Thursday, March 3, 2011

I've Gotta Be Free

Justice Stephen Breyer wonders what happens if the prosecutor had said, "I do not intend to try this person, ever, no matter what; I just want to ask him questions." Does that violate the material witness statute? Katyal says it does but goes on to argue for absolute immunity in this case because "absolute immunity isn't some rule to just protect prosecutors willy-nilly; it's to protect the public. … No doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."
Al-Kidding Aside"
Translation - the only way for the public to be protected from an outside threat, in this case, terrorism, is for the same public to be subject to an internal threat from federal prosecutors, who must be completely unaccountable for even intentional wrongdoing, as the prosecutors must never have to concern themselves with the possibility of accidental wrongdoing.

Or, more simply: Trust us. We're the good guys.
The whole aim of practical politics is to keep the populace alarmed -- and hence clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary.
H. L. Mencken
If you read Ms. Lithwick's Slate piece on Ashcroft v. al-Kidd, it seems that as of this point, the Supreme Court might very well accept the Obama Administration's argument that in order for prosecutors to do their jobs, we will have to allow them to commit crimes while they are at it. I'd like to say I surprised, but I'm not.

But I am impressed at the level of confidence in the future that such a ruling would send. While Solicitor General Katyal might be making the argument that the Justice Department are the Good Guys, a ruling in favor of absolute immunity from liability for even intentional wrongdoing would say that the court expects that they always will be the Good Guys. I don't think that is a reasonable, or safe, assumption to work under.

I've always been concerned by people's willingness to condone things that they feel could never happen to them - just as I'm amused/irritated by their sudden panic when they realize it can. And to a degree, I feel part of that mindset is implicit in Katyal's argument - when he says "No doubt that certain individuals will be harmed," it seems clear that he's also saying that those are individuals that we, the American public as a whole, will not care enough about to risk anything for. I guess it's not worth rehashing the whole "First they came for..." argument, because you already know it, and most people are convinced enough that it could never happen to them that you couldn't convince them otherwise if your life depended on it. To be honest, I don't really think that they'll come for me in my lifetime.

But that shouldn't be what freedom and the rule of law are all about. We shouldn't wait until we see a personal threat to do something. Everyone is invested in their own well-being. A commitment to the values that we say that this country stands for should entail being willing to fight to grant them to others. Not to just take what we have and pretend that it's all that matters.