Don't know if you saw it Sunday night but there was a classic Daily Kos moment. One where a genuine Kossack, i.e. progressive American--not an operative/fascist--articulated an emerging question. A diary where Daily Kos is at its finest. Where progressive Americans get to brass tacks regarding facts about what we clearly know to be true today. Someone asked if lawyers can be targeted for prosecution.
If you like the truth, like hearing how it reconfirms that we’re not a debauched society, that we come from somewhere, that there are things ingrained in us--then check this diary: http://www.dailykos.com/...
I turned some of the comments from it into a short play.
SCENE
(ACTOR enters, straightens CHAIRS for
A., B., C., D., F., and G.)
ACTOR
(to audience)
Hello--how are we? Very good--very good. Hi. As you might
be able to tell, I'm an actor. Some might say I'm really the
playwright, their mind, their thoughts. But I'm more than
that. I mean, I'm more than just a stick-figure the
playwright hung words on.
(Beat.)
ACTOR (CONT'D)
Well, maybe not for this role. Maybe I'm what so many
critics in New York City like to look down their noses at. A
nondescript character who merely voices the playwright's
opinions. Oh the shame. The fury!
(Beat.)
ACTOR (CONT'D)
And there is fury. He's pretty furious. He's angry. No
wait--indignant. He's indignant. Big difference there.
He's actually like many of you here now. An American. Grew
up taught certain things about this country, what it stands
for. Then came 9/11 and it all seemed tossed over. Like
passengers on a ship, our drinks and reading materials yanked
from our hands and thrown overboard. And then, even the
chairs and cushions. And for years we've all just huddled
together while the madmen at the helm directed course.
(Beat.)
ACTOR (CONT'D)
Well, we know what happened. I mean, ostensibly we know what
happened.
(A., B., C., D., E., F., and G. enter
with cups of
coffee/newspapers/magazines, take seats
and delve into reading materials as if
customers at a Starbucks.)
ACTOR (CONT'D)
As you'll see we don't know what happened. I mean what
really, really happened.
(Beat.)
ACTOR (CONT'D)
But before things get going, let me explain this playwright a
bit. I tried to bring a little more to my role than he
originally imagined, because he kept paring it down. Like
for instance, since the beginning of this piece is a bunch of
expository, I thought I might do some kind of dance step, or
something--something to pepper things up. Something like
this:
(Actor begins half-way decent mine
across stage, hands out as if feeling
way along fourth wall.)
ACTOR (CONT'D)
(miming)
And there is fury. He's angry. He's indignant. He's like
you. American. Grew up taught one thing, and then it was
thrown overboard. Drinks, cushions and all. (Stops mime.)
See? Something like that. I tried it in rehearsals. I
could've pressed for it, but you gotta choose your battles.
(Beat.)
ACTOR (CONT'D)
(glancing at A.-G.)
Anyway, I do feel for him--for all playwrights--for the real
playwrights. I mean can you imagine going to college,
nailing down all the big ideas about life and living--from
truth tables and logic to romantic literature--gearing up to
do what playwrights have always done--and then some planes
fly into buildings and suddenly objective fact and opinion is
pulverized into gray dust, and we're all covered with it, and
there's a collective vertigo, and people like him are
suddenly fools for attempting to make sense of it?
(Beat.)
ACTOR (CONT'D)
I mean real sense, not fake sense. Not entertainment for
entertainment's sake, but for the sake of combining art and
idea to transform a person's reality. Can you imagine?
(Beat.)
ACTOR (CONT'D)
We were having a beer once after rehearsals, and he told me
how when he was a little boy, he went around telling everyone
he was going to be a scientist when he grew up. A scientist
to the little boy was someone who knew the truth about
things, or if they didn't, their job was to find out. He
should have been a journalist.
(Beat.)
ACTOR (CONT'D)
Eventually he discovered that raising consciousness is
paramount--that scientific fact is the salt/flour/eggs, but
theater is the bread. Creative fact. Then 9/11 happened.
(A. puts paper down, perplexed.)
(Actor notices, sits in chair apart
from A.-G.)
A.
Alotta talk about prosecuting the administration for
authorizing torture. Questions are floating around like,
should we do it? Can we do it? Will we? Plenty of
arguments pro and con, but something's getting lost. The
President said he went out of his way to get legal counsel
and legal backup for everything he authorized.
(D. chuckles. Others turn/look. D.
gets self-conscious, signals for A. to
continue.)
A. (CONT'D)
We all know the Nuremberg Defense doesn't cut it anymore.
Someone who commits war crimes can't maintain they were
forced to--can't say 'they made me do it.' But the President
says the lawyers told him it was legal.
(D. stifles laugh, gets self-conscious,
signals for A. to continue.)
A. (CONT'D)
(re-reading from paper)
He says here, "I asked them specifically, 'What can I do that
is legal? And this is what I was told.'" We all know which
lawyers he consulted, and how they were quoted saying the
Geneva Convention was "quaint," and torture is only
equivalent to organ failure or death. The lawyers were the
enablers. If this were a murder, they provided the weapon,
knowing full well what it would be used for.
(Beat.)
B.
So what's your point?
A.
It raises the question, shouldn't prosecution for torture go
after the lawyers who wrote the opinion for it? Just because
they're giving advice, does that somehow let them off the
hook?
B.
What--you gonna send every lawyer to jail who loses a case
because their legal arguments didn't work?
C.
No, just the ones who give faulty advice.
E.
The ones who encourage Presidents to violate the law and the
Geneva Convention.
C.
And encourage illegal torture.
B.
Those laws and treaties have gray areas. It's a lawyer's job
to argue to his client's advantage, and the ultimate job of
the court to apply the law to a specific case. It would be
difficult to prove--
D.
What if the President turns state's witness and tells a
different story about the lawyers? Wouldn't that be fun?
E.
(to B.)
Gray areas? What are you talking about? Objections to the
policy were ignored. The lawyers who complained were demoted
or transferred. Water boarding was once prosecuted by the
United States. If someone writes a memo saying it's now
legal, isn't that a crime?
B.
It may be immoral, but it's not a crime.
F.
Well, I for one would like to find that out at trial. I
think a damned good case can be made against them. The Bar
Association ought to take a whack at this. I'd like to see
them at trial. They're innocent until proven guilty. I'd
like to see a good lawyer prove them guilty.
B.
And you practice law in what jurisdiction?
F.
There are lawyers who could write out a case against them
easily. Just as easily as they wrote a case for torture.
D.
Lawyers can write up any kind of case at all.
F.
And isn't that the point here?
G.
Please tell me what crime they committed? Malpractice,
maybe. But that's not a crime.
F.
They have to be investigated as part of a bigger case.
Valtin, that psychiatrist wasn't afraid to call out fellow
psychiatrists as well as the APA, who, as a result of his and
others' activism, have had to confront their complicity in
this. I'm interested in why you aren't angry, and instead
more worried about the protections afforded lawyers. Valtin
knows the protections to psychiatrists, yet had no trouble
condemning those who participated in torture. So yes, the
lawyers who wrote the opinion should be in the cross-hairs.
I don't know if charging them with a crime is even the point
so much as having what they did become part of a full and
thorough investigation. When I think of all our professions-
doctors, lawyers, accountants--all of whom have such
supposedly strict codes of ethics. And yet look what's
happened. They're not professions any more--they're all
businesses!
B.
Nobody's saying what they did is a good thing. But people
shouldn't be misled with the idea that those lawyers can go
to jail for torture. Investigated? Sure. But under no
theory of law can writing a legal opinion make a person
guilty of torture.
C.
There's a level of criminality here that should be
investigated. How can we know whether or not they committed
a crime if we don't know what happened? Their motivation?
The chain of events on those days? All that. It's not about
going to jail at this point. It's about restoring the rule
of law. If lawyers are allowed to do what they did with no
response, just business as usual--
D.
Business that led to torture.
C.
The ultimate tyranny.
F.
I believe we do have the means for justice. I think the new
Attorney General is a good lawyer. Hopefully they'll appoint
a prosecutor who is a good lawyer.
B.
All I'm saying is that in criminal law, you need a criminal
statute. A crime needs a statute. The statute needs to say
exactly what conduct is criminal and what penalty is
possible.
G.
Otherwise it's unconstitutional as a violation of due
process. This is first-year law school stuff.
A.
So the lawyers can say they were just drafting an opinion the
President sought, and the President can say he was just doing
what the lawyers said was legal?
G.
It's immoral, but it's not illegal.
(Double Beat.)
(Actor rises to address audience.)
ACTOR
And this is where things rest. The big question unanswered.
Where's the crime? (Thumbing to A.-G.) The thing they don't
know, is that the crime is in regards to the oath of office.
It's a crime to advocate--
A.
What?
(Actor is somewhat stunned, A.-G. await
reply.)
A. (CONT'D)
(to Actor)
Go ahead, tell us.
C.
We've been waiting years to have this discussion.
F.
What about the oath of office?
G.
There's no statute for breaking an oath. It just means
you're untrustworthy.
ACTOR
No, if you advocate to overthrow the government--
B. & G.
(simultaneous)
B.: Ha! G.: What?
G.
The lawyers were not advocating the overthrow of the
government.
ACTOR
Yes, they were. Our government does not torture, and they
were advocating alteration of our government by
unconstitutional means. And under title 18, section 1-9-1-8
that's punishable by a fine and/or prison. You can't take
the oath, and then turn around and write opinions about how
to go against our core principles. You go to jail for that.
G.
Title 18?
ACTOR
Yes.