Geoffrey Stone’s most recent contribution to our understanding of the First Amendment is at once important, current, and fatalistic. It is important in that it meticulously chronicles the ways in which wartime American governments have trampled free speech rights. For instance, when dealing with the Sedition Act of 1798, Stone deftly introduces the complicated politics and personalities of the time, explaining the developing system of political parties, the expanding feud between John Adams (leading the Federalists) and Thomas Jefferson (leading the Republicans), and the myriad influences on the young United States generated by the French Revolution and the associated war between England and France.
Category: The Constitution
“Torture Lite,” “Full Bodied” Torture, and the Insulation of Legal Conscience
Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.
Should Lawyers Participate in Rigged Systems? – The Case of the Military Commissions
Lawyers often represent clients in criminal cases when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the prosecution. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally unfair? Indeed, what if the system is rigged so as to prevent the lawyer from zealously representing the client, or if it compromises the lawyer’s undivided loyalty to the client? Should lawyers refuse to participate in such systems, or should they – should we – still do the best we can?