A Chilling Effect for Democracy
Fri Jun 02, 2006 at 06:46:25 AM PDT
Here's a hypothetical for you:
Let's say you're a lawyer working for the District Attorney's office. You are asked by your superiors to investigate whether or not a police officer lied to the court to get a search warrant. You find out that the officer did, in fact, "misrepresent" the truth. You inform your superiors of your findings and they say, "Thanks, now don't say anything to anyone."
What do you do?
(Cross-posted from Xpatriated Texan)
If you do what your employers tell you to do, then a potentially innocent man goes to prison. If you disobey, you will likely face punishment for doing so.
Hmmm. "Thou shalt not bear false witness."
An innocent man (potentially) goes to jail or you get promoted (or at least, not demoted).
Does it matter if the man is innocent? What if the police officer lied, but they found evidence linking the man to a crime? What if it wasn't the crime they were originally investigating?
These are questions that are central to the existence of our legal system. They tell us who we are in a very real sense. Our answers explain what we mean when we cry "Justice!". Under the Bush Administration, we have had to ask these basic questions of justice with greater care, perhaps greater nuance, then ever before. We are told that we face a new kind of enemy - terrorists - and we must evolve our sense of justice to suit this prosecution of justice against them.
These questions are also central to the decision of Garcetti v. Ceballos. For good reason, many civil rights and professional organizations are incensed. In this case, Ceballos is the attorney that investigated the claim of wrong-doing and found evidence that the claim was well founded. His superiors ordered him to forget about it. Instead, he turned over the memo to the defense (more about this in a minute) and testified as to the truth of his findings. Later, he also gave a speech to a local bar association about what he did, why he did it, and the retribution he withstood because of it.
From my imperfect understanding of legal procedings, he was bound to turn over his memo to the defense. What is at question is whether or how much editorial control his boss should have had over the document. Once the document was turned over, the rest (except, of course, the speech, which was a result of the ensuing problems) was set. He knew when he gave them the document that he would have to testify. As a witness, he would have to take an oath to tell the truth about his investigation.
Ceballos's case stems from the fact that his superiors, as a result of him disobeying them, punished him for not squelching his findings. He claimed that his rights of free speech had been violated. The Supreme Court of the United States reversed the appellate court that had ruled for Ceballos. Basically, they told him, "You didn't do what your boss told you to do and were disciplined accordingly." This is partially true, but it exposes why "original intent" - as espoused by Alito, Roberts, Scalia, and Thomas - is not actually used consistently. It is, in fact, a straw man, built solely to shield a sick system and to give opponents a target that they cannot overcome.
Ceballos's claim is that he, as a citizen, held a First Amendment right to expose the collusion to withhold his findings. That's a stretch, in my opinion. If I work for someone, I pretty much have to do as they tell me. Up to a point. No one has the right to compell you to break the law as a condition of employment. That is, basically, what Ceballos's employers did.
That isn't a question of free speech. Tying it to a tenuous First Amendment claim is not a strong suit. Instead, it should have been tied to the Nineth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ceballos wasn't really, in my opinion, exercising his right to speak or express himself as a citizen (as far as his testimony and the redaction of the memo). He was, however, exercising an unenumerated right to not participate in a potentially criminal conspiracy. Again, with my imperfect knowledge of legal procedings, he was legally bound to turn over his findings. To remove exculpatory evidence from that memo would have been immoral and unethical, but also illegal - at least worthy of a contempt of court charge. Individually, it would have exposed Ceballos to a civil suit from the original defendant for acting in bad faith towards evidence.
No employer has the right to force you to be a criminal. To argue otherwise is to say that liberty and justice are capricious and meaningless. It undermines the entire system of justice and the very concept of democracy.
But "original intent" allows the court to reach this finding:
Exposing governmental inefficiency and misconduct is a matter of considerable significance, and various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. These include federal and state whistle-blower protection laws and labor codes and, for government attorneys, rules of conduct and constitutional obligations apart from the First Amendment. However, the Court’s precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.
The "Right to Not Be Forced into Criminality", however, could not have been so lightly dismissed. It also encourages personal responsibility because every right comes with an equal and balancing responsibility. Conversely, if you have no right to refuse, then you cannot be charged with a crime.
Which is, I believe, the decision the Court wanted to protect. You don't need a crystal ball to see the day when George W. Bush will no longer inhabit the White House. The day he leaves, all of his decisions will be judged by someone else. Someone else will determine whether or not investigations need to be launched into, for instance, the leaking of Valerie Plame's identity. Scooter Libby, I'm sure, smiled gleefully at the decision, realizing that his blockading of a federal investigation could bear on the simple defense of "I was told to do it."
That should send a chill up everyone's spine - not because of Scooter Libby, but because if it works for him, it will work for everyone else, too.
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