Many criminal defense lawyers are lauding the recent article about Judge Gleason's outcry about unfair Federal minimum sentencing guidelines. The article is here. It seems to me this has long been a problem; but far scarier is the numbing of the judicial and prosecutorial conscious that comes with those sentences. Judges and prosecutors do not flinch at handing out 10, 15, 20 and 30 year sentences to young men and women who clearly do not pose such a threat as to deserve such treatment (some do, but those are not who I am addressing) - it is because they have become numb to humanity and have lost the capability to appreciate what it is they are doing, and they have gained the ability to falsely reason that what they are doing is "right."
Another article in the NY Times highlights this transition in personality.
What comes across as a bit of a puff piece for Obama, actually is quite scary:
"Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will"
"Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be."
"This was the enemy, served up in the latest chart from the intelligence agencies: 15 Qaeda suspects in Yemen with Western ties. The mug shots and brief biographies resembled a high school yearbook layout. Several were Americans. Two were teenagers, including a girl who looked even younger than her 17 years."
I believe that we can fairly debate whether or not it is acceptable to assassinate terrorist operatives or leaders before they have an opportunity to harm others. But, I draw the line well short of Obama's decision to kill an American, who was not actively shooting or blowing anybody up, without a trial --
"This is an easy one,” Mr. Daley recalled him saying, though the president warned that in future cases, the evidence might well not be so clear."
On that front, perhaps no case would test Mr. Obama’s principles as
starkly as that of Anwar al-Awlaki, an American-born cleric and Qaeda
propagandist hiding in Yemen, who had recently risen to prominence and
had taunted the president by name in some of his online screeds.
The president “was very interested in obviously trying to understand how
a guy like Awlaki developed,” said General Jones. The cleric’s fiery
sermons had helped inspire a dozen plots, including the shootings at
Fort Hood. Then he had gone “operational,” plotting with Mr. Abdulmutallab and coaching him to ignite his explosives only after the airliner was over the United States.
That record, and Mr. Awlaki’s calls for more attacks, presented Mr.
Obama with an urgent question: Could he order the targeted killing of an
American citizen, in a country with which the United States was not at
war, in secret and without the benefit of a trial?
The Justice Department’s Office of Legal Counsel prepared a lengthy memo
justifying that extraordinary step, asserting that while the Fifth
Amendment’s guarantee of due process applied, it could be satisfied by
internal deliberations in the executive branch.
Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011,
along with a fellow propagandist, Samir Khan, an American citizen who
was not on the target list but was traveling with him.
If the president had qualms about this momentous step, aides said he did
not share them. Mr. Obama focused instead on the weight of the evidence
showing that the cleric had joined the enemy and was plotting more
terrorist attacks."
I have a hard time understanding how the assassination of Awlaki can be justified as necessary because of imminent attacks when the Justice Department had sufficient time to draft a memo debating and ultimately approving of its lawfulness.
But this is my point, that type of false justification allows a judge, prosecutor or president to become numb to the actual scope and effect of their actions, and then foments more egregious conduct:
"Just days after taking office, the president got word that the first
strike under his administration had killed a number of innocent
Pakistanis. “The president was very sharp on the thing, and said, ‘I
want to know how this happened,’ “ a top White House adviser recounted.
In response to his concern, the C.I.A. downsized its munitions for more
pinpoint strikes. In addition, the president tightened standards, aides
say: If the agency did not have a “near certainty” that a strike would
result in zero civilian deaths, Mr. Obama wanted to decide personally
whether to go ahead."
The president's concern did not last long. In the course of a year or so, these deaths became acceptable, and the false reasoning that allows one to participate in the killing of innocents (or sentencing of people to unconscionably lengthy terms) surfaced in Obama's policy decisions --
"...Mr. Obama embraced a disputed method for
counting civilian casualties that did little to box him in. It in effect
counts all military-age males in a strike zone as combatants, according
to several administration officials, unless there is explicit
intelligence posthumously proving them innocent.
This counting method may partly explain the official claims of
extraordinarily low collateral deaths. In a speech last year Mr.
Brennan, Mr. Obama’s trusted adviser, said that not a single
noncombatant had been killed in a year of strikes. And in a recent
interview, a senior administration official said that the number of
civilians killed in drone strikes in Pakistan under Mr. Obama was in the
“single digits” — and that independent counts of scores or hundreds of
civilian deaths unwittingly draw on false propaganda claims by
militants.
But in interviews, three former senior intelligence officials expressed
disbelief that the number could be so low. The C.I.A. accounting has so
troubled some administration officials outside the agency that they have
brought their concerns to the White House. One called it “guilt by
association” that has led to “deceptive” estimates of civilian
casualties.
“It bothers me when they say there were seven guys, so they must all be
militants,” the official said. “They count the corpses and they’re not
really sure who they are.”
If there is one thing that Obama deserves credit for, it is that he appears to accept his role in these assassinations:
"The nominations go to the White House, where by his own insistence and
guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on
every strike in Yemen and Somalia and also on the more complex and risky
strikes in Pakistan — about a third of the total.
Aides say Mr. Obama has several reasons for becoming so immersed in
lethal counterterrorism operations. A student of writings on war by
Augustine and Thomas Aquinas, he believes that he should take moral
responsibility for such actions. And he knows that bad strikes can
tarnish America’s image and derail diplomacy.
“He realizes this isn’t science, this is judgments made off of, most of
the time, human intelligence,” said Mr. Daley, the former chief of
staff. “The president accepts as a fact that a certain amount of
screw-ups are going to happen, and to him, that calls for a more
judicious process.”
The problem with that, is that Judges and prosecutors, in addition to being able to lie to themselves about the righteousness of an unconscionable sentence, regularly proclaim that they are "just following the law" or "orders" or "policy" or whatever. Of course, anybody familiar with modern history knows that those types of excuses are not legitimate when societies come to examine the wrongs of others. You, judges and prosecutors chose to propagate a sentencing scheme that is unduly harsh and unfair - at least you could have the decency the Obama has to accept responsibility for your actions, even if it requires you to lie to yourself.
