As a progressive Democrat, I want to believe in my heart that when progressives say “no one is above the law,” we mean it. I also want badly to believe it is true when progressives say it is a fundamental value of ours that all individuals should be provided with fair legal proceedings (i.e. due process) before being condemned as guilty by the public or by some politician, and before being deprived of rights, liberty and/or property.
By due process extending to “all individuals” this includes (at least in my understanding) all individuals. “Enemy combatants” or alleged terrorists are individuals, so they qualify, and progressives routinely acknowledge this. But here’s the catch: “Neo-cons” are also individuals, so they should also be entitled to due process before being publicly condemned and deprived of rights or property. Same goes for “religious fundamentalists.” And, most pertinent to this post, same goes for alleged torture supporters in the Bush administration.
Today, I was very disappointed to review an email and web link I received from the progressive organization CREDO (which I think is usually very supportive of individuals’ rights), asking people to assume that an individual- William Haynes, a former attorney with the Bush administration who has NOT yet been subject to legal investigation or due process- is a “mastermind” of torture.
Worse, CREDO asks that people sign a petition that seeks to deprive Mr. Haynes of a job he has been working since leaving the Bush administration. The job, of note, is with a private entity, Chevron, and is unrelated to Mr. Haynes’ government job or alleged involvement with torture. CREDO calls this job “cushy,” and apparently finds high income relevant to its demand that Mr. Haynes be fired.
CREDO sums up its request as follows: “The legal mastermind behind Bush’s torture policies deserves prison, not a giant paycheck.”
I generally appreciate and support CREDO’s recommendations and actions, but I couldn’t disagree more with this one.
An appropriate approach for CREDO and the public would be – as opposed to demanding Mr. Haynes be terminated from his Chevron job- to demand an impartial investigation of his conduct with the government, and to demand initiation of criminal action if the investigatory evidence warrants that. CREDO has made similar demands in the past, and has otherwise been highly supportive of individual rights and due process.
However, when we progressives say “no one is above the law,” to me that really means no one. President Bush and Mr. Haynes, definitely- but this also means CREDO, you and me are also subject to the law and must also respect and not contravene due process. We, as progressives, are not above the law just because we are not supporters of President Bush, or just because we didn’t allegedly torture anybody. We have made other types of huge mistakes. We’re human and, for just one example of our common mistakes, we are prone to occasionally hop on moralistic high horses that cause us to abandon progressive principles to service a thirst for righteous condemnation, like CREDO’s call to action.
CREDO’s request that Mr. Haynes be deprived of liberties and property (those associated with his current job), based on past conduct which has not yet been legally investigated or prosecuted, is exactly the same philosophy as to legal rights and civil liberties that the Bush administration viewed to apply to “enemy combatants” and that progressives have opposed vehemently. Yes, exactly.
If you are a progressive, and your gut reaction to this post is to be defensive on CREDO’s behalf and think up rationalizations or distinctions to claim CREDO’s call to action is fundamentally different than President Bush’s approach to civil liberties, then I would say that type of defensiveness (which I myself have made the mistake of having on different issues) is yet another similarity with President Bush. Part of being a true believer in individual rights and due process is keeping our eyes open to our own frequent and inevitable mistakes, and our frequent needs to be subject to criticism and correction by ourselves and others.
All of us- progressives, conservatives, independents, and US citizens of all types and kinds- are heavy contributors to the US’s existing deficiencies with individual rights and due process. We all have contributed by our actions, by our inaction, and by our many instances of apathy. I would add that progressives are especially responsible, because we claim to be the most attuned to principles of individual rights and due process, and as such we should be most sensitive to these issues, and should be the most primed to call a spade a spade when it crosses our radar.
Yet I expect most progressives who read CREDO’s request will get caught up in the emotion of President Bush-bashing and will make the horrible mistake of assuming there is a difference between (1) deeming someone a “mastermind” terrorist and demanding deprivation of their rights and property before legal investigation and due process has occurred; and (2) doing the same thing with a “mastermind” torturer.
I don’t know about the rest of you, but what I want from government (and from CREDO, Chevron, and everyone else) is a fundamental and entrenched commitment to fair inquiry and due process. If that fundamental structure is restored, then you and I can hopefully be saved from our own irrationality when we go off on future rants (and we will) about others who we have pre-judged without complete and fair information.
Interesting Statistics About Lawsuits in WI and Elsewhere
Does Wisconsin and the U.S. generally need “tort reform?” Are too many (or an increasing number) of lawsuits being filed, with too many plaintiffs receiving large awards, and too many businesses suffering due to law suits by individuals?
As a plaintiff’s employment attorney, I have shared my own observations and biases in trying to answer questions like these. See, for example, my blog posts “Biggest Risk to Employers? Frivolous Suits? No. The (Expensive) Certainty of Being “Right” and “Corporate Rhetoric, the Decline of Individual Rights, and What You Can Do About It.”
My views aside, the best answers to the questions above are non-biased and objective answers, grounded in statistics and facts. While it is my opinion no one can give answers that are purely objective and non-biased, folks interested in the questions above should check out this resource, which is much more objective than my blog posts: “Civil Justice in Wisconsin: A Fact Book, with Commentary” by Marc Galanter and Susan Steingass, of The University of Wisconsin Law School.
(I heard of this fact book via the excellent blog by Jon Groth, a Wisconsin personal injury attorney).
I’ll quote the Fact book’s conclusion below, which is a summary of some important information covered, although you should read the full fact book (a 23-page Adobe document) for detailed and statistical information that addresses questions like those above. The full fact book is here.
In many ways, Wisconsin is very much like its neighbors and like the rest of the nation. Overall, resort to the courts is increasing, but most of this increase is in the family and contract areas. Tort filings are decreasing relative to population and in absolute numbers. The portion of cases that reach trial, especially jury trial, is decreasing. When cases do get to trial, median awards are mostly lower than in the recent past.
If we look further to see how Wisconsin is distinctive, we find that even with the limitations of the data, Wisconsin has a modest amount of
litigation in comparison with our neighbors and the rest of the nation. Most non-family civil cases are filed by businesses against individual defendants; where individuals sue businesses, the awards are comparatively modest.
This relatively low resort to the courts is reflected in a lawyer population that is relatively small and slow growing. The costs imposed by the civil justice system are palpable; the benefits that it confers are less apparent – indeed to the extent that they are effective, they fade from view. The same system of justice that protects citizens, protects and facilitates businesses. Businesses use the civil justice system to enforce contracts and collect debts. The security of property rights afforded by the civil law enables them to raise capital, borrow, and extend credit. They enjoy the protections of the tort system in deterring injurious behavior by others. All of this is so routine that it easily escapes our attention. This should remind us that citizens and businesses have a shared interest in an effective civil justice system. We hope that this booklet helps provide the basis for an informed public discussion.”
Filed under Philosophy - Employee Rights
Tagged as " Marc Galanter, "Civil Justice in Wisconsin: A Fact Book, Employee Rights, Lawsuit Statistics, Lawsuits, Susan Steingass, The University of Wisconsin Law School, Tort Reform, Wisconsin, with Commentary