Sunday, December 24, 2006


When I was in my early teens my father wrote a letter to the editor of the local weekly newspaper criticizing a report about a local businessman who had been charged in another state with passing a bad check. My father complained that the major newspapers were unlikely to run the story and that it was unfair to give credence to the charges and injure the reputation of the resident until he had been found guilty. The newspaper responded, as one would suspect, about the freedom of the press and the right of the public to know. The charges were eventually dismissed as a case of mistaken identity (and coincidentally, my father became the editor of that same newspaper several years later.)

No one can dispute the right of the newspaper to run that story under the First Amendment. But I had the privilege of being a friend to the late, great Fred Friendly, (former president of CBS News and creator with Edward R. Murrow of See It Now), and he often said:"There is a difference between what you have a right to say and the right thing to say." Which brings me to the now infamous Duke Case. The district attorney in that case may be guilty of other improprieties (N.Y. Times 11/24/06), but I would like to focus on his public pronouncements regarding the case.

In this day and age, it is unlikely, even if the mainstream media chose to institute some self-restraints in publishing criminal charges, that they would not find their way to the public through the Internet. Not so, however, for prosecutors who choose to hold press conferences about indictments. Those who do so forever stigmatize the named defendants, even if the charges are eventually dropped or the defendants are acquitted. Some restraints are imposed upon prosecutors, but they are concerned more with protecting the defendant's right to a fair trial rather than his reputation.

There may be some circumstances in which the publication of charges are in the public interest, such as the apprehension of a serial murderer or rapist who has created fear in a given community. But most announcements by a prosecutor do not serve that function. The defendants in the Duke case may or may not be guilty of some criminal activity. The charges against them may have been made public even absent the pronouncements of the district attorney, but his actions most assuredly guaranteed it.

If these young men are guilty, then the damage to their reputations will have been well-deserved, but if they are not, they will never escape the stigma that has been imposed upon them. That may be the unfortunate and inevitable outcome of our judicial system, but prosecutors would serve the system better by exercising greater restraint in announcing charges and identifying those charged. The time to punish defendants is after they have been convicted not when and merely because they have been charged.

Wednesday, December 20, 2006


To all of you who urged me to continue blogging despite the mud-slinging, I express my gratitude. In particular, I was convinced to continue by an e-mail from Lucia Liljegren forwarded to me by my former law clerk, the distinguished law professor and author, Eric Muller. Without your encouragement I would have missed the opportunity to discuss the remarkable opposition stance by Senator Sam Brownback of Kansas to the nomination of Janet Neff, a Michigan state judge, to the Federal District Court.

Let me see if I understand this. So a person is unqualified for the federal bench because she attended a "same-sex commitment ceremony for the daughter of her long-time neighbors." (N.Y. Times 12/19/06) Not presided at, but ATTENDED! But even worse, this "impediment" could be removed by the Faustian bargain of her agreeing to recuse herself from all cases involving same-sex unions! Nothing is more symbolic of the efforts to pervert the federal judiciary than the attempt to impose this condition upon a nominee.
Forget for a moment the insult to the fundamental principle of the separation of powers, and consider the logical application of the Senator's condition. If her mere attendance at this function puts into question her impartiality sufficient to require her recusal in all cases involving same-sex unions, what of the nominee who has witnessed an execution? Is he or she disqualified from hearing all death penalty cases? What of the nominee who regularly attends church services or attends a wedding at a church or synagogue? Must she recuse herself in all cases involving church/state matters? Are former prosecutors or criminal defense counsel barred from hearing all criminal matters? Is the judge who reads the daily newspaper barred from deciding matters which relate to freedom of the press?

I concede that some of these examples are absurd, but so are the Senator's grounds for opposing the nomination and his condition for confirming it (although he indicates that he might oppose it nonetheless). Passive attendance at a celebration certainly should not be a grounds for disqualification to the federal bench; nor should the expression of views on controversial matters. Although some nominees have denied it, do we want judges who have have never considered, spoken or written on such controversial issues as same-sex marriage, abortion, stem cell research, the death penalty, etc. Their positions or views may cause senators to vote for or against their confirmation, but a disqualification or recusal agreement should never be exacted as a condition to confirmation, particularly by a single senator.
The Senator's attempt to mold the judiciary in his own image should give us all pause and concern. It is a sad day for the judiciary and the country when attendance at a friend's celebration is cause for disqualification.

Warning: Don't attend Mary Cheney's baby shower if you want to be a federal judge.

Wednesday, December 13, 2006


Is there anything that will not be condoned in the name of fighting terrorism? Maher Arar, a dual citizen of both Canada and Syria, but a resident of Canada since a teenager, alleges that he was seized by representatives of the United States government at Kennedy Airport, held and then sent to Syria where he was interrogated and tortured. He was eventually released when it was determined that he was not a terrorist. Apparently no one now claims otherwise.
His suit against certain named U.S. officials for damages under what is known as the Bivens doctrine was dismissed on the grounds of "a special factor" urged by the government that the violation of his rights occurred "during efforts to protect national security and that affected foreign affairs", and that the judiciary was not the branch to balance individual rights against national security. (His lack of U.S. citizenship was not a basis for the dismissal.)
The judiciary was created, in part, to reign in abuses by the other branches if they violated the rights granted to individuals. Hopefully, we do not have to debate in this day and age, that persons here and everywhere have the right to be free from torture. Torture, although practiced in many places, is virtually forbidden everywhere and most certainly violates the Fifth Amendment, our laws and our treaties. So what is the balancing that must take place? Is the argument that forbidding torture or compensating someone who has been tortured under the auspices of or in complicity with our government may somehow run contrary to national security?
The judiciary has the role and duty of protecting constitutional rights during times of national crisis and war, even to the extent of limiting the power of the executive branch. In such times, the judiciary should be even more vigilant, because it is in such times that our rights are in the greatest jeopardy. President Truman's seizure of the steel mills during the Korean War (on the grounds that a strike would have affected the war effort) was prohibited by the Supreme Court noting that a president cannot elude the restrictions of the Constitution by the assertion of his military role. Likewise, the First Amendment trumped the government's efforts to block the publication of the Pentagon Papers despite the government's assertion of damage to the national security.
Mr. Arar has no other remedy other than his claim for damages. Congress has not explicitly denied the remedy under these circumstances, nor provided any alternative. The government in a formal submission to the United Nations stated that there is no justification or tolerance for torture. So the balancing, if indeed there is a need for it, has already been done. If we condone the outsourcing of torture and fail to provide a remedy for it, then we are no different than the suicide bombers, who also purport to act in furtherance of their foreign policy.
(I wish to disclose that it is my intention to join with other retired judges in filing an amici brief urging a reversal of the dismissal of Mr. Arar's case.)

Saturday, December 9, 2006

The Constitution and a Trip to the Dentist

This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant". The N.Y. Times (12/4/06) reported that during a recent trip to the dentist, Mr. Padilla's legs were shackled, his wrists cuffed and "noise-blocking headphones placed over his ears and blacked-out goggles over his eyes".
Mr. Padilla was originally arrested and publicly charged with plotting a dirty bomb attack in the United States. He was eventually charged with conspiracy and of providing material support to terrorists. The recent indictment was not in recognition of his constitutional rights as an American citizen, but rather a strategic decision by the administration to avoid what undoubtedly would have been an adverse judicial decision condemning the confinement and treatment of Mr. Padilla. The alleged dirty bomb plot is nowhere mentioned in the indictment against him. Mr. Padilla may be guilty of something, but the administration is guilty of far worse.
The administration has justified (and to large extent the public has accepted) wiretapping, these detentions, and possibly even torture, on the basis that these methods fight terrorism and confine terrorists. But what if they are not terrorists? Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeas corpus ("the best and only sufficient defense of personal freedom" Justice Chase, 1868), thus denying the means and opportunity for those detained to establish their innocence of any wrongdoing.
American soldiers are dying to win freedom for the people of Iraq, while we are losing freedom for the people of America.