Monday, April 5, 2010

Webster Smith. What Went Wrong at the CAAF?

My faith in humanity and the future of military justice is strengthened by one thing. That is that the Chief Judge was in the Dissent. At least, the leader of the Court saw the issues clearly and correctly. I am dissapointed at his apparent lack of leadership. A stronger leader or a more forceful and dynamic personality would have been able to show the majority and the female member the error of their ways.

Chief Justice of the Supreme Court Earl Warren was such a leader. He demonstrated exceptional leadership skills in the handling of the Brown v Board of Education case. That was a unanimous 9-0 Decision at a very turbulent period in American History. Racial tensions were at an all time high in America. Yet, Earl Warren was able to convince the all white Supreme Court to render a decision that would speak with an unequivocal voice. There was no wiggle room. A 9-0 Decision was much more forceful and was much better received than a 8-1, or 7-2, or 6-3, or a 5-4 decision. That was leadership; that was history; that was America during one of her finest hours.

Are there a bunch of loose cannons at the CAAF? Is this a fractured court? Do some of these judges have their own political agenda and their own constituencies? What hidden agendas could they have? What constituencies could they be serving? Are they slaves to their own prejudices? Was Baker clearly the swing vote? Being a female, did that have anything to do with how she perceived the issues? Did the case for her come down to simply a case of black and white?

Did the judges write their own opinions? Did some immature clerk write the decision and the judge merely sign off on it? Was the clerk a first generation American who managed to go from blue-collar to professional in one generation? That is happening quite a lot in America recently. In my discussions with some recent Asian lawyers I am apalled at their lack of understanding and perception when it comes to Civil Rights laws and issues. Also, consider who the chief interpreter of the Patriot Act was. It raised a lot of controversy in middle America and among civil libertarians.
(Cicero said: In time of war, the laws fall silent. In our own era, few proponents of that doctrine have been as influential or forceful as Berkeley law professor John Yoo, who in the wake of the terrorist attacks of September 11, 2001, worked within the Office of Legal Counsel at the Justice Department to lay the legal foundations for the Bush administration's approach to the war on terror. Despite repeated pleas from civil liberties groups, crucial memoranda authored by Yoo, justifying controversial tactics ranging from coercive interrogation to warrantless surveillance, remained closely guarded secrets.)

Chief Judge Effron was clearly right in his analysis. Why could he not get Judges Stucky, Ryan and Baker to see the issues more clearly?

The Webster Smith case signals a low point in military justice, American history, and inter-racial relations. Just when Blacks were beginning to think it was safe to come out of the shadows on American society, white American sends a clear signal and a reminder that Blacks are not welcome.

1 comment:

ichbinalj said...

(A History of American Law, L. M. Friedman, 3rd Ed., 2005, Simon & Schuster)
An amazing piece of work that is not just a history of the American legal system, but a history of America as seen through its laws. It manages to cover everything from the development of equity law to the explosion of torts to the history of commerce and contracts, all without being pedantic or overly general.

Friedman relies on odd laws, great cases, and telling quotes to explain his story. In discussing the battle between civil and common law in California, he quotes an early California legislature which waxed poetic on the wonders of the caveat emptor rule (it apparently caused commerce to "whiten every sea, woo every breeze"). He discusses an early law in Virginia that classified slaves as real estate instead of chattel, highlighting their novel nature in English legal history. He discusses the 1878 case of Hall v. DeCuir, where the Supreme Court overturned a Louisiana state law forbidding racial discrimination on common carriers as an unconstitutional burden on interstate commerce, showing how the Court not only blocked federal anti-discrimination laws, it blocked any state attempts to staunch racial animosity, the Fourteenth Amendment notwithstanding.

Friedman also wades into such complicated debates as the one surrounding the "Field Code," first passed in New York in 1848, which began the "codification" of American law yet could only get as far as clarifying civil procedure. Codes on penal and public law would sometimes have to wait a century for passage, at least outside the so-called Wild West (which he shows was overrun by more lawyers per capita than even the developed East. In this story, the West was filled with litigators, not cowboys.)

I thought that this book might simply recapitulate some of Friedman's work in "Crime and Punishment in American History," but the sections on criminal law are brief, and usually deal with oddities and legal development. Overall, the books compliment each other nicely. Also, despite its broad title, the book focuses overwhelmingly on the nineteenth century (the colonial period is too sketchy and the 20th century is big enough that he deals with it in-depth in another book). Still, this is a great work that gave me a new appreciation for the world of the law