QuickLaw

In 1998 a bomb exploded in Omagh killing 29 persons and two unborn babies. No one has been convicted for the crime of organizing and implementing the bombing. But the families of 12 of the victims joined together to start a civil suit against persons suspected.

BBC reports todaythat a Belfast judge has awarded the families over 1.6  million pounds in damages against a group of four of the five defendants who were brought to trial. It is the first such ruling against alleged terrorists — though not the first time civil damages have been pursued for criminal wrongdoing (OJ Simpson faced a similar civil trial in the US)

The money is not likely to be collected, and that is not the point. the civil suit has given the families a forum and a tool to bring out more information about the crime. It also serves notice on authorities and terrorists that the war against terrorism is also a community matter.

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• Northern Ireland shootings: The splinter group behind Omagh atrocity(telegraph.co.uk)

There is an interesting mini-debate “raging” over the value of investigating and prosecuting alleged abuses of power by Bush Administration officials (especially with respect to allegations that some may have authorized torture and lied to Congress about what was going on).

 Here is a link to Professor Charles Fried’s op ed in the NYT where he argues that these would be the acts of a so called “savage society” guided by “hate” and a ”desire for revenge” rather than a commitment to reason. Strong words. He argues that we should let history judge rather than the courts because those in question were responding to a threat to national security  (the so called “Spanish Model”).  Ironically, much of his argument is based on the notion that US criminal justice procedures are rather barbaric — a form of torture? He does not, however, take the opportunity to call for criminal procedure reform.

Dahlia Lithwack argues to the contrary that investigations are not witch-hunts, but are needed to clarify the historical record. Moreover, turning the historical page would be less an act of forgiveness of (and commiseration with?) those who were in power, than  the expression of a collective desire for amnesia. I suppose all would agree that amnesia is not a public good. In a letter to the NYT,  Joanna Mariener argues that ignoring violations of law also would run against the trend of international law, and amount to a rather ugly re-assertion of American exceptionalism.

Stripped of all the rhetoric, Professor Fried’s case boils down to the proposition that public officials should be above the law when they respond to a national security threat. I suspect that Professor Fried was attempting a policy argument — rather than any interpretation of norms. Actually, the argument has inter-related legal, policy and political dimensions.

The legal effect of accepting Professor Fried’s argument would be to place public officials above the law. In fact, in limited ways they already are.  Most relevant here is the so-called “state secrets doctrine” elaborated in the 1953 Reynolds judgment. For those wishing the gory details, here is a link to a syllabus of the judgment. The state secrets doctrine allows officials to block a court’s access to documents for national security reasons. Ergo, the executive branch in effect can kill an investigation even if there were violations of law, by withholding information that it jdetermines is too sensitive with respect to national security to reveal to a judge. BTW, I have not seen anyone yet assert that Reynolds might apply in an investigation whether the US is involved in rendition and/or torture. Perhaps we will.

On the other hand, in 1974 in US v. Nixon, the Supreme Court flatly rejected the argument that the president and the executive branch in general has a more general absolute privilege to withhold evidence and by doing so avoid prosecution for alleged wrongdoing. Here is the link to the judgment. Why reject absolute privilege? Quoting Justice Burger,

… this (assertion of) presumptive privilege must be considered in light of our historic commitment to the rule of law. This  is nowhere more profoundly manifest than, in our view, that “the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer. …

More bluntly, giving out ”get out of jail free cards” is not generally supported as a matter of legal policy.  We suffer it only when it is essential to do so. BTW, I still find it alarming that President Nixon dared to argue for absolute privilege. But he did.

There is a second legal dimension to Professor Fried’s argument that he ignores. If investigations and prosecutions would threaten US national interests, the Constitution provides the remedy. For a few more days, President Bush has the power to pardon any and all of his subordinates. Fine. Let him decide, and then history judge whether he did the right thing, a la Clinton’s pardon of Mr. Rich et al, and President Ford’s pardon of Richard Nixon. 

But Professor Fried would take the monkey off President Bush’s back (where it belongs as a matter of law) and have the public give a blanket de facto pardon before we even know what happened. Why? To be nice. Silly. This would be a policy extension of the Reynolds doctrine on steroids. And an open ended invitation to abuse.

We might recall that while President Ford pardoned Richard Nixon (a rather controversial step) he did not pardon his subordinates. Many of these people were investigated, prosecuted and spent time in prison. Were these investigations and prosections acts of “hate”, “revenge” and “barbaric”? Again, nonsense.

So should the newly empowered dems investigate? As a policy matter, I think these  investigations are needed to clear the air. If prosecutions are appropriate, let the games begin. After all, the allegations in question affect US natiojnal interests far more than those Ken Starr originally took up in the Whitewater affair. Why should we hesitate to protect our interests and find out what happened … if President Bush allows us to do so?

FOLLOW - The NYT Opinionator adds another norm to be considered, the Torture Convention. The Convention imposes an obligation upon states to act if torture has occurred — and a Pentagon military commission has concluded that it did — at Guantanamo.

This i the first post of this blog, so it should stake out some territory. The blog is meant to share insights among legal professionals on trends in law practice around the world. The key word is “trends”. What kind of trends? I am most interested to track what lawyers are and should be talking about in order for law practice to generate more value.

This means it is a “technical” blog — for lawyers. But it will not seek to compete with journals, law reviews and such. Instead, it might be an easy way for lawyers to see a bit more broadly what can be learned from other sources. What other sources?

Good question. I will track sources in (1) law practice — mostly judicial decisions in targeted areas, (2) legal reform — mostly legal institution building and rule of law issues, and (3) meta issues — arguing for and against on major legal policy questions of our time.

So, off we go! I hope it is useful.