Frank’s Case Book

There are extreme situations when we grant authorities the discretion to perform acts that would not be permitted under circumstances where more deliberation or other alternatives are possible. For example, if a person is in imminent danger of being killed by a third party, a policeman can use lethal force to protect the threatened person. We would never allow police use of lethal force as summary punishment. However, we have collectively recognized that it is impossible and morally irresponsible to formulate absolutes like “lethal force will never be used.” It is possible to encounter difficult situations when it is necessary to opt between the lesser of two evils. We have consequently developed a whole jurisprudence about when lethal force can and should be applied. Generally, the balanced is tipped toward the protection of innocent life.

Charles Krauthammer has written a thoughtful piece in the Weekly Standard, “The Truth about Torture,” examining the circumstances under which torture might not only be morally permissible but a positive duty. The classic extreme case is when a captured terrorist knows the location of a nuclear weapon about to explode and kill many thousands of people. Is torture permissible to extract the information necessary to prevent this catastrophe? Krauthammer’s conclusion is direct: “Now, on most issues regarding torture, I confess tentativeness and uncertainty. But on this issue, there can be no uncertainty: Not only is it permissible to hang this miscreant by his thumbs. It is a moral duty.”

This case is certainly extreme, but this extreme educes an important principle. If there are cases when torture is ethically required, then morally serious people in government ought to establish guidelines for its appropriate use.

Senator John McCain’s bill prohibiting “cruel, inhuman, or degrading” interrogations by persons acting on behalf of the US government was passed by an overwhelming margin in the Senate. The Bush Administration was willing to accept categorical restrictions for the US military. Indeed, the limitations are already part of the Army Field Manual. However, the Administration did not want to establish an absolute prohibition for intelligence agencies.

If there are exigencies when torture is required, not delineating conditions for appropriate use could lead to two negative outcomes. First, the restrictions may tie the hands of officials when torture might be necessary. Or, torture is driven so deep underground that it is practiced without regulation and it becomes more likely to descend from a search for necessary information into unsanctioned punishment and revenge.

Krauthammer distinguishes between three types of detainees. The first are members of combatant militaries that are captured. These people ought to be treated with the utmost respect and deference. The Geneva Convention establishes conditions for treatment of these legal combatants less to protect detainees, then to protect civilians. In exchange for not targeting civilians and conducting operations in accord with the rules of war, military prisoners of war are detained only for the purpose of keeping detainees from the battle field. Detainees are held to keep them from battle, not for punishment.

The second group is composed of captured terrorists who have violated the rules of war but lack any especially useful information. By virtue of their violation of the rules of war, they have not earned any humane treatment. We treat them humanely and make sure they are reasonably comfortable, because we do not wish to pay the price of the emotional and moral damage of doing otherwise.

The third group consists of terrorists that have information that could save lives. This information could be of the immediate variety, where a terrorist knows of a particular bomb about to go off in a particular place. The second type of terrorist would be a very high level operative who has wide-range knowledge about future operations. Krauthammer argues that more aggressive interrogation is justified in such cases. The level of aggressiveness should be proportional to the immediacy and size of the future danger.

The use of torture not only dehumanizes the subject of the torture, but also the persons inflicting the pain. As a matter of maintaining the moral and warrior spirit of the military, military people ought not to be called upon to use aggressive interrogation techniques. These ought to applied by a small, well-trained cadre of experts and only under the supervision of independent quasi-judicial supervision.

Krauthammer may not have struck upon the proper balance between the sin of inhuman treatment against the sin of allowing innocents to die when it is in our power to stop it, but he has at least opened the debate in a constructive wave. The weighing of competing values is difficult and it can be too easy to hide mere retribution and vengeance behind a veil of civilian protection. The danger lies in becoming like the type of people we are seeking to protect ourselves from.

The categorical restrictions passed by the Senate may be a consequence of the concern that though torture may be necessary, an absolute prohibition prevents its misuse. This is a morally serious position. However, this very reasonable concern must be weighed against the destruction of innocent life. If the potential loss is grave, we may not be able to enjoy the luxury of categorical prohibitions.

The Administration has been negligent in not proffering a set of guidelines for reasonable and appropriate use of coercive interrogation techniques. At the same time, the moral posturing by a lop-sided vote in the Senate has shrouded clear thinking in a squid-like ink of moral vanity.

Recently, I. Lewis “Scooter” Libby, resigned as Chief of Staff for Vice-President Dick Cheney after being indicted for perjury and obstruction of justice.  The indictment stems from an investigation surrounding the leaking of Valerie Plame’s identity as a CIA employee. Valerie Plame is the wife of Joseph Wilson, critic of the Bush Administration. Joseph Wilson asserts that the revelation of his wife’s employment was retaliation for his debunking of the claim in the President’s State of the Union address that “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

There are a couple of critical problems with Wilson’s argument.  The first is that the President’s words are absolutely true and to this day, the British government stands by the intelligence assessment the President cited. Second, Wilson’s oral brief to the CIA upon returning from his short trip to Niger reported that Iraq had tried to obtain uranium yellowcake from Niger, though Niger declined Iraq’s overtures. The CIA believed Wilson’s report substantiated suspicions about Iraqi intentions. Third, Wilson self-aggrandizingly told the press that his report had debunked forgeries about Niger uranium sales. These papers had turned up in Italy. The timing for this claim of Wilson does not tally. The US did not come into possession of those forgeries until months after Wilson’s trip and report. This timeline can be found in the 9/11 Commission Report.

In 2003, Wilson was polluting political waters with inaccurate information and the Administration was clearly trying to deal with Wilson’s charges. Wilson claimed that he was sent to Niger on behalf of the Vice-President. The natural question was why Wilson. He was a critic of the Administration and a Gore supporter. He was not qualified in proliferation matters. Why would the Vice-President send him?  He didn’t. In the course of refuting Wilson, presumably Scooter Libby and perhaps others said the Wilson’s wife, an employee of the CIA, was responsible for the trip.  This was repeatedly denied by Wilson, whose pride as a former ambassador may have been wounded by the need for nepotism.  The 9/11 Commission unequivocally concluded that Ms. Plame recommended Wilson for the trip.

There was concern in 2003 that perhaps the identity of a CIA employee at been illegally compromised, but that particular charge seems not to have borne scrutiny. Libby, if he is found guilty, committed the crime obstructing an investigation premised on crime for which there is no prosecution.

If Libby did perjure himself or obstruct justice, then he should be appropriately punished.  Conservatives and Republicans should not be lured into the Clinton defense that perjury and obstruction of justice do not count if the underlying crime seems incommensurate with the penalties for perjury or obstruction of justice. For the answer as to Libby’s guilt we will have to await the results of a trial or plea bargain.

It should also be remembered that at this point, there only seems to be the prosecution of a person with regard to an issue orthogonal to lack of weapons of mass destruction in Iraq. The Left continues to push the narrative that Bush lied about WMD to get the US into Iraq. For that to be true, President Clinton, Senator Hillary Clinton, the Senate Intelligence Committee, the French, and the Germans would have to abetted in the lie, an unlikely alliance. The 9/11 Commission Report concluded as much, yet the Left still persists in its mendacity.

The Left had hoped that the Libby scandal would allow one more opportunity to peddle their deliberately misleading narrative about the origins of the war. Now it seems that the investigation has narrowed. The prosecutor Patrick Fitzgerald has said as much:

“This indictment is not about the war. This indictment’s not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel.”

The Left does not really care about Scooter Libby or Valerie Plame. It only cares about undermining Bush.  Who knows? The may succeed one day.  But it hasn’t happened yet and the frustration will likely to increase the vitriol around the Libby case.

Occasionally Conservatives repeat themselves over and over again and it seems that no one is listening or at least the point is not fully appreciated. Then, when one least expects it, the message leaks through. For this we have, the reliably Left-wing Richard Cohen,  a pundit with the Washington Post, to thank. Conservatives have often said that the issue of abortion is really two issues that have been treated as one. The result of the failure to separate these issues is confusion, anger, and a judicial nomination process for the federal courts that has been deformed into a political slug fest, complete with character assassination and rhetorical hyperbole.

The first question is what status and what protections ought to be afforded a fetus.  At what point from conception to birth should a fetus be accorded rights associated with personhood?  The second question is what does the US Constitution say, if anything, about a right to an abortion.

The Conservative judicial position has always been that Roe v. Wade was wrongly decided as a matter of law.  While there is certainly a right of privacy in the Constitution, especially as embodied in the Forth Amendment’s protections “against unreasonable searches and seizures,” there is no right to procure whatever medical services one is willing to pay for.  The jurisprudence that gave us Roe v. Wade was entirely arbitrary.  There is no explicit or implied right that prevents state governments from regulating the circumstances and conditions of medical procedures.  Indeed, states and the federal government do so all the time, with nary a Constitutional whimper.

There are requirements on the length of hospital stays for certain procedures and limits on what drugs doctors can prescribe. Decisions on medical procedures are not the exclusive province of doctors and their patients. These requirements may be wise or foolish. They may not conform with a libertarian minimalist approach to government intrusion, but medicine is a business like others, provided to the general public, and there is no constitutional impediment to regulation. In Roe v. Wade the court simply decided that abortion ought to be legal and barely gave the Constitution a serious thought before the Court legislated its preferences.

Now even some Liberals are willing to appreciate the nature of the two arguments. As Cohen now concedes, the logic of Roe v. Wade “has not held up … It seems more fiat than argument.” Cohen has come to appreciate that the question of abortion ought to be decided by the public and not dictated by Courts.  Conservatives take heart, Apparently, he has been listening. Cohen is self-described as pro-choice, and finally sees the necessity of making the case for abortion to the public, to gain the legitimacy afforded from the assent of the governed.

If Roe v. Wade were overturned and states were left to their own devices, most would permit abortions of some type, particularly in the first trimester. Later-term abortions would be more regulated and minors would probably have to obtain the consent of a responsible adult (parent, guardian, or judge) to obtain an abortion.  There are some states that would be far more restrictive.  Under such a change, pro-abortion groups could devote their resources to providing transportation for women in states with restrictive abortion laws to travel to states where abortion is liberalized.

The first and primary question about abortion, the status of the fetus, has not been debated. The arbitrary decision in Roev. Wade suspended substantive debate on the core issue of the status of a fetus and focused the public on Constitutional arguments and on extraordinary efforts to influence the selection of federal judges. The past thirty years could have been spent in a serious national debate conducted state-by-state, a thoroughly deliberative process. Instead, we have acrimony and a damaged Constitutional jurisprudence. With the prospect of a Court tilted to the Right, the Left is now beginning to appreciate that it will have to appeal to the public and will not be able to foist a decision upon them.

Even those who pay only casual attention to the news know by now that Representative Tom Delay from Texas, in accordance with House rules, stepped down as House Majority Leader, after having been indicted by Austin District Attorney Ronnie Earle. The charges center on alleged campaign finance law violations. Known as the “Hammer,” by both fans and critics for treating every political predicament like a nail, Delay claims that he is the victim of a politically-motivated legal assault.

There are at least three possible outcomes for this legal conflict. First, it may turn out that Ronnie Earle has a strong case and manages to convict Delay. Delay’s political career would be over. Political comebacks after a conviction are virtually impossible. Former Mayor of Washington, DC, Marion Berry may be the best known exception. Second, Earle may have a sufficiently strong case that lasts for a long time, all the while bleeding Delay of political power even if acquittal is the final result. Third, the case could be dismissed or acquittal may come quickly, essentially vindicating Delay, buttressing the argument that Earle’s prosecution was without merit and politically motivated.

The first and second outcomes would impact Republicans negatively, but corruption in politics will happen. One more politician convicted of wrong doing will not have very much of a long term impact and may be salutary. In many ways, the third outcome, although beneficial for Republicans, would deal the biggest blow to the republic. It would mean that an out-of-control local prosecutor could affect the leadership of the national legislature based on frivolous charges.

The real current problem is the lack of balanced coverage by the mainstream press organs. The indictment of Delay was duly recorded. Though a Conservatively inclined ear might have detected a note a glee in the reporting on Delay, relevant facts were provided.

However, since the September 28 indictment a number of new an important facts have emerged, which have largely been ignored. The Washington Post has not reported on Delay since October 2. After the initial coverage of the indictment, the New York Times neglected reporting on the indictment until October 8. They reluctantly reported that Delay’s lawyers formally charged Earle with prosecutorial misconduct, without going into the nature of the charges against Earle. It is hard to believe that in a similar situation, a flamboyant Republican DA using extraordinary means to prosecute a Liberal Democratic leader in Congress, these two papers would have remained so silent.

What has happened since the indictment?  First the foreman of the grand jury William Gibson conceded that his decision to indict had nothing to do with the facts presented to the grand jury, but with his anger at political ads. Here is a short excerpt from an interview on KBLJ radio:

Grand Jury Foreman William Gibson: All this all came out way before I was on the grand jury, these mailers were in your paper, in Austin paper, everyone else’s paper, they flooding the market around here. But those were way before I ever went on the grand jury and my decision was based on upon those (the TAB ads,) not what might have happened in the grand jury room…

KLBJ host: Oh. Ok. Your mind was made up after you learned about the ads.

William Gibson: Right, those ads, way back. telling people how, so-called freedom of the speech deal, and I looked at it and they are just telling people go vote for that person, go vote for that person.

KLBJ host: So they didn’t have to persuade you in the grand jury with any evidence, you already…

William Gibson: That was already public knowledge there and way back (unintelligible)…they stated their positions and I could state my position by say I don’t like that.

This does not represent the sort of fairness, one normally expects from a grand juror and one can reasonably call into question the evenhandedness of the indictment process.

Second, there have been questionable and extraordinary legal maneuverings by Earle since the original indictment. After there was a technical issue arising out of the first indictment, Earle rushed back to obtain a new indictment on a slightly different alleged transgression surrounding the same campaign finance issues of the original indictment. The grand jury reported “No Bill” indicating no indictment would be returned. The Associated Press reports that Earle was visibly angry at the obstinate jurors. The reported incident is not consistent with a dispassionate DA. Frustrated, Earle rushed a newly impaneled to return an additional indictment against Delay.

None of these events proves that Earle is out of control and Delay could still be guilty even if Earle is overly aggressive in his legal pursuit of Delay. However, people deserved to know about the extraordinary events surrounding the indictment of the former House Majority Leader. The main stream media have failed news consumers once again. At the same time, these traditional news sources fecklessly wonder why fewer and fewer pay much attention to them.

One of President George W. Bush’s endearing qualities is his willingness, perhaps even perverse eagerness, to do what he thinks is right without regard to the political consequences. Although he does tact with the political wind when necessary, on core issues: the War in Iraq or his obligation to nominate judges for the Supreme Court, Bush seems to charge off in an independent direction. The selection of White House counsel Harriet Miers for the US Supreme Court may prove to be one such decision that comes back to haunt the President.

Ms. Miers has little public record against which to measure her judicial philosophy. George Bush is most comfortable dealing with people one-on-one and his close association with Miers has apparently convinced him that she shares his judicial philosophy. For the purposes of argument let us assume the Bush has an accurate read on Miers. Let’s assume that over the next 20 years, Ms. Miers out-Scalias Judge Antonin Scalia and makes Judge Clarence Thomas look as Liberal as Judge David Souter. Let’s assume she steers the Court squarely to the right powered by an engine of brilliantly written opinions for the Court. This represents a long-term advantage for the country and an important legacy for Bush. However, much the same could have been accomplished by another pick.

Assuming that Bush wished to bow at the altar of identity politics and wanted to appoint a woman to fill the seat vacated by Sandra Day O’Connor, there is a bench of female judges with clearly Conservative judicial records from Judges Priscilla R. Owen to Judge Janice Rogers Brown that would have enraged Democrats and elated Conservatives. President Bush has manufactured a “perfect storm” to move the Supreme Court to the right. Republicans have a strong majority in the Senate and have maneuvered Democrats into a political corner making it difficult to sustain a filibuster. Bush have could pick almost anyone he wanted, and Conservative lips were drooling in anticipation.

Now Bush picks a virtual unknown. He has to persuade fellow Conservatives that she is indeed picking a Conservative. Moreover, Conservatives are right to want a rock-solid judicial Conservative whose judicial philosophy has remained consistent over time. It is too easy for casual Conservatives to melt under the Liberal spotlight of Washington, where Conservatives are often lonely voices.

Even if Bush proves prescient in his choice of Miers, he will likely pay a price twelve months from now in the mid-term elections. It takes time for us to really know about a judge. Baring some spectacularly Conservative decisions led by Miers in the next year, Conservatives will have to swallow disappointment in grudgingly and reluctantly supporting Bush’s choice. Mid-term elections are often decided by the energy of partisans. Depressed and disillusioned Conservatives will not have the sort of energy required for a strong turnout in the mid-term elections. Miers had better prove to be as Conservative as Bush says she is because she is coming at a very dear political price.

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” — Article VI, Clause 3 of the US Constitution.

“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States. So help me God.” — Oath of Office for a Supreme Court Justice.

Even though there is no formal religious test for office, some on the Left have questioned the suitability of Justice John Roberts, Jr. for the Supreme Court because he takes his Catholic faith seriously. The implicit assumption is that a Catholic can not render a judicial decision with respect to abortion consistent with the law since the Catholic Church has a strong position against abortion. Make no mistake. The question is primarily about abortion.

Questions about Roberts’ religion on the Left, from the likes of Christopher Hitchens and E. J. Dionne are only being broached because of abortion. The Catholic Church is also strongly (though not as strongly) against capital punishment. However, the legal status of capital punishment under a Catholic judge is not the issue that worries Dionne or Hitchens. Moreover, if a Conservative Protestant where to question the qualifications of a Catholic judge because of the Church’s stand against capital punishment, he or she would be loudly and properly chastised for religious intolerance. However, in the service of abortion, the Left and the media that support the Left, have difficulty in recognizing any limits of probity.

Hitchens’ motivation is transparent. He is fundamentally anti-religious and doesn’t trust anyone of deep religious conviction, be it Mother Theresa or Judge Roberts. That is why Hitchens is one of the few on the Left that is so eloquently persuasive about the necessity of fighting Islamofascism in Afghanistan, Iraq, and elsewhere. With others on the Left, Hitchens stands against fascism, but he reserves special opprobrium for religiously-motivated fascists.

By contrast, Dionne’s questions about the relationship of faith and the state are far more serious and subtle. Dionne and Conservatives share a common belief that religious faith informs our values and who we are as a people, a community, and as a country. Religious and ethical beliefs affect the way we help others and the role we expect of the government acting on our behalf to act. The religious culture of a country defines who we are and how we govern. Hence, religion ought not to be relegated solely to private spirituality, but should have an important voice in the public square.

When then are the general ethical and religious perspectives of a leader important? How should such questions appropriately enter the public discourse? While there are no particular religious doctrinal tests to apply, surely we have to appreciate the values of our leaders and those values are many times informed by religious belief. For example, if a potential leader were an avowed pacifist, whether by religious or ethical conviction, it would be an important factor in assessing the suitability of someone who might be our Commander-and-Chief or someone who might vote on military appropriation bills.

It is reasonable for a citizen to weigh the full character, including the intelligence and religious and ethical underpinnings of our leaders — at least the ones we vote for. Those leaders are the ones we choose to act on our behalf. The law and Constitution allow no restrictions on religious affiliation for officials. Though we as voters ought not to vote on narrow sectarian grounds, is it not responsible to weigh the entire set of human qualities and beliefs in voting for our leaders?

First, though we as voters can consider a broad range of judgment criteria, our representatives cannot use religious litmus tests in their capacity as government officials. This would tie state decisions too directly to religious affiliation. A Senator of one particular religion questioning potential judges of a different religious belief at a public hearing would give the unseemly appearance of an inquisition.

Moreover, judges are not political leaders. They are ideally neutral arbitrators of existing law. Dionne writes, “President Bush has spoken about the political implications of his faith. His nominee should not be afraid to do the same.” Dionne skirts by the key point, but leaves it unexamined blinded by the Left’s misunderstanding of the role of judges. Bush is a political leader and can be judged as a politician. Judges, contrary to the Liberal intuition, ought not to be political and as such should be evaluated under a narrower range of criteria.

Of a judge, we may query about judicial intelligence, temperament, and philosophy. Of his other convictions, we only need to know his or her fidelity to the oath to “…faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States.” If a potential judge can take that oath with integrity, then examination of his or her religious convictions descends more into religious bigotry.

The notion that Judge Roberts’s Catholicism makes him an inappropriate selection for the Supreme Court says more about the intolerance of a troubling undercurrent in modern Liberalism than it does about Judge Roberts. It reflects more of the sacrifice of all Liberal jurisprudence at the altar of unrestricted abortion rights. Protests around abortion clinics, limiting the First Amendment right to peaceably assemble, were prohibited in service of abortion. Now traditional Liberal religious tolerance is being lost in service of abortion.