Amitai Etzioni Notes

Raise the bar for lawyers

A cop in West Palm Beach was caught on video beating the daylight out of a youth, who had already been shackled and was not resisting arrest. The cop’s lawyer told CNN that the beating was completely lawful. Many a person without legal training may assume that there must be some law that justifies this claim. It seems just short of unbelievable that a lawyer will simply make up such a statement, without any foundation in law. Checking with a law professor, I was informed that while such a verbal tactic "may not be proper, but it can and is done."  He added that he believes that O. J. Simpson walked, whether or not he was guilty, because his lawyers concocted a conspiracy theory that the Los Angeles Police Department was framing him because it is racially prejudiced.

Floyd Abrams, an eminent lawyer, wrote in The New York Times that in our current climate, we should not be surprised when lawyers state things that "have nothing to do with the truth" because we should know that they will say anything that might help their client. It's like sitting down to play poker; one should expect the other side to bluff.

But courts are not a game. Lives, liberty, and fortunes are at stake. Justice is not served by both sides playing the court for all they can. Can we find ways to maintain our adversarial system, but also expect lawyers to live up to their responsibilities as officers of the court?

In the quest to make lawyers a bit more ethical, I posed a hypothetical case (based on an actual one) to several legal authorities. Eight women charge that a physician sexually molested them while he had them connected to a wire that he claimed would endanger them if they moved. The defense argues that the women fabricated the whole thing, conspiring to extort money from the physician. No evidence of any kind was presented to support this claim. Assume, I suggested, that the lawyer made up the whole defense. Should this be allowed?

All those approached responded that lawyers' only obligations are to their clients. George Bushnell Jr., former president of the American Bar Association, put it starkly: “While your report of the sexual molestation defense on its face is irresponsible, I cannot agree that the rights of the defendant should in any way be changed or modified. Rather it is my judgment -- and conviction -- that only through full protection of defendants' rights is the total community best served.” Alan Dershowitz, in his novel, The Advocate's Devil, put the following line into the mouth of his legal maven: "In this game, there's only one bottom line -- winning -- whether the client is black or white, innocent or guilty."

These responses are astonishing both because justice is too often denied in the existing system and because there are already several rules on the books -- in the law itself, and in the ethics of the profession -- that curb lawyers in the public interest. For example, if a lawyer knows that their client is about to commit perjury, the lawyer is supposed to stop the client or alert the court. (Many lawyers circumvent this role by warning their client not to tell them more than they need to know.)

As I see it, we need a law that would ban lawyers from engaging in such antics. Abrams believes we should ask lawyers to show less willingness to make certain arguments (for example, those that could not be true) and greater willingness to "view themselves as part of a system of law" rather than as alter egos of their clients.

This is surely a sentiment that we should encourage, even as one recognizes that it needs additional specification before one can use it to hold people accountable.

Finally, judges may need to become a bit more active. During my recent service as a juror, the defense was in the hands of a legal aid attorney, who must have been on her first case. (I would not be surprised if she had barely scraped by on the bar exam.)

On the other hand, the prosecutor was quite accomplished. The judge was in obvious pain, trying to find leeway for the defense, but was boxed in by the rules. Encouraging judges to ask questions would move us forward.

Best of all, every time the press reports what a lawyer says about his client, it should add “lawyers feel free to make things up, indeed to lie, if they believe it helps their clients.”

Nobody questions the need to protect the rights of the defendant. But these rights do not include allowing those who are guilty to walk because they have as lawyers the best fiction writers money can buy. True, public interest in justice should not take precedence over the defendant's rights. But it should not be wantonly ignored, either.

Bush’s Last Days

The Democratic controlled Congress should let it be known that any promises, agreements, and changes in regulations the Bush Administration is rushing to dish out in its waning days will be subject to review after the elections. American and foreign special interests should be warned that they would be unwise to taken these deals as firm, given the ways in which they were struck -- without proper hearings, Congressional consultation, and above all, public notice. This hold true for all deals, but especially the particularly harmful ones concerning the proliferation of nuclear materials.

Recently, the Washington Post reported that the Bush Administration is preparing to formalize a deal which would allow Plum Creek Timber Co, the nation’s largest private landowner, to convert hundreds of thousands of acres of forestland in Montana into residential subdivisions.  The deal was made behind closed doors between the Undersecretary for Natural Resources and the Environment and Plum Creek Timber, and neither local officials in the region nor the public were granted an opportunity to have a say in the matter.  In the words of Pat O’Herren, an official in Missoula County, Montana,“…40 years of Forest Service history that has been reversed in the last three months,” without even standard environmental assessments.  

Similarly, the New York Times recently reported that Bush Administration appointees are preparing to propose a number of regulatory changes to securities rules, changes which critics say would dilute measures put in place after the Enron scandal erupted in order to forestall accounting gimmicks and corrupt practices.

The harm to the public perpetuated by these two deals, and many others like them, pale in comparison to the damage to national security the Bush team is causing with the nuclear deals it is promoting. The fact that some of these deals have been in the making for a longer time does not make them more benign. They all concern what Professor Nina Tannenwald, in her excellent book on the subject, called “the nuclear taboo.” For decades, those committed to preventing a nuclear conflagration have advocated a norm that called on nations that have nuclear arms to gradually scale them back until they are all removed and which urged all other nations not to acquire these weapons of mass destruction. The taboo against these horrible arms has been quite effective. Several nations that started down this road reversed course and folded their nuclear plans. Others decided not to even set out in this way.

Now comes the Bush Administration, and as a favor to various American corporations, it is promoting the sale of nuclear technologies to Russian corporations, Saudi Arabia, the United Arab Emirates, and Bahrain. This is despite the fact that Russia is helping Iran to build its nuclear facilities. One may say that these facilities are meant to be used for peaceful purposes, above all to generate energy. However, once a nation has a nuclear capability, it can greatly benefit from it to develop a nuclear military capacity. Even if such a nation signs the NPT, and opens itself to inspection, it can notify the other parties to the treaty and the UN Security Council that it is quitting, and do so quite legally as long as it gives a three month advance notice—taking its nuclear plants with it. This is basically what North Korea did. And, as the deal the Bush Administration is promoting with India shows, helping the civilian nuclear industry allows India to shift the uranium it already has to its military facility. All in all, these acts by a Bush Administration on it last leg greatly weaken the taboo against nuclear proliferation and pave the way to more nuclear military programs.

Bush’s Last Days

The Democratic controlled Congress should let it be known that any promises, agreements, and changes in regulations the Bush Administration is rushing to dish out in its waning days will be subject to review after the elections. American and foreign special interests should be warned that they would be unwise to taken these deals as firm, given the ways in which they were struck -- without proper hearings, Congressional consultation, and above all, public notice. This hold true for all deals, but especially the particularly harmful ones concerning the proliferation of nuclear materials.

Recently, the Washington Post reported that the Bush Administration is preparing to formalize a deal which would allow Plum Creek Timber Co, the nation’s largest private landowner, to convert hundreds of thousands of acres of forestland in Montana into residential subdivisions.  The deal was made behind closed doors between the Undersecretary for Natural Resources and the Environment and Plum Creek Timber, and neither local officials in the region nor the public were granted an opportunity to have a say in the matter.  In the words of Pat O’Herren, an official in Missoula County, Montana,“…40 years of Forest Service history that has been reversed in the last three months,” without even standard environmental assessments.  

Similarly, the New York Times recently reported that Bush Administration appointees are preparing to propose a number of regulatory changes to securities rules, changes which critics say would dilute measures put in place after the Enron scandal erupted in order to forestall accounting gimmicks and corrupt practices.

The harm to the public perpetuated by these two deals, and many others like them, pale in comparison to the damage to national security the Bush team is causing with the nuclear deals it is promoting. The fact that some of these deals have been in the making for a longer time does not make them more benign. They all concern what Professor Nina Tannenwald, in her excellent book on the subject, called “the nuclear taboo.” For decades, those committed to preventing a nuclear conflagration have advocated a norm that called on nations that have nuclear arms to gradually scale them back until they are all removed and which urged all other nations not to acquire these weapons of mass destruction. The taboo against these horrible arms has been quite effective. Several nations that started down this road reversed course and folded their nuclear plans. Others decided not to even set out in this way.

Now comes the Bush Administration, and as a favor to various American corporations, it is promoting the sale of nuclear technologies to Russian corporations, Saudi Arabia, the United Arab Emirates, and Bahrain. This is despite the fact that Russia is helping Iran to build its nuclear facilities. One may say that these facilities are meant to be used for peaceful purposes, above all to generate energy. However, once a nation has a nuclear capability, it can greatly benefit from it to develop a nuclear military capacity. Even if such a nation signs the NPT, and opens itself to inspection, it can notify the other parties to the treaty and the UN Security Council that it is quitting, and do so quite legally as long as it gives a three month advance notice—taking its nuclear plants with it. This is basically what North Korea did. And, as the deal the Bush Administration is promoting with India shows, helping the civilian nuclear industry allows India to shift the uranium it already has to its military facility. All in all, these acts by a Bush Administration on it last leg greatly weaken the taboo against nuclear proliferation and pave the way to more nuclear military programs.

No right to bear arms

The Supreme Court decision to uphold the ruling of a lower court which struck down a Washington DC law banning handgun ownership as unconstitutional is a bigger set back to American law and public safety than first meets the eye.

To many Americans the court’s actions may make sense because even liberal publications often refer to the Second Amendment as if it speaks simply of a "right to bear arms."  Actually the text reads, "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." You may say the text is ambiguous given that it speaks first about a militia and then about people. However, until this year, whenever this issue reached the highest court of the land, in cases that span nearly 125 years, the court ruled that there is no constitutional barrier to limiting or removing guns owned by individuals. It is this long accumulation of legal judgments which now has been undermined by a court loaded with conservatives.

In an overview of all the cases before 2008 none other than Erin N. Griswold, solicitor general in the Nixon administration, and former dean of Harvard Law School, noted: "Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds. Indeed, that the Second Amendment poses no barrier to strong gun laws is perhaps the most well settled proposition in American constitutional law."

The relevant Supreme Court cases are United States v. Cruikshank (1875); Presser v. Illinois (1886); Miller v. Texas (1894); United States v. Miller (1939); Lewis v. United States (1980); Quilici v. The Village of Morton Grove (1983); Higgins v. Farmer (1991); and Printz v. United States (1997). Though the details of these cases vary, and like all such cases they are subject to different readings, the decisions reached in all of them fundamentally affirm that the Constitution does not limit the states' ability to restrict private gun ownership.

For instance, in United States v. Miller, the most often cited of these cases, Jack Miller had not properly registered his sawed-off shotgun, nor had he paid a tax for transporting this weapon in interstate commerce, both required under the 1934 Firearms Act. Miller claimed that the Act violated his Second Amendment rights. The Court ruled that because Miller could not prove that his shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Seems plain enough. But when I wrote previously about this subject I received a storm of critical emails. Many of the responses were composed merely of cuss words strung together, of the kind one would expect to find in a poorly kept public toilet.  Some readers, though, offered actual arguments. They quoted Washington, Jefferson, Madison, and George Mason to show that our founding fathers were proponents of private gun ownership. My response is that ours is a government by laws which cannot be trumped by quotations from even the most highly regarded patriotic icons.

Recently some social scientists have claimed that their studies show that the more guns private citizens have, the lower the crime. These are the results of highly manipulated models, not actual empirical research. If one compared the murder rates in nations in which there is next to no private ownership of guns (such as the UK and Canada) one sees that for decades, they had much lower murder rates. Ditto for other kinds of violent crime.

The NRA argument that criminals kill people, not guns, ignores the fact that guns make it much easier for a person to kill scores of others than say knives or wrenches, to which guns are often compared. Moreover, one must note that guns in the house are more likely to be used by one spouse against another, or discharged accidentally, or to endanger children—than ever be used against a criminal. In fact, for every justified use of a gun in the home, there are about 22 criminal or unintended shootings.

One can but hope that the recent Supreme Court ruling will not open the door to a widespread relaxation of laws in other cities or states which limit the availability of dangerous weapons. While unclear, the Supreme Court’s decision does not deny that cases may be made for state limitations on the possession of firearms. However, by reversing course in the Court’s history of interpreting the Second Amendment, it is likely to impose an unwelcome burden on attempts to improve public safety.

Amitai Etzioni is University Professor and director of the Institute for Communitarian Policy Studies at George Washington University. His most recent book is Security First (Yale 2007) www.securityfirstbook.com  email: comnet@gwu.edu 

For more on Second Amendment issues:  http://dspace.wrlc.org/handle/1961/587

Life on Mars? A Bridge in Brooklyn?

I grant you this is not high on the next President’s priority list; however, if he cannot ground NASA, he will never be able to rein in the much more powerful Pentagon. NASA has a very effective propaganda machine.  Its most recent PR move is to tell Congress and the public that it is out to find “life” on Mars and other planets. When many people hear references to life, images of Martians spin through their heads; some even envision civilizations that we could ally ourselves with, maybe against China, at least against some other aliens in some other galaxy. Actually, what the multi-billion dollar agency is looking for is some organic material, the size of amoebas or—even less.  It would be nice to know, I grant you; however, given other priorities, it hardly belongs at the top of the list of what ought to be studied. Indeed, even if one insists that these funds are to be used for exploration—and not, say, finding better ways to fight disease or poverty—much more promising targets are near by, right here on Earth, in the oceans.

Although oceans cover more than 70% of the Earth, less than 5% of them have been mapped with the same degree of detail as Mars. We have rarely ventured below 6,500 meters in the oceans, although they are more than 11,000 meters deep. We know much less about the deepest layers of the oceans than we know about the dark side of the moon.

Yet, the potential payoffs are huge. First of all, this is the place, bar none, where the largest amounts of untapped oil and gas are to be found. Next: NASA claims that space exploration has led to all kinds of new technology—for instance, it maintains that the coatings that allow space capsules to withstand the heat of reentry are used to make better pots and pans. But deep-sea expeditions are likely to yield even greater benefits. In order to freely explore the oceans' deepest reaches, we must learn to construct submersibles that can handle extreme pressure, as much as 18,000 pounds per square inch. The resulting materials and techniques might help us design and construct homes that could withstand cyclones, hurricanes and earthquakes.

In contrast to cells of organic material that may be present on Mars, it is estimated that there are up to 2 million marine life forms that are yet to be discovered in the oceans. Whenever we venture deeper, we find new species, for instance lithistids, a rare kind of sponge present only in deep waters. Such discoveries are likely to reveal secrets of earlier life on Earth, and make up for other species that are being lost due to human expansion on the surface.

Moreover, deep-water habitats teem with life that contains the promise of new drugs and new cures for diseases. In what are still largely unexplored deep-water reef communities, the Harbor Branch Oceanographic Institution in Ft. Pierce, Fla., has discovered what is believed to be an anti-tumor agent (discodermolide); its value for humans is being tested in clinical trials. Also, scientists expect that organisms in the deep oceans can consume the methane that is seeping through the ocean floor and convert it into energy for themselves. They hope that we could learn to harvest such energy for our own use.

The discovery that dust on Mars is finer than previously thought or that water once flowed down its now barren craters doesn't bowl me over. Even the seas' more obvious secrets are much richer—for instance, sunken ships. Consider the Swedish warship Vasa, which sank in 1628. Raised in the 1960s, it now tells us volumes about earlier historical periods.

Perhaps most important, the oceans are the major part of our environment.  They greatly affect the climate and the conditions that allow life—of real, two-legged creatures, our life—to survive. And yet we are turning one sea after another—the Mediterranean, for instance—into garbage dumps.  Studying the health of oceans and how they may be protected is much more urgent than re-visiting Mars.

There are some—including researchers who do not receive grants from NASA—who believe that we can draw inspiration from walking on the moon, but not from diving into the oceans. They may be too young to remember the admiration with which many millions followed the explorations of Jacques Cousteau. All we need is a good race with other nations—measured by how much ocean we cover and who can find more goodies faster—and ocean exploration will be all the rage.

Granted, Obama and McCain have more urgent priorities than worrying about either outer space or deep oceans. However, Presidents have assistants, and they have assistants. Somebody, one cannot but hope, can bring some sense into setting priorities in spending those dollars dedicated to exploration. These may well be dedicated to discovering ways to fight  disease and finding sustainable new sources of energy. However, one hopes that some funds will be set aside to probe the oceans; these funds can be found on Mars.

The media is misframing Obama

Here we go again. Much of the progressive media is playing by what it considers fair rules, while the conservative media is pulling out all the stops in attacking Obama. Responding to the whining from the McCain campaign, The New York Times, The Washington Post, and other such print media went to great length to give equal space and attention to McCain during Obama’s Middle East and Europe tour—although McCain produced no real news. Moreover, a good part of the text on Obama’s very successful journey was dedicated to raising questions about his appearances and attributing motives.
McCain dared Obama to make the tour overseas, hoping it would highlight his lack of experience. The media was just salivating to find some gaffe. When he made none, the media first let its disappointment show, making the headlines for its report on the historical visit to Iraq “For Obama, First Step Is Not a Misstep,” (The New York Times, July 22, 2008). It then cast new doubt on his series of alliance building visits, pronouncing— without any evidence—that the public may view Obama as presumptuous for looking presidential! Damned if you do, damned if you don’t.

Meanwhile the conservative press is not preoccupied with providing balanced reporting on Obama. Richard Allen in The Wall Street Journal writes “Obama’s Experience Doesn’t Match Up.” In The Weekly Standard Peter Wehner writes “Obama, then, was not only wrong about the surge; he was spectacularly wrong.” And “Democrats, then, have compounded their initial bad judgment about the surge with reckless obstinacy.”

Worst of all, the progressive media wove into the reporting text, which supposedly gave just the facts fit to print, an attribution of motives. The most common line was that Obama was on the trip to “burnish his credentials,” to “reassure skeptical voters about his ability to function as commander in chief,” and “to counter charges that he lacks foreign policy experience.” No staffer was quoted, no memo cited, no email uncovered that showed that this was indeed the overriding goal of the trip. One may say that this was “obviously” the case, that this is what motivates all politicians. If this were true, it is hardly news. No need for reporters to travel ten thousands of miles to report that politicians act, well, politically,

Desperate to find some fault, to provide for “balanced reporting” on a series of events that was clearly a major “one-sided” success, the media complained that Obama’s speech in Berlin lacked specifics! “He was vague on crucial issues of trade, defense and foreign policy that currently divide Washington from Europe,” and “there were numerous policy pronouncements, all of them hazy and nonspecific.” Note that neither Reagan nor Kennedy provided wonkish policy lectures in Berlin during their historical speeches. And sure, it would have been truly inappropriate for Obama to lay out the details of how many troops Afghanistan needs, or what is to be done about Russia’s control of the energy Europe needs, before he moves into the White House, has access to the needed intelligence and the staff work provided by the federal agencies. Obama showed that he could appeal to Europeans, restore American goodwill in the world, rebuild American alliances, and work with our allies in the Middle East. It is time for three cheers; leave the catcalls for when he does make a serious mistake.

Also note that presidential candidates, like all human beings, have multiple motives for what they do. Obama surely cares about the issues at hand, such as the fact that the Bush war in Iraq turned Iraq into a training ground for terrorists, while their old haven in Afghanistan is falling back into the hands of the Taliban and Al Qaeda. He surely is interested in learning, first hand, what people like General Petraeus and President Karzai have to say. And he may well also wish to respond to McCain’s dare. If the media is going to enter into three penny psychoanalysis, why reveal only selfish motives and not point to the very wholesome ones?

Amitai Etzioni is Professor of International Relations at The George Washington University and author of Security First (Yale, 2007) www.securityfirstbook.com email: comnet@gwu.edu