui to interview prosecution witnesses violates M's constitutional rights and that this constitutional violation requires dismissal of the criminal charges against him, my government(!) intends to "move[] Moussaoui to a military tribunal."

Can this be? [Hmm... The newspaper in my hands certainly looks like the New York Times ....]

If the story is true -- and I have my doubts that it is: the story is intrinsically implausible --, but if this unlikely story is true, the only principle I can extract from it is the following: You -- i.e., Mr M and other denizens of this great and grand country, -- y'all have constitutional rights, BUT if we [my government] think it's important enough, we'll imprison you anyway, without regard to any such rights. But we have overstated the point here. (We are a bit excited.) Yes, Mr M, you can have your constitutional rights -- at least in a U.S. District Court, perhaps ["perhaps," we say!] -- BUT, in any event, you can't have those rights in our military tribunals, b'gosh!

  • By what right does anyone call such a military agency or entity a "tribunal"?

  • You see, Mr M (my government seems to be saying), we won't be denying you any rights if we send you there, to Guantanamo -- because there, you see, you don't have any rights. [Of course, by the grace of the Supreme Commander, we have chosen to confer certain procedural privileges on unlawful combatants, but only those privileges, of course, that suit Our Glorious Supreme Commander, and only as long it suits us to let them have those freely revocable privileges. {You will recall that the operative language is somewhat like the following, which, as you will see, we have borrowed from health club contracts: "Grantor retains unbridled and absolute discretion to revoke, at any time and without notice and without cause, any of the privileges enumerated herein and nothing said anywhere shall be construed to the contrary."}])

    Ach, weh! (Forgive me: I occasionally lapse into New Yorkese.) One of my worst fears has come true. A year or so ago I thought I was being a bit paranoid, a bit overwrought, a bit of a Chicken Little. But no, hindsight suggests that's not the case: I wasn't overly anxious 'tall. For my government really, truly, and actually wants to deny criminal defendants (not to speak of "unlawful combatants" waiting in their legal black holes for "trials" -- "hearings"? "events"? -- in military "tribunals") --, my government wants to deny such targets of its prosecutorial activity the right to prepare their cases and defenses prior to trial.

    Need I say this?: A right to a trial without a right to pretrial preparation and meaningful pretrial investigation is a paper right, and such a paper right is not worth whatever paper it's written on. Every trial lawyer who knows anything knows this. (Perhaps the Supreme Court does too. We shall see. But some people will probably spend years in prison -- indeed, they already have -- before the Supreme Court deigns to speak to this issue. [But perhaps I'm being unfair: Surely the Supreme Court will act just as decisively and as quickly as it did during the Vietnam War crisis. So I take it back! Really!])

  • BTW: The government thought that the normal criminal process was good enough for it and for Mr M -- until, of course, the government found that it couldn't have its way with Mr M.
  • It is a scandal; it is an outrage.

    Immanuel Kant once said that it is better for the world to perish than for one innocent person to suffer unjust punishment. Mr. John Ashcroft has his own moral principle: he apparently believes that it is better for most of the U.S. to suffer great pain than for one guilty terrorist to escape punishment.

    What price security? And whose security is being purchased? Apparently Mr. Ashcroft's. Perhaps Pres. Bush's. Anyone else's?

  • Who but Mr. Ashcroft really believes that pretrial interviews of imprisoned terrorists by counsel for Mr M will severely imperil national security?
  • Well, o.k., o.k., I will grant you that in this grand country of ours -- perhaps particularly in Missouri? -- we can always find some people who will believe any crackpot thesis that you care to name. Furthermore, it is possible that the imprisoned terrorists ["alleged" terrorists?] that Mr M wants to interview --, it is possible that those guys have telepathic powers or electronic transmitters implanted in their shin bones. Or perhaps Mr M, by interviewing them through his craven surrogates, his untrustworthy counsel, -- perhaps Mr M, acting through such devious agents, can manage to supply those imprisoned unlawful combatants with the guts that they need to fend off our government's determined efforts to win their hearts and unlock their mouths: perhaps Mr M, clever fellow that he is, has the magic potion. Who knows? Anything is possible, you know. And we CAN'T TAKE ANY RISKS.)
  • It's an outrage, I say.

    I have an announcement to make: I have made up my mind. Yes, I have. This is my decision: I will not -- I cannot --, I WILL NOT vote for a Presidential candidate who will grant us four more years of Attorney Ashcroft.

  • Mr A's title, BTW, is not "general" -- as in "General Ashcroft." Mr A -- I am informed -- is an attorney, an attorney general. But he is not a "general." See William Safire, NYTimes, Section 6; p. 20; col. 1 (Late edition, July 20, 2003) (Citing & quoting my Cardozo colleague & office neighbor Prof. Michael Herz). BTW: Did Mr Ashcroft disabuse the interrogators from the media? Did he tell them, "You know, I'm not really a general. I wouldn't want to put on airs or pretend to be what I'm not"? To balance things out, I will not use the word "general" when referring to Mr Ashcroft here. I think "Mister Ashcroft" is sufficiently dignified. [If this displeases him, he is free to call me "mister" rather than "professor."])
  • As I recall, Mr. Ashcroft's immediate predecessor also seemed to enjoy the title "general." Vanity has no party affiliation.
  • Are you listening, President Bush? My message: Because of Mr. Ashcroft, I will vote for ANYONE other than you, Mr. President Bush -- and I will do so despite my intense distaste for some of the Democrats who want to take your place. (It's a shame! [Well, o.k., it's not a great shame: because I admit I would like this country to have a decent health care system. But, still, it's a bit of a shame that Pres. Bush has no chance to capture my vote because he wants to have Attorney Ashcroft be the Guardian of this country's security and liberty. {I think Mr A forgot the 2d part -- the "liberty & rights" stuff.}])
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