Criminal Justice Section  


Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Chair’s Report to Members

Albert J. Krieger

Hard Times and Hard Decisions

Our constitutional system of government mandates separate duties and responsibilities for the executive, legislature, and judicial branches, and such division of management has proven itself quite successful over the generations. Though periods of our history may be distressing, we can take comfort and pride in having survived internal and external wars. In a massive contradiction, while enlarging our definitions of individual liberty, we practiced slavery and endorsed it as part of the accepted structure of our culture. From our beginning, we committed genocide, ruthlessly destroying our Native American population physically and culturally. Christopher Columbus, on reaching San Salvador in the Bahamas on October 12, 1492, was greeted peacefully by members of the Taino tribe, who numbered approximately 40,000 spread throughout many of the Caribbean islands. By 1508 they were extinct, ravaged by disease, servitude, and denial to them of human status equal to that of the European. Relegated to a condition slightly above that of domesticated animals, they could not, and did not, survive.

Two hundred and fifty years later, philosophical activists (perhaps it should read "revolutionaries"), resisting what they felt to be the autocratic and domineering rule of King George III, created the framework on which our Constitution was built. Its underlying principle is found within the thrilling and exhortive words of the Declaration of Independence declaring that amongst the "Truths to be self-evident [are] that all Men are created equal, [and] that they are endowed with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness. . . ." On September 17th of this year, we will celebrate 215 years of "Life, Liberty, and the Pursuit of Happiness" under our extraordinary Constitution . . . or will we? Is it an accomplished fact for all of our citizens? How far have we come? How far do we have to go to realize the benefits and pleasures of that goal? Or is it a dream of paradise destined to be ever an illusion?

It is fair to perceive the Constitution as the chart by which we can navigate the waters of our complex society, though at times society is in upheaval as violent as an ocean whipped by a hurricane. In many respects, the course we follow is that laid by our system of justice. Not surprisingly, to effect that which has been called the "delicate balance" of the three branches of government requires the guidance and control of our system of justice, as administered through the judiciary. Justice, as a system, requires judges to exert their full measure of effort, and opposing counsel to state in bold and learned fashion the opposing views. Then issues can be framed, responses stated, remedies explored, rights protected, and our society—both as an entity and in its individual components—be served. More than intellectual exercise, regardless of how all-encompassing one’s sense of history and ideas for the future may be, is needed to make our social contract perform as planned. We must constantly measure that delicate balance between societal needs and individual rights, and to do so all too frequently requires courage—simple, hard courage. Self must be, at times, secondary to principle, which is as it should be. History records moments of courageous subordination of self as the benchmarks of civilization. History also has been described as a spiral staircase up which humankind labors, returning almost to a previous point, but not quite. It seems that we may be at such a place. Look back to the spring of 1879.

At that time, Standing Bear, a member of the Ponca tribe, had settled on some land in Nebraska, farmed it, and in all respects lived as white settlers did on neighboring tracts. Less than three years after Little Big Horn, Native Americans were not particularly welcome, if anywhere at all, outside of Indian Territory or reservation set-asides. Standing Bear, because he was a Ponca, was subject to an order by General George Crook, who unhappily and reluctantly, was discharging his duties under the direction of the secretary of the interior. That order provided for the relocation, forcibly or otherwise, of Standing Bear and his family to Indian Territory, "north of the Niobrara River and west of the Missouri." Two brave and unselfish lawyers, the memory of whom is blanketed by the century and a quarter since their appearances in court, challenged the legality of such order. They brought a petition of habeas corpus on behalf of Standing Bear returnable before U.S. District Court Judge Elmer Dundy, sitting in Omaha, Nebraska. Unfortunately, little is known of him today, or for that matter, any of the others save General Crook. His is a relatively familiar name, and Judge Dundy’s opinion shows him to be compassionate, caring, and considerate, but a soldier of his times. The argument before Judge Dundy was effective, sensitive, and professional on both sides. Taking a step toward the future, Judge Dundy found the legal path to reject the holdings of 100 years of legal precedent and held:

An Indian is a person within the meaning of the habeas corpus act, and as such is entitled to sue out a writ of habeas corpus in the federal courts when it is shown that the petitioner is deprived of liberty under color of authority of the United States, or is in custody of an officer in violation of the Constitution or a law of the United States, or in violation of a treaty made in pursuance thereof.

It took 100 years for the Native American to be recognized as a "person" and that the Great Writ applies to them as well. The events of today bring us, unhappily, to a place on the spiral staircase of history where the right to habeas is again a matter of question. Two native-born American citizens, Yasser Esam Hamdi and Jose Padilla, are at the time of this writing detained by the order of the executive branch without being charged with a crime. They have been denied access to counsel and counsel is denied access to them. Simply put, their confinement is truly incommunicado. The purpose of the detention is to extract information. The Associated Press reported the following on June 11, 2002:

Defense Secretary Donald H. Rumsfeld said the government was more interested in questioning Padilla exhaustively than punishing him. "We’re not interested in punishing him at the moment," Rumsfeld said, traveling in Qatar. "We’re interested in finding out what in the world he knows. . . . Our job as responsible government officials is to do everything possible to find out what that person knows and see if we can’t help our country or other countries."

That this is the intention of the executive branch is more forcefully spelled out in the declaration of Colonel Donald D. Woolfolk filed by the government in support of its position of continued incommunicado detention of Yasser Esam Hamdi. Col. Woolfolk states that, although the United States does not employ "corporal means of coercion," it does rely upon an "atmosphere of dependency and trust" between detainee and interrogator. The relationship, he adds, would be disrupted if the detainee were to be permitted access to counsel and "this interrogation dynamic" would be lost. We are left to imagine what techniques are used other than a truncheon or a whip to obtain cooperation, but nevertheless, most importantly, the American public is told to accept the executive decision to detain and to question. The normal and traditional right of the public to evaluate the acts of the executive branch, something we, the people, were deprived of by King George III, is disregarded and ignored; and so are the intentions of the Framers. By seeking to bar access to the courts, the executive branch brushes away the established procedure for preserving the delicate balance between the power delegated to the executive by the people and the "unalienable rights" that the people retain. That procedure is, of course, to resort to the judiciary, and, generally, except as affected by the Act of Congress pursuant to Article I, Section 9, of the Constitution, by utilizing the Great Writ. As the Japanese internment cases teach, and as stated even after hostilities had ended, deference to the decisions and acts of the executive branch is and may be an operating reality, but only to a point. Mr. Justice Black said it most succinctly in 1946 for the majority in Duncan v. Kahanamoku, 327 U.S. 304, 322–3:

For as this Court has said before: ". . . the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, the law alone shall govern; and to it the military must always yield."

The Supreme Court then set aside the apparent martial law applicable to the Hawaiian Islands and recognized the paramount governing authority of the civilian government.

The Criminal Justice Section, long serving those who labor within our criminal justice system, can help our country display itself as an example of freedom to the world. It should take an active role in resolving the difficult legal problems that have haunted us since September 11. Editorials in papers throughout the country have warned of our winning a battle and losing a war by forfeiting our fundamental freedoms. We in the Criminal Justice Section represent all aspects of the process and should demonstrate our recognition of the fragility of individual right as well as the need to be protected from attack. We can both support and lead in reaching resolutions that vindicate our customary sense of right and wrong, of fairness in procedure, and the substance of due process embodied in the Constitution. It may not be popular, and it may not be easy. Our guide should be the admonition of Mr. Justice Murphy in the Duncan case, at 335.

Moreover, we must be on constant guard against an excessive use of any power, military or otherwise, that results in the needless destruction of our rights and liberties. There must be a careful balancing of interests. And we must ever keep in mind that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." ( Ex parte Milligan, supra, 4 Wall, at 120–21.)

Enough said.

Albert J. Krieger practices criminal defense law in Miami, Florida,

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