“Lawyering Up” in the War of Words

by A. Jay Adler on May 10, 2010
Read More: , , , , , , ,

Journalist pundits are not the most interesting thinkers around. (Radio and talk show host pundits are not even thinkers – they’re talkers. They talk very well.) Their job is to master the conventional thinking of the worlds they cover – to be ignorant of a current conventional thought is to prove oneself inexpert – and insight consists of acquiring and mastering the coming convention ahead of the pack. So it is that when someone among the punditry operates for a moment on a somewhat deeper level than the rest, the cogs either stop or grind very gratingly.

Yesterday on This Week, newcomer to the roundtable Shelby Steele (functioning, after the previous week, as the anti-Bill Maher) tended to bring the cogs to a halt. Rather than the usual debating points intended to provoke argument, Steele tended to provoke thought. Cogs. Halt. Now.

A couple of doors down at Meet the Press, E.J Dionne, a deeper thinking journalist, attempted for a moment to consider the effect of language on thought, and of such thought on policy, and then all of it on the nature of the republic. Well, that’s what the discussion might have been had any of his fellows, especially host David Gregory, understood what he was trying to say, but, alas, they all – the apparently thoughtful David Brooks, too – immediately retreated to their comfortable corners of the box.

Amid a conversation about post interrogation procedures post Times Square, the question of advising terror suspects of their Miranda rights arose. Attorney General Holder had already on the program announced that the administration properly will be seeking legislation to expand the public security exception to the Miranda requirement. Obama administration critics have already been demagoguing the issue of Mirandizing suspects, and are now making no distinction between an Umar Farouk Abdulmutallab, the underpants bomber, a non-citizen and non-resident who travels to the U.S. as a foreign agent, and a Faisal Shahzad, who is a citizen, naturalized or not. Of course, we know from the case of Jose Padilla that Chenyesque hardliners are willing to hypothesize unknown public security threats to the point having to prove a negative – and thus would hold even a citizen in detention, were they permitted, for his natural life. There are genuine issues to be debated about balancing security and civil liberties, citizen vs. non-citizens. But there are always those – hardliners a prominent strain – who will manipulate, distort, the debate. This is the point Dionne tries to make, and no one hears him.

Visit msnbc.com for breaking news, world news, and news about the economy

MR. DIONNE: I just want to say, I just want to say I, I just hate this term “lawyered up.” Because if you are accused of a crime and you are innocent, you want a lawyer to defend your innocence. And we totally forget that we have civil liberties protections not only to protect the guilty but to protect innocent people. And this is…

GREGORY: But E.J., this is not just an ideological argument. There is a reality that…

DIONNE: Well, I’m not making an ideological argument. I’m making an argument about…

GREGORY: No, no, but you’re saying you don’t like the term “lawyered up.”

DIONNE: …what a term that’s…

GREGORY: There is–even the attorney general is making the point–it’s not a question just of civil liberties, it’s an issue of there are intelligence values, there are–there is valuable intelligence that you get from people who are true enemies of the United States who are not just, you know, suspects in a criminal trial. Even the attorney general recognized back in 2002 in the–for the purpose of interrogation, sometimes lawyers are an impediment. He’s acknowledging here that Miranda is sometimes an impediment to ultimately making the, the best case and also getting the intelligence information you need.

DIONNE: And what I objected to is a term, “lawyered up,” which is used over and over again to imply that any kind of use of normal judicial process, which is designed to protect innocence, sort of pushes us so far down the line that we forget why we have these protections in the first place.

BROOKS: Yeah, but I, I wasn’t being…

DIONNE: Yes, this is a–this is–I said right at the outset, protecting liberty and protecting ourselves, this is a tough matter when it comes to terrorism. But we should not throw out our rights with sort of the, the–blithely, which is the way a term like “lawyered up,” I think that’s imposed.

KAY: And that…

BROOKS: No, no, nobody’s talking, nobody’s talking about throwing out their rights. But we do have a balance here. We have a tension, a tension between the rights of the individual and the safety of the country, and that tension cannot be settled abstractly from Washington from far away. It’s context by context, case by case. And we have people with authorities, and at some point you just have to trust the people with authorities to make the decisions…

KAY: But, David…

BROOKS: …based on that specific context.

KAY: …some of, some of this is intensely political. Look, President Bush tried hundreds of terror suspects in civilian courts. He tried Zacarias Moussaoui, he tried Richard Reid in civilian courts. Nobody ever criticized his administration, either from the left or the right, for using civilian courts. Now here’s President Obama who, perhaps because Democrats are–always seem to be softer on terror, and that is a very big issue in this country, can–is even being criticized by Democrats for using civilian courts. It’s a double standard.

BROOKS: Yeah, I’m not–listen, I’m defending the Obama administration today because the Obama administration is moving in the right direction, away from overly strict and abstract rules into some sort of local flexibility.

Dionne attempts to call attention to the manipulation of an argument through slanting, the use of biasing language to direct the response of the audience – in this case the citizenry of the nation. Reading a suspect his Miranda rights. Mirandizing a suspect. Allowing a suspect to lawyer up. They are not the same. The latter term is understandable in common use among detectives, investigators, and interrogators, who will not perform their jobs adequately if they are not, well, suspicious of suspects, and they know it is the first thing a smart guilty party will wish to do – not wish to betray himself, shut up, clam up, call his lawyer and lawyer up. And that is what layering up connotes: the guilty withholding information and evidence from investigators.

An individual is regrettably naïve, however, not to realize that for investigators there are no guilty suspects and innocent suspects, but only suspects. When law enforcement suspects you of something, it is, very properly, not your friend, even if you yourself know that you are innocent. Which is why you need a friend, a lawyer, to protect your interests – innocent people are wronged all the time. This is called exercising your rights as a citizen. It is not, like some racketeer or mobster, or evil terrorist, lawyering up in order to avoid justice. Use that term, and you prejudice thinking, which is exactly what the term is intended to do. Hardliners don’t mind prejudging cases these days, because it seems so clear that Abdulmutallab and Shahzad are guilty. Process now is so academic. Let’s get real.

Until you’re the one.

This is the point Dionne tries to make, but everyone, especially the surprisingly argumentative Gregory (look at the surprise in Dionne’s eyes) misses it entirely. Dionne isn’t making an argument here in the debate about security and civil rights; he’s arguing that the language we use in that debate can influence the outcome of the debate independent of the ideas.

Back at This Week, but earlier, Rudy Giuliani had used a classic hardliner verbal slant, one that goes back to the late Sixties, when conservatives began to argue that liberals were soft on crime. He said

We’re worried more about the rights of the terrorists

Of course, the worry is not about the terrorists; it is about all of our rights, the rights of any innocent citizen who might someday be perceived as guilty of something. The worry is about the preservation of our nation, in every sense. But Giuliani is a skilled propagandist who knows as well as the linguist how the words we choose can do justice or injustice to an idea, as well as to people.

In the war of ideas, words are vehicles, however frail, for conveying our meaning to one another. In the war of words, words are bombs that blow up meaning.

AJA

Reblog this post [with Zemanta]

3 comments

{ 3 comments… read them below or add one }

ShrinkWrapped May 11, 2010 at 6:24 pm

It is perfectly predictable that the Obama administration has come to support suspending our rights; they were ideologically committed to an unrealistic standard of purity in fighting terrorism and now have discovered we are at war. The greatest danger to our rights has been, and remains, a successful terrorist attack with mass casualties. Obama and Holder will fall all over themselves to suspend our rights in order to prove how tough they are. A Republican administration’s attempts to undermine our rights can be slowed by a Democratic Congress; who will slow the Obama administration’s rush to abrogate rights?

Reply

Kate May 10, 2010 at 4:18 pm

Mr Adler,

I’ve heard the same advice from lawyers in Australia. The police are – understandably and legitimately – interested in apprehending suspects and closing the crime. They don’t always get it right, even when they’re working with the best of intentions and doing everything right (which, being human, isn’t always the case). If it’s a high profile case, or a very political one, or even the current favored witch hunt, there’s a strong tendency to assume that the suspect is actually the criminal.

For that matter, there’s an equally human tendency to assume that once someone has been arrested, they had to have been the guilty party – after all, that’s what police do, right?

Sometimes it’s clear-cut. They catch someone in the process of committing the crime and there’s no doubt of guilt. Most of the time, it’s not. So, yes, not talking to law enforcement without someone there to advice you and protect your rights is indeed necessary. Even if you’re accused of a terrorist act. Even if you were caught in the process of attempting to commit a terrorist act. Because some key detail relating to your guilt or innocence in the legal sense (including but not limited to you being completely insane (as opposed to religiously opposed to everything Western culture stands for, which might seem crazy to us but is technically sane as far as I know)) could get lost without that. Not to mention little things like “presumption of innocence” which isn’t suspended even when you’re caught while pulling the trigger.

Regards,

Kate

Reply

John Curran May 10, 2010 at 3:17 pm

Jay, Some time ago I hit a link to a speech by a law professor in which he offers a number of reasons to never talk to the police. Miranda or not, he makes a lot of sense. Turns out he is at the law school was started by Pat Roberston, the amazingly vapid Pat Robertson, who himself went to law school at Yale. This does raise interesting questions that are not the point here.

The video of the lecture is about 22 minutes & it is followed by a second lecture by a cop in Virginia Beach who basically says the professor is right: don’t ever talk to the police.

http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html

Reply

Leave a Comment

Previous post:

Next post: