Here is a story which, if true, should have us all up in arms.

One of my favorite parts of the story is a quote (see below), from Andrew McCarthy, a former federal prosecutor. About an hour after an interview of Dr. Butler, the court slapped a gag order on the participants in the case. Apparently, word got out that word got out. The government in this case cannot afford for the public to hear Dr. Butler’s side of the story.

Perhaps I’m being a bit cynical here: After all, courts do sometimes worry about things like polluting the jury pool. It’s interesting to note, however, that these gag orders seem to come more often after the defense in government cases says something to reporters which seems to exonerate the suspect. In nearly all the cases I’ve seen where this happens, the defense stated facts which, if true, shocked the conscience. But I’m ahead of myself. The McCarthy quote strains the bounds of logic, so let’s get to it.

“He?s going to try to convince the jury that he?s been railroaded and that the FBI agents are the dishonest ones in the equation,? says McCarthy. ?So, the jury?s going to be asked to make a very simple decision: who?s telling the truth? Is it the multiple fraudster who?s telling the truth? Or is it the FBI agents, who don?t have a reason to lie?” — Unless otherwise specified, all quotes in this blog entry come from the CBS News website story, “The Case Against Dr. Butler,” dated October 19, 2003.

First of all, among other things, the jury is not going to be asked to make a simple decision. They’re going to be asked to decide what Dr. Butler actually did. To make that decision, they’re going to have to understand how biological research is normally done. They’ll need to get into the intricacies of the handling and transport of specimens, both inside and outside the lab. They’ll have to learn what a reasonable scientist in Dr. Butler’s circumstances would do. Anyone who thinks this is simple is either an idiot or has a position in the Bush administration — but that’s a redundancy, and unnecessary to my main argument, so let’s strike it. Most of us are not familiar with biological research issues. In order to decide the factual issue of what Dr. Butler did, the jury is going to have to be taught enough about the handling of biological materials in a research environment to make an intelligent decision.

Secondly, McCarthy (how appropriate that name seems) asks whether we’re going to trust “the multiple fraudster.” It should go without saying that there has been no evidence yet that Dr. Butler, who the article notes is revered worldwide by other scientists, is a “fraudster” of any sort, let alone that he is “a multiple fraudster.” In fact, the primary import of the article is that Dr. Butler has been charged and the parties are going to court to determine the veracity of these and other allegations against Dr. Butler. In the United States of America — at least now and for the foreseeable future — the assumption is that charged parties are innocent until proven guilty. So to pose the question the way McCarthy did is equivalent to asking, “When deciding whether or not Dr. Butler is a multiple fraudster, who are you going to believe? The FBI agents? Or the guy we already know is a multiple fraudster?” If the question is whether he is or is not a multiple fraudster, one cannot start with the view that he is a multiple fraudster. It begs the question.

Thirdly, McCarthy says that the FBI agents have no reason to lie. This, of course, is one of the other issues which a jury needs to decide. Do FBI agents lie? One would hope they do not. But if we can assume that FBI agents do not lie, then why did FBI Director Louis Freeh order 500 FBI agents to undergo lie detector tests in March 2001? (You can read about that here, on CBSNews.com.) McCarthy may be willing to assume that FBI agents do not lie, but apparently the head of the FBI is unwilling to make that assumption. Nor should he. Human beings sometimes lie when it suits them. Contrary to some evidence and belief, FBI agents are human beings. It’s reasonable to assume that FBI agents sometimes lie when it suits them. One of the questions to be determined here is whether lying about Dr. Butler’s activities would suit the FBI agents. Butler and his lawyer have both offered up reasons to think it might suit the FBI agents to lie. It’s a question for a jury to answer, after an evaluation of evidence presented by both the defense and the prosecution.

One of the allegations here is that the FBI has forced Dr. Butler to make a confession that he lied to them. It’s a useful exercise to ask oneself: Does the FBI ever really do stuff like this? It is, after all, a serious allegation and one we would hope is difficult to believe, especially when talking about things as serious as Homeland Security. After all, if we’re to be truly protected, only the truth will keep us free.

Shortly after the now-infamous 9/11 terrorist attacks on the World Trade Center and the Pentagon, the Washington Post noted:

FBI and Justice Department investigators are increasingly frustrated by the silence of jailed suspected associates of Osama bin Laden’s al Qaeda network, and some are beginning to that say that traditional civil liberties may have to be cast aside if they are to extract information about the Sept. 11 attacks and terrorist plans. — Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma,” Washington Post (online) October 21, 2001 (emphasis mine).

Among the proposals made by the FBI are that — at least (for now) in situations relating to Homeland Security — torture and forced drugging should be an acceptable method of obtaining information. However, (for now) the Supreme Court of the United States is unwilling to go along with this:

“It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a “truth serum.” (Townsend v. Sain (1963) 372 U.S. 293.) In another case, the Supreme Court cautioned, “the blood of the accused is not the only hallmark of an unconstitutional inquisition.” (Blackburn v. Alabama (1960) 361 U.S. 199, quoted in Miranda v. Arizona (1966) 384 U.S. 436.) — DiMiTri, “Who’s the Terrorist Again?,” The Tribal Underground (online), November 4, 2001.

Torture and drug-induced confessions, although apparently proposed by the FBI, are the extreme case. In Minnick v. Mississippi (498 U.S. 146), the FBI merely insisted to a prisoner that he was required to answer questions concerning two charges of murder without being allowed to have his attorney present. In this case, the prisoner already had an attorney and had repeatedly refused to waive his rights or answer any questions without his attorney present. The jailers and FBI agents told the prisoner that he had no choice. Since he refused to sign a waiver of his rights, the prisoner mistakenly believed that anything he said to the FBI agents was not admissible as evidence in a court of law. If he had had an attorney present, he would probably have been advised 1) that this is not true and 2) that he didn’t have to say anything. The Court in Minnick noted that the reason for this rule was to prevent judges and juries from having to make the often difficult determination of whether or not a confession was coerced.

Okay, so maybe the FBI plays a little fast and loose with the truth from time to time. Maybe they aren’t so religious in their observation of constitutional protections in trying to put criminals behind bars. So what?

The Fifth Amendment of the Constitution of the United States states, “No person shall be…compelled in a criminal case to be a witness against himself.” This privilege has been considered an important one since at least the 12th Century. (Mary A. Shein, The Privilege Against Self-Incrimination Under Seige: Asherman v. Meachum (1993) 59 Brooklyn L. Rev. 503, 505.) By the 17th Century, the legal recognition of the right against self-incrimination was almost unquestioned. (Id. at p. 507.) The Founding Fathers — who explicitly rejected the inquisitorial system (Roberta K. Flowers, A Code of Their Own: Updating the Ethics Codes to Include Non-Adversarial Roles of Federal Prosecutors (1996) 37 B. C. L. Rev 923, 930, footnote 41. See also Vincent Martin Bonventre, An Alternative to the Constitutional Privilege Against Self-incrimination (1982) 49 Brooklyn L. Rev. 31.) towards which the United States is today moving — were very concerned about this because they had directly experienced its abuse at the hands of the British Army during the Revolutionary War.

Over the years since the Revolutionary War — and particularly after 9/11 in this now-three-years-old century — Americans have had an uneasy relationship with the rule of law and particularly with the prohibition against self-incrimination. Too often, it appears, criminals are able to abuse the privilege to escape prosecution. Television helps to tweak our emotions and drive our collective animosity towards “technicalities” like the Fifth Amendment prohibition against self-incrimination by showing criminals who are obviously guilty being released “just because” a confession was obtained illegally.

Think about this, though. On television, you’re being shown a situation abnormally manufactured for the express purpose of sucking you into the story; your emotions are deliberately being played. In addition, you’re being shown “evidence” that isn’t available otherwise; typically, you get to actually see the perpetrator committing the crime. Of course the guy is guilty and usually it involves the slimiest of criminals or criminal acts in order to get you all the more worked up. In those television shows, the police are doing a minimal amount of investigative work and so “all they have is a confession.” When the confession gets tossed “on a technicality” (like the police forgot to “mirandize” the suspect or they tricked, tortured, or physically threatened the guy), the whole case collapses.

This is not the way police departments normally operate. Often there is a great deal of investigation; there is other evidence. The confession in these situations usually serves to make the prosecution just that much easier. But it doesn’t mean that without the confession, the criminal is going to go free. Before the police even have someone to confess, they’ve already found some evidence leading them to think he’s done it. In the odd-ball case where someone walks into the police station to confess to a crime when police didn’t even know this person existed, or at least didn’t have them down as a suspect, they’re going to do an investigation to corroborate the confession. If the evidence is strong enough, the confession is superfluous. If it’s not strong enough, the police are either lazy or making assumptions of the sort that can land innocent people in jail.

And not landing innocent people in jail is one of the important goals of the criminal justice system. As Blackstone said in what has become known as the Blackstone Ratio, “Better that ten guilty persons escape than that one innocent suffer.” (Blackstone, Commentaries, 358, quoted in Alexander Volokh, Guilty Men (1997) 146 U. Penn. L. Rev. 173.)

Even Bonventre, who argues for an alternative to the constitutional privilege against self-incrimination, noting the abuses of the McCarthy (no known relationship to the former federal prosecutor quoted above) era during the 1950s states, “It appears that the Privilege, or at least some of its protections, does have lasting value.” (Bonventre, supra, at p. 51.) That lasting value is protecting the freedom and liberty interests of innocent people.

In the case of Dr. Butler, all these things have to be remembered. It’s not going to be a simple decision of deciding whether a fraudster is telling the truth or whether the jury should believe the FBI. It’s going to — first — be a question of what actually happened; that is, what are the facts of this case. Only after that will there be a question of whether or not Dr. Butler is a scientist highly-respected and world-renowned in his field or whether he is a criminal, a “multiple fraudster.”

But more importantly, it’s going to be a question of whether the United States of America follows the rule of law or the rule of force when it comes to the investigation of its citizens for their alleged crimes. As Justice Harlan said:

It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution. — Downes v. Bidwell (1901) 182 U.S. 244, 382, dis. opn., quoted by Natsu Taylor Saito, Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law (2002) 17 Geo. Immigr. L.J. 1, 60.

The American public should expect no less.

Postscript: Another reason the public should be concerned about this is the potential damage done to our ability to protect ourselves against biological warfare. If, as seems possible, the FBI lied merely to quickly lay a difficult public relations issue to rest — if they lied in order to make it appear that missing biological material which could be used against us was not, in fact, missing at all — then one of the world’s top biological research scientists has been unnecessarily taken out of circulation. A man who many think could have single-handedly developed protective vaccines against biological weaponry may have been sidelined for no other reason than to save the Administration from the embarrassment of admitting that biological material may have fallen into the hands of terrorists. On the tail of the now-nearly-forgotten attempts by the Administration to murder a CIA agent whose husband spoke out against the President, this is a scary situation, indeed.