by Barry Goldman
The brilliant and recently departed Jules Feiffer drew a cartoon many years ago called Munro. It was later made into an Academy Award-winning animated short. You can watch it here.
Munro was only four years old, but somehow he got drafted into the army. He went to see his sergeant and said, “I’m only four.” The sergeant said:
It is the official policy of the army not to draft men of four. Ergo you cannot be four.
We see this form of reasoning in many contexts. It is the official policy of the United States that we do not torture prisoners of war. Therefore, waterboarding, which has been used to torture prisoners since the 14th century, cannot be torture.
Alternatively, the prisoners captured after 9/11, detained at Guantanamo, and waterboarded regularly cannot be “prisoners of war.” Instead, they are “alien enemy combatants” to whom the protections of the Geneva Convention do not apply.
This kind of reasoning can be difficult and complex and may require many years of rigorous training. Only a highly-trained and rigorous thinker like John Yoo, now the Emanuel S. Heller Professor of Law at UC Berkeley, could produce a document like Military Interrogation of Alien Unlawful Combatants Held Outside the United States. Try to read it and you will see.
My point is: This is what lawyers do. As the Devil’s Dictionary put it:
LAWYER, n. One skilled in circumvention of the law.
But there is a larger point that is both more important and less discussed. Even if there were a clear and unambiguous law, duly approved by Congress and signed by the president that said “Torturing prisoners is perfectly fine,” it would not be fine. If anything is wrong, torture is wrong. It doesn’t matter what Mr. Yoo or Congress or the President says. An atrocity enacted into law does not cease to be an atrocity.
The Reich Citizenship Law and the Law for the Protection of German Blood and German Honor passed by the Nazis to prevent “race defilement” were duly enacted laws. The Fugitive Slave Acts were duly enacted laws. The Slave Codes were duly enacted laws. The list could be extended indefinitely.
That is why it is puzzling to see the “rule of law” so widely fetishized. What is the matter with snatching people off the street, putting them in chains, and flying them to another country to be disappeared into prisons is not that it violates the due process clause of the 14th Amendment. It would be wrong to do that if there were no 14th Amendment and no Constitution.
What is wrong with the President of the United States accepting a $400 million airplane from Qatar is not that it violates the emoluments clause of Article 1 Section 9 of the Constitution. What is wrong with it is that it is a bribe. Lawyers for the administration may call it a gift to the presidential library or a donation to the Trump Foundation or any name they like. Only a lawyer getting paid to do so would argue it is not a bribe.
It is also puzzling to see the Constitution fetishized. The Constitution is not the gift of the Deity. It is a deeply flawed document drafted to appease rich, white men who owned human slaves and wanted to keep it that way. Elie Mystal is particularly good on the subject (see: Allow Me to Retort: A Black Guy’s Guide to the Constitution).
There is a problem when a symbol is mistaken for the thing it symbolizes. In Zen, they say the teachings are like a finger pointed at the moon. It is a mistake to concentrate on the finger. We do not say this in law. We believe the law is what we should be concerned about. We say with pride that we are “a government of laws, not of men.”
First, it isn’t true. And second, it wouldn’t be a good thing if it were.
Let me pose a hypothetical. Suppose a prisoner is on death row for the murder of two police officers. Suppose he has exhausted his appeals. He has been up and down multiple times on various grounds for many years, and he has finally run out of appeals. At the last minute, his lawyers produce new evidence. Someone else has confessed to the murders. Let’s call this “newly-discovered evidence of actual innocence.” So that’s the issue. On one hand, the condemned prisoner has exhausted his appeals. He is not legally entitled to any more hearings. On the other hand, there is newly-discovered evidence of actual innocence. What should we do?
I didn’t make this up. It’s a simplified version of Herrera v. Collins, a Supreme Court case from 1993.
The arguments are obvious. The guy has been found guilty by a jury of his peers. He is not entitled to a presumption of innocence; we’re way past that. He’s a convicted murderer. He’s been through the appeals process and the habeas process multiple times. There are other, more compelling uses for our limited resources. At some point enough is enough. There has to be finality. We can’t just keep doing this forever. In other words, there are sound policy reasons for the decision not to hold yet another hearing. But the legal reason to deny a hearing is that the guy has exhausted his appeals. The law establishes a maximum, and he has hit the maximum. We are a government of laws, not of men.
On the other hand, there is newly-discovered evidence of actual innocence. There is reason to believe he didn’t do it!
I don’t do death penalty cases, but I’ve done hundreds of discharge cases. I’ve been in plenty of hearings where I have heard enough, and somebody thinks I need to hear more. In my own limited way, I understand what the death penalty enthusiasts in the Court’s majority in Herrera were saying. But I am more persuaded by Justice Blackmun’s dissent:
I have voiced disappointment over this Court’s obvious eagerness to do away with any restriction on the states’ power to execute whomever and however they please. I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
When there is a conflict between common decency and the law, decency should prevail. Believing that law will produce justice is what T. S. Eliot called “dreaming of systems so perfect that no one will need to be good.” Sorry, that option is simply not available.
What is the matter with Donald Trump is not, at last, that he is a chronic, habitual violator of the law, though he is. What is the matter with Donald Trump is that he has no common decency.
Munro was a cartoon character, and he was only four, but he would have understood that.
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