This week marks the ten-year anniversary of opening of the U.S. military prison camp at Guantanamo Bay.  Despite President Obama’s January 2009 executive order to close the detention facility within his first year in office, Guantanamo remains in use (with over 170 detainees) long past its purported expiration date.  In fact, Congressional restrictions on the transfer or release of Guantanamo detainees, which the President recently signed into law, will ensure that the system of indefinite detention at Guantanamo will continue into the foreseeable future.  Meanwhile, not only has the President failed to fulfill his pledge to rein in the constitutional excesses of the previous administration, but the Obama administration has been increasingly explicit about its agenda to further imbued the Executive with the broad discretion to prosecute the “War on Terror” with limited Congressional interference.

Most recently, 0n December 31, 2011, President Obama signed into law the 2012 National Defense Authorization Act, which includes the following provisions:

(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

(2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,

(3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35).

These provisions, as the New York Times described them, expressly declare that “the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial [and] contain[] no exception for American citizens.”  The potential use of such powers, by the federal government against its own citizens, on U.S. soil, is anathema to even the most warped idea of civil liberties.  This was the very kind of unchecked governmental authority that the framers of the United States Constitution sought to prevent.  James Madison, at the Constitutional Convention cautioned that “[a] standing military force, with an overgrown Executive will not long be safe companions to liberty.  The means of defense against foreign danger, have been always the instruments of tyranny at home.”

Those in favor of these provisions, however, ostensibly fail to see the potential for abuse, judging from the hawkish rhetoric displayed during the Senate floor debate.  Notably eager to make “the homeland a part of the battlefield,” Senator Lindsay Graham, R – S.C., after what must have been an invocation of the spirit of Joseph McCarthy, declared:

“The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al Qaida and what they were going to do to all of us.”

Notwithstanding the fact that, outside of electoral politics, there remains overwhelming opposition to the bill–as the New York Times reported, “[n]early every top American official with knowledge and experience spoke out against the provisions, including the attorney general, the defense secretary, the chief of the F.B.I., the secretary of state, and the leaders of intelligence agencies”– these provisions, to the extent that they would authorize the indefinite detention of a citizen upon an allegation of treason, without due process, are a flagrant violation of the Constitution.  Specifically, Senator Graham, along with the bipartisan majority of Senators who voted in favor of these provisions, appear to either have forgotten or have decided to dispense with Article III, Section 3, which requires that ”No Person shall be convicted of Treason unless on the Testimony of two Witnesses to same overt Act, or on Confession in open Court.”  As Justice Scalia elaborated in his dissenting opinion in Hamdi v. Rumsfeld:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . . The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

While Justice Scalia and the federal judiciary might soon have the opportunity to rule on the scope of detention authority, the responsibility to weigh the constitutional implication of governmental actions should not be borne by the judicial branch alone.  Our elected officials share in this duty–to do more than pay mere lip service to the Constitution, when it might suit one’s electoral needs.  Indeed, upon taking office, Senator Graham, like all members of Congress, swore an oath to “support and uphold the Constitution of the United States, against all enemies, foreign and domestic.”  Likewise President Obama, less than a week before signing his yet unfulfilled executive order, swore to “preserve, protect, and defend the Constitution of the United States.”

As exemplified by the debate in the Senate, the members of our elected branches of government have abdicated their sworn duty to the Constitution.  With few exceptions, the debate over the indefinite detention provisions focused not on how these powers might prove constitutionally problematic, but rather on which part of the national security apparatus should have the broad discretion with which to execute this authority.

How this indefinite detention authority will be applied–and how the Supreme Court will rule on the scope of these powers–remains to be seen.  The ease with which this bill was enacted, however, is representative of a potentially more pernicious threat: America’s overwhelmingly disengaged and uninformed citizenry, complacent in its obliviousness.  Although we might not, like our elected officials, have to swear an oath to uphold our civic duty, we have just as great a responsibility to protect our own civil liberties under the Constitution, especially when our government fails to do so.

]]> http://www.forumonlawcultureandsociety.org/blog/2012/01/13/the-constitution-indefinitely-detained/feed/ 1 http://www.forumonlawcultureandsociety.org/blog/2012/01/11/reminder-about-the-forums-conversation-with-ed-koch/ http://www.forumonlawcultureandsociety.org/blog/2012/01/11/reminder-about-the-forums-conversation-with-ed-koch/#comments Wed, 11 Jan 2012 21:27:20 +0000 admin http://www.forumonlawcultureandsociety.org/blog/?p=2787 Forum Fans,

Just a reminder, on Thursday, January 19 the Forum is hosting a Conversation with Ed Koch. It’s at the Time Warner Center on January 19 at 8:00 pm. Reserve your tickets here.

See you then!

Ed Koch has done a lot of things. He was a soldier. He was a U.S Congressman. He was reelected three times as Mayor of New York City. He was the judge on the television series “The People’s Court.” He is a movie critic. He is a lifelong advocate for the people of New York City.

By doing a lot of things, Koch has lived quite the life. He was born in the Bronx, but raised in Newark, New Jersey. Eventually, after high school, he was drafted into the Army and fought in World War II. He landed in France a few months after Normandy and earned numerous medals during the war. Then in 1969 he was elected to the U.S. House of Representatives for the 17^th District of New York. In Congress, he was an opponent of the Vietnam War and a strong supporter of civil rights. He stayed in Congress until 1977, when he ran, beating incumbent mayor Abe Beam, and was elected Mayor of New York City. He remained Mayor until 1989. While his life as a public servant may have been over, he was no less busy. He taught at Brandeis, writes movie reviews for The Huffington Post, writes restaurant reviews, and continually lectures on countless issues.

Luckily for the Forum on Law, Culture and Society, he will do one more thing: participate in the Forum’s conversation series. He is the perfect Forum guest. His years in public life give him a unique perspective on the issues facing New Yorkers. However, this isn’t totally unique. There are a lot of people in public life and a lot of those people have joined us at the Forum. What is so unique about Mayor Koch is his ability is to speak intelligently on political, legal, and cultural issues – really, any relating to law, culture and society. Just like the Forum.

The Economist on “Too Big To Fail.”

The New York Times’ Dealbook on “Wall Street.”

The New York Law School’s Law and Journalism Blog on “Kramer vs. Kramer” and “Wall Street.”

The Forward and The Tablet on “Daniel.”

Capital on “Absence of Malice.”

We have watched, some of us incredulously, over the last weeks as the small protest in New York’s Zuccotti Park has turned into a global phenomenon. Occupy Wall Street now lists 1,612 different “meetups” across the globe, spanning from the obvious locales (Berkley, Seattle, Paris) to the obscure (Islamabad, Fairbanks, Almaty).

The hardest part of Occupy is in deciding exactly what it is. We know that it is a movement against the unbridled world of high finance, a rebellion against the excesses which caused the global economic downturn, excesses that, according to the movement’s organizers, whoever they are, continue virtually unrestricted today. What we do not know about the movement is its broader significance. It could be a flash in the pan, or it could be the beginning of a dynamic social movement. It could be the liberals’ answer to the tea party, or it could be completely and totally different. It could be good for President Obama, it could be bad for President Obama. It could be a well-informed push for financial regulation, it could be a messy conglomeration of disparate agendas.

The problem is that the lack of information about what exactly this movement is reflected by the media coverage of it, meaning that consumers of information are fed a whole lot of conflicting viewpoints about what the meaning of Occupy actually is. This actually serves to discredit the movement, and even make it a laughingstock in certain circles. While the movement’s website actually tries to compare Occupy to the Arab Spring, to Tahrir Square, the fact is that those movements had a simple, central message which people could rally behind. Everyone knew what those movements were about, so when it came time to make a decision as to whether to support them or not, people were faced with a black and white choice. Here, Occupy’s lack of a coherent message may have served to attract masses to Zuccotti Park, and the rallying points of demonstrations in other places, but it also serves to place the movement at the periphery of society instead of at the center.

I recently visited Zuccotti Park to try and get a sense of what exactly the movement was about, and discovered that while a significant amount of protesters were gathered inside the park, just as many gawkers, spectators, and other curious passers-by surrounded them, walking around, taking pictures, and just looking in. Some protesters made cursory efforts to try and engage these “civilians,” but the divide was clear; Occupy Wall Street is a fringe movement, for those on the fringe of society, and without a clear and unified message, the “99%” of whom the protesters speak will remain passive onlookers.

With the release of a Blu-Ray version of 12 Angry Men, it is worth revisiting this film, which was part of last year’s Forum Film Festival. U.S. Supreme Court Justice Sonia Sotomayor even said that this film had an incredible influence (click on the link and scroll down to her video) on her legal career.

Sidney Lumet’s 12 Angry Men presents an interesting example of the points at which the law and morality diverge. The divergence occurs in what one might think would be an unlikely location: a jury deliberation room. In the film 12 strangers, pressed into public service as jurors, attempt to decide the fate of a young man who is accused of murdering his father. In the process, a legally “correct” result (12 jurors agreeing as to guilt or innocence) nearly results in a moral travesty, until the morally righteous (and nameless, until the very end of the film) protagonist intervenes.

Initially, all but one of the jurors have convinced themselves that the defendant is guilty, despite clearly having failed to weigh the evidence, being preoccupied with other matters, and allowing prejudice to guide their decision making. The nameless protagonist, portrayed by Henry Fonda, demonstrates considerable moral courage by insisting to his colleagues that they take the time to weigh the evidence properly, even as the crowd urges a quick verdict of guilty so that they can proceed with more important things (such as that night’s ball game).

If we assume that the law-school notion of the “reasonable man” test is accurate, and thus that in a given group of people, the majority of them will behave reasonably, then 12 Angry Men illustrates that the staple of law school torts classes is indeed a low bar to satisfy.

In this jury deliberation room, the majority of the people are arguably acting “reasonably” in that they are performing the task assigned to them with minimum effort. Only Fonda’s character, however, is willing to do the morally right thing; to thoroughly examine all the evidence to try to determine what happened on the night in question. In fact, Fonda’s character’s insistence on doing the right thing elicits complaints from his colleagues and suggestions that he is being UN-reasonable.

Of course, in a moral sense, Fonda’s character is the only one being reasonable, by refusing to convict a defendant based on flimsy evidence and prejudice, or at the very least, attempting to thoroughly delve into the case to determine the truth. Luckily for the defendant in this case, Fonda’s character is able to convince his cohorts to follow his lead. How often are similar scenes repeated in jury deliberation rooms, and how many times is a morally righteous individual absent?

You could be daddy’s little girl, a momma’s boy, your mother’s daughter, or your father’s son. Everyone has heard these characterizations. However until recently, in the eyes of the court, mothers were always favored in custody battles, unless of course, there is evidence of gross negligence.

Kramer vs. Kramer, starring Meryl Strep as Joanna Kramer, Dustin Hoffman as Ted Kramer, and Justin Henry as their son Billy, is the story of a mother leaving her family behind to find herself. In the wake of her departure, a father and son, seemingly estranged, are left to build a rapport of trust, which subsequently turns into an intimate, loving relationship. Following Joanna’s parenting hiatus, she returns to claim custody of Billy. A bitter court battle ensues. Critically acclaimed, Kramer vs. Kramer challenged the generally held notion that a child is better cared for by its mother, regardless of who has their son’s best interest in mind. In the film, the court based its decision on this doctrine.

While the filmmakers seem to want the audience to hate Joanna’s character, given that she was the one to leave her family and then demand custody of her son, I had a different reaction. Upon her return, I could not help myself from sympathizing with Joanna. I understood her sense of guilt and the remorse she had for leaving.

In today’s society we praise mothers who accept culpability for their bad behavior, and forgive them when they vow to turn over a new leaf. Britney Spears, for example, was a star on a destructive path. She lost custody of her sons. She was admitted into a psychiatric ward and placed on suicide watch. Spears had lost control of her life. This sense of desperation and lack of control seems to parallel Joanna’s feelings. Joanna’s decision to flee wasn’t based on a specific occurrence, but on a holistic illness that needed to be addressed immediately. In turn, we learn throughout the movie that her apparent selfish motivation for leaving was actually the ultimate act of selflessness.

The acrimonious custody battle resulted in the court awarding full custody to Joanna Kramer, solely based on her being Billy’s mother. Joanna and Ted’s respective attorneys engaged in unfortunate character attacks, disparaging the other party’s ability as a parent. When Joanna’s attorney exposed evidence regarding Ted’s dismissal from his high paying position at an advertising agency, this seemed to have a significant impact on the judge’s decision. The reason for this though, was Ted’s new-found devotion to his son. Ted became Billy’s mother and father, overcompensating and trying his best to acclimate his son to a life without a mother. Their strong bond and connection is depicted in the scene where Billy learns to ride his bike. The expression on Ted’s face, of a proud father, says a thousand words. Ted’s commitment to stabilizing Billy’s life after such a debilitating incident truly shows his dedication to being a great father. It is a touching portrayal of the intimate relationship that developed between father and son in the absence of a mother.

The film received praise for its accurate portrayal of the ravaging effects divorce takes on all parties involved. While it was not universally loved, especially due to its portrayal of Joanna, Kramer vs. Kramer won five Academy Awards, including Best Picture, Best Actor in a Leading Role, and Best Actress in a Supporting Role.

Both Preet Bhara and Samuel G. Freedman are looking for something. Mr. Bhara wants justice and Mr. Freedman wants the truth. Both have a professional duty to find what they’re looking for. And both, if they fail to conduct their search ethically, can hurt people.

Bhara is the U.S. Attorney for the Southern District of New York and Samuel Freedman is a journalist. Each has earned a reputation for doing their jobs very well. Bhara has earned plaudits (and more than a few critics) for his crackdown on insider trading and financial crimes. Freedman is an author, columnist and professor. Currently, he writes the “On Religion” column for The New York Times and is a professor at the Columbia University School of Journalism. His work, Small Victories, was a finalist for the National Book Award in 1990; in 1991 his Jew vs. Jew won the National Jewish Book Award for Non-Fiction; and Freedman’s book The Inheritance was a finalist for the 1997 Pulitzer Prize.

Because of this experience, both men understand the power they hold. They also know what can happen if they abuse it.  As seen in Sydney Pollack’s Absence of Malice, when prosecutor Eliot Rosen (Bob Balaban) unnecessarily investigated an innocent person, and then leaked that information to Megan Carter (Sally Field), a journalist, who ran the unconfirmed story. In the film’s case, this lack of scruples had devastating consequences for all involved. Fortunately, in Mr. Bhara and Mr. Freedman, we have two people who understand their role in society and the need to carry it out ethically.

Timothy Robbins, better known as “Tim” Robbins, is an American actor, screenwriter, director, producer, and musician. Robbins grew up with a show business background, and was exposed to the culture by his mother and father. His mother, Mary Robbins, was an actress, and Gil Robbins, his father, was a singer for “The Highwaymen.” Robbins was born in California, but was raised in New York City.  He graduated from Stuyvesant High School and after graduation, he moved back to California to study drama at UCLA School of Film, where he graduated with honors. With an itch for acting and the background to support it, he began The Actors’ Gang in 1981. The Actors’ Gang was a group of aspiring actors who combined their experiences and opinions (mostly radical political observations) to form an experimental theater group. Robbins is still revered today as a tried and true liberal activist. He is very involved in political expression, and tends to angle his movies towards conveying a genuine message.

His acting career started as a teenager, when he worked at the Theater for New York City. Later on, he held small roles in plays and TV. It was not until his breakthrough role in Bull Durham, in 1988, that his career took off. Robbins played Ebby Calvin “Nuke” LaLoosh, the dim-witted pitcher, which catapulted his career. This led to other successful roles, most notably his participation in Dead Man Walking (nominated for Best Director), The Shawshank Redemption (the movie was nominated for seven Academy Awards), and Mystic River (an Oscar win for Best Supporting Actor & the SAG Award). Most recently, he played Senator Hammond in the movie Green Lantern, premiering in 2011.

In 1988, Tim Robbins and Susan Sarandon, star of Dead Man Walking, started a 21 year romance that resulted in the birth of their two children John Henry and Miles. The relationship ended in 2009.

He is recognized by the Academy for his contributions as both an actor and director. He currently holds the title as tallest Academy Award winner at 6’5.

Sydney Pollack’s wonderful film, “Absence of Malice,” makes a good, if not slightly depressing, point. At the beginning of the film, The Miami Standard’s lawyer explains to Megan Carter (Sally Field), a reporter at the newspaper, that the subject of her article, Paul Newman’s Michael Gallagher, is unable to do the paper “harm.” “We have no knowledge the story is false, therefore we’re absent malice. We’ve been both reasonable and prudent, therefore we’re not negligent. We can say what we like about him; he can’t do us harm. Democracy is served.” Implicit in this monologue is the question: is this right? The answer, while demonstrated by the events that follow, is stated specifically at the film’s end, when Assistant U.S. Attorney General James Wells (Wilford Brimley) explains,

“You know and I know that we [the law] can’t tell you [the press] what to print or what not to. We hope the press will act responsibly, but when you don’t, there ain’t a lot we can do about it. We can’t have people going around leaking stuff for their own reasons. It ain’t legal. And worse than that, by God, it ain’t right.”

So there’s the answer: it’s not right, but there’s nothing much we can do about it.

The film starts with an investigation. Miami strike force (something like an organized crime task force) leader Eliot Rosen (Bob Balaban) initiates an investigation of Michael Gallagher in order to find out what happened to local labor leader Joey Diaz, who disappeared a few weeks prior. The investigation is not meant to find Diaz, as they have no evidence that Gallagher was involved, but to pressure Gallagher into helping the authorities. All they know is that Gallagher’s father was a mob leader who kept the longshoremen, the union Diaz led, out of Miami for years. In order to put the heat on Gallagher, Rosen leaks news of the investigation to a reporter, Carter, by giving her an opportunity to read an uncompleted file on the investigation. Carter does and without confirming the story, publishes it. This articles, and others, ruin Gallagher’s reputation. They induce the longshoremen who work for Gallagher to strike in support of their lost leader, and lead his best friend to kill herself. Needless to say the articles, which were based on an unconfirmed leak, do some serious damage.

The damage wrought by Carter’s sloppy reporting brings the point of the film into stark relief: when journalists use their immense power – the power to publish pieces of information which the public depend on – irresponsibly, people suffer. This is different than the current “News of the World” scandal unfolding in Britain. There, the paper did something outright illegal, bribing cops and hacking cell-phones, in “Absence of Malice,” everything Carter did was legal, it was just wholly irresponsible.

And that brings up the final and companion point the film hopes to make. That the law does not set out what should be done, only what must be done. Carter followed the law, but she was still wrong. In turn, journalists, a profession with the power to ruin lives, need to take that responsibility seriously and practice their profession with the utmost care and prudence. Only then, contrary to The Standard’s attorney, will the people who make up that democracy be served.