Playing Dirty

Some lawyers routinely play dirty. They give evasive answers in response to interrogatories. They present inadmissible evidence, knowing that the judge will sustain objections to it, in an effort to get a jury thinking about something that isn't relevant, even though the judge will tell them to disregard it. They are hostile in negotiations, and sometimes slide into outright unethical and illegal conduct, hoping (usually correctly) that the judge will lack the backbone to sanction their conduct.

Governments sometimes do the same, and the United States government lead by George W. Bush and aided by a Republican held Congress is at the forefront of the playing dirty approach to politics.

In domestic policy, this has taken the form of repeatedly ignoring agency experts in order to make politically motivated decisions. In the FDA, this meant ignoring an advisory committee's recommendation on emergency contraception to curry favor with anti-abortion zealots who think that hormonal contraception is tantamount to abortion. In interpreting this Endangered Species Act, this has come in the form of an effort to have the relevant agencies ignore all scientific development made since the ESA was adopted. In the Justice Department, one of the most notable recent examples was a decision to overrule a unanimous decision of agency staff that the Texas redistricting plan did not comply with the Voting Rights Act.

The manner in which the administration has chosen to wage a "war on terrorism" has been even more disturbing. I has used the deferrence that an administration in power receives and the cloak of secrecy that enshrouds intelligence activities to carry out a policy of torture (the most public examples of which were revealed at Abu Grahib prison in Iraq), extraordinary renditions to places that permit torture, secret prisons in Europe, kidnappings of people from the territory of places like Italy, that are our allies, and an asserted authority to detain people at will, the "enemy combatant" policy use in Guantanmo Bay and the Padilla and al-Marri cases, which have, taken as a whole, replaced American values with those of a depostic regime not unlike the one that Saddam Hussein is currently on trial for maintaining in Iraq. In pursuit of that policy, U.S. agents have conducted a number of extralegal executions as part of torture regimes in prisons we run, while holding no one responsible. When people complain and try to explose the administration's lies, they take steps, such of those taken when Scooter Libby exposed a covert CIA agent to punish her husband.

Condi Rice, our now Secretary of State, and George W. Bush, claim that the U.S. doesn't engage in torture or violate human rights or our own laws, but the entire world knows that they are lying (or, at best, engaging in elaborate acts of self-deception based on tortured definitions of torture and a view that everything in legal in a Congressionally authorized war on terrorism).

I don't believe that playing dirty is necessary or effective, either in law or by the government. You may enjoy short term gains from that approach, but you undermine your legitimacy and credibility in the process. As a lawyer, those kind of tactics encourage your opposing counsel to look for ways to undermine and destroy you that go well beyond the current litigation.

As a government, you lose the allies you need to win your cause, and as interrogation experts have repeatedly testified, while torture will get suspects to talk, it often will not get them to tell the truth. A recent case when a university professor was seized on the belief that he was an al-Quedda member based on the testimony of a detained suspect, when in fact, he had no link to the organization, other than that he had given the detained suspect a bad grade in his course, a typical of what happens when you push too hard for co-conspirators in a duress driven interrogation.

A government as large as the United States simply can't hide big secrets for long. Too many people are looking, watching aircraft markings, looking for secret activities, leaking what they know because they think that the conduct is illegal or improper. Now, the European Union is pushing hard to identify those involved in authorizing secret U.S. prisons in Europe, which Secretary of State Rice has basically admitted exist, and those involved will likely pay a high political price for their complicity. The lesson that they will learn is that bowing to the United States when it tries to play dirty is a road to ruin.

Of course, the other part of not being able to hide big secrets, is that you legitimatize terrorists desire to attack us when they discover that you use the same tactics as our dictatorships. A war against terrorism is primarily a war for hearts and minds, and only secondarily an effort to shut down particular individuals. By playing dirty, you may apprehend one suicide bomber, only to spur a dozen more to action.

Playing dirty is simply a form of corruption. Indeed, the international word for corruption is a "lack of transparency" which perfectly describes the current adminstration's approach to policy. Corruption is bad for business and bad for peace. I just wish more people at home could feel the outrage that I do when our countries high ideals are so betrayed, so that this nightmare could end. Maybe, in 2006, we will finally see that happen. I certainly hope so.