Reason Magazine - Staff

Why Did Luttig Quit?

info@reason.com (Harvey Silverglate) — Thu, 18 May 2006 10:44:00 EDT

Surprise, surprise! Former Judge J. Michael Luttig wants to spend more time with his family, make more money as his kids approach college age, and take up what his resignation letter refers to as the "singular opportunity" to work for the Boeing Company, "an American icon." That, at least, is how he rebuts the The Wall Street Journal's Jess Bravin and J. Lynn Lunsford, who have written a compelling analysis of Luttig's abrupt resignation, on May 10, from the United States Court of Appeals for the Fourth Circuit. Luttig's resignation from the most pro-government (or at least pro-executive branch) of the circuit courts, to become general counsel of Boeing, resulted, according to the Journal, from a breakdown of trust between Luttig and the Bush administration.

Simply put, after years of helping legitimize the legal legerdemain of the administration and the Department of Justice, Luttig got burned by his own allies. Back in 2002, Jose Padilla was arrested at Chicago's O'Hare Airport. When brought to New York and held as a "material witness," Padilla filed his initial petition seeking to vacate the material witness warrant, whereupon President Bush reclassified Padilla as an "enemy combatant" and transferred him to military custody at a naval brig in Charleston, South Carolina. At that point, Padilla reframed his petition in New York to challenge the extraordinary claim that the president has the authority to hold an American citizen arrested on U.S. soil, indefinitely and without trial. It was clearly the government's realization that it could lose in the moderate Court of Appeals for the Second Circuit, which has jurisdiction over New York, that caused the Department of Justice to surreptitiously transfer Padilla, with the challenge to the president's authority still pending in New York, to Charleston, which falls under the Fourth Circuit's jurisdiction.

In 2004, despite a Second Circuit ruling declaring that Padilla still fell under its jurisdiction, the Supreme Court, by a narrow 5-4 vote, allowed the administration to get away with this blatant forum shopping. Padilla was told that he would have to re-file his challenge in South Carolina. The Fourth Circuit thus was handed the opportunity to write an opinion of historic importance, while the administration had the benefit of the friendliest of venues. Luttig didn't disappoint. His September 9, 2005 opinion for the Fourth Circuit panel acceded fully to the administration's claim. The chief executive, Luttig proclaimed, could order the arrest on American soil and indefinite detention, with neither charge nor trial, of an American citizen. Simply by designating any detainee an "enemy combatant," the President could, in his sole and unreviewable discretion, effectively "disappear" anyone at any time.

Civil libertarians criticized the Fourth Circuit for investing so much power not just in one branch, but in one man, portending a radical diminution of liberty. They stressed that, under Luttig's decision, Padilla could not take advantage of the Constitution's guarantee, accorded all criminal defendants, of a public trial by indictment and jury in a court of law governed by Article III and relevant provisions of the Bill of Rights. Yet, from the administration's viewpoint, Luttig's opinion could not have been better. A holding that a citizen arrested on American soil had no more rights than those accorded a terrorist captured on a foreign battlefield gave the president unprecedented power.

Padilla requested Supreme Court review of the Fourth Circuit's opinion. Just days before the high court was expected to act on Padilla's petition, however, the DOJ bit the hand that fed it. Federal prosecutors indicted, in criminal court, the former enemy combatant. This reversal flew in the face of the government's earlier claim that its evidence was so sensitive it had to be dealt with outside the criminal justice system. Padilla would be given a trial after all. Suddenly everything the government had been telling the Fourth Circuit about the exigencies that made a public trial of Padilla unsafe for the republic had been cast into grave doubt.

Luttig, realizing that he had been taken for a ride, furiously rebelled from his role as the administration's enabler. Rejecting the DOJ's routine request that Padilla be transferred to the criminal justice system, Luttig's scathing December 21, 2005 opinion suggested that the government had disingenuously and manipulatively tried to evade Supreme Court review of its Fourth Circuit victory. People "familiar with Judge Luttig's thinking" anonymously told the Journal that his condemnation of the administration's tactics grew out of a concern that judges were expected to line up either behind or against the administration, rather than follow the law.

Meanwhile, unnamed pro-administration sources launched an unseemly counterattack on the judge who had theretofore been their staunchest ally. Luttig, his new detractors charged, had simply thrown a judicial tantrum because he was passed over three times for appointment to the Supreme Court, his life's ambition.

Whether or not there's any truth in that—and Luttig himself assured Legal Times that there was "nothing at all" to these speculations—Luttig certainly had reasons to throw a tantrum. His Padilla ruling inflicted great damage to the rule of law in this country, and we can wish him well at Boeing and still be glad he's gone from the federal bench. But it's revealing that even a judge so deferential to executive power could no longer tolerate the Bush administration's arrogance and lawlessness—not to mention the incivility of leaving a key judicial ally twisting in the wind.

Conservatives may have been able to dismiss Clinton-appointed Judge James Robertson's December 2005 resignation from the top-secret court established under the Foreign Intelligence Surveillance Act, days after The New York Times reported on the National Security Agency's unauthorized (by any court) domestic eavesdropping program. (Robertson, whom Supreme Court Chief Justice William Rehnquist had appointed to the FISA court, remains on the U.S. District Court for the District of Columbia.) Yet try as they might, pro-administration advocates cannot shake the reality that one of the most steadfastly conservative judges in the country publicly and contemptuously rebuked the Bush administration's unseemly power grab and manipulation in the "war on terror." Several more shoes might well drop, as conservatives and libertarians take a fuller measure of what powers the executive branch is seeking, and why.

Give Alito a Chance

info@reason.com (Harvey Silverglate) — Wed, 09 Nov 2005 00:00:00 EST

Within hours of President Bush's nomination of Third US Circuit Court of Appeals judge Samuel A. Alito Jr. to a seat on the Supreme Court, conservatives, liberals, and the media began spouting all-too-predictable bromides—as though prepared for a long-awaited, theatrical, pre-scripted WWF smackdown. Yet even a cursory look at Alito's record on the bench suggests that he deserves a more serious vetting than our polarized political culture cares to acknowledge.

Not surprisingly, everyone immediately shined the political spotlight on Alito's record on Roe v. Wade. In Planned Parenthood v. Casey (1991), the Third Circuit was faced with restrictions enacted by the Pennsylvania legislature on a woman's right to choose. The circuit court decided that the provisions were constitutional, except for one regarding spousal notification. Alito dissented with respect to that provision, which required the pregnant woman to confer with her husband before getting an abortion. A husband, argued Alito, has a real interest in whether the child should be born, stressing that as long as the husband did not have veto authority, the consultation requirement was constitutional. The Supreme Court disagreed with him, invalidating the provision by a close 5-4 vote. Of course, as an intermediate-court judge, it was not in Alito's power to ignore Roe's basic doctrine that the right to choose was constitutionally protected. Some lower-court judges, however, even while obeying Roe—as they must do—go out of their way to grouse about it. Alito did not: he did not show the kind of hostility other potential Bush nominees have shown.

There has also been criticism of Alito's dissent in Homar v. Gilbert, a 1996 case in which he argued that it did not violate the rights of a police officer to suspend him without pay immediately after his arrest on drug charges, without a hearing. The Supreme Court later agreed with Alito, concluding that the fact that the officer had already been arrested demonstrated that there was a legal basis for the suspension.

As for that other third rail in highly politicized constitutional issues, separation of church and state, in ACLU v. Schundler (1999) Alito wrote the majority Third Circuit opinion upholding the city's annual holiday display that included the usual crèche and menorah, Kwanzaa symbolism, more-secular winter-holiday fare (Frosty the Snowman and Santa Claus), and a banner promoting diversity. Many civil libertarians have come to see these seasonal debates as relatively trivial. And Alito's opinion was not out of step with the somewhat muddled line the Supreme Court has drawn with regard to public expressions of religious symbolism.

Almost lost in the initial kabuki-style commentary is the fact that, to his credit, Alito has written opinions decidedly friendly to civil liberties. In 2004, he authored Shore Regional High School Board of Education v. P.S. , which held that a school district violated the Disabilities Education Act by failing to protect a student from intense bullying on the basis of perceived sexual orientation and lack of athletic ability. Alito's majority opinion in the 2003 case of Williams v. Price argued that state courts violated the constitutional rights of a black state prisoner who presented evidence that a juror had made derogatory remarks about blacks in a courthouse incident occurring just after the end of the trial. And his 1999 decision in Fraternal Order of Police v. City of Newark concluded that a police-department policy banning officers from wearing beards violated the First Amendment's free-exercise-of-religion clause.

Perhaps Alito's crowning free-speech achievement was his groundbreaking opinion in a 2001 case challenging the constitutionality, under the First Amendment, of a so-called "anti-harassment" policy adopted by a school district in Pennsylvania. In Saxe v. State College Area School District, Alito wrote that even though school authorities claimed to be squelching "harassment" rather than speech, the "harassment" that they targeted was, in fact, constitutionally protected speech. Alito pointed out that school administrators could not escape the First Amendment simply by defining as "harassment" speech that was merely "unwelcome" or "offensive," including, as the school district's code provided, "unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, [or] gestures." (Disclosure: Representing the Foundation for Individual Rights in Education, on whose Board of Directors I serve, I advised the legal team representing Saxe.)

These cases demonstrate Alito's sensitivity to issues of liberty, a sensitivity in short supply among Bush's favored nominees. Beyond that, the pundits and pols have not even begun to question what is perhaps the most serious liberty-related issue of our time: the president's claim to unfettered authority to conduct a "war on terror" that permits arbitrary arrest and detention, torture, and other horrors. That inquiry should proceed, too, and with great care.

Civil Liberties and Enemy Combatants

info@reason.com (Harvey Silverglate) — Sat, 01 Jan 2005 00:00:00 EST

If you were relying solely on media accounts for guidance, you would have gotten the impression that the Supreme Court's June 28 rulings on "enemy combatants" were a clean sweep for civil liberties. With few exceptions, reporters and commentators interpreted the rulings as unwavering affirmations of the judicial branch's authority in the face of an overreaching executive intent on detaining, indefinitely and incommunicado, citizens and noncitizens designated as enemies in the war on terror.

Harvard law professor Laurence Tribe opined in a July 1 Wall Street Journal op-ed that "the transparency these opinions demand as a hallmark of defensible detention could not be further from the spirit of secrecy that the administration's briefs and arguments insist is an indispensable element of intelligence-gathering detentions." A June 29 Newsday headline labeled the rulings a "Setback for Bush Administration" and a "Win for Detainees."

A July 4 Los Angeles Times article echoed that sentiment, praising the Court for its declaration that "the rule of law stands above the commander in chief, even in times of war and national emergency."

Civil liberties groups were similarly effusive. A press release from the American Civil Liberties Union gushed that "the Supreme Court has sent a powerful message that the end does not justify the means, and that it will not sit on the sidelines while the rule of law is ignored." The normally hard-headed Timothy Lynch of the libertarian Cato Institute, which filed powerful amicus briefs in two of the enemy combatant cases, was quoted in a June 29 Dallas Morning News story as saying he didn't "see a win in this anywhere for the administration."

The reality, however, was significantly less uplifting. Berkeley law professor John Yoo, a former official in John Ashcroft's Justice Department, concluded that the Court had left the government "with sufficient flexibility to effectively prevail in the future." The effects of the rulings have yet to be fully felt since the proceedings have a long way to go before they are finally played out, but the fine print of the Court's controlling opinions, combined with the manner in which the government is proceeding with enemy combatant hearings, strongly suggests that widespread proclamations about the triumph of liberty were premature and probably in serious error. Each decision included enough qualifications and concessions to eviscerate in practice the due process rights that the justices praised in theory.

That Great Writ Sure Is Great

The first case the Court chose to consider, Rasul v. Bush, involved a group of prisoners purportedly captured fighting for the Taliban regime in Afghanistan and held in a detention facility in Guantanamo Bay, Cuba. The chief question in the case was whether Guantanamo, governed by a 100-year-old perpetual lease between the U.S. and Cuba, was beyond the reach of American courts. (The prison population in Guantanamo was composed exclusively of non-U.S. citizens, perhaps so it wouldn't appear that Americans were being herded into distant gulags.) Lawyers for the detainees filed habeas corpus petitions with the federal district court in Washington, D.C., eventually appealing to the Supreme Court in order to compel the government to justify the inmates' detention.

In a majority opinion written by John Paul Stevens, he and four other justices, joined by Anthony Kennedy in a concurring opinion, rejected the Bush administration's claim that the courts had no power to review the military's actions in Guantanamo. Addressing what the Court termed "the narrow but important question of whether the United States courts lack jurisdiction to consider challenges to the legality of the detention" of foreign nationals captured abroad and held in Guantanamo, the majority quoted the late Justice Robert Jackson's dissent in a 1953 case involving habeas corpus relief for aliens held in U.S. custody:

"Executive imprisonment has been considered oppressive and lawless since [King] John, at Runymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint."

Notwithstanding the broad, inspirational language, Rasul presented a narrow question: whether the federal courts had any jurisdiction to hear habeas corpus petitions from prisoners held outside the territorial limits of the country. The issue in the second case, Hamdi v. Rumsfeld, was broader: the nature and extent of rights afforded to prisoners designated as enemy combatants. Like Rasul, Hamdi focused on a dispute over habeas corpus--with the important distinction that the prisoner in this case was an American citizen held in the U.S. Yaser Esam Hamdi, born in Louisiana but raised in Saudi Arabia, had by 2001 taken up residence in Afghanistan, where he was seized, reportedly on the battlefield, by members of the Northern Alliance and turned over to the Americans. He was held at Guantanamo until the authorities found out he was an American citizen, whereupon he was transferred to a naval brig in Norfolk, Virginia, and later to another brig in Charleston, South Carolina. He was held incommunicado, without formal charges, without the right to see a lawyer, and without access to judicial review.

Unlike in the Guantanamo case, when Hamdi's father filed a habeas corpus petition in a federal district court in Virginia, near where his son was being held, the government agreed that the courts had jurisdiction to review Hamdi's detention. But it asserted that they had no authority to question the factual basis of the government's case against him. The military's only evidence was a nine-paragraph declaration, signed by a mid-level Pentagon official named Michael Mobbs, that recounted second- and third-hand reports of Hamdi's alleged affiliation with the Taliban, his combat against U.S. allies, and his surrender of an assault rifle. The government claimed the document, which it described as "some evidence," was adequate to justify Hamdi's imprisonment. Under the extremely deferential "some evidence" standard advanced by the government, a court reviewing Hamdi's enemy combatant status would have to assume the government's claims were factually correct, and judicial review would be akin to a rubber stamp.

In Hamdi, Sandra Day O'Connor wrote an opinion that three other justices joined without reservation. Two more justices, David Souter and Ruth Bader Ginsburg, supported the decision's result but objected that it did not go far enough in protecting liberty. Hence a seemingly solid six-justice bloc mandated the protections set out in the O'Connor opinion. The opinion asserted not only that the federal courts had habeas jurisdiction (which the administration did not deny) but also that Hamdi was entitled to some kind of "due process" hearing (which the administration had vigorously contested). For many, this was evidence enough of the Court's commitment to civil liberties.

Guilty Until Proven Innocent

But "due process," guaranteed by the Fifth Amendment, is a flexible concept. The process that is "due" depends upon the circumstances: Criminal defendants facing felony charges are entitled to a high level of procedural rights, while young public school students undergoing disciplinary proceedings are subject to a more relaxed standard.

In Hamdi O'Connor wrote that while an alleged enemy combatant "must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker," the degree of due process would be commensurate with "the nature of the case." Because of the ongoing war on terrorism, "the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." O'Connor said hearsay might be admissible, for example, when direct evidence was not readily available.

And since the government might find it burdensome, or at least inconvenient, to present a powerful factual case justifying a detention, the Court's flexible due process standard "would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal [by the detainee] were provided." This is a remarkable concession to the government. In a normal criminal proceeding, a defendant enjoys a "presumption of innocence" that can be overcome only by evidence proving guilt "beyond a reasonable doubt." In a civil proceeding, the side that produces a "preponderance of the evidence," showing that its story is more likely than not to be true, wins. But in an enemy combatant hearing as outlined by O'Connor, the government enjoys a blanket presumption in its favor.

It would take an extraordinary effort for a detainee to gather the quantity and quality of evidence required to overcome such a presumption. The vast majority of prisoners would lack the wherewithal to gather the witnesses and documents needed. Hence the presumption becomes, practically speaking, conclusive. Where each side has difficulty presenting its case, the government wins by default.

Remarkably, the Court left open the possibility that the government might be allowed to proceed, using this amorphous and lax evidentiary standard, before a military tribunal rather than anything resembling a civilian court. And even where the government chose to proceed in a civilian court rather than a military tribunal, O'Connor wrote, that court "may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's [evidence]." Given the presumption in favor of the government's evidence, satisfied by a document as imprecise and sketchy as the Mobbs declaration, such a hearing, even in a civilian court, would verge on point-lessness.

"Use All Necessary and Appropriate Force"

Any trial lawyer could tell you there is little practical difference between the government's proposed "some evidence" standard and the Supreme Court's standard. While the Court required that prisoners be allowed to challenge the government's hearsay declarations, it tipped the scales of justice by establishing a barely rebuttable presumption in the government's favor. Erroneously detained people in categories that O'Connor claims would be protected--"the errant tourist, embedded journalist, or local aid worker"--would face the dire possibility of being mistakenly held for the duration of a seemingly endless war.

Finally, one must not lose sight of the fact that the O'Connor opinion confirmed the government's position that a citizen can lawfully be declared an enemy combatant and held, without charge, for an as-yet-undefined and hence potentially unlimited period. O'Connor found support for this extraordinary exercise of power in the Authorization for the Use of Military Force (AUMF) that Congress passed after the September 11 attacks. The AUMF empowered the president to "use all necessary and appropriate force" against those who planned, carried out, or supported the attacks. The Court considered this authorization adequate to justify, by extension, the indefinite holding of "enemy combatants." Indeed, the Court was so solicitous of presidential power that it declined even to declare that specific congressional support was required. It concluded simply that even if such support were necessary, the AUMF would be sufficient.

Antonin Scalia penned a fiery dissent, joined by John Paul Stevens, from O'Connor's compromise. But he did not proceed from a realistic understanding that O'Connor's due process standard amounted to little more than smoke and mirrors. Rather, he approached the problem based on his literal assessment of the Constitution and what it requires. Sympathizing with the Court's attempt to balance "the competing demands of national security and our citizens' constitutional right to personal liberty," he concluded nonetheless that the government had no authority to detain citizens on American soil without due process of law--unless Congress suspended habeas corpus, as the Constitution allows in certain dire emergencies.

Without such a suspension, wrote Scalia, "a citizen held where the courts are open is entitled either to a criminal trial or to a judicial decree requiring his release." He derided O'Connor's compromise as "an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury." In this instance, Scalia's literalism happened to coincide with the pragmatic knowledge and experience of trial lawyers.

Court Picking Plan

The third case decided by the Court, Rumsfeld v. Padilla, involved a habeas petitioner in a position somewhat similar to Hamdi's. Jose Padilla was also an American citizen whom the Bush administration claimed had a connection to Al Qaeda. Unlike Hamdi, however, he was arrested not on some foreign battleground but at Chicago's O'Hare International Airport after getting off a flight from Pakistan.

Initially Padilla was picked up and held on a "material witness" warrant, a remarkable legal device that allows the government to temporarily detain a witness on the assumption that his testimony is relevant to a criminal proceeding and that his future availability cannot otherwise be assured. Padilla was brought to New York, where his lawyer, Donna R. Newman, filed a motion in the Manhattan federal district court requesting that the material witness warrant be vacated. The government, apparently fearing an abrupt endgame when it came time to present its evidence to justify holding the "witness," changed Padilla's status from material witness to enemy combatant. The feds then spirited him from New York to the naval brig in Charleston, South Carolina. Conveniently, this brig is under the jurisdiction of the most staunchly government-friendly federal appeals court in the nation, the U.S. Court of Appeals for the 4th Circuit.

When Newman learned that her client had been moved to the 4th Circuit, she changed her motion attacking the material witness warrant into a petition for a writ of habeas corpus seeking his release. The district judge kept the case in New York because the government had moved Padilla after Newman filed the motion to dismiss the material witness warrant. Since it was the government's decision to bring Padilla to New York initially, the judge reasoned, it should have to stick with its original choice of forum.

The legal outcome in New York initially favored Padilla. The U.S. Court of Appeals for the 2nd Circuit ruled that he had to be charged or released from military custody, and that he could not be held incommunicado, indefinitely, without charge. But the Supreme Court, in a majority decision written by Chief Justice William Rehnquist and joined by four other justices, with Kennedy concurring separately, held that Padilla had filed his habeas petition in the wrong jurisdiction, and that he had to begin over in the district of his incarceration, namely South Carolina, located in the 4th Circuit. Because this decision forces alleged enemy combatants to file habeas corpus petitions in the federal judicial district in which they're held, the government can in effect select a friendly judicial venue by shipping prisoners off to brigs in the 4th Circuit. Since the Supreme Court has left the lower courts the task of deciding exactly what "due process" for alleged enemy combatants entails, the choice of venue becomes a crucial advantage for the government.

If Padilla's case had reached the Supreme Court on the merits of the underlying legal issue as to what kind of process he is entitled to, the outcome might have been more encouraging. In Hamdi the Court indicated that it might draw a distinction between an enemy combatant like Hamdi, who was an American citizen allegedly captured fighting American forces on a foreign battlefield, and Padilla, an American citizen arrested on American soil. O'Connor noted a Lincoln-era precedent, Ex parte Milligan, that declared unconstitutional the president's suspension of habeas corpus and the continued detention of an Indiana resident, Lamdin P. Milligan, who was arrested in his home and accused of collaborating with the Confederacy. Under that decision, O'Connor concluded, Milligan could not be detained by the military for the duration of the Civil War, "whether or not he was a citizen." But "had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different."

This distinction between those arrested abroad and those arrested on U.S. soil suggests that Padilla might eventually have been accorded more procedural rights than either Hamdi or the Guantanamo detainees. It hardly seems intuitive that the locale of your arrest should be such an important factor in determining the extent of your legal rights to contest your detention. Surely the government's claims about the difficulties of obtaining and arraying evidence amid the chaos and destruction of war, when dealing with someone allegedly captured on a foreign battlefield, can be dealt with on a case-by-case basis rather than by giving the government a blanket presumption. In most instances, you would think that the prisoner would have fewer resources than the government for obtaining access to evidence. In some instances, evidence might be easily available to the government. For the Court to give the government a blanket reprieve from obligations to obtain the best evidence fairly readily available, and to put excessive burdens on resourceless detainees, seems like something less than the process that is due.

You get the sense from O'Connor's plurality opinion in Hamdi and Rehnquist's majority opinion in Padilla that the Court is afraid of a popular backlash if it pushes the legal boundaries even further in the government's favor. At some point the American public might conclude that there, but for the grace of God, go I--or my next-door neighbor. The Court seems eager to preserve the look and feel of liberty while sacrificing its substance.

Camp Followers

This is not the first time since the Civil War that the Supreme Court has been asked to address the constitutionality of military detention, for the duration of an armed conflict, of persons captured on American soil. The issue came up some 60 years ago, in the infamous decision Korematsu v. United States. In that case the government claimed that citizens and noncitizens of Japanese origin living on the West Coast posed imminent security risks and that wartime exigencies demanded that the entire community--some 100,000 individuals--be relocated to internment camps. The Court upheld the program, in part because the government claimed it was impossible to separate loyal residents and citizens of Japanese origin from the disloyal. It was not the Court's finest hour.

The Court's determination to avoid a repeat of Korematsu helps explain why its capitulations to executive authority were disguised by the lofty rhetoric of liberty. That rhetoric, in turn, helps explain why the news media reached such incorrect conclusions about what the Court had actually done. O'Connor's controlling opinion in Hamdi stated forcefully that "although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." In a veiled reference to the disastrous Japanese detention program, she added, "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

In a citation of Korematsu, O'Connor quoted not the majority that upheld the military detentions but the dissenting opinion of Justice Frank Murphy: "Like other claims conflicting with the asserted constitutional rights of the individuals, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled." Still, it was impossible to hide the fact that here, as in the Japanese detentions, the Supreme Court was allowing the military to detain even American citizens for the duration of an armed conflict, subject only to minimal procedures because "the full protections that accompany challenges to detentions in other settings may prove unworkable."

Souter, in his concurring opinion, was more direct, referring to the "cautionary example of the [Japanese-American] internments in World War II." He discussed the need for constitutional principles to constrain "inescapable human nature" and a runaway executive. Souter reminded us of the observation of one of the Court's most distinguished members, Justice Robert Jackson, who sat during World War II and who noted that "the president is not commander in chief of the country, only of the military." The president shares a role with the other two branches, Souter warned, in protecting national security. While the president is commander in chief, the Congress still legislates and appropriates funds, and the courts remain the ultimate arbiters of the balance between liberty and security.

Unfortunately, Souter's opinion was joined by just one other justice, Ginsburg, and both lent their concurrence to the result of O'Connor's opinion in order to assure a majority for imposing at least some restrictions on the executive's detention powers.

In the end, the Court's lofty language seems mere window dressing for the dark realities that have emerged. In the months after the three enemy combatant cases were decided, the administration and the military have indicated that they feel they can satisfy the Supreme Court's flexible due process standard and still have their way. On July 7 the government unveiled guidelines for tribunals to review the status of Guantanamo detainees. Rather than attorneys, the guidelines provide detainees with "personal representatives" who may or may not have legal training. (The O'Connor opinion in Hamdi requires that detainees be allowed legal counsel for federal habeas corpus proceedings, but not for the military's enemy combatant classification hearings.) Moreover, the conventional standards of evidence do not apply. Detainees are permitted to present only "reasonably available" information from "reasonably available" witnesses. The panel presiding over the tribunals is composed of three commissioned officers instead of impartial judges.

Not surprisingly, the tribunals have prompted a flurry of legal challenges on behalf of Guantanamo detainees, arguing that the hearings don't meet the Supreme Court's requirements. Yet it will likely be the lower federal courts that will decide whether the hearings pass muster. With
respect to prisoners at Guantanamo, that means the Court
of Appeals for the District of Columbia Circuit, which already has proven hostile to the claims of individual prisoners.

Switching Rather Than Fighting

In the meantime, American citizens who are detained in Southern naval brigs, such as Hamdi and Padilla, face appellate review in the 4th Circuit--assuming their cases get that far. On September 16, the government indicted two Muslim men on charges of plotting to finance a holy war overseas. Padilla's name was included as one of the unindicted co-conspirators, a strong indication that he's cooperating with authorities. The government has ways of convincing the guilty and innocent alike that they will fare better by switching rather than fighting, especially when a captive is accorded such minimal rights as were set out by the Supreme Court.

Hamdi's story has ended on an apparently less ominous note: On October 11, he was released from prison and deported back to his native Saudi Arabia, on the condition that he renounce his U.S. citizenship and agree to certain travel restrictions. His father, Esam Hamdi, bitterly criticized the length of Hamdi's three-year imprisonment, stating that his son was not a national security risk in the first place. Indeed, many critics speculated that Hamdi had been released because the government realized that it could not justify his status as an enemy combatant--even under the meager judicial review standard that the Supreme Court established.

But Hamdi's apparently happier ending notwithstanding, observers will likely marvel for a long time at how the Supreme Court's noble-sounding rhetoric turned out to have so little influence on the government's actual conduct. I am reminded of a toy I enjoyed as a young boy. It was a small jack-in-the-box type of gizmo with a lever on one end. After you pulled the lever from "off" to "on," the box started whirring and the lid popped open. A mechanical hand slowly emerged and grabbed the lever, pulling it back to the "off" position. The arm then withdrew, the lid closed, and the device shut down. There was a lot of action, but it did not accomplish much.

Starr Teachers

info@reason.com (Harvey Silverglate) — Sat, 01 May 1999 00:00:00 EDT

"If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

These words will strike many as an apt description of the way that Independent Counsel Kenneth Starr has pursued President Clinton. But they were uttered nearly six decades ago by Robert Jackson, who went on to an illustrious career as a Supreme Court justice and an American prosecutor at the Nuremberg War Crimes Tribunal. At the time, he was President Franklin Roosevelt's attorney general, and he was addressing the ordinary federal prosecutors under his command. He was alluding to tactics that have since become common, practiced with a boldness that grows as federal judges communicate ever more clearly that they will neither supervise federal prosecutions (as they once did) nor remedy prosecutorial misconduct.

Intense media coverage of recent investigations by the Office of the Independent Counsel has resulted in widespread astonishment at the sort of abusive prosecutorial tactics that Jackson decried. In response, independent counsels have protested that they are merely doing to their lofty targets what the Justice Department regularly does with impunity to lesser ones--that is, they are following accepted DOJ procedures. Late last year, Starr's spokesman, Charles Bakaly III, told the Legal Times, "However unpleasant these techniques, they are part of what federal prosecutors do....We followed longstanding practices and policies."

Shocking though it may seem, Bakaly was speaking the truth. But if the use by independent counsels of tactics that are common among Justice Department prosecutors is cause for well-founded public concern, the proper response cannot be merely to reform or do away with the independent counsel statute. Rather, the criticism of Starr and other independent counsels points to the need for much more sweeping changes in the way all federal prosecutors operate.

A key Justice Department tactic in overzealous investigations, emulated in Starr's stalking of Clinton, is to pursue one's quarry by going after a chain of people toward the end of which are some who, by virtue of their current or former relationship with the ultimate target, are in a position to provide seemingly credible incriminating testimony. A basic premise of such investigations is that, unless an intermediate target is threatened with ruin and imprisonment, he will have no incentive to provide testimony that suits the prosecutor's needs.

The most serious problem with this approach, of course, is that a witness who is placed under sufficient pressure to corroborate the prosecutor's firm belief in the ultimate target's guilt may have a hard time resisting the urge to compose as well as sing. A collaboration between prosecutor and witness then proceeds, wherein the witness learns, by a process sometimes subtle and sometimes not so subtle, what he must say to stay out of prison. Often a witness does not have to deviate too far from the literal truth to satisfy his handlers, since there are many federal offenses for which legally sufficient evidence of guilt consists of nothing more than what a target is alleged to have said. An enormous variety of rather common undertakings in political and commercial life can be transmogrified into federal crimes simply by virtue of the target's intention, which in turn may be demonstrated by something he is alleged to have said to someone who later became a government witness.

Conspiracy, for example, is a favorite weapon in the government's arsenal, because the crime is committed merely by the target's agreement with an associate that the latter should violate a law. Securities fraud is another such weapon, since a savvy stock investment becomes insider trading if the investor, already suspected or accused of some crime, credibly attributes his stellar results to an overly informative conversation with a targeted corporate officer. Similarly, an innocent error on a net worth statement filed in support of a loan application becomes a federal bank fraud if an associate of the borrower recalls a conversation in which the borrower happened to mention an asset value lower than the figure used on the statement. The comment proves knowledge and intent, which are required elements for most felony prosecutions.

With such recollections, a little fish reeled in by a prosecutor can wriggle off the hook by helping to ensnare a seemingly bigger fish. If the bigger fish is already on the prosecutor's sonar, so much the better.

We have firsthand experience with these tactics, as do most prosecutors and defense lawyers, nearly all of whom operate under a tacit agreement to refrain from speaking publicly about how the system works. Prosecutors believe the public would not understand the need for such tactics; law enforcement thus joins sausage making and legislating as processes that should not be observed too closely. Prospective witnesses and their lawyers share with prosecutors an interest in keeping hidden the subtle pas de deux--innocuously dubbed "plea discussions" or "immunity negotiations"--that results in the intermediate target's agreement to become a witness.

This tradition of discretion helps explain Kenneth Starr's barely concealed disgust with the behavior of Monica Lewinsky's former lawyer, California malpractice specialist William Ginsburg. Ginsburg's highly publicized and undisguised offers to have his client provide helpful testimony against the president in exchange for immunity from prosecution for perjury pulled away just enough of the curtain to alert the public to the enormous pressures placed on witnesses to "cooperate." Since it was no secret what Starr thought Clinton did, it was not difficult for a witness to figure out what to say to obtain immunity or avoid a perjury indictment.

The same strategy was followed in a case in which our firm participated in the mid-1980s. U.S. Attorney William F. Weld (who later became governor of Massachusetts) launched his political career by engaging in a highly publicized investigation into the administration of Kevin H. White, then the mayor of Boston. Weld attributed his inability to turn up evidence of White's corruption not to the possibility that White might not have been corrupt but rather to a conspiracy of silence among lower-echelon city officials and businessmen with lucrative city contracts.

Weld's assistants began a systematic effort to "climb the ladder" at city hall, with the goal of eventually reaching high officials who could testify to corrupt dealings or conversations with the mayor himself. They targeted as the perfect witness Theodore V. Anzalone, our client, a Boston lawyer who from the earliest days of the White administration had held a variety of important posts, including the unofficial position of the mayor's most effective fund-raiser. Adequately squeezed, Weld and his staff believed, Anzalone would give them Kevin White.

The prosecutors got their big chance with George N. Collatos, a low-level city hall operative who was reputed to be always ready for a profitable opportunity. In 1981, when a city contractor complained to the FBI that Collatos, then an employee of the Boston Redevelopment Authority, was trying to shake him down, the bureau wired the contractor, who then paid a $12,500 bribe to Collatos in a monitored transaction. Collatos was convicted of extortion and sentenced to three years in prison.

Three months later, Collatos was hauled before a federal grand jury, granted immunity from further prosecution for past acts, and questioned about corruption in the White administration. He was indicted for perjury when he denied soliciting and receiving financial contributions for White's 1979 re-election campaign. Collatos pleaded guilty. Weld's assistant prosecutor told the sentencing judge that Collatos' refusal to implicate higher-ups "demonstrated his need for rehabilitation." The prosecutor made it clear that, after sentencing, Collatos would be called yet again before the grand jury. The sentencing judge, W. Arthur Garrity, sentenced Collatos to an additional two years in prison, while indicating that he could get a reduction if he cooperated with Weld's office. "I saw the handwriting on the wall," Collatos wrote in a remarkable 1984 article for the now-defunct Boston Observer. "So I decided to take Garrity up on his order."

Despite the fact that Collatos was found to be "deceptive" during an FBI-administered polygraph exam, Weld's office obtained an extortion indictment of Anzalone based on Collatos' testimony. Collatos claimed that he obtained an $8,000 "political contribution" from a city contractor and dutifully turned the cash over to Anzalone for the White re-election campaign. It was a perfect example of the ease with which a malefactor can become a star witness rather than a long-term prisoner. If the money had stuck to Collatos' palm, he would head to prison, but if he had passed it along to Anzalone, he would be a free man. Six months after he began cooperating, Collatos was released on parole.

The government did not get what it bargained for, however. Behind the backs of his handlers, Collatos made the mistake of trying to gain money as well as liberty from his new role. He sought a secret meeting with Anzalone, at which Collatos threatened to repeat at Anzalone's upcoming trial what he admitted would be false incriminating testimony, unless Anzalone paid him $200,000. Unbeknownst to Collatos, Anzalone had wisely notified his lawyers in advance. We arranged for the conversation to be monitored by two witnesses hiding under a trap door below the restaurant table where Collatos and Anzalone met. (We were unable to surreptitiously record the meeting, because in Massachusetts such taping is lawful only when done by government agents.) Informed of Collatos' secret threats to lie if not paid, Anzalone's jury acquitted him.

The government, unhappy with the surprise defense witnesses who emerged from the restaurant cellar, initially threatened the witnesses and us with prosecution for obstruction of justice and the ancient but little-known crime of "misprision of a felony." (The latter offense is committed when a citizen witnesses a felony and fails to report it to the government, although the courts generally have required a bit more active obstruction than merely withholding information.) When the prosecutors came to their senses (after their superiors in Washington became aware of the widely reported disaster), they dropped these charges and instead indicted Collatos once more--this time for his perjury in the Anzalone trial. He was convicted and sentenced to two years.

The government finally gave up trying to turn Collatos into a government witness against Anzalone. Collatos, alas, had attained a degree of criminality and unreliability, springing from an apparent inability to tell the truth, that at long last disqualified him from meeting the very low threshold of probity and credibility that one needs to be a valued and rewarded government witness. Having no hopes of applying pressure on Anzalone to compose and sing a song of mayoral corruption, the feds gave up their pursuit of him and hence of Mayor White.

This sort of scenario is commonplace in federal prosecutions, so it was natural for Kenneth Starr and his deputies to swing "cooperation" deals with the likes of convicted former Arkansas judge David Hale and admitted felon and former Clinton business partner James McDougal (who died last year). It did not matter that neither of them implicated Clinton in the Whitewater swindle of McDougal's federally insured Madison Guaranty Savings and Loan Association until after being convicted of a felony and sentenced to prison.

Nor did it make a difference that McDougal's estranged wife, Susan, was loudly proclaiming her refusal either to accept Starr's offers or to accede to his threats seeking her testimony. She claimed she knew nothing criminal that Clinton had done, that her husband was an inveterate liar willing to sell his soul in exchange for Starr's leniency, and that she would (as she did) go to prison for contempt rather than play the role that Starr had designated for her. When imprisonment for "civil contempt" failed to loosen her tongue, Starr's office took advantage of an unfortunate legal loophole that allows uncooperative witnesses to be punished a second time, notwithstanding the constitutional protection against double jeopardy. This time he had her indicted for criminal contempt, and she is now awaiting trial.

Atarr's effort to bludgeon former Associate Attorney General Webster Hubbell into testifying against the Clintons also seems unlikely to elicit the truth. Early in Starr's investigation, Hubbell pleaded guilty to charges of stealing from the Rose Law Firm in Little Rock, a theft that victimized Hillary Clinton, then his law partner, and the firm's clients. That guilty plea makes the Clintons look more like Hubbell's victims than his criminal accomplices. It also makes it plain that, when it was in his interest to do so, Hubbell acted dishonestly. Notwithstanding Hubbell's demonstrated lack of probity, Starr wants him to become his witness against the Clintons in the Whitewater investigation and is attempting to destroy Hubbell if he keeps refusing.

To be sure, Starr's suspicion that Hubbell's recalcitrance has been bought through a scheme to obstruct justice is understandable. But Starr's overreaching tactics may well stymie the investigation. While imprisoned for his thefts from the Rose Law Firm, Hubbell received consulting fees from an offshore source of Clinton campaign funds, the Riady family, and from Revlon (the same company that offered a job to Monica Lewinsky on Vernon Jordan's recommendation). Hubbell also received a sizable advance from a book publisher in exchange for a promised manuscript. Starr subpoenaed Hubbell's financial records showing what he did with the proceeds of these deals, and Hubbell validly invoked the Fifth Amendment, claiming that the records might tend to incriminate him. In response, Starr granted Hubbell immunity from any prosecution which might be aided, directly or indirectly, by the records.

Yet in April 1998, hoping to crack Hubbell's resistance against becoming a Starr witness, the independent counsel indicted Hubbell and his wife for tax-related crimes in connection with Hubbell's receipt and disposition of the money from his various jailhouse deals. The appeals court reviewing the case has expressed doubt that Starr will be able to prove that the evidence he wants to use against Hubbell comes from sources untainted by the information in Hubbell's immunized records. Starr's case against Hubbell may suffer a fate similar to Independent Counsel Lawrence Walsh's case against Oliver North, in which he failed to obtain a conviction because he could not show that his evidence was untainted by the colonel's immunized congressional testimony.

By charging Hubbell's wife, Starr has copied the Justice Department's common tactic of exerting pressure on potential witnesses by indicting people close to them. His prosecutors reportedly used the same tactic with Monica Lewinsky, threatening to charge her mother with obstruction of justice. In our practice, we have seen federal prosecutors take this approach several times, with prominent clients such as Michael Milken (who pleaded guilty in exchange for dismissal of charges against his brother) as well as less famous people. Despite the threat to his wife, Hubbell, like Susan McDougal, continues to insist that he has no incriminating information about the Clintons.

When a witness testifies in a way that might exculpate the target, prosecutors can be vengeful. Julie Hiatt Steele insisted that Kathleen Willey, who accused the president of groping her, had asked her to lie and that her earlier statements supporting Willey's story were false. As a result, Steele has been indicted for obstructing justice and making false statements to a federal agent. (Unbeknownst to many citizens, it is a felony to lie to any federal official, under oath or not, and typically it is the official's version of what was said that prosecutors credit.) Steele, a single mother of an 8-year-old, could face years in prison. She understands that, like Lewinsky, Hale, and Jim McDougal, she will receive immunity only if she will change her story and tell the "truth" as the prosecutors see it.

It is unclear, of course, whether Susan McDougal, Webster Hubbell, and Julie Hiatt Steele, or James McDougal and David Hale, have told the truth. What is clear is that the techniques used by prosecutors to influence witnesses cast doubt on the government's ability to uncover the facts.

In the warped vision of federal prosecutors, only their brand of witness tampering is compatible with proving the truth and assuring that justice is done. Under existing law, only prosecutors have unfettered power to decide what testimony is worth buying and how much the public should pay for it in the form of immunity, money, and liberty. Only prosecutors have the power to threaten and actually prosecute witnesses who insist that the facts do not conform with the government's version of the truth. When prosecutors have so much power to influence evidence through rewards and intimidation, the danger they pose to truth and justice is clear.

This concern was at the heart of a remarkable ruling last year by a three-judge panel of the U.S. Court of Appeal for the 10th Circuit. The decision involved a federal law against bribing witnesses that begins, "Whoever...directly or indirectly, gives, offers, or promises anything of value..." (Emphasis added.) The judges concluded that the prohibition applies not only to bribes by private actors but also to enticements by agents of the government, including offers of leniency. "If justice is perverted when a criminal defendant seeks to buy testimony from a witness," they wrote, "it is no less perverted when the government does so." The decision caused an uproar among prosecutors, and in early January it was reversed upon rehearing by nine other judges on the court. These judges apparently had grown so inured to the government's witness tampering that they could not imagine how the criminal justice system could function without it.

Sometimes, despite all the pressure it can bring to bear, the government still cannot elicit testimony to back up a particular charge. If, after years of effort, the activities that prompted an investigation cannot be proven to be criminal, the overzealous prosecutor can imagine only one explanation: The target must have obstructed the investigation by tampering with witnesses and suborning or committing perjury. The scope of the inquiry then expands to cover the target's activities during the investigation.

Therein lies the answer to a frequently asked question: Why has Starr's investigation lasted more than four years and cost more than $40 million, with no end in sight? A federal investigation need not have a foreseeable end. Even if the suspected crimes that triggered the investigation can no longer be prosecuted because of the statute of limitations, new crimes of obstruction come into the prosecutor's sights, and the time clock begins to run all over again.

If, as happened in Starr's investigation of Clinton, no prosecutable case can be made against the target for pre-investigation crimes, or for obstructing the investigation of those crimes, there is always another avenue: the perjury trap. An intense investigation of virtually anyone will usually find something that the target will lie about to protect either a loved one or himself. Starr knew that, as with many other people, the thing the president was most likely to lie about was his sex life. Having heard the famous telephone tape made by Clinton paramour Gennifer Flowers, the independent counsel knew that the president was a flawed human being with a propensity to lie (and to advise others to lie) about sex.

In the nether world of prosecutorial logic, a federal investigation of the Monica Lewinsky matter was justified by the gossamer connection between the president's alleged efforts to cover up his complicity in the Whitewater bank fraud--a charge that has never been made, much less proven--and his easier-to-prove efforts to conceal his sex life from Paula Jones's lawyers. All that remained was for the prosecutors to call the president before a federal grand jury, and the jaws of the perjury trap would slam shut. The only possible escape was for the president to rely on a tortured legal parsing of sexual relations to protest his innocence of perjury during his deposition in the Jones suit and, in the face of the semen-stained dress, to admit his sexual involvement with Lewinsky. Whether his attempted escape from the perjury trap set for him by Starr constituted a high crime or misdemeanor justifying his removal from office became the subject of his impeachment and his trial in the Senate.

The perjury trap was used in a somewhat different fashion by federal prosecutors during their investigation of former Boston Mayor Kevin White. In Boston, as in many cities, real estate developers often fall prey to city inspectors who extort money through their power to delay or deny needed permits. Paying small cash bribes to city officials is usually not a violation of federal law. But William Weld's prosecutors hoped that if they entrapped a real estate developer into paying illegal tribute to one of these predatory inspectors, he might lie about it when questioned by the federal grand jury. At that point, they figured, they'd have enough leverage over the developer to force him to divulge evidence about graft involving the mayor.

The feds easily caught a minnow: a building inspector extorting graft from a small-scale developer. Threatened with prison, he quickly agreed to wear a wire for the feds while shaking down a large-scale developer who needed permits for a housing project. The crooked inspector readily issued a permit to install a foundation for the project but then refused to allow the developer's construction crews, which were standing idle at the building site, to erect anything on the foundation. The developer, who later became our client, instantly understood what was wanted; he paid $1,000 to the inspector, who recorded the event on an FBI-supplied tape recorder.

Weeks later, the federal prosecutors called the developer before the grand jury. Fearing that he'd never get anything built in Boston if he told the truth, the developer lied when asked whether he'd ever paid a bribe to a city official. Though he pleaded guilty in federal court to a related charge, the developer never provided the sort of testimony that the perjury trap was designed to elicit, because he had nothing incriminating to say about the mayor.

Since the law books today are filled with an even greater assortment of crimes than they were when Robert Jackson was attorney general, a federal prosecutor has an almost certain chance, not just a "fair" one, of being able to pin some violation of law on virtually any citizen. In Jackson's era, one spoke of the feds "throwing the book" at their target. Nowadays, targets can be investigated for violating any one of thousands of laws and regulations filling an entire library of fine print and undefined arcana. This body of law is so vast and scattered that, according to a February report from an American Bar Association panel chaired by former Attorney General Edwin Meese III, "there's no conveniently accessible, complete list of Federal crimes."

Federal laws now criminalize many activities that the average person would not necessarily view as immoral or anti-social, much less felonious. This is true in such fields as antitrust, campaign finance, currency transactions, customs and export laws, environmental protection, firearms, Medicare and Medicaid, patents, copyright and trademark infringement, securities, and taxation, to name just a few. For example, a 1993 case in the 1st Circuit involved a New Hampshire man in the midst of an acrimonious divorce who made small cash deposits in his business partner's bank account to make it more difficult for his wife's lawyer to locate his assets. He and his partner were prosecuted for violating the federal law against money laundering, even though that statute is aimed at transactions designed either to conceal the criminal origin of money or to evade taxes. The government conceded that the man had earned the money legitimately and had reported the income on his tax returns. Yet he and his partner were convicted for money laundering, verdicts that were thrown out on appeal.

The pervasive web of federal laws governing many areas of private and public activity provides federal prosecutors with a rich supply of often vague words and phrases to bend and blend and string together in ever more creative ways to establish that a targeted individual has committed a felony. People whose activities may be covered by these complex laws often either do not know about them or do not understand them to prohibit activities deemed unlawful by the government. The target will sometimes find himself under investigation or prosecuted for doing something that he had no reason to believe was illegal. Indeed, by redefining long-accepted meanings of words and phrases used in federal laws, prosecutors are able to charge the target with violating crimes that were entirely unknown at the time he acted.

Independent Counsel Donald Smaltz's case against former Agriculture Secretary Mike Espy illustrated this approach. Smaltz was appointed to investigate whether Espy's acceptance of gifts and travel from companies whose businesses his department regulated constituted not just violations of ethical rules (Espy was forced to resign) but felonies. The law that most nearly fit the facts is the one that prohibits federal officials from "accepting anything of value personally for or because of any official act performed or to be performed by such official or person." (Emphasis added.)

Smaltz spent years and millions of taxpayers' dollars trying to generate evidence that the blandishments Espy accepted were linked to "any official act" but came up empty. One might think that, if the facts did not fit the definition of the crime, Smaltz would have declined to prosecute. Instead, he aped Justice Department tactics, prosecuting Espy by retroactively redefining the crime to fit the facts.

Smaltz took the position that the statute should apply to gifts motivated by the receiving official's status or position, regardless of whether there was any intent to affect or reward "any official act." Fortunately for Espy, this theory was first tested in Smaltz's prosecution of Sun-Diamond Growers of California for its gifts to him. Sun-Diamond's conviction was thrown out on appeal because, at Smaltz's urging, the judge had instructed the jury that no link had to be proven between the gifts and any official act by Espy. The U.S. Court of Appeals for the District of Columbia Circuit concluded that Smaltz was prosecuting Sun-Diamond and Espy for a nonexistent crime. Smaltz went ahead with the Espy trial anyway, and Espy was acquitted by the jury.

You need not be a Cabinet official to be prosecuted by the Justice Department for committing an offense invented after the fact. We represent two businessmen in two different industries who have suffered this fate.

One of these men is the principal executive and owner of Fiber Materials Inc. (FMI), which sells equipment used to manufacture heat-resistant carbon-carbon. The export of such equipment is subject to Commerce Department regulation because sometimes it is "specially designed" to produce weapons-grade carbon-carbon, a substance used in missile warheads and rocket nozzles. Alternatively, the equipment may be "dual use," capable of producing either weapons-grade carbon-carbon or less rarefied products used to make brake pads for aircraft and other nonmilitary products. Since the beginning of the Cold War, arms control regulations have banned the export of "specially designed" equipment without a shipment-specific license but have permitted the export of "dual use" equipment, subject to a less restrictive Commerce Department general destination license.

In 1988, FMI shipped to an Indian defense research institute equipment that included a control panel everyone agreed was dual use. In retrospect, the Commerce Department worried that the control panel might contribute to India's arms race with Pakistan and China. Rather than change the regulations to embargo future shipments of similar dual use equipment, the government prosecuted FMI based on a new interpretation of the law. The prosecutors convinced the trial judge to instruct the jury that, despite years of the Commerce Department's consistent and contrary usage, the phrase specially designed referred to dual use equipment, thus assuring convictions for failure to obtain a special export license. A sentence still has not been imposed four years after the trial, and the verdict remains under legal attack based on a steady stream of evidence that the government changed the meaning of specially designed only after the shipment occurred, for the sole purpose of prosecuting FMI.

Our other direct experience with retroactive criminalization involves safe and effective, the keystone phrase of Food and Drug Administration regulations. The FDA approves drugs and medical devices for sale and distribution only if they are "safe and effective under the conditions of use and warnings against unsafe use in the approved labeling." Hence the FDA requires manufacturers of drugs and medical devices to tell their customers, whether they are health care providers or patients, to "use only as directed."

The C.R. Bard Company manufactured and marketed a catheter used to improve blood flow through arteries clogged by heart disease. The FDA approved the catheter as "safe and effective" even though the manufacturer disclosed a small (1.7 percent) risk that the device could fail and injure patients if the warnings against unsafe use were not followed by physicians. Sure enough, although with less frequency than predicted, the device failed when physicians ignored the warnings against unsafe use. To better protect patients, C.R. Bard made changes to the catheter which had no effect on its safety or effectiveness under the approved conditions of use but which made it more resistant to failure when the instructions were not followed.

FDA regulations required approval of any change that affected safety or effectiveness. In the absence of notice to the contrary, C.R. Bard had every reason to believe that the phrase safety and effectiveness referred to "the conditions of use and warnings against unsafe use in the approved labeling." Since the changes had no effect when conditions and warnings were heeded, the company thought it could make the beneficial changes without waiting for agency approval.

The FDA and the Justice Department nevertheless indicted C.R. Bard and several of its executives, one of whom we represent, for making the changes without approval. As publicly traded companies frequently do even in dubious cases, the manufacturer pleaded guilty and paid a huge fine. Threatened with imprisonment, the executives all went to trial. Contrary to the position that the FDA had taken in several prior cases, the government argued that the law forbids any unapproved change that affects safety and effectiveness, even if the effect is relevant only when the conditions of use are ignored. Three of the executives were convicted and sentenced to 18 months in prison. They are free during their appeal, which is based partly on their claim that it is fundamentally unfair to punish them for violating a law that meant one thing before the fact and another after.

A basic insight at the heart of our republic is that injustice inevitably flows from conferring uncontrolled power upon any agency of government and, even more so, upon any individual in government. The public is awakening to the fact that independent counsels exercise such power. Although run-of-the-mill federal prosecutors have to answer more directly to superiors in the Justice Department and are not quite as free to spend whatever it takes to convict their targets, they use the same tactics as the independent counsels with even less public accountability, since they are not subject to as much scrutiny. Amending or eliminating the independent counsel statute might make life fairer for Cabinet secretaries and presidents, but it will not redress the gross imbalance that has been created between the power of federal prosecutors and the rights of ordinary citizens.

Codes of Silence

akors@sas.upenn.edu (Alan Charles Kors) info@reason.com (Harvey Silverglate) — Sun, 01 Nov 1998 00:00:00 EST

In Carnegie-Mellon University's "Policy on Free Speech and Assembly," originally adopted in 1988 and republished periodically in the faculty and student handbooks, the university says it "encourages freedom of speech, assembly and exchange of ideas. This includes the distribution of leaflets and petitions, as well as demonstrations or protests involving speaking, discussion or the distribution of information." CMU's policy statement then sets forth content-neutral restrictions on the time, place, and manner of speech, applied equally: "The enforcement of these restrictions will not depend in any way on any subject matter involved in a protest or demonstration."
Going even further, CMU's "Statement Concerning Controversial Speakers," issued by its trustees at the height of the Vietnam War protests in 1967, reaffirmed in 1979, and republished annually, offers a ringing endorsement of academic freedom and free speech: "The assumptions of freedom are that men and women will more often than not choose wisely from among the alternatives available to them and that the range of alternatives and their implications can be known fully only if men and women can express their thoughts freely."
The CMU statement warns that the exercise of academic freedom, essential to the university's mission, will not always be pleasant to experience, but that such unpleasantness does not change the need to protect it: "It is inevitable that such an environment will from time to time appear to threaten the larger community in which it exists. When, as they will, speakers from within or from outside the campus challenge the moral, spiritual, economic or political consensus of the community, people are uneasy, disturbed and at times outraged....But freedom of thought and freedom of expression cannot be influenced by circumstances. They exist only if they are inviolable."
That was then. This is now. In 1991 CMU promulgated its "Policy Against Sexual Harassment." While reiterating in the first paragraph the university's dedication "to the free exchange of ideas and the intellectual development of all members of the community," suddenly, with barely a transition, CMU proceeded to outlaw, among other things, "verbal conduct of a sexual nature [when it] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment."
Now CMU places the need for "the free exchange of ideas" in the same sentence as the need to promote "the intellectual development of all members of the community." Because the truly unfettered exercise of free speech can create a "hostile environment" that deprives a category of "historically disadvantaged" students (in this case, women) of being able to participate in the life of the university, such speech must be restricted. One student's freedom has to be restricted in order to assure another's.
The notion that one person's freedom must be restricted to protect another's is hardly controversial in itself. "Your right to throw your fist ends at the tip of my nose" is a common formulation in law and ordinary life. Yet the notion that speech may be restricted, particularly on an academic campus, is new and very different. The notion that the tip of one's nose defines the limit of a physical assault has been transformed into the notion that the tip of one's ego defines the limit of a verbal "assault." Equally significant, this protection against a "hostile environment" and certain other consequences of speech is restricted, by the explicit terms of university policy, to certain categories of "disadvantaged" students identified by sex, race, sexual orientation, and disability.

It seems surprising, at first glance, that the most potent and far-reaching assault on the First Amendment's central principal--content neutrality--has come not from politicians protecting power or reputations, nor from government agencies protecting their notions of decency or security, but from America's universities, where academic freedom has been thought to require more liberty and tolerance than in "the real world," not less. More startling yet, this assault comes above all from the political and cultural left, which, since World War I, has been the prime beneficiary of the move toward near-absolute constitutional protection for speech. Indeed, the legal doctrine of free speech has focused crucially on the rights of revolutionaries, counterculturalists, antiwar protesters, visionaries, prophets of doom, progressives, and, generally, dissidents from Western capitalism. How is it, then, that today's most vocal critics of the First Amendment are in the academy and on the left--the heirs, in fact, of the generation that, 35 years ago, gave us the Berkeley Free Speech Movement?
The contemporary movement that seeks to restrict liberty on campus has its roots in the provocative work of the late Marxist scholar Herbert Marcuse, a brilliant polemicist, social critic, and philosopher who gained a following in the New Left student movement of the 1960s. Marcuse developed a theory of civil liberty that would challenge the essence and legitimacy of free speech. Although he repeatedly declared his belief in freedom and tolerance, Marcuse built on the work of Rousseau, Marx, and Gramsci to articulate an alternative conception of liberty, placing him at odds with the Free Speech Movement, the U.S. Supreme Court's First Amendment doctrines, academic freedom, and the values of most liberal democrats. This alternative framework, which used some traditional terms but assigned them new meanings, became the foundation of academic speech codes.
In a 1965 essay entitled "Repressive Tolerance," Marcuse concluded that America's supposedly neutral tolerance for ideas was in reality a highly selective tolerance that benefited only the prevailing attitudes and opinions of those who held wealth and power. Such "indiscriminate" or "pure" tolerance, he argued, effectively served "the cause of oppression" and the "established machinery of discrimination." For Marcuse, as long as society was held captive by militarism and by institutionalized, pervasive social and economic inequality--what he characterized as "regressive" practices--"indiscriminate tolerance" necessarily would serve the highly discriminatory interests of regression.
The holders of power, Marcuse argued, maintained their control by keeping the population "manipulated and indoctrinated," so that ordinary people "parrot, as their own, the opinion of their masters." In such circumstances, "the indiscriminate guaranty of political rights and liberties" is actually "repressive." The "class structure of society," Marcuse wrote, creates "background limitations of tolerance" that necessarily limit true democratic tolerance even before the courts create whatever explicit limitations they devise (such as "`clear and present danger,' threat to national security, heresy"). He believed that "within the framework of such a social structure, tolerance can be safely practiced and proclaimed" by those in power because dissenting--even radical--voices were powerless to change that structure.
Marcuse did not directly assail the notion that ideas for societal change should be, in his words, "prepared, defined, and tested in free and equal discussion, on the open marketplace of ideas and goods." Rather, he asserted that the current "marketplace" was rigged because of its "background limitations." Before a true marketplace of ideas could be established, allowing genuine democracy to flourish, current inequities would have to be eliminated, and this could not be done while equating the rights of dominant regressive expression and of marginalized progressive words and ideas. If the powerful and the weak were required to play by the same rules, Marcuse argued, the powerful always would win, and this would have dire consequences, since the powerful supported an agenda of war, cruelty, and repression.
According to Marcuse, the indoctrinated had to be given the tools with which to see the truth. How were people to be freed from the bonds that keep them prisoners under a purely illusory tolerance? Marcuse responded that "they would have to get information slanted in the opposite direction, [which] cannot be accomplished within the established framework of abstract tolerance and spurious objectivity." He posited that there was a true and superior species of "tolerance which enlarged the range and content of freedom." This tolerance, however, "was always partisan," because it was "intolerant toward the protagonists of the repressive status quo." For Marcuse, tolerance was moral and real only when harnessed to the cause of "liberation." Given the current structure of society, a nominal freedom that allowed the expression of "false words and wrong deeds" to work against the attainment of "liberation" and of true "freedom and happiness" became "an instrument for the continuation of servitude."
For a revolutionary theorist, Marcuse was refreshingly frank. The "reopening" of the channels of true toleration and liberation, now "blocked by organized repression and indoctrination," must be accomplished sometimes by "apparently undemocratic means." Marcuse suggested that these would include "the withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care, etc."

"Liberating tolerance," Marcuse wrote, in contrast to "indiscriminate tolerance" or "repressive tolerance," would be "intolerance against movements from the Right, and toleration of movements from the Left." This duality "would extend to the stage of action as well as of discussion of propaganda, of deed as well as of word." It was important that intolerance apply to regressive words as well as to regressive deeds, because, for Marcuse, words had real consequences, and if the consequences were to be avoided, the words must be silenced.
Marcuse's premise, which separated his political philosophy fundamentally from First Amendment jurisprudence, was that liberty, in the current stage of historical and social development, is a zero-sum game: "The exercise of civil rights by those who don't have them presupposes the withdrawal of civil rights from those who prevent their exercise." For Marcuse, the application of these "anti-democratic notions" would foster a society that promoted universal tolerance and true freedom. To achieve a society of universal tolerance, one could not tolerate reactionary ideas.
Marcuse focused on the education of the young: "The restoration of freedom of thought may necessitate new and rigid restrictions on teaching and practices in the educational institutions which, by their very methods and concepts, serve to enclose the mind within the established universe of discourse and behavior." Because students already were so heavily brainwashed to think in the manner that established power had ordained, true "autonomous thinking" was virtually impossible, and one had to take steps to wrench students from the regressive channels into which society had cast their minds. "The pre-empting of the mind vitiates impartiality and objectivity," he wrote. "Unless the student learns to think in the opposite direction, he will be inclined to place the facts into the predominant framework of values." Marcuse mocked the "sacred liberalistic principle of equality for `the other side,'" because "there are issues where...there is no `other side' in any more than a formalistic sense."
Indeed, Marcuse confidently posited that it would not be difficult to determine "the question as to who is to decide on the distinction between liberating and repressing, human and inhuman teachings and practices." The distinction between these two poles, he assured his readers and students, "is not a matter of value-preference but of rational criteria." Once the rational criteria were identified, truth was easy to determine. With this certainty, Marcuse believed that he could describe the means by which the academy should bring about this "reversal of the trend in the educational enterprise." Ultimately, such a reversal should "be enforced by the students and teachers themselves, and thus be self-imposed, the systematic withdrawal of tolerance toward regressive and repressive opinions and movements." In the short term, Marcuse proposed that the academic shock troops of this revolution "prepare the ground" for effecting such changes, even if that might involve a resort to violence. Marcuse was not troubled by this, because "there is a difference between revolutionary and reactionary violence, between violence practiced by the oppressed and by the oppressors."
In short, to produce conditions in which freedom could flourish first on campus and then in the greater society, re-education in a progressive university was essential. Revolutionary thinking then could break the stranglehold of the powerful on the minds of students and citizens. This re-education alone could create a "progressive" society, where true freedom and democracy would reign. Once this had been achieved, Marcuse promised, there would be no further need for "anti-democratic" expedients that were, after all, aimed simply at redressing the imbalance between "oppressor" and "oppressed." Censorship during this "reversal" was essential, because ubiquitous, dangerous, and regressive notions were too quickly translated into practice. Indeed, censorship, for Marcuse, must be deeply pervasive, although historically temporary. The result, he promised, would be to restore real freedom, and the words freedom and liberty once again could attain their "true meanings."
Marcuse's prescriptions for a progressive society have not noticeably taken root in the "real world" outside the academy. Most of the trends toward greater free speech for all--trends that he so abhorred--have accelerated in the three decades since he published his essay. Nevertheless, Marcuse's prescriptions are the model for the assaults on free speech in today's academic world.
Drafters of college speech codes almost invariably begin by setting out the core principle of any self-proclaimed liberal arts institution of higher learning--that the pursuit of teaching, learning, and research relies on academic freedom and on freedom of speech and inquiry. They posit the necessity of including all members of the academic community in this pursuit and proceed to take steps purportedly aimed at making these social and educational opportunities available to all. To ensure these benefits to groups of students perceived to be "historically underrepresented" or "historically disadvantaged," the codes severely limit the speech rights of individual students by prohibiting the utterance of certain unkind and, they claim, destructive words.
We have studied hundreds of these codes. While some definitions of banned speech are extremely broad and others substantially narrower, differences from one code to another are matters of degree rather than of kind. A suspension of belief in the ordinary meanings of words is required to accept the contradictions so often contained within the same code, frequently within the same paragraph, and sometimes within the same sentence. On the one hand, the codes claim to cherish free speech and academic freedom, including the freedom to express even the most challenging and offensive ideas; on the other, certain categories of "offensive" speech are banned in order to create a "comfortable" and "inclusive" learning atmosphere.
The ability of a university to endorse two contradictory policies can perhaps be explained as simple hypocrisy. Indeed, this does appear to be part of the answer on many campuses, where administrators have agendas far removed from the common pursuit of knowledge. Whether hypocritical or sincere, however, the drafters of these codes feel a need to justify the seemingly contradictory goals of free speech and free inquiry, on the one hand, and limitations on speech to achieve equal access to educational opportunity, on the other. Reconciliation of these opposing concepts is achieved primarily by Marcusean logic.
The attempt to balance the right of free speech with the "right" to be free from harassment deeply reflects Marcuse's notion of "freedom" and "tolerance." It is a fundamentally Marcusean idea that tolerance must be redefined to advance a positive social and moral agenda. The codes express a deep commitment to freedom of speech and inquiry, but when they express an equal commitment to a group member's right to be free from verbal harassment, it leads, in the name of positive freedom, to the wholesale banning not only of speech and other traditional modes of expression but even of looks, body language, and, in some cases, laughter. It leads, in short, to progressive intolerance.
A window into the thinking of some speech code crafters is found at Stanford University. The initial draft of Stanford's code was strongly influenced by professor Thomas Grey of the law school, who has posited that, under certain circumstances, constitutional commitments to freedom of expression, and to civil liberties in general, conflict with the nation's commitment to providing equal access to educational opportunities, and to civil rights in general. In a 1991 article in the Harvard Journal of Law and Public Policy, Grey expresses discomfort at the collision but considers the conflict "inescapable." In his view, the tension between academic freedom and equal educational opportunity arises from an inherent conflict between civil liberties and civil rights, between liberty and social equality.

This premise is problematic. Freedom of speech is a "liberty interest," and it deals solely with an individual's ability to express himself or herself as he or she desires. In contrast, civil rights legislation is largely protective and egalitarian, expressing the broader societal concern with how citizens are faring in comparison to other citizens. Put another way, the First Amendment protects the individual from the oppressive exercise of government power, whereas civil rights jurisprudence offers the individual recourse to the government for assistance in obtaining the necessary tools and opportunities to reap the benefits of equal participation in economic, social, and cultural life.
To bridge the perceived gap between libertarian and egalitarian interests, speech code drafters accept the dramatic thesis that individual speakers express not only their own individual views, but also those of their entire gender or ethnic group. In Stanford's speech code, banned epithets reflect "a widely shared, deeply felt, and historically rooted social prejudice against people with that [derided] trait." Because the speaker of such epithets is expressing a "widely shared prejudice," he or she has ceased to speak as an individual or to express merely his or her own thoughts, and has become a living symptom and symbol of societal oppression.
In Grey's view, such statements "make the atmosphere more difficult for [members of targeted groups] on a campus and hence deny them a level educational playing field with students not so stigmatized." A "difficult atmosphere" is, thus, the deprivation of rights and opportunities. It is therefore appropriate, by this theory, to halt the speech of individuals (and to deny their status as discrete, autonomous beings) in order to combat this cumulative effect. The traditional formula--that free speech is allocated equally to all and is not to be limited in terms of content and viewpoint--perpetuates majority dominance. Individual equality before the law must be sacrificed in the name of equal opportunity for the members of groups.
Grey justifies the unequal application of speech restrictions by making an analogy between the campus and the workplace. Grey recognizes that traditional First Amendment jurisprudence prohibits the government from restricting speech on the basis of content and viewpoint, except in very limited and long-recognized areas, such as defamation, obscenity, and threats.
In Grey's mind, however, special circumstances created by unequal power relationships between management and labor justified differential allocation of speech rights in the workplace, including constraints upon certain categories of speech and viewpoints. Thus, he finds that American labor laws could sanction an employer for stating, during a union organizing election: "If I have to pay union rates, I doubt I'll be able to keep this plant open."
That, argues Grey, is treated as a threat to the workers and prohibited as an unfair labor practice directed at discouraging union organizing. On the other hand, the government would not be able to punish an employee for saying, in the same context, "Employers who resist unionization often find a less cooperative work force afterwards." The reason for such different treatment is based, Grey concludes, on the power differential between employer and employee. From this, he moves to the proposition that the insults "nigger" and "whitey" are not equivalent because "American society and its history have created the asymmetry [between the black and white races]; a regulation cannot attempt to redress that asymmetry without taking it into account." Grey denies that it is "patronizing to students of color" to restrict insults hurled at them without restricting insults hurled at others. The vulnerability of black students and their lesser ability to "take care of themselves in verbal rough-and-tumble"--in short, their status as a "`protected group" that is "in need of official protection"--is a product of history.
University administrators seem unconcerned by the double standards and differential allocation of rights fostered by such policies. Speech codes mandate a redefined notion of "freedom," based on the belief that the imposition of a moral agenda on a community is justified by, in Marcuse's words, "the historical calculus of progress," in which every enlightened and rational person naturally strives to reduce "cruelty, misery and suppression." Since the reduction of "cruelty, misery and suppression," in this view, requires less emphasis on individual rights and more on assuring "historically oppressed" persons the means of achieving equal rights, liberty must, for now, take a back seat.
The whole notion of individual liberty becomes subordinated to redressing historical wrongs against groups. Codes dismiss free speech rights in favor of a predetermined notion of historical moral responsibility, commanding students and faculty to censor themselves and one another in the paramount interests of the educational community and historical justice. Restrictions on speech are justified by the assertion of a compelling need to promote freedom for some by limiting freedom for others. To the code writers, as to Marcuse, freedom is a zero-sum game.

Many in the academy insist that the phenomenon labeled "political correctness" is a fabrication by opponents of "progressive" change. They argue that political correctness does not exist as a systematic, coercive, repressive force on American campuses. They claim that critics of universities have questionable motives and offer merely recycled anecdotes, not hard evidence, of abuses of power.
Such views seem odd to those--students, faculty, and close observers--who dissent from prevailing campus orthodoxies and experience the unremitting reality of speech codes, of ideological litmus tests, and of sensitivity and diversity "training" that undertakes the involuntary thought reform of free, young minds. One charge of verbal harassment casts a pall over everyone's "thought crimes," producing systemic self-censorship. Yet defenders of the current academic regimes list that charge merely as "one" instance of what may be, in their view, constraint. A climate of repression succeeds not by statistical frequency but by sapping the courage, autonomy, and conscience of individuals who otherwise might remember or revive what liberty could be. The claim that McCarthyism was a myth, and that a small number of anecdotes have been recycled to create the appearance of systematic repression, would be met with incredulous (and justifiable) outrage by the left.
Human history teaches that those who wield power rarely see their own abuse of it. This failing pervades the entire ideological, political, cultural, and historical spectrum. It is an issue not of left and right but of human ethical incapacity. Those who exercise power, in any domain, tend to compare their actual power to their ultimate goals, usually concluding that they have barely any power at all and, certainly, that they are not abusing what little they have.
Further, most of us sadly develop the capacity to treat the suffering, oppression, or legal inequality of individuals or groups whom we see as obstacles to our own goals or visions--or even with whom we merely feel little affinity--as abstractions or exaggerations without concrete human immediacy. By the same token, most of us experience the suffering, oppression, or legal inequality of individuals or groups with whom we identify, or to whom our own causes are linked, as vivid, intolerable, personal realities. It is precisely to neutralize this grievous tendency of human nature that societies establish formal law, equal justice, and the prohibition of double standards.
Our colleges and universities do not offer the protection of fair rules, equal justice, and consistent standards to the generation that finds itself on our campuses. They encourage students to bring charges of harassment against those whose opinions or expressions "offend" them. At almost every college and university, students deemed members of "historically oppressed groups"--above all, women, blacks, gays, and Hispanics--are informed during orientation that their campuses are teeming with illegal or intolerable violations of their "right" not to be offended. Judging from these warnings, there is a racial or sexual bigot, to borrow the mocking phrase of McCarthy's critics, "under every bed." At almost every college and university, students are presented with lists of places to which they should submit charges of verbal "harassment," and they are promised "victim support," "confidentiality," and sympathetic understanding when they file such complaints.
What an astonishing expectation (and power) to give to students: the belief that, if they belong to a protected category, they have a right to four years of never being offended. What an extraordinary power to give to administrators and tribunals: the prerogative to punish the free speech and expression of people to whom they choose to assign the stains and guilt of historical oppression, while being free, themselves, to use whatever rhetoric they wish against the bearers of such stains. While the world looks mainly at issues of curriculum and scholarship to analyze and evaluate American colleges and universities, it is the silencing and punishment of belief, expression, and individuality that ought to most concern those who care about what universities are and could be.
Despite the profound importance, symbolic and substantive, of speech codes, we should not view their presence or absence as the yardstick of freedom. Freedom dies in the heart and will before it dies in the law. Speech codes merely formalize the will to censor and to devalue liberty of thought and speech. Even without invoking codes, universities have found ways to silence or chill freedom of opinion and expression.
Supporters of free speech at colleges and universities become tarred by the sorts of speech they must defend if they wish to defend freedom in general. No one who defends trial by jury over popular justice in a murder trial is called a defender of murder; such a person is seen, by all, as a defender of trial by jury. The defender of free speech on American campuses, however, is forever being told that he or she is seeking, specifically, to make the campus safe for "racism," "sexism," or "homophobia." That is true if what one means is that the defender of free speech seeks to make the campus safe for the expression of all views, and for the clash of visions, ideas, and passions. At the time of McCarthy, many were intimidated into silence by the question "Why would you want to protect the speech of a Red if you are not a Red?" The issue, then and now, is not the protection of this or that person's rights by our subjective criteria of who deserves freedom but the protection of freedom itself.

Protection of free speech is not needed for inoffensive, popular speech with which all or most members of a community agree. Such speech is not threatened. Freedom is required precisely for unpopular speech, the toleration of which is one of the marks of a free society. What is popular speech in one time and place, of course, becomes unpopular in another. That is why, morally and practically, none of us enjoys more freedom of speech than is accorded the least popular speaker.
John Stuart Mill said it best. In On Liberty (1859), Mill noted that everyone claims to believe in freedom of expression, but everyone draws his or her own boundaries at the obviously worthless, dangerous, and wrong. Why should we tolerate speech that offends our sense of essential value, security, and truth?
To that question, Mill replied that there were four compelling reasons: 1) the opinion might be true, and "to deny this is to assume our own infallibility"; 2) the opinion, though erroneous, might--indeed, most probably would--"contain a portion of truth," and because prevailing opinion is rarely, if ever, the whole truth, censorship denies us that possible "remainder of the truth" that might be gained only by "the collision of adverse opinions"; 3) even if prevailing opinion were the whole truth, if it were not permitted to be "vigorously and earnestly contested," it would be believed by most people not because of "its rational grounds" but only "in the manner of a prejudice"; and 4) if we were not obliged to defend our belief, it would stand "in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct," becoming a formula repeated by rote, ``inefficacious for good,...and preventing the growth of any real and heartfelt conviction, from reason or personal experience."
Mill also addressed the argument that even if one conceded these points, one could fairly insist that debate "be temperate, and...not pass the bounds of fair discussion." He noted that such "boundaries" are impossible to define objectively, and would be drawn by all in a manner favorable to themselves. If one took the notion of "temperate" and "fair discussion" seriously, Mill observed, what ought to be banned would be arguments that stigmatized one's opponents "as bad and immoral men." Indeed, he argued presciently, "With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality [ad hominem attacks], and the like, the denunciation of those weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion."
Ultimately, Mill concluded, it should be left to public opinion, not to "law and authority," to determine "in whose mode of advocacy either want of candor, or malignity, bigotry, or intolerance of feeling manifest themselves." In short, it was "imperative that human beings should be free to form opinions, and to express their opinions without reserve." The struggle for liberty on American campuses is, in its essence, the struggle between Herbert Marcuse and John Stuart Mill.