[I wrote this on June 8, but didn't really know what to do with it until now. If you read my last post, you'll notice that I used to work in the WTC, as did my neighbor, Nina. For those of you who are wondering, Sam is my son.]

Dear Sam:

You got new neighbors, and we met them for the first time today. It got me thinking, maybe this is a good time to write to you and begin to tell you the story of our lives.

Your new neighbors' names are Judd and Allison. They have a dog, named Tyler. I am sure they're good people -- they look to be young, and just starting out, sharing a small studio apartment. But as nice as I'm sure they'll turn out to be, I don't like them because they shouldn't be living there. It's not their apartment.

As you grow up, I imagine you'll hear a lot about "before", and always be cognizant that you live in the "after", even if you don't ever really understand why this is so. Before means before September 11, 2001, and after means the way the world is now. But as simple as that statement is -- after all, September 11, 2001 is just a date -- it's really not that simple.

Someday, you'll ask me and Mommy about what before really means, and we'll look at you and a thousand thoughts will go through our heads as we wonder whether it's time to spoil your innocence, time to place some of the weight of adulthood onto your shoulders. We'll struggle with how to explain terrorism to you, why people hate, and why they hated us so much that awful awful day. We'll wrestle with how to explain just how unreal it all felt -- how we went about our business on that morning just like a thousand mornings before and a thousand mornings after, how on that morning, it was just different, how on that morning people fell out of the sky because there was no place for them to escape to, no place that was safe, no place to wait for the rescue that surely had to be coming.

Someday, I will explain to you how I wandered around downtown, bewildered at what was going on, how I heard a rolling boom as loud as anything I had ever heard before, how that boom reverberated off of the canyon walls, how the crowd of people around me started running anywhere, any way, not knowing what they were running from but running just the same, and how the rolling cloud of dust came rushing out from between the buildings where just a minute ago there had been a street, how I ducked into an open door just in time to avoid being caught in that awful cloud of death, and how in the blink of an eye, a crisp, bright September morning became pitch black, blacker than any night I had ever seen before or hope to see again, and how a man, covered in soot and dust and ash so that he was white from head to toe came in and began to cry right there in the restaurant where I had run to, crying "it's gone, it's just gone" and how a woman was hysterical and we were so discombobulated by it all that the clerk at the restaurant charged me to buy her a drink and I paid him $20 and never got change. I'll tell you how we tried to call someone, anyone on the phones but couldn't get through, and so we tried again and again, just because there was nothing else we could do. Someday, I will explain to you how I walked 6 miles that day, just to get home to Mommy, to hug her forever, and wonder why I had left the house that morning. And someday, I will explain to you about Nina, our neighbor, and her dog Mir Mir, who lived in the apartment next door and were beginning a new life. And I will explain to you about the poster that showed up on the lamppost at the end of that awful week saying "Missing" just like a thousand other posters on a thousand other lampposts around the city, only this one had a picture of Nina on it.

We barely knew Nina, and most of what we knew of her, we knew because of Mir Mir, who was social and gregarious and eager to meet people in the hallway, and who yapped the way that only small yappy dogs can when you even glance at the door to the apartment. When we passed in the hallway, we'd chat about nothing, and when Mir Mir barked too loudly, Nina would apologize for him. I don't even remember her last name.

Nina had a spark. Like us, she had moved into the building when it was still unfinished -- no wallpaper in the hallways, hell, no carpet in the hallways -- and the elevators still encased in plywood sheathing to protect the walls from the dents and dings that inevitably accompany new construction. Nina struck me as someone who was embarking on a grand new adventure. I don't know for real if she was or wasn't, but I do know that she had a new job, a new apartment and looked like she was building a new life.

Nina worked for Aon, an insurance company. I have no idea what she did, but whatever it was, she did it on a high floor in one of the World Trade Center towers. Every day from June to September, Nina rode the 6 train to Brooklyn Bridge, or maybe she transferred to the 4/5 and took it to Fulton Street, and from there she walked the two blocks to the World Trade Center. Maybe she went and got her coffee at the Starbucks at the corner of Church and Dey, or maybe she stopped at the Xando Cosi in 4 WTC for a coffee, or maybe, if she was feeling decadent, she stopped for a Krispy Kreme donut ("Hot Now!") in Building 5. And then she walked across the Plaza to her building, took the escalator down to the lobby, and held her WTC ID card to the turnstile and waited for it to click, and then walked through and took an elevator to her office.

If she was anything like me, she thought it was incredibly cool to work in the World Trade Center, high above the street, looking out at those incredible views that tourists paid $12 to see from the observation deck. And the views were all the cooler because she got to see them everyday, for free. I'm sure she saw the views on that day, right at the moment that "before" became "before" and now became "after". I can't imagine how frightening it must have been for her, or how cruel the irony must have been when she realized that the fact that she had this stunning view would be the very thing that would kill her in the end.

I don't know if Nina made a last phone call to someone she loved, or whether she even could. I don't know exactly when or where or how she died, or how hard she clung to her life. All I know is that Nina didn't come home that surreal afternoon, the way that I did, and didn't scoop Mir Mir up under her arm the way she did every day, and didn't take him to the park to contemplate terrorists and hate and why people hated us so much that day that they had to kill us. All I know is that Nina's apartment sat vacant for nine months, and for nine months, that is the way that it was supposed to be because it was Nina's apartment.

On the day that you turned 6 and one half months old, Sam, there was a ceremony to commemorate the end of the recovery effort at the World Trade Center. At 10:29 a.m., the time of day that Nina surely died, I stood with thousands of people and observed two minutes of silence to remember those who had been lost. I thought of Nina.

The message of that moment was that it was time to move on. Recovery became reconstruction. Death became rebirth. A void in the skyline became a hole to be filled.

So maybe it's fitting that this weekend, just after marking the end of before and the beginning of now, new people moved into Nina's apartment. Maybe it's fitting that they have a dog, even if it's not a small yappy dog like Mir Mir. After all, it's time to move on. Nina's apartment became just another empty room, to be filled with the stuff of life.

In time, we will get to know Judd and Allison and Tyler, and we may even get to like them. It will be a slow process and it will be tinged with some sadness, but it will happen.

I love you.

Daddy.

An article in the Sunday New York Times notes that two American citizens, Yasser Esam Hamdi and Jose Padilla, are being held in military prisons without having been charged with any crime and are being denied access to a lawyer. Call me a shameless liberal if you must, but it seems to me that if American citizens can be imprisoned indefinitely and without charges or due process in the name of a protecting the "American way of life" against terrorism, we risk killing the system that we claim we are working so hard to save.

Let me start with some full disclosure and a disclaimer. First the disclosure: my next-door neighbor, Nina, worked in Tower 1 of the World Trade Center, and never came home on September 11. My own office was in Tower 2. I was late to work (and so, never made it into the building) but had to run for my life when the first tower collapsed. I hid out in a convenience store until the dust settled, then walked six miles home. And now the disclaimer: I am not against the imprisonment and eventual prosecution of suspected terrorists, and frankly think that if we can find the true perpetrators, we should exact slow and excrutiating revenge. If Hamdi or Padilla are believed to have participated in terrorist activities in any form, they deserve to be locked away forever by the government. But I refuse to compromise my ideals, and therefore, I hold as a fundamental assumption that they should be held and treated in a manner consistent with the due process rights guaranteed to all American citizens, because they are American citizens.

Bear with me as we take a brief trip through the history of the sovereign's power to act against its citizens. Due process, as a check on that right, is one the most fundamental elements of American democracy, and a concept that dates back at least as far as England in 1354. In American history, the first recorded guarantee of the right to due process is found in the Charter of Liberties and Privileges, adopted by the first colonial assembly in New York in 1683. This rule of law was later enshrined in the Bill of Rights' Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty, or property, without due process of law. . . ."

The upshot of all of this history is that in matters of personal liberty, we hold the government to a higher standard than simply the whim of the executive, no matter how compelling that whim might seem in the moment. As Article 39 of the Magna Carta recognized in 1215, “Noe freeman shall be taken and imprisoned or be disseized of his ffreehold or Libertye . . . But by the Law-full judgment of his peers and by the Law of this province.”

This brings us back to the continued incarceration of Mr. Hamdi and Mr. Padillo without charges and without access to their attorneys. According to the New York Times, "[g]overnment officials said Mr. Hamdi has not been charged because he is being held for the protection of the country, not for prosecution." An unnamed "senior administation official" quoted in the Times article put it this way: "This is not a punitive action, it's self-protection."

But this begs the question: self-protection toward what end? Whatever we may think of these men, they are American citizens, and are entitled to all of the "privileges and immunities" that such citizenship confers, to quote the 14th Amendment. Last time I checked, these protections included, first and foremost, due process under the law.

Don’t we, by denying them rights accorded to all Americans, destroy the ideal of America as surely as they would through terrorism if they could? Even as a victim of terrorism, I ask, where is the due process for these men? Where are the indictments by a grand jury? What about the right of each man to have an attorney present during questioning (as explained by the Supreme Court in Miranda v. Arizona, “we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today . . . . [T]his warning is an absolute prerequisite to interrogation”)? How is this due process? What happened to their Sixth Amendment rights first, to be informed of the nature and cause of the accusations against them, and second to have the Assistance of Counsel for [their] defence?

As a country, we don't believe in putting people in jail for “protection, not prosecution” and leaving them there on the whim of an unnamed "senior administration official." It smacks of totalitarianism. Worse, it establishes the precedent for further abuse: by preventing Hamdi or Padillo from knowing the charges against them or even giving them an opportunity to talk to a lawyer, the administration has decoupled the exercise of ultimate power by the sovereign from any meaningful check or balance.

In the end, I am not suggesting that Mr. Hamdi or Mr. Padillo are innocent or that they deserve to be freed -- they probably aren't and probably don't. But note the use of the word "probably" -- without due process of law, how can I know? How can they know? For their sakes, and ours, they should be charged and given the right to talk to their lawyers. Anything less betrays the very American ideals that our government has pledged to protect.

Does this trouble anyone else but me?

From the NY Law Journal, 6/24/02:

"The government is under no obligation to disclose whether court-ordered monitoring of attorney-client conversations is ongoing in the aiding terrorism case against defense lawyer Lynne Stewart, prosecutors argued in court papers.

"Rejecting claims by Stewart and two co-defendants that the specter of government wiretaps makes an effective defense impossible, Assistant U.S. Attorneys Joseph F. Bianco and Christopher J. Morvillo said that "no statutory or case authority" supports the defendants' claim that they should be notified if their conversations are being monitored."

Read the full article here.

Pot Calls Kettle Black.

Executing mentally retarded murderers is "cruel and unusual" punishment and therefore unconstitutional, according to a 6-3 decision handed down yesterday by the Supreme Court in Atkins v. Virginia. The decision brings the United States in line with most of the world (according to Amnesty International, since 1995 only three countries -- Kyrgyzstan, Japan and the United States -- have executed retarded murderers), a point that the Court noted in one of its footnotes.

The crux of the Court's analysis was whether there was an identifiable national consensus that executing the retarded was "cruel and unusual" punishment. According to the Court, 38 states permit capital punishment; of those, 18 states have outlawed executions of retarded murderers. The Court noted in addition that when it reinstated the death penalty under federal law, Congress itself outlawed executions of retarded murderers. The Court contrasted those statistics with the last time that the Supreme Court considered this issue, in 1989; at that time, only two states and the federal government barred executions of retarded inmates. From these statistics, the Court concluded that whereas in 1989 there was not an identifiable national consensus on the issue, thirteen years later, such a consensus exists.

The Court's decision reflects not just legislative pronouncements, but also popular sentiment about the execution of the retarded. Maybe it's the influence of books like "Flowers for Algernon" and "Of Mice and Men" or maybe it's common sense, but we as a country seem moved by the image that a mentally retarded murderer never meant to do it -- they are really just small children trapped inside the sometimes awkward and unwieldly bodies of grown-ups, without the capacity to understand either the logical consequences of their actions or that death may be one of those consequences (consider the 1992 execution of Ricky Ray Rector, a man so profoundly retarded that he purportedly saved the dessert from his last meal to eat when he returned to his cell). In law, this common-sense notion is expressed in the concept of mens rea, a guilty mind. Without a mens rea, there is no "crime", just an unfortunate occurence (also known as an accident).

In this context, mental retardation is both explanation and exoneration; as the Court explains, the death penalty's purposes -- retribution and deterrence -- are irrelevant to someone who does not comprehend logical consequences, since he will be incapable of meaningful remorse and is unlikely to understand deterrence. [This is not to say that they should be set free, just that the death penalty doesn't apply here. As two justices in Virginia's high court observed, a moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of limitations of the retarded in a meaningful way.]

Given the frank simplicity of the argument (is there a national consensus or not?) and the moral gravity of the issue, it was disturbing to read the dissenting opinion by Justice Scalia, which stoops to excoriating the majority for arrogating power to itself and accusing the majority of "breath taking" arrogance.

Perhaps the most disturbing part of Scalia's dissent is its abandonment of civility -- rather than criticize the majority on the merits (of which there are some), Scalia's dissent starts with an uncivil bang and goes downhill from there: "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members." Scalia's invective includes statements that "the Court pays lip service" to precedents; that the Court "miraculously extracts a national consensus" from the data; and the court engaged in a "feeble effort to fabricate national consensus". Scalia goes on to accuse the majority of "pretensions to power" unconfined by current or historical moral sentiments, and of having the arrogance to believe that "really good lawyers [i.e., the majority] have moral sentiments superior to those of the common herd, whether in 1791 or today." Scalia caps off his attack with this statement: "The arrogance of this assumption of power takes one breath away. And it explains, of course, why the court can be so cavalier about the evidence of consensus. It is just a game, after all."

Really, there's no excuse for that kind of judicial trash-talking. Rather than engage the majority (on the Court and in the world), Scalia sneers and obfuscates. For example, Scalia claims that there can be no national consensus when 18 of the 38 death-penalty states go one way while 20 preserve the status quo; as Scalia asks, how is it possible that agreement among 47 percent of the death-penalty jurisdictions amounts to 'consensus'?" But this is a misleading question -- 18 states have barred execution of retarded murderers, and 12 more have barred execution of any murderer (that is, they do not permit the death penalty). By my count, that's 30 states (60%) that have expressed the view, directly or indirectly, that execution of retarded murderers is not permissible. The sneering language and accusations of arrogance aside, Scalia never addresses that point.

Similarly, Scalia sneeringly dismisses world opinion: "Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people." Just who are the members of the "so-called 'world community'" (to use Scalia's description)? Well, according to the majority's footnote, they include the 15 nations of the European Union (link to the EU's amicus curiae brief). Moreover, why is world opinion irrelevant? As a group of American diplomats argued in an amicus curiae brief, the American position on the death penalty is a source of friction between the United States and other countries. Given the times that we live in, can we afford "friction"?

At bottom, Scalia's dismissive tone and his accusations that the court is engaged in some kind of usurpation of legislative authority are demeaning to himself and to the Court; the legitimacy of the judiciary is founded on civility and logic, which is severely undermined if his view that it's apparently "just a game" to the majority were ever to take hold. If Scalia disputes the logic of the majority, let him counter that logic in a respectful way that upholds the ideals that the majority and the dissenters all purport to represent. Vituperation may be acceptable (even desireable) in a legislative debate, but it is inappropriate in a reasoned opinion set down for posterity.

I used to admire Justice Scalia even as I vehemently disagreed with his positions, because he was able to articulate a vision of the judiciary that was internally consistent and elegantly argued. If I disagreed with his underlying assumptions, at least I could say that the issue was well-joined and provided the basis for further exploration. At the end of the day, however, I think that Justice Scalia has traded in his clarity for the sake of politics, and substituted intellectual snobbery and bullying for reason and persuasive argumentation. It's sad.

[As an aside, I find two statements by Justice Scalia in Atkins ironic in view of his participation in the majority in Bush v. Gore: first, he says that "Seldom has an opinion of this court rested so obviously upon nothing but the personal view of its members", which is exactly what the majority in that case was accused of doing; next, he says that underlying the majority decision in Atkins is a "pretension to power" unconfined by "the current moral sentiments of the American people." The same criticism has been applied to Bush v. Gore. As the headline suggests, the pot calls the kettle black.]