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25 July 2005 |
A self-effacing yarn is told about a mythical 17th century Jewish village in Chelm, Poland. The Jews of Chelm, while always trying to act correctly within the exacting framework of the Torah, are still not the swiftest on the uptake. Two Jews come before the town’s rabbi for him to sit in judgment over a business dispute. The elderly sage listens to the argument of the first litigant and without hesitation pronounces, “You’re right!” The second Jew protests that the rabbi has decided the case without even hearing his side of the story, which he then puts forth in the clearest possible terms. After hearing the second Jew’s rebuttal the rabbi proclaims, “You’re also right!” The rabbi’s sexton, whose main function is to clean and maintain the synagogue, overhears the proceedings and exclaims “But Rabbi! They can’t both be right!” To this, the erudite spiritual leader intones “You’re right, too!” As a hopelessly addicted reader of opinion and editorial pieces, I can easily see a comical element of reality in the plight of the rabbi of Chelm. While friends, co-workers, and several readers of our Ask the Rabbi column have observed that my opinions are slightly to the right of Attila the Hun, I possibly unduly flatter myself that I do make an honest effort to read and understand arguments from both ends of the political spectrum. I reason that 1) even a whining liberal can make an occasional coherent point and 2) there’s little harm in listening to rants from an endangered species. Where things become really confused for someone like me without a law degree is when intricate polemics and doctrines are tossed about by eloquent people with law degrees. Manipulative speech can be used to convince some people of anything. Play some rousing portions from Wagner's "Flight of the Valkyrie” in the background and watch the idiots roil. When citizens respond to a jury summons, the legal counsel for each side may eliminate "for cause" any prospective juror if that person says or otherwise expresses a bias against the attorney's case. This process is called voir dire (pronounced vwär dîr’), an Anglo-French term meaning "to speak the truth." A trial attorney, if he were to be candid (or intoxicated), would concede that people perceived to be educated are weeded out during voir dire. Last year in a Los Angeles Superior Court room I was summarily dismissed by the defense counsel after stating nothing more than my name, occupation, and marital status. Here’s a tip for getting excused from jury duty: Wear a black yarmulke in the courtroom. Counsel never even asked if I had completed primary school before agitatedly blurting “Don’t get too comfortable, Mr. Mermelstein!” The judge didn’t utter a word of objection, and neither did I. Persuasive arguments, and here we speak of arguments obviously without merit, work best on those in the “Not Quite the Brightest Crayon in the Box” segment of the population. I’m pretty sure this area is covered in the law school curriculum. Sometimes racial profiling can be complimentary and downright convenient! For many years a battle has raged between advocates of civil liberties and government concerned with public safety. The arguments to and fro go back a long time in American history. The English wanted to disarm the Colonists in the name of public safety (the Britons’ safety). President Lincoln suspended the Writ of Habeas Corpus during the Civil War, and even went so far as deporting to parts south of the Mason-Dixon Line any Northerners who were too loudly sympathetic to the Southern cause. This, too, was done in the name of the public good. If the American Civil Liberties Union lawyers had been around while Lincoln was suppressing dissent in the North, flagrantly violating the Constitution and usurping the powers of Congress, every last liberal Ivy League law louse among them would have keeled over in a collective and massive cardiac arrest. During the Reconstruction period in the post-bellum South many counties chose to be “dry”, prohibiting the sale of spirit beverages, for the sake of public safety. Fears of violence, valid or otherwise, from a sober ex-slave population were sufficient to keep white nerves on edge without the introduction of an alcoholic catalyst to the equation. In 1942 President Roosevelt signed Executive Order 9066 in the name of public safety, authorizing the secretary of war to define military areas "from which any or all persons may be excluded as deemed necessary or desirable." The net result was the forced relocation of 112,000 to 120,000 Japanese living on the West Coast to Mojave Desert relocation centers. 62% of the evacuees were American citizens. In the entire course of the war, 10 people were convicted of spying for Japan, all of whom were Caucasian. The US Supreme Court ruling (TOYOSABURO KOREMATSU v. UNITED STATES) upholding the constitutionality of Executive Order 9066 in December 1944 reads in part: “Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.” This list of events demonstrating the willful invalidation of rational thought is only partial at best, but the point being made is that the legal minds behind them were anything but lightweights. And, of course, they got away with it. Perhaps the legal system, excluding absolute unalienable rights identified by “the Right of the People” as in the Bill of Rights, is by necessity a malleable tool to be altered when deemed necessary by a majority of elected or appointed Government officials. (How is that for open-mindedness?) The ACLU and even many sane people are getting really nervous of late. The reauthorization of 16 provisions of the Patriot Act that expire at the end of this year, including the “library clause” that lets US authorities get approval from a special court to search personal records of terror suspects from bookstores, businesses, hospitals and libraries, will slowly erode the freedoms we’ve come to take for granted, it is argued. If Death Row inmates are released and pardoned after years of incarceration based on newly perfected DNA testing, who can guarantee that some harmless soul researching the manufacture of black powder or smokeless propellants in a public library won’t be swept up in a hysteria induced government dragnet of suspected terrorists and held without being charged under a suspension of habeas corpus? On the other hand, whoever it was that coordinated and carried out the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995 had to have learned how to construct a destructive device capable of that magnitude of mayhem and property damage from somewhere. The Internet was still in its embryonic stage at the time the bombing was in its planning stages. Books about explosives, either from public libraries or bookstores, were most likely the only reference materials available. No chemist or demolitions expert was ever implicated in that terrorist atrocity. Timothy McVeigh was tried, convicted, and executed for the crime. It was widely reported that McVeigh’s favorite film was the 1984 Patrick Swayze epic Red Dawn and one of his favorite books was The Turner Diaries written by former American Nazi Party scumbag William L. Pierce. The media didn’t neglect to report McVeigh’s “obsession” with firearms, either. However, Timothy McVeigh had no prior arrests or convictions for firearms violations. Could the “library clause” of the Patriot Act be used to hold someone for checking out Red Dawn, The Turner Diaries, or any number of other films and books that promote hate with the simple expediency of a library card? Presumably online booksellers could also be forced by special court order to turn over records of sales made to “persons of interest”. The irony in a Justice Department statement that it has never used the provision, but still needs it "just in case", should not go unnoted. Internet privacy would be diluted under the provisions of the library clause, too (Read “Google and the Big Brother Nomination” at http://searchenginewatch.com/sereport/article.php/2175251 ). Once the legal apparatus to invade privacy is available, the abuse of that apparatus is a given. It’s only a matter of time. I respect just laws and the people sworn to enforce them, but I also recognize human fallibility and how it can act, with all the best intentions, to ruin the lives of innocent citizens. From a legal layman’s perspective, then, we have before us the quandary of the rabbi of Chelm: Everyone is right—sort of. We allow the federal government to operate in classic Kafkaesque fashion, indefinitely holding people on unnamed charges. The only obstacle is finding five Supreme Court justices or majorities of both Houses of Congress to issue emergency findings for the immediate nullification of the Fourth, Fifth and Sixth Amendments to the Constitution of the United States. If this is too much even for the most hardcore elements in Washington, perhaps a Council of Literary Purity can be the 23rd agency consolidated into the Department of Homeland Security. Experts from the nation’s bastions of truth and objectivity could decide which films and books American citizens should be allowed to see. (College and university professors need not apply!) It would be a criminal offense to publish anything without the prior approval of the Council. Perhaps nullifying the First Amendment alone would be simpler than nullifying three. George Orwell had the prescience to foresee where we were headed; he was merely off by about 25 years. If the above options are dismissed with “That dog won’t hunt”, there’s always the established precedent of mass deportation for suspected persons. Refer to the aforementioned TOYOSABURO KOREMATSU v. UNITED STATES: “It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.” The rabbi of Chelm was not a politician trying to please everyone to retain his incumbency. The poor fellow, thrust into the unenviable position of playing King Solomon, was simply inundated with too many apparent truths argued too articulately. In Voltaire’s Philosophical Dictionary under the entry for Truth, Monsieur Francois Marie Arouet had this to say: “Humanly speaking, let us define truth, while waiting for a better definition, as a statement of the facts as they are.” Fair enough; what are the facts? There are people in our midst who wish us dead for a multitude of fantastic reasons, and they themselves don’t mind dying if they can take us with them. Many of their leaders publicly spew hatred and vituperation for all that modern Western civilization stands for. American government, on a nonstop guilt trip for the sins of the fathers, can do nothing substantive to rid our society of this spreading cancer once and for all. Indeed, the contemporary functioning of our legal system guarantees that TOYOSABURO KOREMATSU v. UNITED STATES will never be in question again. The blueprint given to us by the Founders does not address this contingency, just as it didn’t address an identical constitutional question in 1944, hence that greatest of all documents lies somewhere between useless and open to groundless legislation, eloquently written but devoid of merit, from the bench of the Supreme Court with the concomitant rending of garments and cries for reparations to the victims years after the fact. Oyez, oyez! Until last week only airline commuters were subjected to what I consider one short step short of a prison strip search. After the July 7th detonation of three bombs in London’s subway system and one bomb on a bus, the wanton slaughter of 52 passengers and the injuring of 700 more by homegrown rather than flown in Islamic lunatics, mass transit users in New York City and New Jersey will be subject to random bag searches. Those refusing to have their belongings inspected will be denied access to trains and buses. We are sliding down a slippery slope. How long until the powers that be reinvent the Fourth Amendment to allow “safety searches” of individuals and their belongings in their homes? What if the neighbors observed you carrying your legally owned firearms to the car for an outing to the shooting range and reported the incident to the authorities? You answer the doorbell to be confronted by two or more uniformed officers who inform you that they are just checking out the building for general safety. What about a search warrant and probable cause, you ask? Public safety is the search warrant and the probable cause. America is fighting an offensive war overseas. Sadly, the nice man next door may be planning mass murder right under your nose and all you can do about it is wonder. What is the solution? Choose one. They are all right. Rabbi R. Mermelstein |
