The View From Here

A Charge Against Government Excess

by Eve Oldenkamp, OCDLA President

From the Nov-Dec 2014 issue of The Oregon Defense Attorney.

President Eisenhower once said, “I would rather try to persuade a man to go along, because once I have persuaded him he will stick. If I scare him, he will stay just as long as he is scared, and then he is gone.”

This quotation rings across my perceptual screen on a regular basis since September 11th. Why? Because it would appear our public has been placed into a permanent state of fear … and thus the common citizen finds the evaporation of rights, the secrecy of government proceedings and the excesses by law enforcement, whether through lies or use of force, tolerable.

And frighteningly, not just average citizens but trial judges seem to be accepting this progression of societal leniency for government misconduct. Not too long ago in a court proceeding wherein I was requesting certain discovery, I was asked with disdain, “You’re not just going to cite that old Brady case are you, Ms. Oldenkamp? Can’t you find something more recent and on point?” Hmm, I was a bit unsettled by this; is not untouched precedent enough? What about Kyles v. Whitley. Then again, as of late, precedential value seems to have lost its import under the current Oregon Supreme Court regime.

Which raises another quote to memory, attributed to Benjamin Franklin, something to the effect:

“Those who would give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

Our founding fathers were clearly concerned about excesses of government and protection of citizens’ liberty (landed, white males at the time granted), as were the average citizens of the day. This concern was to such a degree that they passed the Second Amendment (a hot bed of debate still today). In the words of Thomas Jefferson,

“The strongest reason for the people to retain the right to keep and bear arms is, at last resort, to protect themselves against tyranny in government.”

Today, disagreements with the government are handled more civilly—with us. Our role as defense lawyers, investigators, mitigators, and all those who work in this arena, is to defend against government excess. We are unsettled by the idea of secret courts and people in confinement unreachable for inexorable periods of time (read Kafka Comes to America by our own Steven Wax). And while the average citizen may find such matters disconcerting when visited upon their own friends or family, as of late, they are complacent.

As Thomas Jefferson said:

“America will never be destroyed from outside. If we falter and lose our freedoms it will be because we destroyed ourselves.”

We, as criminal defense attorneys, fulfill the role of ensuring that we do not falter. It is our role as guardians of the tenets within our social contract, tenets that truly do keep us from egregious abuse at the hands of the government. A shout out to two of our own, who recently shone the light of justice upon the ill-doings of government forces: Rich Wolf and Renée Manes. They not only illuminated the dark side of law enforcement, but painted such a shocking picture that Justice Haggerty viscerally condemned the abuse of power contained therein. See United States v. Pederson/Grigsby, Case No. 3:12 cr 00431 HA; an uplifting read.

I had mentioned my grandfather in my last monologue, Grandpa William Woodruff, a large man with a soft voice and kind heart. He lost it when the Patriot Act was passed. He was watching CNN and he raged—at the television, at the people of the United States—for their complacency in allowing protections of their liberties to be so easily stripped in the face of fear. His rage was palpable, you could feel it in the room. After, he dropped to a chair and with deep sadness in his eyes told me in so many words that humanity was too stupid to learn from history, and what I did was critical. That I must always be on watch against the surging grasp for power taken by our government. I must protect from their own naiveté, the average American citizen.

So it is that memory that guides me into the charge I am giving us. A charge that I know we all desire to fulfill, but one whose repetition I find enlivening…inspiring.

The charge given me by my grandfather came back to me when I recently read United States v. Sedaghaty (9th Circ). I stumbled upon this case in my search for Brady v. Maryland case law that would answer that rather disdainful judicial query I had received. The case represents more great work by our colleagues, but is also a dark reminder of how far our liberties have been stripped. The case grapples with constitutional rights enshrined in Brady v. Maryland and the Classified Information Procedures Act (CIPA). The CIPA essentially creates an avenue for the government to restrict defense counsel’s access to certain classified materials, through ex parte proceedings. While the court’s decision is beneficial to Mr. Sedaghaty, the entire context of the decision is disturbing from a liberty standpoint. I am certain my grandfather turned in his grave as I read it. The court notes,

A system that permits ex parte hearings and requires the court to pass on the legitimacy of claims related to classified information places a heavy burden on the court. We also recognize that defense counsel, who best know their client’s interests, are placed at a serious disadvantage in challenging classified proceedings in a vacuum. Toward that end, we take our duty very seriously and undertake our review of classified information with special scrutiny.

This is frightening, deeply disturbing, this system of “ex parte hearings.” I am not naïve enough to find a judicial personage taking their duty “very seriously” to be sufficient. This legislation must be eviscerated as unconstitutional. We cannot accept a system that allows review of materials that are known to the government with the naïve hope that the courts will do the right thing. History tells us otherwise. We, criminal defense attorneys, are the champions of liberty; we are the ones who push to preserve constitutional protections; we should not be excluded.

We must fight any laws passed that creep up on the liberties of our citizens, which strike a greater imbalance between the citizen and the government than the one that already inherently exists. I would hazard that a “balancing” of government interests with a defendant’s right to present a defense is unconstitutional. Why? Because the defendant’s rights are enshrined in the Constitution; the government’s rights are not so enshrined. It should not be a balancing act. Old case law contains the footholds for making this steep scurry up the rock face. See Davis v. Alaska, 415 U.S. 308 (1974); Accord, People v. Price, 419 NYS 2nd 415 (Supp. Ct. Bronx Co. 1979). As the Court said in Miranda v. Arizona, 384 U.S. 436, 491:

“Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.”

Public trials, access to information that is exculpatory and/or impeachment material, and adequate assistance of counsel, right to a fair trial… all rights enshrined in the Constitution. How does it happen that government “security” interests allow for these to be abridged?

We must always fight the fights we think we may initially lose. Precedent that enshrines constitutional rights is not made with just one case. We must echo the words and spirits of our founding fathers and push back against the complacent fear-driven sacrificing of liberty that occurs currently. We must stand against the government and for the document that contains the social contract, the bounds of which we all exist within. The founders gave Americans the U.S. Constitution because they understood that defending individual privacy against the grasp of government authority is an essential human right and a critical safeguard of freedom.

Our job, as always, is to protect the Constitution and guard against government excess.