Wednesday, December 22, 2010

Get a Lawyer!

Get a Lawyer!

This column originally appeared in the Williston Observer on December 22, 2010.

I, dear reader, watch an almost embarrassingly large amount of television. It is one of my vices. There are worse things.

One of the types of shows I enjoy the most involve the police in some way. If you've watched almost any television in the past twenty years, you know the type. There are classics like the Law & Order franchise, Homicide: Life on the Street, and Hill Street Blues; there are variations on the theme like the CSI franchise; and newer shows like Medium, The Mentalist, and Blue Bloods.

If you've watched almost any television in the past twenty years, you've also heard the Miranda warning. The warning, which the Supreme Court has ruled must be given to suspects of crimes before they are questioned, goes like this:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

The verbal warning is kept relatively short, so that police can recite it quickly (which is good, for TV), but there is a much longer version, almost three times longer, that is more comprehensive and is usually given in written form.

The key components of the Miranda warning, spoken or written, are these: the right to remain silent, the right to an attorney, and the fact that your own words can be used against you.

The point of all this is the dismay that I feel when watching some of these favorite police shows of mine. You might think, with my build-up above, that my problem is that police in these shows tend to forget the Miranda warning. Actually, to my memory, most television cops are very good about giving the Miranda warning, and many scenes end with a suspect being carted off in handcuffs for questioning as the arresting officer starts reciting, sometimes in a rote monotone, "You have the right to remain silent..."

No, it is not the TV cops' treatment of the Miranda warning that causes me dismay. It is that most suspects seem to forget all of their rights as soon as they step into a police station.

I certainly understand the need to move the story along, and watching a suspect sit and wait for a lawyer is hardly compelling TV. In fact, a lawyer-supervised interrogation is also hardly compelling - much more TV-friendly is the tearful or angry confession, caused by a detective asking just the right question or a suspect being caught in a lie. And I have to admit a certain degree of schadenfreude when a smug suspect, whom the audience is well-aware is guilty, slips up and realizes they've just confessed to the crime.

What I'm afraid of, what my dismay is all about, is that as people watch these shows, and see these suspects spill their guts with a lawyer no where in sight, they will begin to think nothing of it - that should they ever find themselves in that situation, the best or perhaps only option, the Miranda warning be damned, is to confess and take their punishment.

As a civil libertarian, I want everyone to know their rights and exercise them to their fullest extent. But don't get me wrong - in the end, with their rights intact, I want the guilty to be punished to the fullest extent. What I wish is that these shows could figure out a way for suspects to be represented by counsel and still get their just rewards.

Perhaps it is too much to ask - that a suspect exercising his right to counsel can still be compelling drama. But there has to be a way, and I issue a challenge to the writers of Hollywood to not only write such story lines, but to make them the majority rather than the minority. Unfortunately, I don't know any Hollywood writers.

What I have, dear reader, is you. God forbid you should ever find yourself as a suspect in a crime. But if you do, don't go down the route taken by too many TV characters. Exercise your rights and get yourself a lawyer; don't answer any questions without that lawyer present; and for goodness' sake, follow your lawyer's advice.

Thursday, December 9, 2010

The Wikileaks Cables: Worth the Ink?

The Wikileaks Cables: Worth the Ink?

This column originally appeared in the Williston Observer on December 8, 2010.

In many of the roles I've played in the course of my life, including college student, journalist, history buff, and constitutional scholar, one mantra is common to them all: information wants to be free.

In each of these roles, only by having access to accurate information could I write a valid conclusion for a term paper; write a story that told my readers something important; or allowed me and others to analyze events and personalities to reach conclusions about the people who made and shaped our history.

Much of the information journalists and historians (and ultimately the public) need was secret at one point in its lifetime. One of the most famous examples is the Pentagon Papers, published in 1971 by the New York Times. The Papers were a classified history of United States-Vietnam relations, and revealed previously unknown or unsubstantiated facts about the expansion of the Vietnam War into Cambodia and Laos.

The Times was prosecuted for publishing the Papers, in violation of the Espionage Act of 1917, a case which eventually found its way to the Supreme Court. The Court dismissed the case, but only by finding technical issues with the prosecution, and not with the Espionage Act itself.

It is under this Espionage Act that some pundits and politicians are contemplating prosecution of the Wikileaks site or its founder Julian Assange. Wikileaks has been in the news before. The site's raison d'etre is to be a safe place for whistle-blowers to release classified or secret information to the public.

The types of information released via Wikileaks includes documentation about government corruption in Kenya, assassination plans in Somalia, Scientology documents, and Sarah Palin's Yahoo email account contents. More recently Wikileaks is also responsible for the release of thousands of pages of secret diplomatic documents, known as cables.

The question that the U.S. government must now grapple with is if the publication of the so-called Wikileaks Cables constitute a violation of the law - and if so, what can be done about it?

To prevent itself from being the target of corporate and governmental retaliation for what it publishes, Wikileaks exists almost wholly as an Internet-only organization. This has its own problems - as of the writing of this column, for example, the main Wikileaks site cannot be accessed because of denial of service attacks and disputes with its hosting companies.

Though there may be no real "Wikileaks company" to go after, there is Assange, the organization's public face. During last Sunday's broadcast of NBC's Meet the Press, Senate Minority Leader Mitch McConnell called for Assange to be prosecuted under U.S. law. With the release of the Cables, McConnell said, Assange has "done enormous damage to our country."

Though the Espionage Act can apply just as equally to those who publish classified information as to those who took it in the first place, those like McConnell who would prosecute Wikileaks or Assange could run into real trouble actually doing so.

Assange is neither a U.S. citizen nor a U.S. resident. Originally from Australia, Assange seems to constantly shift his location within Europe; reports have him currently living in England. If Assange cannot be brought to an American court, he cannot be tried - trial in absentia is illegal. He would, instead, have to be deported to the U.S. by a government that not only has him in their jurisdiction, but also has the same concerns about American diplomatic security as the U.S. might have.

It seems to me that prosecution of Assange is unlikely. That still leaves a key question, though. Given what I've already written, that information wants to be free, is the leaking of the Cables something I oppose?

The observations made in the Wikileaks Cables, frank statements of opinion by U.S. diplomatic staff and international leaders, are sometimes of no more value than any random story in the National Enquirer. It's not so much that I have a problem with the Cables being leaked as I have a problem that anyone cares about the contents of the Cables.

On the basis of the newly freed information that I've seen from the Cables, one thing is obvious: The Cables are no Pentagon Papers.

There is no revelation of corrupt ruling families or assassination plots. All we see is that diplomats are human and can speak with some crassness about each other. All we see is that governments don't trust each other.

In other words, we have been reminded of facts that we already knew.

Note: After press time, Assange turned himself in to English authorities because of an outstanding warrant from Sweden.