Sunday, August 27, 2006



Two recent events brought into sharp focus (again) the relationship between formalism in law and spite. Each, in its own way, is a window on the darkness in people’s souls. Each brings into sharp focus the way in which the spirit of the laws can be so easily perverted by an insistence on the application of law. Each reminds us that law is not a machine, not a black box, into which facts are inserted to produce “right.” The rule of law is not so much law separated from personal discretion, as law in which people are heavily invested in doing right through law.

The first of these events involved the ultimately successful efforts of the local Democratic Party establishment to disqualify the candidacy of a white lesbian who had successfully run in a majority African-American district in Alabama. It appears that a woman named Patricia Todd was on the verge of becoming the first openly gay member of the Alabama state legislature, representing a majority African American district. She had won the Democratic primary election and faced no opposition. The mother-in-law of Todd’s unsuccessful opponent, who had lost by less than 60 votes, then filed a challenge to the election. While the Democratic Party Committee reviewing the challenge rejected the original bases asserted for overturning the result, it nevertheless found a basis for disqualification by applying a 1974 Democratic Party rule that had not been followed by any Democratic candidate since 1988. Because both Todd and her opponent had both violated the rule, they were both disqualified. (Alabama Democratic Party committee votes to disqualify gay primary winner, 08/26/06-08/28/06). But operating in the shadows of this dispute was Joe Reed, described as a longtime chairman of the Black Democratic Caucus, who had reportedly played a key role in the affair. For him, the issue was apparently race, and the object was to ensure that the district remained a “black district.” Id. But no one argued race before the Committee, and no one could point to Reed as the instigator of this affair. He did not file the challenge. The rule invoked was not created specifically to defeat Todd’s chances for election. The rule long predated her election. That the rule had only been recently reapplied after a long hiatus ought not to make a difference. Yet we start with a successful white lesbian candidate and end with the application of a rule conveniently unearthed at a critical moment.

The second involved one Murat Kurnaz, a 24 year old Turkish citizen of German birth, who had been captured during the Afghan War of 2001-2002 and detained as an enemy combatant until August 2006 (Shannon Smiley and Craig Whitlock, “Turk was Abused at Guantánamo, Lawyers Say,’ Washington Post, August 26, 2006, at A-11). Lawyers for the freed man suggested that Kurnaz had been mistreated during the entire four years of his incarceration at Guanánamo. In addition, the lawyers asserted that the manner of his release also constituted mistreatment. Kurnaz was alleged to have been blindfolded and shackled on the trip back to Germany. The lawyers were quoted as saying, “The Americans are incorrigible, they have not learned a thing. . . . He was returned home in chains, humiliated and dishonored to the very end.” Another of his lawyers, Baher Azmy, a law professor at Seton Hall University School of Law in New Jersey, also suggested that the incarceration of Kurnaz proved that the U.S. claim to house only terrorists and people form battlefields “is not only an exaggeration, but a lie.” Id. There is a bit of irony on all of this from the German end. “German officials are partly to blame for Kurnaz's long-term detainment. In 2002, the German government rejected an offer made by the Pentagon to transfer the Turk to Germany, saying they didn't want to permit him to return to the country. Afterwards, the issue was dropped for years and the first serious discussions aimed at obtaining his release began last autumn” (U.S. to Release German Resident From Guantánamo, Aug. 21, 2006). It was also reported that “During initial negotiations, Allen Leotta of the Pentagon's Office for Prisoner Questions, painted the picture of a highly dangerous extremist who had been part of a ‘Bremen terror cell.’” Id. Ironically, at the end, the4 U.S. agreed that “all German diplomats had to do to secure his release was agree to continue conducting surveillance of activity within the Islamist community in Germany.” Id. There is a bit of irony in all of this, especially from the American end. Although a military tribunal (of the type the establishment of which was held to be beyond the power of the President acting alone by the Supreme Court in 2006) held in 2005 that Kurnaz was “a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba” (Carol D. Leonnig, “Panel Ignored Evidence on Detainee U.S. Military Intelligence, German Authorities Found No Ties to Terrorists,” The Washington Post, March 27, 2005, at A-01) it appears clear that the evidence against him was spotty at best. But the result was apparently technically valid. And the treatment of the man was technically within the bounds of policy. Yet here we start with an enemy combatant and wind up with a free man on the streets of Germany subject only to the most cursory of surveillance.

In both cases there is a sense of indirection. There is a sense that the law, though correctly applied, served as a screen behind which other, and essentially non-legal disputes were being resolved. The language was legal, the results formally correct from a legal point of view, but the substance of the disputes remains invisible. And within the invisibility what becomes visible is spite. There seems plenty of spite to go around among the principle characters of both sets of events. Some of it might even be justified. But in assuming legal form, spite tends to split the spirit from the letter of the law. And that is something that we should guard against. Not by another law, but by a better sense of moral judgment.

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