Docket #15-014: War Crimes and Misdemeanors

In this episode:

  • Residents of Charlotte, North Carolina might start hearing the words, “Papers, please,” way more than they ever thought possible;
  • Progressives cry foul over threats to continue investigating planned parenthood, despite the fact that there’s no evidence the nonprofit organization did anything wrong; and
  • Doctors Without Borders accuses US armed forces of committing a war crime.

Opening Statement

There are very few legal podcasts. There are plenty of podcasts for lawyers. Which is not the same thing. Much like writing about the Vatican and its centuries-long history of child abuse, podcasts geared toward lawyers tend to give me the cold, queasy feeling I get when I have the flu and am about to spend ten minutes with my head over a toilet bowl. They tend to focus on things like CLEs and how to streamline your practice. Things that only other lawyers will care about, and the lawyers that care about that aren’t getting that kind of information from podcasts.

Not all podcasts involving lawyers are like that, of course. Lawyer2Lawyer is good. Unwonk is entertaining. Emily Bazelon can pretty much always be counted on to bring something interesting and law-related to Slate’s Political Gabfest. But these are few and far between.

There’s a reason there are so few legal podcasts, and I have a hypothesis for why that is. Sure, podcasts are time-intensive. Sure, podcasts make no money. And it almost goes without saying that lawyers don’t generally want to spend a lot of time on something that we can’t bill clients for. I get it. I’ve heard the jokes. I’ve even written some of them.

But, I think, the real reason is that lawyers, and for that matter, people in general, we don’t like to be wrong. And we certainly don’t like to be wrong in a public forum, out there for everyone to see, on the Internet, where nothing ever dies. We worry that someone somewhere will witness us being wrong and then how will we ever be able to face our clients now that they know we’re merely human, and therefore fallible? It’s absurd to be afraid of being wrong.

A corollary to the proposition that lawyers don’t like to be seen being wrong is that we also don’t like to admit when we don’t know something. Nevermind the fact that it’s impossible to have perfect knowledge. We want to maintain this facade of all-knowingness, because if our clients see our ignorance, well, they’ll just go down the street to the next guy, the guy who’s willing to pretend he knows everything.

And once again, this isn’t an attitude that’s limited to lawyers. I doubt anyone really enjoys admitting when we don’t know something. On the other hand, recognizing you don’t know something is often what spurs us to learn more.

I’m not Oliver. I’ve never really feared saying I don’t know, though I have made it my mission in life to find myself in a position where I need to say it less and less. Moreover, I no longer fear being wrong in public. Why? Because it’s the only way to find out you’re wrong. And it strikes me that occasionally making a mistake and then being seen learning from the experience far outweighs the incredible harm that might befall us if people should come to the realization that we’re fallible. But let’s face it, the cat’s already out of the bag on that front. We are all human. What is anyone really expecting?

I used a pseudonym so that if I was wrong, no one would really have to know. I used a pseudonym so if you went six weeks or three months without seeing an episode of this podcast drop, it wouldn’t reflect on me.

My name is Geoffrey Thomas Blackwell. And yes, I know you’d be hard-pressed to find a more Anglo-Saxon name this side of Benedict Cumberbatch.

I practice law in New Jersey and Pennsylvania. I graduated from Rutgers School of Law where I was president of the International Law Society and participated in the school’s human rights clinic. The first legal complaint I ever wrote listed the Secretary of Defense and the Secretary of the Air Force as defendants and involved a military coup in a South American country. That was sort of a surreal experience, believe me.

I am human, and I’ve never shied away from acknowledging that this podcast is a learning experience. It’s a way to investigate and research new areas of the law. And after much thought, I’ve decided that if I’m not afraid to day the words “I don’t know,” then I’m also done fearing being wrong. I’m sure at times it will be embarrassing, but I’m done fearing it.

As far as the occasional intermittency of the podcast’s release schedule… well, you’re just going to have to live with it, frankly. I occasionally have a life in addition to the legal career and the podcast. Which is soon to be two, because I hate myself, apparently.

Yeah, so now you know a little more about me. I’m not Oliver. I’m Geoff Blackwell. And you’re listening to episode 15-14 of All Too Common Law.

“Public Safety Zones”

Our first news story this weeks takes us to Charlotte, North Carolina, where the police department is working with the Charlotte City Council to establish “Public Safety Zones,” areas of the city that would be declared off-limits to individuals with arrest records, unless they can get an exemption because they work or need to pick up children in the area.

 

Council photo

Charlotte, NC City Council

The details of the proposal I’ve been able to glean from public records are sketchy at best, since the ordinance hasn’t been drafted yet. I’m basically working from publicly-available Council meeting minutes. Perhaps I’d be able to get a better handle on this policy if there was audio or video of the meetings of the Public Safely Committee in Charlotte, but alas, no. To the Committee’s credit, they seemed open to the idea of collaborating with the ACLU in drafting the ordinance. On the other hand, I can only assume that the ACLU’s contribution will be a plea not to put this policy in place.

It’s hard to get too specific about this proposal, since there are so few specifics to go on, but there are broad issues that a policy like this is almost guaranteed to implicate, so let’s start with those.

First of all, I’m going to go ahead and assume that the media outlets reporting this story are conflating “arrests” with “convictions.” I’m assuming that because, in this country, you’re supposed to be innocent until proven guilty. The government can put certain restrictions on you after you’ve been arrested, but those restrictions can’t be punitive. They’re put in place to make sure you show up for trial.

Restricting someone from a particular part of a city does nothing to accomplish that goal, and it’s a restriction on your freedom of movement, so it would probably violate your Fourteenth Amendment rights. The due process clause of the Fourteenth Amendment protects your right to life, liberty, and property. And, according to the Supreme Court, the freedom of movement is part of the “liberty” the Due Process Clause is protecting,* which means your freedom of movement can’t be restricted without having a hearing first, and in this context that hearing is called a trial.

Now, I want to take a moment hear to mention bail agreements. We’ve all seen TV shows and movies where someone’s arrested, sometimes it’s even that they’re just a suspect in a crime, and they’re warned not to leave the state or not to leave the jurisdiction. If the person is just a suspect, the warning is complete bullshit. Sure, it will look suspicious if you go on a trip, but there’s nothing that says you can’t so long as you haven’t been charged with anything.

Once you’re arrested, though, courts will very often put conditions on any agreement to release you before trial. The point of these conditions are to make it more likely that you’ll show up when it comes time for the trial, so these will very often include “Don’t leave the state.” And that’s fine.

But they can’t condition your release on you not going to, say, the 1600 block of Main St. between the hours of 6:00 pm and 6:00 am, because that condition does nothing to ensure you’re going to show up for trial.

So I think the reports must have meant that these “no-go” zones would exclude people who have actually been convicted of a crime. I think it’s 6-to-5 and pick ’em whether it’s the article writers using arrest when they should be using convicted or the members of the Charlotte City Council largely not knowing what the hell they’re talking about and getting the terms confused themselves.

But that’s just the up-front semantic problem this story has. But a city ordinance like this has waaay bigger problems. I’m actually having trouble figuring out which to address first.

First of all, what about people who aren’t from Charlotte? If I’m from Florida and I’ve got a conviction for public urination or pot or contributing to the delinquency of an alligator, am I subject to this law? Am I supposed to be familiar with the ridiculous city ordinances of a place I’m just passing through on my way to… anywhere better Charlotte happens to be along the way to?

The lawyer side of my brain says “ignorance of the law is no defense,” but that’s not very satisfying, somehow. I was trying to figure out what my issue was with that when I realized that there really wouldn’t be a way for a cop to enforce this law unless he or she already knew I was convicted of crime before they stopped me, or they stopped me for something else and discovered that I had a criminal record. That or the statute will enable police to stop anyone and ask for anyone’s identification in order to find out whether they’re violating this new ordinance.

This is exactly the kind of practice that had everyone up in arms about Arizona’s SB 1070 several years ago. Because it’s almost a foregone conclusion that a disproportionate number of people stopped under an ordinance like this is will be either Black or Latino.

And while in most cases police can stop me if they have a reasonable suspicion that I’ve committed a crime, police can’t generally just stop random people on the street and demand to see their identification. Police can talk to anybody they want, but they can’t require you to produce identification, or even to talk to them at all, unless they reasonably suspect you of committing a crime.

So in order for police to both enforce this law and stay within the bounds of the Constitution, it’s really only going to be enforced against people who the police reasonably believe have committed some other offense. In that sense, it’s probably going to be like most seat belt laws. Violations get tacked on to other, greater offenses, like speeding or a DUI.

Then there’s the last question: exactly who would this law apply to? The new ordinance hasn’t even been drafted yet, but let’s just say it goes into effect January 1, 2016. Is it enforceable against people who have only been convicted of crimes before the law went into effect?

There’s a provision in the Constitution called the Ex Post Facto Clause, which basically says that a person cannot be tried for a crime if the thing they did wasn’t a crime when they did it, and a person convicted of a crime cannot be subjected to a greater punishment than could be imposed at the time the crime was committed.

Basically, if I download a pirated copy of The Martian today, and next week Congress makes it a capital offense subject to the death penalty, I can only be sentenced to a punishment the law permits today, and not any more-severe punishments imposed later.

Does an ordinance like this run afoul of the Ex Post Facto Clause if its applied to people convicted of crimes before the ordinance went into effect?

I tend to think it probably should be invalid but under the current state of the law, probably not. See, the Ex Post Facto Clause only applies to punitive statutes. And, like those that prevent sex offenders from living within a certain distance of a school, this law probably wouldn’t be considered punitive. It’s more likely that the courts would view this as a public safety regulation.

There are other questions that would have to be considered. One’s that I just don’t have time to get into. Would there be different types of public safety zones, so that one type of zone excludes those convicted of violent crimes, other that exclude those convicted of drug-related offenses, and even others for people convicted of reckless driving?

Then of course they’ll have to consider whether the costs of establishing and enforcing a system like this would outweigh the benefits.

I’m hoping that the City Council’s apparent willingness to work with the ACLU in drafting this ordinance will mean that it never sees the light of day, but who knows? I might have to revisit this at some point.

Congressional Investigation of Planned Parenthood

Chaffetz

Rep. Jason Chaffetz (R-UT), Chairman of the House Committee on Oversight and Government Reform

In the aftermath of John Boehner announcing his retirement, and Kevin McCarthy’s withdrawal from the race among Republicans to replace him, Jason Chaffetz, from Utah’s 3rd congressional district, has been under considerable scrutiny. Chaffetz announced that he’s interested in succeeding Boehner as Speaker and, as Chairman of the House Committee on Oversight and Government Reform, has been in charge of the recent inquisition against Planned Parenthood. It’s this second fact that has led to a fair amount of indignation among progressives in the United States.

In a recent Huffington Post article, Chaffetz is quoted as saying that his committee’s investigation had found no evidence of wrongdoing but he said, “I think there will continue to be investigations.” Aside of the hypocrisy wrapped in that statement, given his position as a prominent “small government” conservative, Chaffetz here demonstrates a complete disregard for the role that congressional committees are supposed to play in our legal process.

This has a lot of people on social media wondering what steps average citizens can take to force an end to what is rightfully seen as an empty political charade. And the answer is: really not all that much.

A number of comments I’ve seen have asked whether some form of legal action would be a possibility. It would not be a possibility.

The problem is the concept of standing. In order to bring an action in court, you have to show that you have suffered an actual harm. It can be financial, emotional, or physical, but you have to have actually been made worse off as a result of whatever it is you’re suing over. And the courts decided a long time ago that taxpayers can’t challenge in court how the government spends its money even if the government is wasting the money that was paid to it by the taxpayer.

There are very limited circumstances where a taxpayer could have standing, but that involves establishment clause violations and that isn’t the case here. Now, certainly, the mob mentality that Planned Parenthood inspires among a certain small segment of the population is religiously motivated, but that’s not what the stated purpose of the investigation was. Chaffetz focused on the nonprofit’s handling of its funds, which is a valid ground for congressional investigation. Federal law prohibits taxpayer money from being used to fund abortions, so Planned Parenthood has to be certain that funding it received from government programs like medicaid is strictly segregated from its other funds.

Also, as a nonprofit, Planned Parenthood has to abide by a number of IRS rules. So throw that in and the idea of a congressional investigation isn’t totally off-base. The problem, of course, is when they find there’s no sign of any wrongdoing. The money has all been managed properly. But they’re going to continue having investigations anyway.

It strikes many as a misuse of government resources, particularly for the party that professes a desire to cut back on government spending. Then, of course, there’s all the money that organizations like planned Parenthood have to spend when they’re subpoenaed by Congress and dragged in front of a committee for questioning.

Utah’s gerrymandering

The judicial system views this as a political issue and one that already has non-judicial mechanisms in place to prevent or correct or punish lawmakers who spend money in ways that are either illegal or stupid: that’s called elections. Of course, the problem there is gerrymandering. In this situation, the voters may not care that their representatives are misusing government funds. Just look at Chaffetz himself. He represents Utah’s 3rd Congressional District, which is basically all of southeast Utah. But Utah has a grand total of four congressional districts and all four contain a part of Salt Lake City which, I mean, if any city in Utah can be called a liberal bastion, that’s it. And Obama still lost that county by a hundred thousand votes in 2012. So they divided up the liberal part of Utah into four parts and then just extend those lines out to the borders and now no liberal candidate can win a single federal congressional seat in Utah. That’s gerrymandering for you.

And the judiciary views this as basically not its problem. If you want different lines drawn or want congressional committees spending their time in different ways, elect different representatives. Don’t come complaining to us. Even if we did start it by having money declared speech and then deciding Citizens United. Not our problem.

It might be possible for a specific group that’s being harmed to do something. Like Planned Parenthood, which is having to spend money to respond to these subpoenas and go to DC and waste time at these inquisitions. I don’t know, but if they’re constantly having to spend money getting dragged in front of investigative committees, they might have some sort of recourse.

They couldn’t sue individual lawmakers for defamation or anything like that, though, because individual legislators have legislative immunity when they are performing their legislative duties, and sitting on a committee like this would count as performing legislative duties. So suing them individually is out

What might be interesting is if those people whom the Committee calls to testify just refuse to show up. Failing to comply with a Congressional subpoena is considered Contempt of Congress and the matter gets referred to the US Attorney’s Office for prosecution. At that point it would be possible to raise the issue of the legality of the subpoena. Under Wilkinson v. US, a committee has to meet three requirements in order for their subpoenas to be valid, and one of those requirements is that the committee’s investigation must have “a valid legislative purpose.”

It seems to me that this investigation now lacks any sort of “valid legislative purpose,” and if the courts agree then the committee would lack the ability to compel people to give testimony and the investigation would basically just shrivel and die. But there are a lot of ifs between here and there, and a lot of money spent along the way.

Oklahoma Capitol Ten Commandments Monument Removed

The kerfuffel over the Ten Commandments monument on the grounds of the Oklahoma State Capitol has finally come to a close, at least for the time being. The monument was removed from the grounds late on Monday, October 5. For the foreseeable future, the monument will be displayed by the Oklahoma Council of Public Affairs, and private conservative think-tank in Oklahoma City.

I perused the Oklahoma Council of Public Affairs’ website and found a few gems. Like this:

“At the root of our education debates is a debate about the family. The government school monopoly is one of the most important factors undermining the family unit; universal school choice would be a big step toward strengthening it.

This was not a question of whether there ought to be schools. It was a question of whom the schools should work for. Are schools an extension of the family, helping parents raise their children the way the parents want them raised? Or are schools an autonomous branch of the technocratic state, answering not to parents but to professional experts who know how children ought to be raised better than parents do?”

Um, yes. Schools systems should answer to professional experts who know how children out to be raised better than parents do. Parents, as a rule, suck at raising children.

Anyway, the blinkered views of the Oklahoma Council on Public Affairs isn’t what this is about. The point is that the dispute over this particular example of state establishment of religion has mercifully come to a close, and now we can all turn our attention to a ten commandments monument on display at city hall in Bloomfield, New Mexico. The trial court has ordered that the monument should be removed, but the city is appealing the decision to the 10th Circuit Court of Appeals.

*sigh*

I feel Sisyphus’ pain.

MSF Hospital Bombing a War Crime?

Aftermath of the bombing of an MSF-operated hospital in Kunduz, Afghanistan

On Saturday, October 3rd, American bombs fell on a hospital operated by Doctors Without Borders in Kunduz, Afghanistan. While the Afghan government’s response to the damage seems to have been muted. Doctors Without Borders has labeled the incident a war crime and demanded an independent investigation into the incident.

Right up front, I have to say that I doubt a war crime was committed. And sure, obviously, I’m an American so I can’t ignore my own bias, but I can’t conceive of the US military intentionally striking a civilian hospital. What? Maybe if the guy manning the drone just lost it because his ex works for Doctors Without Borders and was at that hospital. Yes. Then it would be a war crime. But we’ll get to all that in a second.

It almost goes without saying that very little is known about the circumstances of the incident. Kunduz has seen significant fighting recently. Late in September, the Taliban seized control of large portions of the city. Afghan forces, with U.S. air support, then drove the Taliban out of much of the area. The Taliban now says it has again taken control. Regardless of whether that claim is accurate, it is undeniable that fierce fighting has taken place in the city over the last week.

There are reports that Taliban fighters were staging near the hospital, and the Afghan defense ministry has apparently claimed that Taliban forces were using the hospital to stage operations against the Afghan military and civilians in the area.

Doctors Without Borders has denied that fighters were holed up in the hospital itself. I’m inclined to give them the benefit of the doubt, but as I’ll talk about in a moment, it’s probably irrelevant to the question of whether a war crime might have been committed.

War crimes are defined by the Geneva Conventions. Since this is a civilian hospital we’re talking about, it’s the Fourth Geneva Convention that we have to take a look at, since that deals with the protection of civilians. Article 18 of the convention states unequivocally that:

“Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack.”

On the other hand, Article 19 says that protection can be taken away if the hospital is:

“used to commit, outside [its] humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.”

Essentially, in the eyes of international law, there are three possibilities here. Either the hospital was struck accidentally as a result of strikes on the Taliban fighters nearby, or the hospital was struck intentionally because the U.S. thought there were fighters inside, or the hospital was struck intentionally and there was no indication that there were fighters inside.

First, if it was an accident; if, say, someone typed the wrong GPS coordinates into a targeting system, or if it was a malfunction of the guidance system itself, then there was no war crime, because the Convention says that civilian hospitals shall not “be the object of attack.” Then Convention doesn’t say exactly what is meant by “the object of attack,” but to me that phrase says military forces cannot intentionally target a civilian hospital. I think that interpretation is supported by the fact that there is an exception in the very next section that says a hospital can be the object of an attack if it is being “used to commit . . . acts harmful to the enemy.” The phrase is also used in some related treaties where it seems to be meant as “the intended target of an attack.”

So if the MSF hospital wasn’t intentionally targeted, these provisions do not apply. At least as I read the Geneva Convention.

On the other hand, if the hospital was the intended target, it would appear that a war crime may have been committed. I say may have because the question would then depend on whether U.S. forces believed fighters were using the hospital as a base, and then whether or not the U.S. informed the hospital that they were targeting it in order to allow time to evacuate the patients.

I have no idea whether militants were staging attacks from the hospital. There’s no way I could know that one way or the other. If they were, then any independent investigation is going to focus on whether the U.S. notified the hospital ahead of time that it would be targeted. Because that’s the only way an intentional attack on a known hospital would not be considered a war crime.

And, this is why I said earlier that whether or not Taliban fighters were staging attacks from the building is probably irrelevant. Because if the attack was intentional, and if the US believed the Taliban fighters were operating out of the building, then it appears no warning was given, and it’s a war crime. If there was no indication that they were staging attacks from the hospital, and the US intentionally attacked it anyway, then it was a war crime.

Lastly, if no militants were using the hospital as a staging area, and the attack was intentional, then yeah, there’s really no way it wasn’t a war crime. I also think this would be the least likely of the three possibilities, since I can’t imagine why U.S. forces would intentionally strike a hospital wihtout something to indicate that fighters were using it as a staging area. But, if that’s what happened, the question then becomes, “Who gave the order?”

That’s a question I’m not in any position to answer, or even speculate on.

A related question is exactly how those involved in the attack would be held accountable if a war crime was committed.

If so, and if members of the U.S. armed forces were responsible, it’s going to be a US military court that tries the officers involved. If a civilian somewhere in the bureaucracy was involved, the trial would be in a federal criminal court, I think. I’m not sure if civilians working in the military command structure are subject to the Code of Military Justice. From reading the Code, it seems like it’s possible, but I don’t have the background to be willing to say.

The only other venue that would be in a position to hear a case like this would be the International Criminal Court in The Hague. But chances are the ICC wouldn’t have jurisdiction in this case. First of all, the US hasn’t consented to the jurisdiction of the ICC. Afghanistan has, though, so if the ICC did indict someone who happened to be in Afghanistan, the Afghan government could potentially hand them over, but an agreement signed between the United States and Afghanistan limits criminal jurisdiction over US armed forces in Afghanistan to the United States alone.

Not only that, but the ICC only has jurisdiction where the home country either cannot prosecute the offender due to a failure of the judicial system, or will not prosecute for political reasons. The US judicial system is certainly capable of prosecuting people for such crimes, and I certainly hope that if someone had committed such a crime, we would be willing to prosecute them. On the other hand, we’ve been hesitant to prosecute these kinds of crimes in the very recent past.

*Initially, this episode had a couple of paragraphs on the distinction between the freedom of interstate travel and the separate freedom of intra-state travel. This couple of minutes was cut for time, since the episode is already long. It should be noted that Supreme Court decisions thus far have only explicitly recognized a freedom to travel between states, not within states, but also note that dicta in a number of cases indicate that freedom of movement within a state receives some protection and may rise to the level of a fundamental right, despite the fact that it has never been officially recognized as such.