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Friday, July 4, 2008
Happy Birthday America! 
We have a local community Fourth of July Parade in the Studio City Triangle, and I took Sable down to be part of it. She gets a bit nervous when there are hundreds of dogs and children, and I have to be careful with her. Besides, kids offer her food and after a while she gets the notion that any kid holding something yummy is offering. So I have to watch that. All's well that ends well, and this was fun if exhausting. Halfway through Sable found a pothole a good 8 inches deep and decided to wade in the muddy water, which cooled her off something wonderful but sure wasn't good for her appearance, and this just after we had her groomed. So I washed her off when we got home (well, hosed her down; I am not up to putting her in a washtub and doing a real wash) and now she's clean if a bit ruffled.
And I fear I am exhausted, but it feels pretty good to be tired and hungry. Dr. Wang prescribed a liquid formulated for AIDS patients that restores appetite, and it worked: whereas the very thought of food used to make me ill, now I eat with gusto, and in fact I should be careful or I'll gain too much weight. I am up to 202 pound (from 193 low point) and this is about the weight I want to stay at, so from here on I'll be more careful. There was food aplenty at the 4th of July Parade, but I was reasonable about what I ate. Time to start being abstemious (which I was not yesterday).
On Coerced Testimony Including Confessions, and Rules of Evidence
The Fourth of July seems a good time to look into this matter.
First, we can all agree that the notion of torture as a means of obtaining information is repugnant, and as a general rule civilized societies do not employ it. The US Constitution has built in a protection against being compelled to testify against oneself, which pretty well rules out the use of torture as a means of obtaining confessions.
Note that the Constitution does not rule out compelled testimony, nor do our courts, nor do the courts of any other civilized nation. Witnesses can be and are compelled to testify before grand juries (if they are not willing to talk to the police) and can be jailed until they decide to cooperate. Depending on where they are jailed, one might say that torture is a legitimate means of compulsion, and the threat of being jailed in a place where sexual and other assault on inmates is common is often used as a threat. High profile witnesses such as reporters who refuse to reveal sources may be protected, but less visible potential witnesses do not have that expectation. The ability to compel witnesses to appear and testify is pretty fundamental to our theory of a trial, and that power is available to the defense as well as the prosecution as a Constitutional right.
So, when it comes to compulsory testimony, the practice is common and indeed routine, with a few exceptions. One exception is the journalist claim to immunity from being compelled to reveal their sources; this "right" is fairly new, and its limits are not well established, and in these days of the Internet and blogs it is very difficult to determine just who is a journalist within the meaning of the shield laws to begin with. We have not heard the last argument in that matter, nor have we seen the last ruling. But in general if you are a participant in or witness to an event that becomes important in a civil or criminal case, you can be compelled to testify under oath and under penalty of perjury, no matter how embarrassing or unpleasant this may be; and if you plead that you won't testify because it might incriminate you, you can be granted immunity and compelled to tell your story.
Which brings us to the major exception to compulsory testimony: the immunity against self incrimination. This isn't debatable in the United States because it is built into the Constitution, and is one of those rights from the Bill of Rights that probably could not have been inferred from the grant of limited powers theory favored by Hamilton and the others who argued that a Bill of Rights was not only not needed, but would prove to invert the theory of the Constitution: with a Bill of Rights, those powers not forbidden to the general government would be understood to have been granted, while the Hamiltonian view was that if the Constitution didn't say the Federal Government could do something, then it couldn't do it no matter how reasonable that might seem. In any event, immunity against self incrimination is pretty well absolute in the United States, at least in so far as it applies to the Federal Government. (This is not the time to discuss the theory that some (but certainly not all) of the Bill of Rights was incorporated as prohibitions on the States by the Civil War Amendments.)
While the existence of this right is not debatable, its wisdom is certainly discussable, which was the only reason I brought it up in the first place. Most Americans don't seem to know there are plenty of arguments against not being compelled to tell the truth in court even if the truth tends to be self incriminating. Whether they ought to be aware of those arguments can be debated, but surely knowing they exist does no harm?
But do note that even if one cannot be compelled to incriminate oneself, one can be compelled to testify against one's colleagues in a crime. Prosecutors can and do grant immunity to minor actors in a criminal enterprise, sometimes as part of a plea bargain, sometimes on the theory that it is better to let the little fish get away if we can get the major culprits, and sometimes because the evidence against the small fry is so overwhelming that there is no need for self incrimination with or without details.
So: we accept the principle of compelled testimony, even if that testimony is embarrassing or self incriminating, so long as that compelled testimony is not used against the witness. Perhaps this ought to be debated, but at the moment it is certainly the practice in both Federal and State courts, and in England (and of course there are places that do not recognize any right against self-incrimination, and routinely demand that a witness tell the truth, the whole truth, and nothing but the truth in both civil and criminal cases. It is my understanding that this was the situation in Louisiana until the US Supreme Court imposed the Bill of Rights on the state after the Civil War Amendments.
We can compel testimony; so we are now haggling over the means of compulsion.
There is a long and complex literature on this subject. One of the classic cases is the ticking time bomb. There was an excellent made for television 1960 Playhouse 90 production starring Van Heflin, Raymond Massey, and Cliff Robertson that looked at this in great detail: Heflin is a French officer charged with public safety in Algiers. It is known that a teen age boy, a prisoner, knows where a bomb has been placed and when it will explode. Many lives, both French and Algerian, are at stake. Time is short. What means are legitimate in finding the location of that bomb? Cliff Robertson, a junior officer, offers to use extreme means of interrogation and argues that there is no choice. I don't suppose this can be found for viewing now, but I have never forgotten it. It lays out all the arguments with great clarity.
This case is a distillation of the current arguments regarding water boarding and other extreme means of interrogation. One side claims that it is irresponsible not to use extreme means when there is a chance for saving life: for preventing another 9/11. The other claims that "the end does not justify the means." (As an aside: if the ends don't justify the means, then what does?)
I don't expect to settle any of this. If two thousand years of discussion hasn't settled it, I won't be able to. I just want to lay out the threads of the argument so we understand what we are talking about.
The Stakes
One thing we can agree on: extreme means of compulsion are only justified by the highest of stakes. Alas, that, too, can be debated.
Torquemada, Inquisitor General in Spain during the inquisition of Ferdinand and Isabella the Great, is said to have personally been a very good man who wore a hair shirt and was both abstemious and pious in his personal life. He was also very concerned that the Inquisition was being used by the Royal Government for political, not spiritual, purposes, and he conceived it as his job to do the real work of the Church, which was the salvation of souls. To him there were no higher stakes. He was horrified by the notion that people were being condemned without just cause; but of course, to him, "just cause" had a different meaning from what most of us would accept.
In 1492 Ferdinand and Isabella united Spain and drove out the last of the Moslem kingdoms which had been established over the centuries since the Prophet. The dream of uniting Spain, and ending any Muslim presence in Europe, had been the dream and ambition of every Christian Spaniard for six hundred years. For a good summary of the early days of this conflict as well as one of the most valuable synoptic histories of the West, see Fletcher Pratt The Battles that Changed History.
Prior to 1492 there had been other conquests of Muslim states in Spain. In all cases their Most Catholic Majesties (Isabella la Catholica was Queen of Castile in her own right, as well as Queen of Aragon as Ferdinand's husband; and Gonsalvo de Cordoba, the best general of the age, was Isabella's general, not Ferdinand's) required that all the new subjects either convert to Christianity or leave the kingdom. There were many conversions, but there was also great suspicion that the conversions weren't sincere. This had consequences both religious and political. Politically, it was very dangerous to have a fifth column of Muslim sympathizers in the kingdom. Religiously, heresy was considered one of the worst of the sins, and heretics were doomed to Hell. Dante had placed them in fiery sepulchers below the City of Dis.
Of course there were opportunities for petty officials. Many Jewish and Muslim converts were wealthy. Convicting them of heresy could be quite lucrative, and even the Pope became concerned about false prosecutions. One reason Torquemada was appointed Inquisitor General was to prevent selfishly motivated accusations. Alas, his reforms did not spare those who really were heretical, and if one was questioned before torture, during torture, between tortures, and after torture one might be induced to confess to anything. Torquemada had good intentions but his place in history is not the one he would have liked to have.
In other words, if what is wanted is reliable information about the guilt of the subject -- reliable self incrimination -- torture is notoriously unreliable. In Germany nearly everyone accused of witchcraft confessed -- and their property was confiscated, generally to the enrichment of the accuser. King James I of England, on reading the testimony of women accused of witchcraft, famously said "They are all great liars." He did not believe they sailed the seas in a sieve, or summoned a horned man, or flew on broomsticks. Some of this testimony was voluntary braggadocio, but some was solicited under torture -- and it was not reliable.
That says nothing about the efficacy of torture for soliciting verifiable information, as for instance, the location of a ticking time bomb. While few of us today would agree with Torquemada that if we can bring the sinner to true repentance at the moment of death we will have done him an infinitely great service -- that the stakes cannot be higher -- the argument is not so clear in the case of the ticking time bomb, or the location of hostages. What we think of high stakes today is quite different from the days of Ferdinand and Isabella.
That doesn't mean that the stakes are not high. Or that the subject should not be debated in a responsible republic.
What's to Debate?
In the United States there is no debate over self-incrimination. Whatever the arguments, the question has been settled in the Constitution itself: the federal government cannot compel you to incriminate yourself, and the courts have ruled that this doctrine applies to the states as well. The question is settled.
What is not settled is just what can be compelled? Can the defense require reporters to reveal sources? If the only testimony that will free a defendant is a confession by someone else, can that someone else be granted immunity and compelled to make that confession? If he does, how can we tell if this is the truth? If he does not, is there justice for the defendant?
The Constitution itself gives the accused the right "to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense". We have seen that the State of Texas doesn't seem to pay much attention to this when it thinks the stakes are high -- not only has no one in the FLDS case been confronted with an accuser, but the accuser is apparently now known not even to exist -- but in general this is a right we all have and I would presume most of us support it.
But what does it mean? What means of compulsion are legitimate and what means are not? We have a lot of case law on that subject, but I don't think there is a general agreement. This is one subject for debate.
A second debate can be had on the general principle of high stakes matters like the ticking time bomb.
And of course it is not enough to establish principles. One also needs to establish procedures: due process of law. We have some procedures. What we need now is some general agreement on principles.
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