Friday, December 07, 2007

And the Walls Have Ears, but the Walls Don't Speak

Checks, balances and oversight are some of the foundational principles of our political and judicial systems. I know, not a particularly novel or penetrating insight, but in post-9/11 America (and with the passage of time in general), it's important to return to the classics in order to refresh our collective memory.

There are good reasons for the introduction of oversight and external checks in the context of law enforcement: we want our executive branch elements (law enforcement officers, prosecutors, elected officials) to be zealous and diligent in pursuit of criminals/wrongdoers, and in serving public safety. These desired traits, however, make executive branch organs particularly ill-suited to ensure the rights and protections of the accused (be they innocent or guilty) and the public in general. In pursuit of their goals, executive actors will seek to maximize the powers and tools available to achieve their laudable goals, but this in turn will greatly infringe on the rights of the public (again, innocent and guilty alike). Not because executives don't value rights, but, rather, because those rights can interfere with their necessary jobs.

And so, because we cherish fragile freedoms, we have created a tension by adding a layer of oversight in the form of codified legal protections (Bill of Rights, etc.) and judicial adjudicators capable of reining in the enforcers of the law. To call on another cliche: it's bad policy to have the same body act as judge, jury and executioner.

The mission of the rights-guarantors is a bit tricky, though, because their duties often put them in the role of protecting potential criminals, criminals and, in the present case, terrorists. Thus, the proponents of enlarging executive power have a built-in advantage: Who is going to side with the murderers, drug dealers and terrorists (leaving aside the fact that the innocent will suffer as well, as long as they are labeled as such)? That is how people like Joe Klein can get sucked into lambasting the Democrats for their efforts to guarantee a modicum of oversight when it comes to surveillance of Americans: a mixture of misinformation and demagoguery goes a long way toward ensuring that pundits err on the side of "toughness."

Further, the executive branch is, by nature, a sympathetic figure for most citizens: these are the police officers, FBI agents, prosecutors and elected officials that are keeping our streets safe. The tough on crime crowd fighting off the perverts and sociopaths. The generous benefit of the doubt given these parties makes it easier for them to sell the public on arguments for scaling back oversight. After all, we can "trust them." Why obect to this? Don't you trust the President when he says he's fighting terrorists? Why do you want to protect Osama's rights? Would you take the word of a drug dealer (accused) over that of an actual police officer?

While some with a deeper appreciation for the nature of power, corruption and conflicts of interest might view those questions with a skeptic's eye, many, if not most, citizens, especially in a time of heightened fear and insecurity, tend to trust the "protectors." Here is a case that illustrates how this dynamic slowly erodes Constitutional protections:

A teen shooting suspect's quick decision to record his interrogation with a hidden MP3 device has played out as a perjury case against a veteran detective and a plea deal for himself, authorities said yesterday.

Testifying at the trial of Erik Crespo in April, Detective Christopher Perino, 42, emphatically stated that he hadn't questioned the then-17-year-old about a Christmas Day 2005 shooting in The Bronx before the kid's mother and aunt showed up at the 44th Precinct station.

But Crespo had secretly pressed record on his MP3 player - a small device used to download music from the Internet - hidden in his pocket and captured the bullying interrogation.

Not only did the Detective question the teen, but he lied about the law during the interrogation in an effort to intimidate the teen into giving a statement without his parents or, more importantly, a lawyer present. The types of claims made by the Detective were so out of bounds that it is almost certain that he would not have taken such a line with a parent or attorney present.

But here's the thing: this interrogation was conducted by a 19-year veteran! Do you think it was the first time he tried to steamroll a suspect in his 19 years on the force? Unlikely. Further, do you think this Detective's actions are an anomoly, an outlier? Again, unlikely. Far too many police officers know that, if confronted in court with accusations of such misconduct, it will be a case of whose word to trust: the upstanding peace officer, or the accused criminal? The cop wins 99% of the time.

The teenagers' rare actions in the present example highlight the need to have all interrogations and interrogation rooms videotaped. That is the way to restrain law enforcement - not relying on self-regulation or trust when the temptation to cut corners is almost too hard to overcome. Speaking of which, it turns out that the CIA thought videotaping the interrogation of terrorist suspects was a good idea. Mona and Matt have some good link roundups - including Cernig's post which drew the ire of Rick Moran.

However, unlike the case of Erik Crespo, the CIA itself was in charge of the recording devices and their output. When confronted with the possibility that those tapes revealed illegal activities such as torture, the CIA chose to destroy them. This is, again, a predictable and human response. Where the executive body is in custody of self-incriminating evidence, it will tend to bury such evidence unless there are legal repercussions - after all, why would it want to weaken it's own powers? Making the present temptation to destry the evidence even more tempting, who will really press for obstruction of justice charges when the subjects being tortured were terrorists (accused)?

Unfortunately, an executive that is allowed to overstep the boundaries of the law with impunity creates two insidious phenomena: First, it sets a precedent for this type of infringement, making it likely that in the future it is recognized as acceptable by the putative oversight bodies. Second, these types of precedents tend to seep into other areas of law enforcement - outside the supposedly "extraordinary" circumstances (sure, accused terrorists are probably the least sympathetic figures, but is there really a higher regard for accused drug dealers? Rapists? Child molesters? Murderers?).

Because the deck is stacked against rights and freedoms, people that know better like Rick Moran should really think twice about being so cavalier with the trappings of democracy that Americans presume to bestow on the benighted masses in foreign locales.

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