Category ►►► Crime and Punishment

July 1, 2008

The New "Fairness" Doctrine

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

• Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
• Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
• Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

2. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM | Comments (10) | TrackBack

January 4, 2008

Killing Us With Kindness to the Unkind, Decency to the Indecent

A "shibboleth" is a word used as a test: The pronunciation determines whether one is an "insider" or "outsider" (part of the tribe or a spy from some other tribe). More generally, it can mean a phrase or even a custom whose precise execution tells us to which tribe the actor belongs.

In this case, here is the shibboleth I'm thinking of, from an AP story on a death-penalty case before the U.S. Supreme Court:

The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Kennedy's lawyers say the death penalty for child rape violates the Eighth Amendment protection against cruel and unusual punishment.

In my tribe, "cruel and unusual" evidently means something very different than it does to defense lawyers... or at least different from what they argue (I don't care what they believe in their heart of hearts; they are attempting to enshrine into common law the idea that nothing, nothing, nothing can legitimately draw a sentence of death but cold-blooded murder with special circumstances; many even argue against that).

Who composes the other tribe, those who fight every death sentence? Well, some members are simply anti-punishment; these are the ones who agitate not only for the abolition of the death penalty but also to reduce all sentences for all crimes.

Other members are simply driven mad with fear that an innocent person might be wrongly executed by accident (or maliciousness). In fact, I'm certain that many already have been: In this country alone, we have had capital punishment since -- well, since this country sprang into existence. And for much of our history, many locales were none too scrupulous about whom they punished, even via the ultimate sanction. *

For both groups, we note many bizarre customs that differ, I believe, from the tribe to which most Americans belong:

• In their tribe, the pain that might be felt for a few moments by those being executed by lethal injection is more important than the pain that will be felt for the rest of the lives of the victims or their families.
• In their tribe, you cannot execute a serial killer, because he is by definition suffering from a mental illness; you cannot execute a stupid killer, because he is by definition mentally retarded; you cannot execute a 17 year old killer, because he is by definition a "child" with no well-formed sense of right and wrong... nor a 19 year old killer because he was (by definition) a "child" when he killed.
• In their tribe, no appeal from a death sentence is ever the "final appeal."
• In their tribe, capital punishment may be constitutional -- but every possible method of carrying it out is unconstitutional.
• And in their tribe, the "right" of a raper of children to kindness and decency is of more weight than the horrific, lifelong trauma he inflicts on his victims... which might be alleviated by the knowledge that he paid the ultimate penalty for his depraved indifference to human life.

I have said for years (and gotten in trouble for saying it) that I agree with the liberals on one point: All human life has value; but sometimes, that value is a negative number. I don't restrict that condemnation only to serial killers and cannibals; I apply it to any person who has that "depraved indifference" to the lives of other human beings, and who criminally uses them as his playthings. I think it especially apt for those who hurt the most vulnerable among us -- children -- simply for the criminal's own sick pleasure. And I, personally, would execute every one of such vile, amoral subhumans.

If you kill a person who doesn't need killing (as determined by a court), you should have no guaranteed that you will get to keep your own life. (On the other hand, I have a fairly generous definition of which persons might "need killing.") Similarly, no rapist who steals the life and innocence of a child, even if he leaves the child alive, should receive any guarantee of being allowed to live. And the same for those who commit treason: No guarantees, no "right to life."

The death penalty should never be mandated; that's an invitation to kill all the witnesses, as well as (obviously) the victim himself. There should be discretion allowed the judge for tough cases, such as when a person overreacts in a tense situation and kills an innocent... or even a criminal, but one who is not egregious enough to "need killing."

For example, a father who premeditatedly kills a 20-something year old sleazebag for having "consensual" sex with the father's 14 year old daughter should not be executed; a life sentence, or even a long term short of life, would be more reasonable. (I put "consensual" in quotes because legally, a minor cannot consent to sex; but there is a huge difference between statutory and forcible rape, in my opinion.) Same with a neighbor who burns down an occupied crack house that has been selling drugs to local children.

I don't believe in "zero tolerance" laws, and I would not demand death in every case of murder. Nevertheless, I believe we should have twenty to thirty times as many executions per year as we actually have. At the very least, we should clean out Death Row, executing all those prisoners awaiting a death sentence who have had several reasonable chances to bob for the apple of appeal. We should be executing at a rate faster than we're sentencing to death, otherwise we'll never catch up... and most of the capital sentences will end up being de facto LWOPs (life without parole) instead.

As I said, I would always make exception for those who kill people who need killing; and I have a much more expansive definition of that then does, e.g., Dennis Prager or Patterico (I think). For example, I believe "He was in the act of robbing me" should be a legitimate (affirmative) defense to the charge of unpremeditated homicide, even if the robber had no weapon, if there were no other reasonable way to stop the robbery. I despise thieves, especially those who burgle and rob with impunity, knowing that if they're caught, they'll simply be let off with time served.

If I'm on a jury deciding a case where the facts show than the old lady on trial for murder shot and killed a mugger in the subway, even one who just punched her and took her purse (no threat of death) and was on his way out the door... well, at the very least, she gets a hung jury, because I would not vote to convict without some extraordinary circumstance. When a thug undertakes to terrorize and violently assault someone, he assumes the risk of getting shot himself.

In any event, I do not consider death for a child rapist either cruel or unusual; in fact, I consider it cruel and unusual to society, to the parents, and especially to the child victim to let such a person live... especially considering that so long as he is alive, some soft-hearted, soft-headed judge, parole board, or governor can always decide to set him loose on the world again.

* I can even give you a probable name: Caryl Chessman, executed for being the "Red Light Bandit," was likely innocent of those rapes, I believe. My father was a 3-L in law school at the time, and he attended some of Chessman's final appeals in 1960. My father's impression was that the court never seriously considered Chessman's central argument: That the trial transcript was fundamentally flawed; they simply responded that the transcript in question didn't show any serious irregularities.

Hatched by Dafydd on this day, January 4, 2008, at the time of 10:40 PM | Comments (9) | TrackBack

November 16, 2007

Iraqis Pass Test: Top Shiites Will Be Tried for Mass Murder

A few days ago, we posted Iraq in the Balance: Will the Shia Prosecute Their Own?, that asked the question -- Will the majority Shia be willing to prosecute their own officials who commit a horrific string of human sacrifices... or does "retributative justice" apply only to Sunni terrorists?

We noted the mass-murder cases against two Shiite militia heads (Sadrites) who happened to be high muckety-mucks in the Ministry of Health: Former Deputy Health Minister Hakim al-Zamili, and Brig. Gen. Hamid al-Shammari, head of the Health Ministry security force. ("Happened to be," my eye; Muqtada Sadr demanded they be given those positions, presumably for the very task or murdering helpless Sunnis in hospital.)

A few days ago, the top Iraqi court said there was sufficient evidence to try the two for literally hundreds of gruesome murders they appear to have ordered. But there was a potential thorn in the ointment, as we noted in the earlier Big Lizards piece:

By a quirk of Iraqi law, ministries are allowed to block prosecution of their officials if they decree -- truthfully or not -- that those officials were "carrying out their official duties." Naturally, mass-murdering Iraqi Sunni is not one of the official duties of the Iraqi Health Ministry; but the Interior Ministry (the most powerful ministry in Iraq) has used this dodge in the past to prevent prosecution of rampaging police officials.

This is the crux of the point we made:

The consequences of this decision, no matter which way it falls, are so stark and existential that it's not unreasonable to say this opportunity will either make or break the new democratic Iraq.

The question is whether Iraq has truly turned towards the rule of law... or whether they have just substituted the new boss for the old boss, with business still as usual. And here is the answer in yesterday's New York Times:

Prime Minister Nuri Kamal al-Maliki of Iraq has approved the trial of two Shiite former officials who are accused of killing and kidnapping hundreds of Sunnis, according to American advisers to the Iraqi judicial system.

The case, which could come to trial as early as this month, would be the first that involved bringing to trial such high-ranking Shiites for sectarian crimes.

An Iraqi judge ruled last month that there was sufficient evidence to try the two former officials, who held senior positions in the Health Ministry. But there had been concern that the ministry might try to block the case by invoking a section of the Iraqi criminal law that proscribes the prosecution of officials who are executing their official duties.

The approval to hold a trial was provided in a memo issued earlier this week by the acting health minister. Mr. Maliki has formally endorsed the decision, American officials said.

Take that, Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%)!

The Times understands the importance of this decision:

The case has emerged as a major test of the ability of Iraq’s judicial system to take on difficult cases, particularly those in which the accused are prominent Shiites.

“This case is as important, if not more important, than the Saddam Hussein case,” Michael Walther, a Justice Department official who leads a task force that is advising the Iraqi judicial system, said in a telephone interview. He added that a successful trial would demonstrate that the Shiite-dominated Iraqi government “is ready to prosecute its own.”

Iraq certainly isn't out of the woods yet, not even on this one case: We still have to observe the trial itself to ensure that it's both fair to the defendants themselves and also thorough... not like the way the Jim Crow South used to "try" accused Klansmen (where the opening statement was sometimes immediately followed by a vote to acquit; no need for the jury even to retire).

But so far, the civilian government of Iraq, not just the Iraqi Security Forces, has chosen justice and modernity. If this trial continues appropriately, then we can say that one great pillar of a free, democratic, and stable society has been birthed in the heart of the Arab Middle East: an honest judicial system.

America, her military, and President George W. Bush in particular were the midwives of liberty.

When Sen. Reid and his Democratic friends hear about this, how many will be overjoyed -- and how many will be crushed with the disappointment of opportunity lost?

Hatched by Dafydd on this day, November 16, 2007, at the time of 3:48 AM | Comments (8) | TrackBack

November 8, 2007

Iraq in the Balance: Will the Shia Prosecute Their Own?

A surprisingly balanced article from the New York Times on a surprisingly vital question that hasn't gotten anywhere near enough coverage:

An Iraqi judge has ruled that there is enough evidence to try two former Health Ministry officials, both Shiites, in the killing and kidnapping of hundreds of Sunnis, many of them snatched from hospitals by militias, according to American officials who are advising the Iraqi judicial system.

The case, which was referred last week to a three-man tribunal in Baghdad, is the first in which an Iraqi magistrate has recommended that such high-ranking Shiites be tried for sectarian violence. But any trial could still be derailed by the Health Ministry, making the case an important test of the government’s will to administer justice on a nonsectarian basis.

By a quirk of Iraqi law, ministries are allowed to block prosecution of their officials if they decree -- truthfully or not -- that those officials were "carrying out their official duties." Naturally, mass-murdering Iraqi Sunni is not one of the official duties of the Iraqi Health Ministry; but the Interior Ministry (the most powerful ministry in Iraq) has used this dodge in the past to prevent prosecution of rampaging police officials.

The consequences of this decision, no matter which way it falls, are so stark and existential that it's not unreasonable to say this opportunity will either make or break the new democratic Iraq:

• If Health decides to allow the prosecution to proceed against former Deputy Health Minister Hakim al-Zamili and Brig. Gen. Hamid al-Shammari (al-Shammari was head of the Health Ministry security force), then Sunni all across the country -- indeed, across the entire Middle East -- will finally come to the realization that the democratic revolution is for real, that it's not just "meet the new boss." Iraqi Sunni will flock to the polls for the next election, whenever that is scheduled; and they will participate in the Iraqi government wholeheartedly. Iraq will have shown the world that it's not just a new oppression, this time by the majority against the minority.
• But if the Health Ministry refuses to allow the case to proceed, then for all Sunni in the region (and mind that the Shia are only a majority in a minority of Moslem countries), the "Iraq experiment" will be proven a colossal failure. Overthrowing Saddam Hussein will still have had utility, but nothing like the effect if a fair and just democracy could arise in its place.

One tribe seizing control from another tribe -- Arabs have already seen and understood this. What was unique was the idea that the oppressors would be ousted in favor of free state that practiced justice and rule of law. That is what has never before been seen in the Arab or Persian Middle East.

The two accused Shiite officials are both Sadrites, and Muqtada Sadr personally secured them their positions; curiously, the government is only trying to prosecute them now because of a terrible fumble by the Mahdi Militia:

The case, which involves officials allied with the anti-American cleric Moktada al-Sadr and his Mahdi Army militia, would have been difficult for the Iraqi government to take on in the past because Prime Minister Nuri Kamal al-Maliki received crucial support from Sadr supporters in Parliament.

Since the spring, however, when Sadr ministers withdrew from the government, Mr. Maliki has distanced himself from Mr. Sadr’s supporters, and he has allied himself with a rival Shiite group, the Supreme Islamic Iraqi Council.

Sachi has argued for some time that Sadr made a dreadful mistake by pulling out of the government and then fleeing to Iran; she noted that he was certain to lose control: In tribal countries like Iraq, propinquity is the lodestone of power. If you're not constantly looking down people's necks and breathing over their shoulders, they'll swiftly find some other master to serve.

The Times article recounts the fascinating (if repellant) history of the Mahdi Militia. Modeling itself after the Hezbollah of Iran and Syria (say, there's a shock), the militia began by building hospitals, infiltrating the Health Ministry -- and turning the health industry into a kidnapping, torture, and murder mill. The slaughter was carried out in an organized fashion, by order, and often targeting helpless Sunni already sick or wounded and in hospital... along with their loved ones, who were often kidnapped and butchered when they unwisely came to visit the patient. The two charged individuals together are thought to account for hundreds of these ritualistic human sacrifices.

We should definitely be holding our breath about this story. There are few events that can honestly be called "crisis points," where the fate of a nation balances on the knife-edge of uncertainty; but this qualifies.

So... keep watching the skies.

Hatched by Dafydd on this day, November 8, 2007, at the time of 4:31 PM | Comments (10) | TrackBack

October 31, 2007

Courts v. Terrorism = Wile E. Coyote v. Road Runner

Another terrorism trial in civilian court has just gone awry; it is now a world-wide phenomenon:

Spain's National Court convicted the three main suspects in the Madrid commuter train bombings of mass murder Wednesday and sentenced them to tens of thousands of years in prison for Europe's worst Islamic terror attack.

But the verdict was a mixed bag for prosecutors, who saw four other key defendants convicted of lesser offenses and an accused ringleader acquitted altogether.

With much of the case resting on circumstantial evidence, the three judges may have been wary after a number of high-profile Spanish terror cases were overturned on appeal.

Spain's prime minister said the verdict still upheld justice. But victims of the attack, which killed 191 people and wounded more than 1,800 when bombs exploded on four trains on March 11, 2004, expressed shock and sadness over the court's decision.

In short, the court convicted the low-level button-men who actually carried out the Madrid bombings, but it acquitted the top terrorist bosses who planned and ordered it in the first place... including Rabei Osman Sayed Ahmed, the ringleader -- who has already been convicted and jailed in Italy for the bombings in Spain, but who was found not guilty in Spain because Spanish judges found "nuances" in Osman's surveillance-taped confession.

The problem with trying to prosecute terrorists in civilian courts is that the latter were never set up to handle global conspiracies that play out over multiple cell phones, the internet, and coded conversations in several different countries. Just a simple, factual recounting of a typical conspiracy the size of the one in the Madrid bombings is apt to sound like paranoid ravings to a jury not versed in the scope and mindless ferocity of such attacks.

Thus, they tend to discount the testimony of insiders and subordinates... particularly when couched in the bizarre religious beliefs that characterize those willing to commit what amounts to human sacrifice on a scale not seen since the Aztecs. But jurors also reject the dry, factual recitations by experts on terrorism from, e.g., Israel -- as we saw in the Holy Land Foundation trial, for which see more below.

And that's assuming one even has low-level perpetrators still sucking air and available for prosecution, turning to state's evidence, and convicting their terrorist overbosses: Often, as in 9/11, the actual "soldiers" plan on joining the mass human sacrifice they precipitate.

Worse, as Judge Richard Posner pointed out, it's ludicrous to require a warrant based upon probable cause before we can start surveillance -- which is inevitably the situation we're in whenever we rely upon the civilian court system -- because the whole purpose of surveillance is to determine "who is a terrorist" in the first place! (Hat tip to Power Line.) You obviously cannot produce probable cause for surveilling "John Does 1 through 57 to be named later."

Terrorism is not even like organized crime. At the end of the day, the Mafia (and versions from other countries, such as the "Mexican Mafia" or the "Vietnamese Mafia") have a simple and understandable purpose: to make money for those at the top. Thus, you can generally prove who is il capo di tutti capi by simply following the money trail.

But the purpose of terrorism is simultaneously more elusive, like trying to nail Jell-O to the wall, and more irrational: Thus, to the extent that jurors are rational men and women, they naturally resist believing that people could rationally plot an irrational, insane, and meaningless act of mass murder.

Look at the sustained effort on the part of thousands of intelligent and rational pundits to figure out what "caused" Mohammed Atta and his 18 merry men to "martyr" themselves in order to destroy multiple buildings and kill nearly 3,000 souls... after all, it couldn't possibly be for the risible reason that American troops profaned the holy country of Saudi Arabia -- which Osama bin Laden hated and despised above all others! That wouldn't be... rational.

And the prosecution of terrorist cases is also hampered by the defense tactic of demanding hundreds of heavily classified documents in discovery and trying to call top antiterrorism officials to testify under oath; when the government refuses, for obvious reasons, to produce those documents and witnesses, many soft-hearted, soft-headed, and very angry liberal judges retaliate against the government by dismissing the charges... on grounds that Mr. Terrorist is not getting a fair trial. Thus, such judges force the government into a Sophie's Choice moment: Either they can convict this one terrorist -- or else they can continue to fight against the global Salafist, terrorist conspiracy... but not both.

Finally, many countries routinely refuse to extradite wanted prisoners to the United States if the prisoners could possibly be subject to the death penalty.

For all of these reasons, a typical civilian-court trial has about as much chance of convicting and properly sentencing a terrorist mastermind as our hapless coyote has of catching the road runner. Most of our judicial efforts come boxed from the same Acme Co. that supplies Wile E. Coyote with the rockets that malfunction, carrying him over the cliff to disappear in a tiny dust cloud at the bottom.

Another perfect example is the just "concluded" -- by which I mean "ended in a mistrial without a conclusion on nearly all the charges" -- Holy Land Foundation trial. Despite a massive volume of intelligence information introduced to the jury, much of it from "an array of internal Muslim Brotherhood documents from the 1980s and early 1990s," the jury could not agree on a single conviction for a single charge for any of the seven defendants.

There have been some partial successes: The Italian conviction of Osman cited above, for example. But even in that case, the man actually convicted (in Italian court) for planning and ordering the Madrid bombings -- thus organizing a mass murder, as far as Italian law is concerned -- received a sentence of just ten years... which an Italian court of appeals promptly reduced to eight years. That works out to just slightly over 15 days per murder, in case you're counting.

In another infamous case, the Bush administration eventually saw the graffiti on the wall and transferred the Jose Padilla prosecution from military to civilian court. At that point, the government had to drop all of the allegations that Padilla was plotting a "dirty bomb" attack (an attack using conventional explosives wrapped in a dangerously radioactive casing) and other attacks on American soil... likely because they could not use in civilian court any of the intelligence data from Khalid Sheikh Mohammed:

Padilla's attorneys would have argued that since Mohammed was "tortured" (waterboarded), everything he said was inadmissible; worse, even the successful capture of Padilla and any evidence taken at the time came, ultimately, from Mohammed's intelligence... hence was "fruit of the poisoned tree" and likewise inadmissible.

The prosecution was reduced to presenting evidence to a grand jury that got Padilla indicted on three counts -- one of which, conspiracy to murder, kidnap, and maim, was immediately chucked out by the trial judge. It was restored by the appellate court, but it's another illustration of the "soft-hearted judge" dilemma above.

There is a reason the Bush administration has resisted, to the maximum extent possible, shifting primary responsibility for dealing with terrorists to the civilian court system... and it's not that Bush wants to shred the Constitution and imprison thousands of liberal activists in Gitmo: it's that terrorists are well-trained in using the rights and liberties of our own judicial system as a weapon against us.

They are well-versed in tying our courts into knots, playing the victim, and shifting blame to American foreign policy. And because the refutation of such lies would require revealing classified information that is vital to national security, the government is typically helpless to defend itself and its prosecution.

Alas, there is also a reason why the Democrats, to a man (and I include Hillary in that), will fight until the cows come home to roost to return the war on global hirabah to the courtrooms, as it was under President Bill Clinton: Because it's so much easier simply to charge terrorists in civilian court, then throw up one's hands at the mistrials and not-guilty verdicts and say "what can we do?" than to take on the duty oneself and actually achieve results.

Declaring that the proper way to fight terrorism is not with special forces and intelligence but subpoenas and indictments relieves a future Democratic administration from all responsibility. It takes the whole "terrorism thing" off the president's plate... allowing him or her to focus on more pleasant tasks, such as raising taxes on poor smokers in order to finance government-run health care for all middle-class children and their parents.

Hatched by Dafydd on this day, October 31, 2007, at the time of 7:56 PM | Comments (7) | TrackBack

October 23, 2007

The Logic of Thug-Huggers

I've said many times that I agree with those who say "all human life has value."

No, really I do; all human life does have value: But sometimes, that "value" is a negative number. Take John B. Taylor, for instance... please:

Mr. Taylor was found guilty of first-degree murder and sentenced to death at his trial in Queens in 2000. He and an accomplice, Craig Godineaux, were found to have forced seven people into a walk-in freezer at the Wendy’s in Flushing, bound and gagged them, then placed them on their knees before shooting each in the head.

Two of the victims survived, and testified at Mr. Taylor’s trial. (Mr. Godineaux, who is mildly retarded, pleaded guilty to murder in the case and is serving a life sentence without parole.)

I have a hard time understanding why anybody would have a hard time understanding this verdict. There is no real dispute that Taylor did it; no new, exonerating evidence has emerged... and he isn't even a Mexican national, allowing his pending execution to be overturned on grounds that he had not been allowed to chat with President Felipe Calderón before being tried. And yet...

Closing a chapter on one of the bloodiest crimes in recent New York City history, the state’s highest court today tossed out the death sentence imposed on a man for his role in the murders of five workers at a Wendy’s restaurant in Queens seven years ago.

The man, John B. Taylor, was the last remaining inmate on New York State’s death row.

The divided decision by the Court of Appeals [4-3] not only ordered the trial court to resentence Mr. Taylor -- almost certainly to life in prison without parole -- but it also reaffirmed a landmark decision in 2004 that effectively invalidated the state’s death penalty law.

Now why, you may ask, was Taylor's death sentence overturned? What was the great legal, moral, or substantive principle that required the Court of Appeals -- which, oddly enough, is the highest court in the state, while the lower trial court is called "the Supreme Court of the State of New York" -- to invalidate Taylor's death sentence?

It turns out to be so clear that even a death-penalty advocate such as myself would be likely... nay, driven to acknowledge the essential injustice the court sought to prevent. (Note for the irony impaired; this is an ironical sentence: I say one thing but actually mean the opposite.) It has to do with an "anticipatory" instruction given the jury in capital cases:

Under current state law, if a jury cannot reach a unanimous verdict on the question of death, the trial judge is required to tell the panelists that a sentence, to include parole, will be automatically imposed. The Court of Appeals ruled in a split decision in 2004 that such jury instructions were unconstitutional, because they could coerce deadlocked jurors to vote for death out of a fear that a violent defendant might one day walk free.

It was out of deference to that case, People v. LaValle, that the court tossed out Mr. Taylor’s death sentence today, basing its decision largely on the principle of “stare decisis,” a Latin term meaning “let the decision stand.”

So let's get this straight:

1. The Court of Appeals originally decided in 2004, by another 4-3 decision, that New York's death penalty was unconstitutional because jurors were informed -- truthfully -- that in the event of a deadlock, the judge would have to impose a sentence that still included the possiblity of parole... which was not one of the two possibilities available to the jury (they could only consider either death or life without parole, "LWOP").

Thus, the court reasoned:

What, then, is the consequence of telling the jury that it may not impose a sentence of life with parole eligibility after 20 to 25 years, but that the court will impose that sentence if the jury cannot agree? The deadlock instruction interjects the fear that if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to society in the future. Yet, in New York a defendant's future dangerousness is not a statutory aggravator the jury may consider.

Clearly the intent of this instruction was to inhibit endless bickering on the part of the jury; the court argued that a juror might be pressured to "impose the death penalty on a defendant whom they believed did not deserve it simply because they fear that the defendant would not serve a life sentence." But wouldn't they be equally entitled to impose a sentence of LWOP?

There is no reason to presume such pressure would push one way any stronger or weaker than the other, as either decision would avoid the possibility of parole. The only pressure is for the jury to come to some decision -- not any particular decision.

This is why, I suspect, half the court dissented. Nevertheless, one of those dissenters, Judge Robert S. Smith, joined the majority today in tossing out the sentence of John Taylor. But why? Simple, and it brings us to the second prong of New York's right pranging:

2. Then today, the principle of "stare decisis" rose up and so overwhelmed Judge Smith that he affirmed the asinine decision he, himself dissented from three years ago and applied it to the decision today.

Thus is great nonsense perpetuated, and imprudent jurisprudence drives out the good. Is it really rational to toss out a state's death penalty because jurors are threatened with the defendant getting a lesser sentence -- if they can't agree on which of the two available harsher sentences to impose?

Stare decisis is the principle that previous judicial understandings of the law should not be lightly put aside, because there is virtue in having a predictable, stable rule of law. But it has never been an absolute prohibition -- else we would still be operating under Plessy v. Ferguson, which required “equal but separate accommodations for the white and colored races.”

Rather, stare decisis is just one factor a justice (in New York, "justices" on the Court of Appeals are called "judges") must weigh in deciding whether to overturn a precedent: But if the error is great enough, it must overcome the judicial inertia imposed by stare decisis. And in this case, I think the original LaValle decision was so stupid and contrary to the will of the state legislature that, at the very least, those who dissented in LaValle itself should also have dissented here.

I'm quite sure that the four judges who imposed the LaValle decision on the state -- and then extended it to strike down the entire death penalty -- were legislating from the bench. All but one of the majority judges in LaValle were appointed by Gov. Cuomo, while all of the dissenters were appointed by Gov. Pataki; and restoration of the death penalty was a major issue in the 1994 campaign of Pataki against Cuomo, probably a major reason Pataki was elected.

(The lone exception was Judge Albert Rosenblatt, who concurred with the majority; he was appointed in 1998 by Pataki. Rosenblatt was viewed as a "moderate" even by the New York Times, which praised his selection in an editorial -- contrasting Rosenblatt with the "blindly pro-prosecution judges" Pataki appointed in his first term... not a very good sign, in my opinion.)

Since 2004, Judge Rosenblatt retired and was replaced by another Pataki appointee: Eugene F. Pigott. Since today's ruling was also 4-3, despite the defection of Judge Smith, that must mean that Judge Pigott dissented, holding that Taylor's death sentence was valid.

Thus, because of one judge's fetishistic love of stare decisis -- believing it even applies to rulings he considers incorrect -- New York blew a perfect opportunity to revisit the mistake of LaValle itself. As Judge Smith admits in his concurring opinion in the Taylor case:

I thought, and still think, that LaValle was wrong in holding the redesign to be required, but the harm done by the error does not justify casting stare decisis aside.

Color me disrespectful of the past and of bad precedent, but I strongly dissent from Judge Smith's opinion -- joining three of the seven judges, who also dissent.

The will of the people of the state of New York was cast down and stamped upon by the Court of Appeals in People v. LaValle... and the pieces were just spat upon today in People v. John Taylor. Feh.

Hatched by Dafydd on this day, October 23, 2007, at the time of 7:03 PM | Comments (2) | TrackBack

September 20, 2007

Jena Justice

There is a terrible tale of racism and racial hysteria unfolding in a tiny town called Jena in Louisiana:

Traffic jammed the two-lane road leading into the tiny town of Jena early Thursday as thousands of demonstrators gathered in support of six black teens initially charged with attempted murder in the beating of a white classmate. [The victim, Justin Barker, was selected randomly and beaten, in broad daylight, just outside his high school, by six black youths, five of them of majority age; Barker was chosen for this honor because he was white.]

The Rev. Al Sharpton said it could be the beginning of the 21st century's civil rights movement, one that would challenge disparities in the justice system.

"You cannot have justice meted out based on who you are rather than what you did," [the Rev.] Sharpton told CBS's "The Early Show" Thursday.... [Justin Barker was beaten by the black youths for who he was rather than what he did (he didn't do anything).]

"This is the most blatant example of disparity in the justice system that we've seen," [the Rev.] Sharpton said Thursday. "You can't have two standards of justice. We didn't bring race in it, those that hung the nooses brought the race into it...." [Justin Barker did not hang any nooses, and he did not bring "the race" into it.]

Thursday's protest had been planned to coincide with [defendant Mychal] Bell's sentencing, but organizers decided to press ahead even after the conviction was thrown out. Bell remains in jail while prosecutors prepare an appeal. He has been unable to meet the $90,000 bond.

"We all have family members about the age of these guys. We said it could have been one of them [any "one of them" could have beaten some random white kid because he was angry at other white kids]. We wanted to try to do something," said Angela Merrick, 36, of Atlanta, who drove with three friends from Atlanta to protest the treatment of the "Jena Six". [Nobody rallied to protest the beating of Justin Barker.]

The rally was heavily promoted on black Web sites, blogs, radio and publications.

Students came from schools across the region, including historically black colleges like Morehouse College, Spelman College, Clark Atlanta University, Howard University, Hampton University and Southern University. [But the Rev. Al Sharpton assures us that the protesters didn't inject "the race" into the beating of Justin Barker.]

Tina Cheatham missed the civil rights marches at Selma, Montgomery and Little Rock, but she had no intention of missing another brush with history. The 24-year-old Georgia Southern University graduate drove all night to reach tiny Jena in central Louisiana.

"It was a good chance to be part of something historic since I wasn't around for the civil rights movement. This is kind of the 21st century version of it," she said.... [The 21st century version of the civil rights movement seems strangely silent about Justin Barker's right not to be beaten for "walking home while white".]

[The Rev.] Sharpton, who helped organize the protest, met Bell at the courthouse Wednesday morning. He said Bell is heartened by the show of support and wants to make sure it stays peaceful. [Nobody showed any support for Justin Barker, lying peacefully in the street unconscious after his beating.]

"He doesn't want anything done that would disparage his name - no violence, not even a negative word," [the Rev.] Sharpton said. [Let's not disparage the name of the victim -- Mychal Bell -- forced to endure a trial merely for beating a random white boy. Where's the justice for poor Mychal Bell?]

Justin Barker was attacked from behind without warning; he never even saw who hit him first. He was jumped by six black youths because he was the nearest white boy around when their "black rage" overwhelmed them. This is what news agencies across the world refer to as a "school fight;" and the rallies for the defendants were populated by "veterans of the civil rights movements," as reported in the caption to this photograph:

Actual caption:

Andrea Blalock, left, checks out a shirt for her husband Thomas Blalock, both from Stockbridge, Ga. as they prepare for a march in support of the Jena 6 in Jena, La., Thursday, Sept. 20, 2007. Hundreds of people dressed in black, from college students to veterans of the civil rights movements, boarded buses bound for Jena and a rally Thursday in support of six black teenagers who were initially charged with attempted murder in the beating of a white classmate.

"Enough is enough," says Mr. Blalock's t-shirt. Enough what -- enough white people? Enough prosecutions for black kids who violently assault random whites? I suppose Mrs. Blalock believes that's exactly the message that Jesus taught.

It appears that the core demand of the "21st century's civil rights movement" is that, if "Whitey" offends some blacks, then all other blacks have the civil right to retaliate against "Whitey;" and any old Whitey who comes along will do. Just as in one of the cases that first brought the Rev. Al Sharpton to prominence, the Crown Heights riot, where he argued that if Mr. Jew loses control of his car and accidentally kills a black girl, then Mr. Jew should be beaten to death. Of course, any "Mr. Jew" will do: Jews -- and Whites -- are fungible. We exist only as representatives of our race.

And across the nation -- across the world -- there are rallies in support of six black youths who beat a random white teenager until he had a concussion, was bleeding from his ears, and was blind in one eye for weeks. His crime was racial guilt: Other people who were also white -- just like Justin Barker! -- hung nooses from a tree to scare some black students.

There is a terrible tale of racism and racial hysteria unfolding in a tiny town called Jena in Louisiana, and in Europe, and in Asia: Flip the races around; say that six white youths beat a black teenager because some other black teenager Mau-Maued them.

How many around the globe would rally for the "civil rights" of the assaulters?

Hatched by Dafydd on this day, September 20, 2007, at the time of 10:25 AM | Comments (9) | TrackBack

August 16, 2007

Cognitive Dissidents

I'm very happy that Jose Padilla was just convicted on all counts in federal court today. I'm glad that -- barring a successful appeal -- he'll spend the rest of his life behind bars.

But I'm not pleased with the continuing cognitive dissonance within the elite media, as they prosecute their unfathomable war against global intelligence gathering. To see the absurdity you must swallow to be an anti-military tribunal liberal, read on:

Neal Sonnett, a prominent Miami defense lawyer who heads an American Bar Association task force on treatment of enemy combatants, said the verdict proves that the U.S. detention camp at Guantanamo Bay, Cuba, is unnecessary to deal with terrorism suspects.

"This verdict once again demonstrates that federal courts are perfectly capable of handling terrorism cases," Sonnett said.

Note that Neal Sonnett is the only legal expert cited in this entire article; he thus stands as the voice of the media. The thrust of his argument is that, since Padilla was eventually tried in federal court and convicted, therefore we don't need military tribunals... the federal court system can handle all terrorist prosecutions.

But wait, let's add the very next paragraph:

Neal Sonnett, a prominent Miami defense lawyer who heads an American Bar Association task force on treatment of enemy combatants, said the verdict proves that the U.S. detention camp at Guantanamo Bay, Cuba, is unnecessary to deal with terrorism suspects.

"This verdict once again demonstrates that federal courts are perfectly capable of handling terrorism cases," Sonnett said.

The charges brought in civilian court in Miami were a pale shadow of those initial dirty bomb claims in part because Padilla was interrogated in a military brig and was not read his Miranda rights.

In other words, assuming the federal authorities were not simply lying (which I suspect is what AP and most other members of the drive-by media believe)... we had good evidence that Padilla specifically came here to carry out a "dirty-bomb" attack -- that is, an explosive device wrapped with a dangerously radioactive shell to create "dirty" shrapnal. But we couldn't use it, because (a) we obtained it from highly classified sources that could not be jeopardized by being introduced at trial; in addition, (b) we confirmed the accusation via Padilla himself admitting it... but we couldn't use that, either -- because we didn't allow him to have an attorney present, directing his response to every question.

We know (a) that we had evidence of the dirty-bomb charge before Padilla's capture, else why would we have nabbed him and talked about a dirty-bomb in the first place? (Unless, again, one begins by believing that everything the Bush administration says is a lie.)

And we know that AP believes, rightly or wrongly, that (b) Padilla confessed to the dirty-bomb charge; if not, why would his non-Miranda-ization even matter? The Miranda rule only covers evidence obtained at least in part by statements made by the defendant.

Thus AP believes that there was evidence of a dirty-bomb attack that we could not, for various reasons, use in federal court. So thank God he also committed other crimes that were more easily prosecuted!

However, other terrorists may be more clever than Padilla and his co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi; they may not leave a trail that can be followed by a normal criminal investigation -- subject to all the normal limitations on the collection of evidence; but which can be tracked by the use of expanded intelligence operations that could not be introduced in federal court, either because they violate some right guaranteed to ordinary criminal defendants or because introducing them as evidence would expose covert sources, methods, and technology. Such exposure allows other terrorists to elude capture by the same means.

In ordinary criminal trials, we accept the fact that a certain percent of guilty defendants will get off "on a technicality." We even say things like "better a hundred guilty defendants go free than a single innocent defendant be wrongly convicted." And what is the consequence of the guilty going free? So there will be a bit more crime, a few more robberies... even, sadly, a few more murders. But nothing with the potential to shred the very fabric of society.

This philosophy works exellently well... when the primary purpose of the judicial system is to punish transgressors who get caught and to deter others by the threat of punishment.

But where national-security is concerned, we are much less concerned with punishing the guilty than protecting society from dangerous people. Nor does deterrence factor into the equation when dealing with attackers who expect to die during their crime... as Cal Thomas put it, fanatics "who see death as a promotion." (Ralph Peters repeatedly uses the line, but Cal had it first.)

Especially in the current environment of existing weapons of mass destruction, just one of those guilty defendants who go free could later set off a bomb that kills tens of thousands (as would have happened on September 11th, 2001, if the Twin Towers had fallen immediately), drive the economy into recession or depression, lead to wars where more tens of thousands must die, possibly split us from our allies, and even lead to draconian security laws here in the United States that suspend actual civil liberties.

The enormity of letting guilty hirabi terrorists go free "on a technicality" vastly outweighs the abrrogation of any putative "rights" those terrorists may claim.

Of course, this puts a great responsibility onto the Executive, who must honestly and to the best of his ability distinguish actual terrorists from innocents caught in a web of suspicous-looking circumstances... and even from terrorist wannabes who don't really do anything but shoot off their big mouths, like Ward Churchill or most of those teenaged imbeciles who march around at "peace" rallies carrying Hezbollah flags.

Even when tribunals are conducted entirely by the Executive, they must include adequate safeguards against wrongful conviction; thus I support in theory the Hamdan case... but I think the Court went too far down the road of demanding that those who violate the Geneva Conventions themselves be offered the protections of Geneva. But clearly, we were unable to try Padilla in federal court for the most serious charge of plotting a radiological attack in New York City... because of the restrictions inherent in trying people in ordinary, civilian court.

And even the elite media agrees -- despite simultaneously trying to argue the opposite.

Hatched by Dafydd on this day, August 16, 2007, at the time of 3:31 PM | Comments (0) | TrackBack

June 11, 2007

Why Do We Kill People Who Kill People to Show That Killing People Is Wrong?

Yes, another entry in the infamous list of "Questions that answer themselves." (It made a cool velvet black-light poster back in the 1960s, however.)

Even easier if we reinsert the adjectives that were stripped out to fabricate a pseudoargument: Why do we kill evil people who kill innocent people to show that killing innocent people is wrong? Duh...

I suppose most of you will be startled right out of your falsies to learn that criminologists and economists, who are best able to evaluate the difficult statistics in such studies, have by and large agreed that the evidence is conclusive: Executing murderers really does save lives:

Anti-death penalty forces have gained momentum in the past few years, with a moratorium in Illinois, court disputes over lethal injection in more than a half-dozen states and progress toward outright abolishment in New Jersey.

The steady drumbeat of DNA exonerations - pointing out flaws in the justice system - has weighed against capital punishment. The moral opposition is loud, too, echoed in Europe and the rest of the industrialized world, where all but a few countries banned executions years ago.

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument - whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

I have always believed (since I was 11 or 12) that the moral argument in favor of capital punishment was by far most convincing to me: If you take an innocent life, or at least a life that you had no just cause to take, then your own life is forfeit; regardless of the deterrance value, it is the only coin valuable enough to pay for your evil deed. That always seemed self-evident to me.

But it is nice to know there is a practical advantage, as well. I always suspected it, but now we're starting to see clear and convincing proof.

In days of yore, the unlawful taking of a human life could oft be expiated by paying money, "weregeld" (literally, man-gold) to the victim's kin or tribe, mostly to prevent a bloody clan feud that could last for generations.

But in those days, the individual life was worth less than it is today. A person had value mostly as an ordinal number, not a cardinal number -- for the slot he filled in society rather than any intrinsic value he held as a person. Thus, it was possible to calculate how much gold was required to replace him.

But today, especially in our individualist society, we value people for their uniqueness and irreplaceability, and no amount of money fully makes up for the loss. Thus, the only punishment that is not an offensively gross underestimation of the crime is the execution of the murderer.

(When the intent is less than murder, so too is the crime; I don't support the death penalty for negligent homicide or even manslaughter.)

Naturally, there are other factors in saving lives by executing murderers: Sureness and swiftness of punishment can dramatically improve deterrance:

Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

Thus, if murderers spent only 3 years on death row before being fried instead of 20 years, each execution might save 25 lives, rather than a scant 18 lives. But don't expect any actual, you know, science to make a dent in the liberal braincase; they love to cite scientists in the global-warming debate -- assuming the scientists are reliably supportive of the wild guesses of the Intergovernmental Panel on Climate Change; but woe betide you if you dare cite actual scientists on such a moral issue as capital punishment:

The reports have horrified death penalty opponents and several scientists, who vigorously question the data and its implications.

So far, the studies have had little impact on public policy. New Jersey's commission on the death penalty this year dismissed the body of knowledge on deterrence as "inconclusive." [Where "inconclusive" is here defined as "tending towards a conclusion we really, really hate.]

Still, at least a few liberal (in a sense) legal scholars are having, if not a dark night of the soul, at least some nights tossing and moaning with "restless brain syndrome." Cass Sunstein, for example:

The studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled "Is capital punishment morally required?"

"If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he told The Associated Press. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."

Sunstein said that moral questions aside, the data needs more study.

So take heart; if other criminological battles (over carrying a concealed weapon, e.g.) define the norm, then in only a few decades, legislatures will finally start admitting that there really can occasionally be a scientific answer to a scientific question, even if it touches upon some critical aspect of the vision of the anointed.

Hatched by Dafydd on this day, June 11, 2007, at the time of 1:23 AM | Comments (11) | TrackBack

April 17, 2007

Fighting Back Was Not an Option, Part 2

Three sober, responsible, respectable, intelligent gentlemen have made a very good case for not discussing so-called "solutions" (on either side of the aisle) for such terrible crimes as yesterday's massacre at Virginia Polytechnic Institute and State University.

Dean Barnett and Hugh Hewitt of HughHewitt.com and John Hinderaker of Power Line each says that there will come a time for understanding the macro-politics of the shooting spree; but that time is later. Now is the time for grieving, they argue -- and for healing. Hugh just said some hours ago that everyone should talk as if the parents who lost their children are listening. And I completely understand his point.

I just don't agree with it.

Were I actually talking to one of the bereaved, of course I wouldn't start discussing how to prevent such evil in the future. But I'm not; I cannot imagine anyone suffering such a loss reading a political blog the next day. It's absurd.

I'm talking to readers who, while they may be in shock, did not actually lose a loved one in this particular shooting. Any pain and loss they feel, however real and wrenching, is due to empathy with the victims.

Empathy is a vital and decent response; a man who feels no empathy for a parent who lost a child is probably a psychopath. But empathic pain is simply not in the same league as the actual pain of such a terrible loss to those who suffer it themselves. Even those who know what such pain is like from personal experience don't feel it as intensely when empathizing with a stranger as when it happened to them.

I can well understand those in the midst of such agony not wanting to hear or see anything about how to prevent such atrocities. Their brains are filled to bursting with memories that have abruptly become more precious than diamonds yet sharper than a razor. But for many of the rest of us, our pain is not so much in the gut as in the psyche... and the only balm for psychic pain is cool-headed, rational thought about solutions to the problem.

If you don't agree, I won't be offended. Stop reading this post; because from here on, logical analysis is all it will contain.

I will put the rest in the extended entry, forcing you to make an overt action to continue.

The one possibly odious trick I have played is the title, which makes a political point itself: I see the circumstances of the Virginia Tech shooting and of the British hostages as betraying the same very poignant -- and dangerous -- perspective: helplessness as a virtue.

But the two circumstances also differ in a way that at first appears vast, but upon reflection seems not so great after all. When a soldier, by inaction, renders himself helpless, we call it cowardice; but civilians do not seem to be under the same duty as a member of the military, one who has voluntarily assumed responsibility for protecting and preserving his society.

Surely, however, adult civilians are not completely bereft of any such responsibility; in fact, assuming personal responsibility for the lives and freedoms of others is, by my reckoning, exactly what separates the child from the adult. When a boy or a girl freely accepts that he has a certain duty towards his fellows, even when nobody will ever know whether he fulfilled it or not, that is when boy becomes man and girl becomes woman.

The epiphany is usually a series of small revelations that mount up over time, but it can also strike like the fangs of a diamondback in the dark night of the soul. Either way, dawn can begin at any age past puberty and can take a number of years, or a few short days... or else a lifetime can pass without the change completing.

The epiphany is this: Each one of us is a foot soldier for civilization; when evil threatens, we must do our utmost to thwart it.

Your utmost may be as simple as snitching on your best friend when you discover he has systematically looted the company you both work for... or as profound as Virginia Tech Engineering Professor Liviu Librescu, a Holocaust survivor, who gave his last full measure blocking the doorway to his classroom, allowing his students time to escape out the window.

If President Bush is decent, he will award a Presidential Medal of Freedom -- the highest award a civilian can receive -- to Professor Librescu (later, when his loved ones have recovered a bit more).

But if Bush is just as well as decent, he would instead award the Medal of Honor, which is available only to active-duty members of the military. Because when the shooting started, Professor Librescu's society had come under attack by a demonic evil; and every adult man and woman on the scene, each already a member of the unorganized militia of the United States of America, was instantly activated to defend his civilization, including Professor Librescu.

There is no difference in my mind between Professor Librescu using his own body as a human shield and a National Guardsman being activated and sent to Iraq, and both should be equally eligible for the Medal of Honor.

But Professor Librescu was 77 years old when he died; there was little he could do against a young, armed man like the killer (whose name is known, but which I will not honor with remembering) beyond delaying him for a minute or two. Professor Librescu did what he could, and it was enough: He saved many lives that were, in some sense, his responsibility. He was a teacher -- and his last breath was spent teaching the greatest lesson of all: transcendent duty.

But what about the other presumably adult men and women at that campus? Most were nowhere near the scene and therefore never had the opportunity to test their courage, their honor, and their worth. This is a minor tragedy in itself; it's the subject of one of the greatest poems ever written in English: "Elegy Written In a Country Churchyard," by Thomas Gray.

But there are others; there are also those who were there, who were close by. What did they do? How did they acquit themselves?

Did they gather those around them and hurry with them to safety? Did they save themselves? Each of these is a minor virtue, and I don't want to knock it. Sometimes, such minor virtues are all that a person can achieve, given the time, place, and opportunity.

But surely there must have come a time when a man or woman, hiding not far away, saw that the gunman had turned his back. What that person did in that moment is the true assay of character.

Maybe someone charged at the gunman -- but foul fate intervened, and the butcher heard, turned, and added another victim to his hellish toll. Anyone so killed is as heroic as Professor Librescu.

But -- and I hate the thought, even as it screams insistently -- it is virtually inevitable that there were others who were there, who saw an opportunity, but who were frozen to the spot with dread. Or else they talked themselves into believing that there was nothing they could do. Or worst of all... some must have done nothing because they had been carefully taught that "nothing" was what they were supposed to do. I cannot help thinking that for many students at Virginia Tech yesterday, just as for the fifteen British sailors and marines, "fighting back was not an option," because to them, it is never an option.

That's a job for "professionals."

Let me take a brief detour here to a post written by Dean Barnett, and to what he said yesterday while guest-hosting on Hugh Hewitt's radio show. I like Dean, though I've never met him. But I think he has exactly the wrong attitude about this spree killing. Dean wrote:

What makes tragedies like this one so gut-wrenching, though, is precisely their inexplicable nature. They are truly, literally senseless.

And yet it’s in our nature to try to make sense of the things we don’t or even can’t understand. But I’ll tell you something: Searches for reasons and explanations here are going to bring us up empty. The painful fact is that terrible things happen. There are evil people who do evil things. There’s nothing more to it than that. There’s no policy prescription that can make things like this never happen again.

This from the same man who earlier worried that that dreadful phrase would become "the epitaph of the Western world!" Dean makes a catastrophic logical error in this passage: He conflates the agent and the enabler.

He is correct that nothing we do can completely prevent evil people from attempting to perpetrate such heinous acts; but there is a great deal we can do to frustrate them when they try. And the failure even to try to stop evil is the great enabler of evil.

We know this; it's even an aphorism: The only thing necessary for the triumph of evil is for good men to do nothing. So why does Dean Barnett so blithely absolve those good men and women who had a shot but did nothing?

Because Dean, like everyone else who grew up in post-World War II America, has been bathed from birth in the fountain of futility. There's nothing you can do; don't even try. Let the authorities handle it... they're professionals. We must sit quietly and wait for instructions.

As with every other sane person, Dean must reject this rot -- intellectually. But as with every other child of the second half of the 20th centry, overcoming the doctrine of moral inertia requires constant mental battle. Don't get involved. Don't make waves. Would you rather be a live coward or a dead hero? According to the doctrine, the answer to that last question is "live coward," incredibly enough; good thing Professor Librescu was too old to have been infected.

Yesterday, while he guest-hosted for Hugh, Dean read an e-mail from a listener who groped for words to describe the eighteen-year course in the doctrine of moral inertia endured by everyone who passes through the public school system (and most of the private ones as well).

The writer was trying to talk about the professionalization of America, where every decision is left up to the "experts;" but Dean dismissed the e-mail out of hand, because its writer bemoaned the suppression of dodgeball, which appears to have annoyed Dean beyond all reason.

It was a metaphor, but it went right over his head. "Dodgeball wouldn't have solved this problem," Dean snapped -- and I had the awful impression that he imagined the e-mailer was saying students should literally have thrown basketballs at the shooter. In his post, he put it this way:

One emailer said that we had turned our kids into a bunch of wusses, and that if we brought back things like Dodgeball, things would get better.

It was a sneer, and I was very disappointed in Dean. I hope he reconsiders; what the e-mailer meant was that schools have systematically beaten the fighting spirit out of American children, who then grow into dispirited adults, for whom "fighting back is not an option."

We can overcome such conditioning; that's why I have not given up on Western Civ, unlike some. But it takes effort and will.

Here is a sidebar story about the doctrine of moral inertia, its reach and falsity and how it was overcome. Sachi tells this story from her own experience:

It really makes no difference what tools the students should have used to fight back. If someone had had a gun, that would have been useful; but absent a firearm, a running tackle would work just as well, albeit with a great deal more personal risk. (Aboard Flight 93, the weapon of convenience was a rolling food cart.)

If several people had compacted together to rush the shooter simultaneously, he couldn't have killed them all -- and likely would be so startled that he didn't kill any of them.

How many innocent lives would have been saved, had just one or two people done his utmost, not merely to allow some students to escape, but to thwart the evil itself?

We don't know, but that's a lesser issue: The greater issue is that, by fighting back against evil, the students, faculty, and staff at Virginia Tech would have fired the shot heard round the world, the meme that "fighting back is always an option." Whenever such a massacre is aborted by extraordinary courage on the part of ordinary people, we send the message that good men (and women) must do something to prevent the triumph of evil.

But whenever we allow the moment to pass, and we remain hunkered down, hoping the butcher wanders away -- translation: oh Lord, please let him shoot that girl over there instead of me! -- we send exactly the opposite message: We reinforce the unAmerican idea that "we must sit quietly and wait for instructions."

We will lose forever that which makes us exceptional, not just Americans but all men of the West. And worse, we will lose it to terrorists and psychopaths, to tyrants and the grey horde... none of whom deserves such a cheap victory. We will console ourselves that there was nothing we could do; but in reality, we will have sat down and surrendered to a bunch of nobodies for a fistful of nothing.

Hatched by Dafydd on this day, April 17, 2007, at the time of 7:38 PM | Comments (74) | TrackBack

March 8, 2007

Despite Libby's Guilt, Prosecution Was Outrageous

I believe I. Lewis "Scooter" Libby was rightly found guilty by the jury a couple of days ago. But that doesn't mean the entire lengthy investigation, grand-jury antics, and eventual criminal charges filed by Special Persecutor Patrick Fitzgerald had even the slightest bit of merit. In fact, I agree with Ann Coulter's assessment of what actually happened:

It was not a crime to reveal Valerie Plame's name because she was not a covert agent. If it had been a crime, Special Prosecutor Patrick Fitzgerald could have wrapped up his investigation with an indictment of the State Department's Richard Armitage on the first day of his investigation since it was Armitage who revealed her name and Fitzgerald knew it.

With no crime to investigate, Fitzgerald pursued a pointless investigation into nothing, getting a lot of White House officials to make statements under oath and hoping some of their recollections would end up conflicting with other witness recollections, so he could charge some Republican with "perjury" and enjoy the fawning media attention.

In this case, despite the actual guilt of Libby (that's my belief; Coulter believes he was actually innocent), justice was definitely not served: the crime would not even have occurred had Fitzgerald done his job properly... which in this case means he should have done the following:

1. Investigated the leak;
2. Discovered that Plame was not a covered person under the Intelligence Identities Protection Act;
3. Discovered that the leaker was State Department aide Richard Armitage, an outspoken opponent of the war;
4. Determined that Armitage leaked the information as a juicy tidbit of gossip, not by any political calculation or at the behest of Karl Rove, Dick Cheney, or George W. Bush;
5. Realized that it was the political fabrications and lies of Ambassador Joseph Wilson that forced the White House to go into overtime trying to rebut his libelous claims.

All of the foregoing Fitzgerald did; but based upon those results -- which he had very early in the investigation -- he had one more responsibility:

6. He should then have simply closed the investigation and dismissed the grand jury (or not even convene one in the first place), with a single curt statement: "Our office has found that no crime was committed, there was no conspiracy to out Mrs. Wilson, and there is no point to further interviews, subpoenas, or testimony.

Alas, like every other special prosecutor before him, after spending a few million dollars ramping up the prosecution in the first place, Fitzgerald found he simply could not stop gnawing on that hatchet. He couldn't just walk away, because people might think he was covering up for the president... or worse, they might think he was an incompetent prosecutor.

Most people tend to see the law as a bludgeon to achieve "cosmic justice." A very large percentage of people who believe Bush "lied us into war" likely saw Fitzgerald as the crusading lawyer who was going to "bring down this criminal regime" by indicting all the top people for... well, for something or other. Had he failed to indict anyone for anything, the hysteria would have probably exceeded the furor surrounding the 2000 vote.

Therefore, Fitzgerald went hell-bent for leather to get at least one notch on his belt: somebody had to be sent up the river. To paraphrase Pontius Pilate, Fitzgerald needed a crime.

Stupidly, and despite clear instructions from the president to cooperate and tell the truth, Libby gave the special prosecutor what he desperately wanted. It would have been easy enough not to; every other person Fitzgerald questioned managed to avoid lying. Libby could simply have invoked the Fifth Amendment; or for that matter, he could simply have told the truth, as his boss, Dick Cheney, and as Karl Rove did.

Nobody told him to lie; his lawyers did not present any evidence that anyone ordered him to lie, or even suggested that he lie: Although his attorneys promised to the jury that they would present such evidence, they broke that promise; the claim that he was a "sacrificial lamb" appeared only in their opening statement (and were I the judge, when they rested their case, I would seriously have considered a contempt of court citation -- or at least required them to explain why the hell they made such a serious charge in their opening statement if they had no evidence to back it up at trial).

Therefore, the following two statements are simultaneously true:

• Lewis Libby was properly convicted of perjury and obstruction because he did, in fact, say two wildly different and contradictory things under oath, and the jury simply did not believe he had a brain seizure;
• Lewis Libby would never have been put in the position where he panicked and lied if Patrick Fitzgerald had acted as a D.A., not as a "special persecutor."

What do I mean "acting like a D.A.?" Take Patterico, as an example (he's the only assistant D.A. I know personally). When evidence of a possible crime is forwarded to him by the police or by some other means, he does not go into the case determined to find somebody, anybody, to put in prison. Instead, he goes into the case with the first intent to see whether, in his expert opinion, any crime was even committed.

Just because the cops arrest someone doesn't automatically mean a crime was committed; and it certainly doesn't mean the detainee is guilty.

If Patterico determines that no crime was committed, then I would presume that marks the end of his investigation. He writes some sort of report to his boss, and he moves on to the next case. God knows, I'm sure he (and every other prosecutor) has enough cases on his plate that he's overjoyed when he can legitimately and in good conscience drop one!

He certainly does not begin interviewing hundreds of people only peripherally connected to the case (after he has determined no crime was committed), threatening dire consequences and hoping to frighten one of the interviewees enough that he perjures himself.

But that is exactly what a special prosecutor does routinely. And that is why I completely oppose the very existence of special prosecutors -- except in cases where it is the Justice Department itself that is being investigated for corruption... for example, if the Attorney General of the United States is suspected of accepting bribes. (Obviously, no one can be trusted to investigate himself.)

In this case, there was no reason why Alberto Gonzales could not have taken charge of this investigation; nobody had accused him of leaking Valerie Plame's name.

Fitzgerald came perilously close to having manufacturing the crime he later prosecuted. He didn't quite cross that line, because nobody forced Libby to lie; it wasn't legal entrapment. But Fitzgerald certainly realized early on that there was no underlying criminal conspiracy; yet he kept the process going, knowing there was a better than even chance that, if he interviewed enough people, one of them would do something stupid, retroactively "justifying" the original investigation.

It is that, rather than Libby's little black lie, that is the true "obstruction of justice," in a moral not a legal sense. Yet even so, I don't see any grounds for the president to pardon Libby: The purpose of the pardon is not to rescue idiots from themselves.

The president advised Libby to tell the truth; and the president, like every other boss, is, to quote Larry Niven, "not responsible for advice not taken."

Hatched by Dafydd on this day, March 8, 2007, at the time of 3:28 PM | Comments (10) | TrackBack

March 7, 2007

Why Was Libby Convicted? Probably Because He's Guilty

Reading the New York Times story on the guilty verdict against I. Lewis "Scooter" Libby, I have to say I find the jury's verdict convincing: I believe that Libby did in fact lie to the grand jury and others, that he did so to try to deflect danger from himself (needlessly, as it turns out), and that he was, therefore, guilty as charged.

Were I sitting on the jury, I think that is how I would have voted -- unless there is a whole bunch of exculpatory evidence that nobody is telling us, which I rather doubt.

Here is one of the strongest arguments: One of the major charges against Libby was that he told the grand jury that he did not know that Joe Wilson's wife Valerie was in the CIA until he was told so by TV personality Tim Russert, of Beat the Press fame. Later, Libby testified again, this time saying Vice President Dick Cheney had told him much earlier; but he "forgot" all about it:

One particularly important focus, Mr. Collins said, was testimony about a conversation Mr. Libby had with Tim Russert, the Washington bureau chief of NBC News. Mr. Libby had said Mr. Russert told him about Valerie Wilson’s job with the Central Intelligence Agency around July 10 or July 11, 2003.

Although Mr. Libby acknowledged that he had heard earlier about Ms. Wilson from his boss, Vice President Dick Cheney, he said he had forgotten about it until the July exchange with Mr. Russert, when “it was like hearing it for the first time.”

There was a problem with that story, however: As it happens, eight separate witnesses, many in the administration, testified about conversations they had with Libby... several of which predated his interview with Russert. In those conversations, either others told Libby or Libby told others about Valerie Plame (though he may not have known her actual last name).

But [jurors Rosemary Russo and Denis Collins] said it was just too much of a leap for them to think that Mr. Libby’s contradictory accounts were the result of a bad memory.

“There was no wiggle room about it, unless you think all these people who work for the administration were lying,” said Mr. Collins, who emerged as a de facto spokesman for the 11-member jury and later discussed the verdict in a phone interview.

Once they decided that one of the major charges was true, that Libby did indeed lie to the grand jury, his believability dropped. Therea