Death and Law.

December 15, 2010 at 9:14 A.M. Several "errors" were inserted in this text overnight. I have corrected them. I understand that interesting developments are taking place in Hudson County, New Jersey. Several persons are facing arrest. I suggest that you get a good lawyer. The best is yet to come. To my knowledge, Judge Bates is not Jewish.

December 14, 2010 at 9:44 A.M. Due to obstructions to my cable signal, it was necessary to reboot my computer in order to reach this site today. I will continue to struggle to write from public computers this afternoon. I cannot say how many essays have been vandalized overnight. My discussion of Ronald Dworkin's jurisprudence was altered and defaced, again, yesterday. I have done my best to make all necessary corrections. American authorities are "unable" to prevent this "censorship and computer crime," allegedly. Spacing of paragraphs was affected in this essay. Most of what follows will probably be plagiarized soon. ("What is it like to be plagiarized?" and "'Brideshead Revisited': A Movie Review.")

Seymour Hersch, "The Online Threat," in The New Yorker, November 1, 2010, at p. 44. (We are not ready for the computer wars that are coming our way.)
Deepa Kumar, "The Rise of Anti-Muslim Hate," in International Socialist Review, November-December, 2010, at p. 13. (Mr. al-Awalki's name will be altered, periodically, in this essay to hurt me and/or out of hatred for Islam by New Jersey legal officials, I believe, which explains why cyberwars are coming our way. There was always a great deal of hostility to Muslims among New Jersey judges.)
Tariq Ali & David Barsamian, Conversations With Tariq Ali: Speaking of Empire and Resistance (New York & London: The Free Press, 2005), pp. 123-173. ("The Enablers of Empire.")
David Rose, Guantanamo: The War on Human Rights (New York & London: The Free Press, 2004), entirety.
Arundhati Roy, Power Politics (Cambridge: Southend Press, 2001), entirety.
Jean Paul Stevens, "On the Death Penalty," in The New York Review of Books, December 23, 2010, at p. 8. ("Let us take the great civilizing step of ending the death penalty." Albert Camus.)
David Gartland, Peculiar Institution: America's Death Penalty in an Age of Abolition (Cambridge: Harvard University Press, 2010). (Here's why we should end the death penalty.)
Steven Lee Myers, "More Christians Are Fleeing Iraq in New Violence," in The New York Times, December 13, 2010, at p. A1. (A society is falling apart before our eyes and we are making things worse.)
C.J. Chivers, "6 Americans Killed by Bomb at a New U.S.-Afghan Outpost," in The New York Times, December 13, 2010, at p. A6. (More and variable attacks are expected in Afghanistan and Pakistan with a refreshed Taliban drawing recruits from "elsewhere" in the Middle East and throughout the world.)
"Names of the Dead," in The New York Times, December 13, 2010, at p. A6. (4,420 Americans killed in Iraq; 1,411 have died in Afghanistan; well over one million total casualties resulting from these conflicts, including 500,000 children -- so far. $1 BILLION per month in monetary costs.)
Joy Gordon, Invisible War: The United States and the Iraq Sanctions (Cambridge & London: Harvard University Press, 2010), entirety. (A generation of Iraqui youth are growing up utterly hopeless and without connections to the outside world. This is a dangerous situation that will create many more suicide bombers.)
"Judicial Scrutiny Before Death," (Editorial) in The New York Times, December 13, 2010, at p. A24. (Murder by order of the U.S. Chief Executive is still murder.)
Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988).
Lawrence Tribe, God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History (New York: Random House, 1985), entirety.

"The Obama administration no longer has to worry about an immediate legal challenge to its policy of targeting terrorists, including American citizens, for assassination. A federal judge threw out a lawsuit brought by the father of Anwar al-Awalki, an American citizen hidden in Yemen who is on the government's target list. He [the judge] said the father had no standing to sue."

Why not provide readers with the name of this judge in the first paragraph of your editorial? This way we will know to whom you are referring when you say that "he" decided to throw out the lawsuit. Just a suggestion. This is The New York Times?

"But the administration should remain very worried about the moral implications of its policy, [-- the legal implications continue to be even more ominous --] which were sharply questioned [sic.] by the judge [,] John Bates of the United States District Court for the District of Columbia, as he dismissed the suit. Among the many unanswered questions raised by the lawsuit, he wrote, is this one: 'Can the Executive order the assassination of a U.S. citizen without affording him [or her] any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?' ..."

The difficulties surrounding this debate regarding the scope of presidential war powers is the lack of focus on alternative implications of the controversy. In other words, merely because presidential power during wartime is an "issue" in a Constitutional controversy does not mean that no other issues are present. It is not all that clear that this case raises questions that concern the president's war powers, primarily, in isolation from issues pertaining to the individual's relationship with government power and other central concerns of the Bill of Rights.

"Even though the Supreme Court speaks only when deciding actual cases" -- this is something for the New Jersey Supreme Court to try! -- "its discourse is sometimes conducted at a higher level than literally necessary for the resolution of the particular disputes in question. The Justices speak in resonant tones on themes that transcend the outcome of a given controversy, and go to the very heart of what we are as a nation. For this reason the Supreme Court has been called 'the schoolmaster of the Republic.' ..."

Lawrence Tribe, God Save This Honorable Court, at p. 27.

I hope that Mr. al-Awalki's case will reach the highest Court in the land. We need instruction on these issues. Even the president's war powers are not unlimited under the Constitution. To understand why this is so, please see the final section of this essay. An American president cannot, for example, decide to alter the balance of power of the coequal branches of the government by dissolving the Supreme Court, or removing members of Congress who disagree with his or her decisions, or increasing the number of Senators in order to put his people in those "spots," as they say in New Jersey, even in the course of fighting a war.

I wish to raise some difficulties pertaining to the current understanding of this al-Awalki litigation along with the package of interpretations presented to the public as "how we should think about" this case. These sanctioned "interpretive constructions" are convenient for the powerful and much less beneficial to ordinary citizens. But ordinary citizens are the Constitution's primary concern in terms of "protections" from excessive or overweening state power. Let us focus on four issues: 1) standing; 2) individual and state relations as envisioned under the Bill of Rights; 3) courts and secrecy; and 4) due process of law as "balancing" governmental power.

Standing: The federal judge in this matter determined that the father of the threatened individual "lacks standing" to contest this determination that his son will be killed by the United States because, presumably, his son's statements have given assistance to the "enemy" in our current war. This person, Mr. al-Awalki, resides not in Iraq or Afghanistan -- not even in Pakistan -- but in Yemen. The United States is not at war with Yemen. In fact, there is no declared war with either Afghanistan or Iraq. There was a vote to allow or legitimate what was, essentially, a police action by President George W. Bush to remove "weapons of mass destruction" in Iraq and to pursue Mr. bin Laden in Afghanistan.

Presumably any American citizen -- including a person living in London or Paris, Moscow or Beijing -- would be subject to assassination by American military personnel provided that the American president decides, for unknown or unarticulated reasons, that such persons are "threatening" to U.S. security interests. The concerns of the host nation or provisions of international law are "irrelevant" to the legality of this decision according to advocates of the "imperial presidency."

This was certainly Joseph Stalin's position concerning opponents of his regime in the thirties in the Soviet Union. I see no difference between the power claimed then by Stalin and what Mr. Obama -- and before him, Mr. Bush -- have sought in the way of "war powers" today in America and the world. ("U.S. Courts Must Not Condone Torture.")

If a person -- let us assume that the federal judge deciding this case, "John Bates," is a person or human being -- happens to be a parent, then he or she will understand that one's children or any young people, often even as adults, say stupid things or hold opinions that we do not share. No one alleges, to my knowledge, that the young man in question shot someone or has transported arms, or engaged in such criminal actions on the battlefield. The secret decision to kill an American pertains exclusively to statements made by the young man in a foreign country that "lend support to or encourage terrorist actions against the U.S. and its allies."

Mr. al-Awalki is entitled under the First Amendment to hold and express any opinion, especially with regard to political or religious matters. If the individual in question, Mr. al-Awalki, is "yelling fire in a crowded theater" and is not subject to free speech protections, then you must bring that accusation against him in a court of law and allow him to respond before any action is taken against him. Mr. al-Awalki cannot appear to contest this decision or he will be killed. However, his father will be denied standing to object on his son's behalf. This is to decide that the person and also the victim's legal identity, as a human being, will be obliterated. This sounds like dictatorship to me.

Mr. al-Awalki is nothing -- legally, a non-entity -- without weight or presence in an American courtroom de facto to challenge his own proposed murder at the hands of the state acting outside the boundaries of law. I am in a similar position as regards daily censorship of my views by N.J. government agents or their friends. This outcome is the opposite of what the Framers of the Constitution envisioned in terms of the relation between any individual and government. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

If the person to be killed resides in a foreign country, then there is no jurisdiction for America to carry out a death sentence on foreign soil nor can the U.S. decide that statements made by a person in another country entitles the U.S. to kill that individual when he visits or returns to America.

In the real world -- which is not the place you learn about in law school -- we all know that hurting a child is also hurting a parent. Injuring any person I love is injuring me. Of course, a person has standing to protest that he or she is one affected person, or the injured party, when a loved-one will be killed by the state. Even prisoners have the right to love and receive love, to think and speak, to basic human dignity and moral concern from others.

Hypothetically, let us ask Judge Bates what he would feel if someone were to kill his child? Would Judge Bates not feel aggrieved and entitled to be heard concerning the injury he had suffered from the murder of his child by a government official? I certainly feel injured when persons threaten or hurt my child, or anyone I love. How can I imagine that others feel differently about this matter? Has Judge Bates left his common sense and humanity outside his courtroom in deciding this case? And yes, those feelings and recognition of genuine aggrievement are relevant considerations in determining standing in a law suit. ("Law and Morals" and "What is Law?")

To kill my child is to hurt me, "permanently and severely" in the words of "wrongful death" statutes and other American civil laws providing damages to individuals hurt, indirectly, through injuries suffered by others, including those enduring emotional damages, as in cases concerned with the tort of "outrage" or "intentional infliction of emotional distress."

Setting aside the legal mumbo-jumbo and subterfuge, it is obvious that this father of a threatened child is articulating a genuine legal claim of potential and actual harm based on the threat to his son's life. Deciding that there is no right for this father of a threatened son even to be heard in an American courtroom will be perceived by most Americans (who are fair-minded) and the majority of people in the world as not only mistaken, but absurd.

Individual/State Relations. The judge in this matter has to pretend not to know this fact of human connectedness (as in his own family relations, perhaps) in order to escape the reality before his eyes, so as to enter a maze of legal technicalities that are about obfuscating what the world sees all too clearly: America is setting aside its tradition of protecting the individual in order to reinvent the relation between the individual and state in favor of the latter. This evolution is highly dangerous to everyone's civil liberties.

The Framers of the American Constitution -- especially the Bill of Rights, were reacting to centuries of struggle in England for individual rights against monarchs and kings who claimed totalitarian power (Hobbes) derived from God. Hence, this Monarchical power was unquestionable, unexplained, decisions were made secretly by special Star Chamber-like servants of the crown to protect that absolute power and not for the good of the people. ("Roberto Mangabeira Unger's Revolutionary Legal Theory" and, again, "Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

The Framers insisted that, in America, government must operate under the rule of law, in accordance with restrictions upon its use set forth in public rules and laws that all free persons could read. No one was to be denied due process, habeas corpus, because fundamental liberties were not a "concession" of the rulers, but a recognition of what is meant by a person. ("Is there a gay marriage right?")

Justice Robert Jackson, who later presided over the Nuremberg trials of Nazi war criminals, reaffirmed the American dedication to freedom of thought in his 1943 decision in West Virginia Board of Education v. Barnette: "If there is any fixed star in our constellation, it is that no official, high or petty, can precribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. [There is no 'political correctness' oath in America.] If there are circumstances which permit an exception, they do not occur to us."

319 U.S. 624 (1943). Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988), pp. 1170-1172.

These rights and liberties of persons were the endowment of human beings who must be treated, invariably, as "equals before the law" no matter who the person to be sanctioned might be. It does not matter whether the ruler seeking unconstitutional power is a "nice guy" (Obama) or a "not-so-nice guy" (G.W.). The debate is about a principle of human dignity that requires the accountability of power to the law, especially the most important law in the land. The wrong to the Constitution resulting from Obama's illegal assassination power is the usurpation of the authority to sidestep all of the protections of the Bill of Rights regardless of the identity of the victim or victims. ("Ronald Dworkin's Jurisprudence of Interpretation.")

No person may be "deprived of life, liberty, or property without due process of law." Human liberty demands this respect for even the humblest person in the nation and (I believe) in the world. This is what we ask others to do in China and Russia, Cuba and Korea. Hypocritically, we set aside these principles when we decide for unknown reasons that they are inconvenient to our so-called "security." Wrong. These principles ARE America's security. Freedom. Equality. Dignity. These legal rights are the baby; military power is the bathwater. Mr. al-Awalki and his father must have their day in court.

Courts and Secrecy. It is very dangerous for courts or officials to operate "secretly." Persons affected by decisions must be permitted to speak concerning allegations made about them which may serve as the basis for decisions affecting their lives. Such allegations may be based on envy, malice, stupidity, ignorance, factual or interpretational inaccuracy -- or bribery, as in New Jersey. ("New Jersey's Office of Attorney Ethics.")

Allegations may be knowably (or unknowably) false and may damage persons for life if they are unchallenged. Persons have the right to challenge accusations and those who make them. To deprive a person of such rights to confrontation is to deny him or her fundamental humanity. We have seen in the twentieth century where the assembly line view of persons as legal "objects" has led. It is not a pretty destination. It is called Dachau or Auschwitz. This is where persons deprived of their humanity through enslavement and torture or rape are placed -- in Auschwitz. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

Given America's history with race-based slavery, it is particularly surprising that America's first African-American president should seek this unique power of life and death over dissidents or slavery for detainees in concentration camp-like settings. Mr. Obama must never allow for censorship, suppressions of speech, or torture of dissidents at home, persons (like me) who are critical of mainstream views in society. ("What is it like to be censored in America?" and "What is it like to be tortured?")

The name of Mr. al-Awalki has been altered several times in this essay by New Jersey's hackers then corrected by me. This is part of the frustration-inducement effort against me. More ominously, these tactics reveal a sanctioned hatred for Muslims in America that is sick and highly dangerous, especially when it comes from Jews: "This ideology is best understood as a form of cultural racism that represents the Muslim 'other' as untrustworthy, violent, misogynistic, and undemocratic." Deepa Kumar, "The Rise of Anti-Muslim Hate," in International Socialist Review, November-December, 2010, at p. 13, pp. 16-17.

The same cultural racism suffered by Muslims today has victimized Jews in the past. The residents of Auschwitz did not have claims to due process or dignity because, under Nazi laws, they were "sub-human" and not legal subjects with what Rommen and, later, Kelsen (who found these provisions deeply offensive as a German jurist) called: "zones of moral entitlement." I had the privilege of knowing someone who studied under Kelsen. I discussed these matters with that legal scholar, who happened to be a Republican. I am certain that he would have agreed with what I am saying in this essay. The legal plight of detainees at Guantanamo becomes an obvious analogy. (Please read Gore Vidal's essay "Pink Triangle and Yellow Star" then see: ''The Reader': A Movie Review.")

No torture. No censorship. No slavery. These general principles of law have been put in place by generations of American and English men and women making the ultimate sacrifice for their children's sake, subject to very few well-defined and limited exceptions. This costly and painful achievement of freedom is what still makes America -- at its best -- the world's great good place and gift of God (if you wish to use religious language), or the finest achievement of the human political imagination. ("Manifesto for the Unfinished American Revolution.")

The freedom of the "English-speaking peoples" (Winston Churchill) is endangered today much more from the actions of our own governments than from anything that Al-Qaeda or the Taliban can do to us. Richard Nixon, a Republican favorite, once pointed out that neither "the Viet Cong nor any earthly enemy could humiliate or deprive Americans of freedom and equality before the law, only Americans can do that."

We seem to be determined to deprive ourselves of the freedoms won by our ancestors, which will make us less and not more secure, in order to derive the false comforts of a sham security and dangerous xenophobia.

Due Process of Law and Dangers of Power. Why the fear of power on the part of the Framers? Power is understood in the Anglo-American tradition as a "ravenous beast." Power always grows if unchecked, seeks greater territory and scope. Like a tumor, power will inevitably devour the host organism. Power must be subject to the rule of law in a free society.

Free societies cannot make accomodations with totalitarianism. It may be necessary for a Chief Executive to take illegal actions, secretly, but then they must be understood to be exactly that -- illegal. If such actions are made public, then the responsible official of the government must accept responsibility for whatever consequences ensue. It is absurd to label crimes by government as legitimate legal deprivations. It is not, to refer to Mr. Nixon again, necessarily "legal if the president does it."

Mr. al-Awalki and his father must be permitted their day in court. I hope that an appellate tribunal or the U.S. Supreme Court will understand all that is at stake in this case. This may be a good moment to insert further "errors" in this essay, New Jersey.

"The principle that animates the Bill of Rights, including the First Amendment, is that there are certain freedoms that are fundamental in determining the kind of society we wish to be. These freedoms must be protected from political compromise, and even democratically elected governments must fully respect them. In light of this principle, it is perfectly sensible to see the shield of the First Amendment as a bulwark of freedom against presidential as well as Congressional acts. Indeed, it would be indefensible not to."

Tribe, God Save This Honorable Court, at p. 43.

Law and Morals in America.

"Congress and the Court," (Editorial) in The New York Times, December 14, 2010, at p. A34. (Someone in the Times must be reading my blogs: "The Gray Lady is Red Faced!" and "What is it like to be plagiarized?")

Ashley Southall, "Vote on Impeached Judge Is Coming in the Senate," in The New York Times, December 7, 2010, at p. A21.

Peter Baker, "In Deal With the G.O.P., a [sic.] Portent for the Next Two Years," in The New York Times, December 7, 2010, at p. A21.

Adam Liptak, "Justices Hear Case on Denial of Help to Veteran Who Missed Filing Deadline," in The New York Times, December 7, 2010, at p. A18.

James McKinley, "Panel Hears Same-Sex Marriage Debate," in The New York Times, December 7, 2010, at p. A19. ("Is there a right to same-sex marriage?")

James McKinley, "Legal Challenge to the Death Penalty Begins in Texas," in The New York Times, December 7, 2010, at p. A19.

It is often said that law and justice are distant neighbors.

Lately, in American courts, law and justice no longer seem to be on speaking terms.

There are, of course, conflicting views concerning the relations -- and they are plural -- between law and morals.

This much-discussed set of complex disciplines and relationships (law and morals) has multiple and variable aspects (or connections) to other branches of political economy, or democratic theory.

The relationships -- or entanglements -- between juridical and ethical reasoning and/or values are not archaic features of legal practice having little to do with the mundane experiences of the average practitioner. Rather, they are integral to the daily work-product of the humblest laborer in the legal vineyards.

It is certainly true that practitioners (even judges) rarely recognize the philosophical conundrums over which they dance and traipse so gingerly and, often, uncautiously. Perhaps this ignorance of jurisprudence by lawyers and judges is fortunate:

Compare Ronald Dworkin, "Jurisprudence," in Taking Rights Seriously (Cambridge: Harvard University Press, 1977), pp. 1-13 with Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960). (New Jersey's Supreme Court once had standards and was competent in resolving appellate matters.)

A recent United States Supreme Court case raises issues concerning the scope of judicial power in interpreting laws. Technically, these are questions of boundaries and construction in what has come to be called "legal hermeneutics."

At issue before the Court is whether the violation of a statutory deadline to file an appeal from the denial of benefits to an injured veteran suffering from mental illness and acting pro se -- that is, without a lawyer -- should be sustained (or upheld) as "untimely" with the result that the veteran will be denied all benefits.

A lower court judge determined that the appeal was indeed "untimely" and barred the applicant's request to be heard.

"Mootness" would have allowed the Court to sidestep the substantive discussion, given the death of the appellant, but the justices entered the controversy anyway.

No doubt there are other similar cases pending before the nation's highest tribunal -- a tribunal which fills all of us with awe at the majesty of legal reasoning. Irony?

No final decision has been published in this matter.

We must await Justice Scalia's decision that, no doubt, will be filled with the milk of human kindness.

America's "nine scorpions in a bottle" (Oliver Wendell Holmes) hoped -- in their innocence -- to get this issue resolved for future cases. Sadly, the justices appear to have muddied the waters even further. Befuddlement and division among the justices will ensure many more cases raising similar issues in the future.

The veteran-appellant filed his appeal 135 days after a decision denying his initial application for benefits was handed down under a statute that provided only 120 days to appeal such a denial.

Unclear in the news accounts is whether the date of decision (or actual receipt by the appellant) of the initial decision is relevant in measuring the time-limitation, nor is it specified whether there is a "notice" requirement as concerns the time limit.

A notice requirement would mandate "affirmative evidence" of the appellant being aware of the relevant time limit before days would begin to count towards the 120 day period.

There is case law setting forth these various considerations in time limits cases which are quite common.

What does this law mean by a "time requirement" or filing "deadline"? ("What is Law?")

Limitations of actions or "statutes of limitations" that are now found in federal and state law originate in "equity" doctrines developed by the Courts of Chancery at common law.

This origin (or history) is significant because Chancery tribunals were especially concerned with fairness and developed maxims or broad principles aimed at curbing the harshness resulting from mechanical applications of legal decisions and rules.

For instance, no person could obstruct the legal process or prevent a litigant from filing an appeal through the denial of information then claim, successfully, that the filed appeal was "untimely":

"No one shall profit from his or her own wrongdoing" is one equitable maxim illustrated in a classic case not mentioned in this decision by America's current loftiest legal minds or at least in the reported legal argument. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889).

There are instances, furthermore, when ignorance of the role played by various defendants or the identities of culprits -- as in res ipsa locquitur and products liability cases in Tort law -- precludes "closing the courthouse" door to a necessarily "untimely" appeal, as in the D.E.S. cases or medical malpractice cases, where a fun-loving surgeon has left an instrument inside the body of a patient whose claim is opposed on the grounds that he cannot identify the culprit because, being under anesthesia, he did not "see who done the deed."

Courts have placed the onus on the defense in such cases with Shakespearean wisdom: "A plague on all your houses." You tell us who done the deed or you all take the hit, as it were. Defendants usually do take the hit in the form of damages. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

With the enactment of such limitations of actions into statutory law all of the equitable doctrinal features, including canons of interpretation, also become part of the positive law.

No limitation was to be applied to work an injustice or to defeat the purpose of the substantive law to which the limitation was annexed.

This equitable doctrine focusing on results from mechanical applications of limitations statutes makes excellent sense.

Yes, "equittable" and "equitable" are correct spellings of this word.

I am hoping to annoy New Jersey persons offering incorrect corrections. ("The Allegory of the Cave.")

"Justice Stephen G. Breyer wanted to know whether it was possible that Congress intended to deny help to veterans who missed deadlines because of the very disabilities for which they sought help."

Justice Breyer wondered in a philosophical mood just for the laughs:

" ... 'You have someone who served his country and was wounded and has post-traumatic stress syndrome or schizophrenia,' Justice Breyer said at a Supreme Court argument Monday. 'Who in Congress would have thought such a thing?' ..."

Justice Antonin Scalia "thinks such a thing" with wicked glee. Justice Scalia would happily preclude the veteran's enjoyment of a day in court and/or prevent his ever being heard on appeal, whatever morality or justice dictates, only for the pleasure of being cruel.

Known to his colleagues as Il Gran Inquisitor, Justice Scalia regrets the abolition of the Spanish Inquisition or the "auto da fe" for all liberal jurists, like Justices Breyer and Ruth Bader Gingsburg, who are (for Scalia) heretics to be burned at the positivists' stake. ("Richard A. Posner On Voluntary Actions and Criminal Responsibility.")

Lawyers arguing before the High Court have heard Mr. Scalia's rendition of Verdi arias as he hands down his most draconian decisions.

Have you seen Don Carlo, "Nino"? ("Law and Literature" and "Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

Should a limitations provision be applied in a manner that frustrates the purpose of the relevant substantive law? Is the injustice -- or even evil -- result that will follow from such an application of a limitations clause "irrelevant" to what courts and judges are expected to do? Apply the rules without regard for their purposes and let the chips fall where they may, Justice Scalia? Ronald Dworkin, "Is There Really No Right Answer in Hard Cases?," in A Matter of Principle (Cambridge: Harvard University Press, 1986), pp. 119-146. ("The Wanderer and His Shadow.")

"Justice Scalia argued for a literal application of the provision that would deny the applicant the requested relief" and was, allegedly, "dismayed" that the appellant died before Justice Scalia could reject his appeal.

Not to worry, Justice Scalia, there will be other opportunities for harshness at the expense of the "little people."

Justice Breyer, on the other hand, said that he would "try to work out from context, language, and objective purpose what a 'reasonable member of Congress would have intended.' ... "

Is the concept of a "reasonable member of Congress" a contradiction in terms? Is being a "member of Congress" negligence per se? ("Manifesto For the Unfinished American Revolution.")

What the Framers intended by fidelity to law was "due process." This is a loaded term with an irremovable moral component. Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca & London: Cornell University Press, 1955), pp. 72-73. (Coke and Locke, then Blackstone, were the foremost influences on America's Framers and they have also been influential upon all natural law thinkers since that time.)

Natural law principles lead to the question: "Fidelity to what law?" The Constitution? A statute in conflict with the Constitution?

Is it "fidelity to law" to frustrate the entire purpose of a statute aimed at defending the rights of wounded veterans by precluding an appellant from being heard when -- as a result of his injuries in battle and their effects on his mental health -- he was unable to comply with a procedural provision? Is the "purpose" of a law relevant to construing its most technical provisions?

I doubt that anyone intended a result excluding a wounded veteran from relief aimed especially for persons like him. (Again: "Manifesto for the Unfinished American Revolution.")

Justice Scalia's concern with so-called "fidelity to law" deserted him rather abruptly in Bush v. Gore. The politics of an electoral outcome seemed much more important to America's "Conservative Phalanx" than the merits of the specific controversy (or due process of law) that required counting every single vote in Florida. Ronald Dworkin, "The Strange Case of Judge Alito," in The Supreme Court Phalanx (New York: NYRB, 2008), pp. 21-37.

Relevant to this pending controversy concerning limitations of actions and justice is what Professor Dworkin calls "integrity" in law.

Quoting from a landmark decision where similar issues were examined by New York's Court of Appeals, I believe that Judges Cardozo and (eventually) Learned-Hand were members of that tribunal, Dworkin notes:

"Judge Earl, however, writing for the majority, used a very different theory of litigation, which gives the legislators' intentions an important influence over the real statute. 'It is a familiar canon of construction,' Earl wrote, 'that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.' [Notice how he relies on the distinction between the text, which he calls the letter of the statute, and the "real" statute, which he calls the statute itself.] It would be absurd, he thought, to suppose that the New York Legislators who originally enacted the statute of wills intended murderers to inherit, and for that reason the real statute they enacted did not have that consequence."

Ronald Dworkin, "What is Law?," in Law's Empire (Cambridge: Harvard University Press, 1986), pp. 18-19 (emphasis added).

More accurately the statute under construction could not be permitted by good N.Y. judges to have that unjust effect. It was held to be incumbent on judges to read the law so as to bring about "just" results.

I am sure that this is no longer true in New York under Governor Cuomo because justice takes time and is far too expensive.

Part of the problem in these limitations cases is the decline in the appellate bench or in the quality of the federal judiciary with all exceptions granted.

American judges today are taught to accept that justice (or legality) is unconcerned with the outcome of cases -- or what is known as "result-orientation" -- which seems absurd to jurists from other cultures in the world. ("The Allegory of the Cave.")

Justice Scalia is a very fine justice and superb legal thinker. This recognition is offered aside from all joking or criticisms concerning Justice Scalia's opinions or specific decisions on Constitutional issues of personal rights.

Many of Justice Scalia's "brethren" on the federal bench -- much worse in state courts -- leave a great deal to be desired. This criticism of federal and state judges applies regardless of their politics or outcomes in cases. Nowhere is this more evident than in the sadly and dismally failed legal system of New Jersey. Bob Ingle & Sandy McClure, "'See No Evil' Law Enforcement and Court Jesters," in The Soprano State: New Jersey's Culture of Corruption (New York: St. Martin's Press, 2008), pp. 127-163. ("Law and Ethics in the Soprano State" and "Anthony Suarez Goes On Trial.")

"The Senate is preparing to vote this week on whether to unseat a federal judge impeached by the House on charges of corruption and bribery."

There are dozens of judges in New Jersey who should be facing similar charges, possibly including the state's tainted Chief Justice. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "No More Cover-Ups and Lies, Chief Justice Rabner!" then "Jaynee La Vecchia and Conduct Unbecoming to the Judiciary in New Jersey.")

Among U.S. Senators voting on the "ethics" of this federal judge is Senator Robert ("BobbyM") Menendez, who is still awaiting the decisions of two grand juries, I believe, concerning whether Menendez will be indicted. This is a man, Bob Menendez, whose own ethics are subject to deep criticisms. ("Menendez Charged With Selling His Office.")

You are more than welcome to question my ethics. The merits of any such criticisms become highly doubtful after the commission of great crimes against me before the eyes of the Internet world followed by an incompetent effort to cover-up  and lie about such atrocities. ("Does Senator Menendez Have Mafia Friends?" and "Senator Bob, the Babe, and the Big Bucks" then "Corrupt Law Firms, Senator Bob, and New Jersey Ethics" and "New Jersey's 'Ethical' Legal System" as well as "New Jersey's Politically Connected Lawyers On the Tit.")

" ... Judge Porteous ran up gambling debts, [I have never gambled in my life,] used a fake name to file bankruptcy, accepted cash and gifts from lawyers involved in cases he handled" -- How about alleged sexual favors like Deborah T. Poritz? -- "and lied to the Senate and the Federal Bureau of Investigations while he was vetted to fill the vacancy on the Federal District Court in New Orleans, a pattern of conduct that House lawmakers agreed made him unfit to hold office."

Why was Judge Porteous "unfit" when his conduct is quite common and often rewarded among members of New Jersey's soiled judiciary? Estela De La Cruz? Lourdes Santiago? Maureen Manteneo? ("New Jersey's Failed Judiciary" and "New Jersey's Judges Disgrace America.")

Under these circumstances -- with a judiciary like this in America -- talk of the "integrity" of law becomes laughably absurd along with any opinion by such persons regarding the "ethics" of their victims. ("New Jersey's 'Ethical' Legal System" and "New Jersey's Office of Attorney Ethics" then "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "Trenton's Nasty Lesbian Love-Fest!" then "Jennifer Velez is a 'Dyke Magnet!'")

Do the right thing for once, Mr. Rabner. ("Have you no shame Mr. Rabner?")

Several defacements of this text have already taken place even though the essay was only posted hours ago.

I cannot accept that this continuing public computer crime takes place without the cooperation of New Jersey's legal establishment.

Shame on you, Mr. Rabner. ("Stuart Rabner's Selective Sense of Justice.")

Have you no sense of your Constitutional obligations or of the integrity of the laws being violated before the eyes of the world Mr. Rabner? Is it possible that New Jersey's judiciary fails to perceive its own hypocrisy on legal ethics issues, or so-called legality, even at this late date with regard to my matters? ("New Jersey's Filth, Failures, and Flaws.")

Clearly, you either do not care about these crimes or are incapable of discharging your responsibilities, Mr. Rabner. Ms. Dow? Mr. Christie? OAE? Mr. Holder? Are none of you capable of preventing this spectacle of public criminality emanating from Trenton, New Jersey? ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Political and Supreme Court Whores.")

The continuing catastrophe for America's Constitution deprives us of standing to criticize Cuba, China, Russia or the legal systems of other nations that seem to be better at controlling corruption and organized crime.

At the very least some effort is made in most of the world's legal cultures to correct legal errors when they become evident or impossible to ignore.

Computer crime and state-sanctioned censorship on-line sickens all of us especially when it is accompanied by hypocritical endorsements of free speech from the White House or Congress.

What is being trashed each time my computer is turned off by hackers and whenever my writings are altered or my phone service is disrupted illegally from New Jersey is the Bill of Rights. ("How Censorship Works in America.")

Several alterations of the list of sources have taken place within hours of posting this work. Letters have been deleted from words at irregular intervals to maximize the frustration effect of making corrections of the text. I will continue to write.

Supplemental Sources in Chronological Order According to Author:

H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

Lon F. Fuller, The Morality of Law (New Haven: Yale University Press, 1964).

Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).

Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).

Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).

Ronald Dworkin, Justice in Robes (Cambridge: Harvard University Press, 2006).

Ronald Dworkin, The Conservative Phalanx (New York: NYRB, 2008).

John Finnis, Natural Law, Natural Rights (Oxford: Clarendon Press, 1980).

Kent Greenawalt, Conflicts of Law and Morality (Oxford: Clarendon Press, 1989).

Duncan Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Cambridge: Harvard University Press, 1993).

Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997). ("Roberto Mangabeira Unger's Revolutionary Legal Theory.")

Additional Supplemental Sources, Chronologically Listed According to Author:

Edwin S. Corwin, The Higher Law Background of American Constitutional Law (Ithaca & London: Cornell University Press, 1955).

James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little, Brown & Co., 1973).

James B. White, When Words Lose Their Meaning (Chicago: U. Chicago Press, 1984).

Sandford Levinson & Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Illinois: Northwestern University Press, 1988).

Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard U. Press, 1990). ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

B.H. Levy, Anglo-American Philosophy of Law: An Introduction to its Development and Outcome (New Brunswick & London: Transaction, 1991).

Bob Ingle & Sandy McClure, The Soprano State: New Jersey's Culture of Corruption (New York: St. Martin's Press, 2008). (Things are worse now than when this book appeared in America's most "feces-covered" jurisdiction, New Jersey.)

Finally, a classic work that was a gift from a friend who may have been the first Puerto Rican to practice law in New Jersey and whose treatment at the hands of "colleagues" defies description:

Jerome Hall, Readings in Jurisprudence (New York & Indianapolis: Bobbs-Merrill, 1938). (Ignacio Saavedra, Esq.)

Let me whisper in your ear ...

October 9, 2010 at 9:05 A.M. A previously corrected "error" was restored to the text. I have corrected that "error" once again. ("Time to End the Embargo Against Cuba.")

October 6, 2010 at 8:48 P.M. This essay was altered twice -- letters were removed and so on -- after I posted it. The insertions of "errors" may be expected to continue. I surmise that rumors of Iliana Ross-Lehtinen's participation in the "Lesbian Love-Fest" may have something to do with it. Keep 'em coming, Cubanazos. Keep your eyes on these blogs to see whether the Cubanazos continue to insert "errors." This level of computer crime is only possible with the assistance of corrupt officials in New Jersey and Florida. ("Fidel Castro's 'History Will Absolve Me."')

I recall reading a story by Kafka in which the protagonist awaits the "keeper of the law," that is, he stands at the "antechamber of justice" while expecting a resolution and understanding that never arrives. This short fiction by Franz Kafka -- a lawyer malgre lui -- must have served as one inspiration for Beckett and Camus, Roth and Borges. Life in America in 2010 feels like being trapped in a story by Franz Kafka, a story written while the author was on acid.

In all of Kafka's fiction one senses the plight of alienated man as the plaything of large social forces which he does not understand and to which he cannot contribute or alter in any way. This vision is nightmarish and is intended to represent the ultimate horror of juridical and democratic man and woman at the darkness engulfing the world during the twentieth century. Philip Roth's "'I Always Wanted You to Admire My Fasting'; or, Looking at Kafka," in A Philip Roth Reader (New York: Farrar, Straus & Giroux, 1980), at pp. 147-166.

The darkness -- despite the defeat of Nazism -- has now largely won. Technology has made power subtly invasive of everyone's life, as pervasive as the air we breathe and as difficult to contain. A few meagre remnants of the dignity that was to be guaranteed to everyone by law in the vision of the Framers of the U.S. Constitution and thinkers of the Enlightment -- men and women placing law and politics at the service of humanity as instruments of reason -- remain an endangered part of the legacy of humanity and the endowment of every American.

There shall be no valid state deprivation of "life, liberty or property" for any "person" -- under the explicit language of the U.S. Constitution -- without "due process of law." You cannot kill someone, take his or her property, imprison, or otherwise constrain a human being's liberty without first affording minimum due process protection to that person.

What is due process protection? Well, setting aside traditional distinctions between substantive and procedural due process along with all of the technical refinements and virtuoso games lawyers play in this area, the Supreme Court of the United States of America has made it clear that:

"Due process requires ... that there shall be notice and [some] opportunity for [a] hearing given the parties ... [T]hese two fundamental conditions ... seem to be universally prescribed in all systems of law established by civilized countries."

Twining v. New Jersey, 211 U.S. 78, 110-11 (1908).

Again:

"Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."

Baldwin v. Hale, 68 U.S. (1 Wall) 223 (1863).

This is to say that the state or its agents can not invade someone's life, question a person subjected to hypnosis, rape, or steal from a person, monitor or follow, conduct searches of a person's home or office, slander, abuse, interfere in any way with a person's life or liberty, manufacture trumped-up charges, then offer a Mickey Mouse proceeding meant only to legitimate the crimes already committed by government against that victim. Such a farce is not exactly what the Framers had in mind by due process of law. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "New Jersey's 'Ethical' Legal System.")

Much less is it permissible in any democracy for government, secretly, to decide to kill someone for unexplained reasons, without affording the intended victim any opportunity to question the determination, confront witnesses speaking against him or her, usually behind the back and for unexamined motives of cupidity or greed -- if not malice -- or evaluate the evidence on which this conclusion that murder is justified is based, or to challenge the legality of the proposed government action in any way.

These juridical principles are foundational to civilized legal systems. Nothing in the latest threats in the so-called "War on Terror" should deprive us of these values or freedoms that are essential to what America is and to your moral worth as a person living in a society of laws.

To lose all rights to due process is to succumb to government terrorism. "Barring emergency" -- there is no twenty-one year emergency or ten-year "momentary crisis"! -- "at least the minimum content of the process due was largely unquestioned: notice and a hearing had to be accorded prior to any grievous governmental deprivation."

Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988), pp. 678-679. For the general values underlying the U.S. Constitutional commitment to legality, please see: Ervin H. Pollack, Jurisprudence: Principles and Applications (Columbus: Ohio State University Press, 1979), pp. 3-233. ("Natural Law.")

"A midnight filing by the Obama administration on Friday, asking a federal judge to throw out a lawsuit because of the so-called state secrets doctrine, again raises a troubling question. Why do the White House and Justice Department continue to invoke this severe legal tool essentially as prior administrations have used it, in the face of a considerable body of opinion that it has been abused and should be significantly reformed?"

"Shady Secrets," (Editorial) in The New York Times, September 30, 2010, at p. A38.

It is not due process for the government to say: "We have decided to kill you because of your opinions or advocacy of views that we consider dangerous -- often views that we have done our best to generate from you through things we have done to you -- but we will not tell you what specific expressions of yours we are basing this determination upon, nor who has said things about you, or what alleged opinions by others about you will serve as the basis for this conclusion made by an unidentified government official."

After a satisfied belch, a government agent may go on to explain, pleasantly enough:

"You will not have an opportunity to examine these statements by persons claiming to know you, or to be your friends and/or family members, nor will you know what promises or threats were made to these people, or when their statements were obtained, or why a decision was made to focus on you or your impermissible opinions in the first place in order to obtain these 'edited' unfavorable opinions from your accusers. If you ask for an explanation, we will claim that all such determinations are state secrets."

This "Absolute Secrecy" of governmental security decisions is what Bush/Cheney, and now Obama/Biden have claimed as the "imperial" scope of executive power in a permanent "war-like" situation despite the provisions of the Constitution:

"Everyone recognizes that there are secrets that must be protected, but the doctrine has been used to cover up illegal and embarassing acts or to avoid needed public discussion of policies. Federal trial judges sometimes fail to make the government justify its use of the privilege." (N.Y. Times.)

America's federal judiciary has grown cowardly and complacent after decades of appointments by Republican presidents of conservative judges to the appellate bench. Judges whose most powerful mission should be to protect the rights of citizens -- especially disfavored minorities, such as persons holding radical or unpopular political opinions -- are actually concerned to do the opposite. Judges want to make it easier for government to act on your life without scrutiny or review, that is, as long as you are not a multinational corporation. Yes, there are exceptions among members of the federal judiciary, but not many. The courts are failing America's people in this crisis of Constitutional values.

The federal judiciary has failed, specifically, to protect citizens' rights or the status of the law and courts as "equal participants" in forging these balances in power-struggles between freedom versus security. This failure was a great fear among early legal thinkers in America, notably Chief Justice John Marshal. Marbury v. Madison, 5 U.S. 137 (1803). (It is for courts to say what is the law and to protect the rights of individuals before the bar.)

One disadvantage resulting from selecting judges on the basis of their political loyalty and lack of intelligent opinions and/or writings -- or even lack of intelligence! -- is that we will be stuck with a federal judiciary that is timid (or ignorant) with regard to these jurisprudential challenges and the awesome responsibilities of their offices.

If the ordinary citizen does not have the protection of the courts, then he or she is effectively deprived of all rights in confrontations with the awesome power of government. Maybe this cowardice explains the ability of Cubanoids to insert "errors" in my writings. Cubanazos may intimidate judges or other officials expected to protect First Amendment rights. Scary. ("Fidel Castro's 'History Will Absolve Me"" and "Havana Nights and C.I.A. Tapes.")

Mr. Obama's administration has determined that Mr. Anwar Al-Awlaki's advocacy of terrorist actions against the U.S. or its citizens -- I have yet to see an admitted example of this so-called advocacy or actions by the ostensible "perpetrator" -- merits execution without trial for this U.S. citizen. The very idea of execution without trial of an American citizen at the hands of the U.S. government seems surreal to me.

If we are willing to execute persons without explanation for their statements of opinion or beliefs that "encourage terrorism," allegedly, how can we criticize China for jailing someone whose opinions and actions are deemed socially dangerous by that country? Please understand that I am for freeing Liu Xiaobo, but also for freeing the untried detainees at Guantanamo, Mumia Abu-Jamal, and for my own freedom of expression. (Has my computer been shut off again?)

"[A] lawsuit was filed by the father of Anwar Al-Awlaki [standing issues?] to stop the government from killing his son, who is believed [what does "believed" mean?] to be planning attacks for the branch of Al Qaeda in Yemen, where he is said to be in hiding. Charlie Savage reported in the Times [sic.] that there is wide agreement in the administration 'that it is lawful to target Mr. Awlaki,' but disagreement about the basis for requesting dismissal of the lawsuit. In the end, 'a more expansive approach' won out." (N.Y. Times.)

The fact that a person is "believed" dangerous by another person or "persons unknown in authority" is not good enough under the Constitution for government agents to kill an American citizen -- even if the official's belief is sincere -- for the victim's expressions of opinions, however critical of the government those opinions may be, nor for his alleged unspecified or unidentified actions in "planning" something that would or may someday harm Americans, allegedly. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility" and "Ronald Dworkin and the Jurisprudence of Interpretation.")

"Last September, the Attorney General Eric Holder Jr. said the administration would follow new procedures 'to strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.' He said it wouldn't be used to cover up illegal or embarassing actions." (N.Y. Times.)

What a relief. For a second I thought our civil liberties were in peril. Luckily, Mr. Holder said not to worry. This "genuine and significant harm" criterion will preclude abuse. As proof that this power will not be used to cover up illegal or idiotic government actions or the blunders of officials, Mr. Holder promptly refrained from explaining how they arrived at this test or when it will be used, or why Mr. Al-Awlaki is a person the U.S. will "take out" of action -- permanently. "He must've done something," an unidentified government attorney said.

What does this so-called unofficial test require? How is this "more stringent standard" any different from the total absence of any standard if all such decisions are to be made secretly and anonymously?

Despite Mr. Holder's pronouncement in ponderous tones, this resulting situation is no different from the Twilight Zone-like reality that existed prior to these oracular pronouncements by the U.S. Attorney General. Persons may be killed in America based on the president's secret determination for a reason or reasons which need not be articulated or explained to anyone, including the victim. Gee, this sounds a lot like dictatorship or a return of the "Star Chamber." ("Fidel Castro's 'History Will Absolve Me'" and "Manifesto for the Unfinished American Revolution" then see the Michael Douglas films: "The Star Chamber" and "Wall Street.")

Perhaps we will examine the entrails of a goose on the capitoline steps to decide who will be killed next. I suggest that Mr. Russ Limbaugh poses a grave threat to the safety of Michelle Obama and all sane Americans. This is to say nothing of Mr. Rick Sanchez, whose alleged repressions of homosexual tendencies may cause him to explode with violence against harmless heterosexuals, like Jon Stewart, or any and all blond-haired women. Mr. Sanchez is said to suffer from delusions of grandeur.

I suggest that at least some objective criteria governing such determinations that an American citizen will be killed be made public and exposed to analysis and criticism. I further suggest that we monitor these continuing presidential usurpations of Americans' civil liberties in our war on the Constitution or we can kiss our few remaining freedoms goodbye.

Given the absence of rational criteria as regards Mr. Al-Awlaki and the total lack of any plausible basis for assassination of an American citizen for his beliefs and expressed opinions -- or for any reason in the absence of a trial or battlefield situation -- the decision to kill Mr. Al-Awlaki must be rescinded. Furthermore, the intended victim is entitled to an apology or even compensation. Mr. Obama, you must do better than this.