A Problem of Evidence

Dahlia Lithwick has a good article comparing Texas’ recent raid on the FLDS Church Community with the initial situation in Guantanamo Bay in 2002.

More recent reporting has shown that the legal apparatus intended to protect abused children in Texas was strained to the breaking point by what turned out to be one of the largest child welfare cases in American history. Earlier today, attorneys for Child Protective Services confirmed that 15 of the 31 “child” mothers placed in foster care were actually adults. One is 27. A 14-year-old removed as a child mother apparently has no children. The state had raided the ranch after a 16-year-old girl called an abuse hotline saying she had been beaten and raped by her 50-year-old husband, but that girl has not been found. And interim custody placements made parental visits difficult, if not impossible. Seized children were not even permitted to hear sect prophet Warren Jeffs’ name. The original custody proceedings had been hasty, chaotic, and confused. And estimated court costs were being projected at $2.25 million (before lawyers’ fees).

In other words, what was intended as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time. If this sounds a whole lot like the Bush administration’s fruitless, costly, and ultimately cruel exercises in mass justice at Guantanamo Bay, that’s because the parallels are hard to miss. In both cases, government actors hurled themselves at a problem with the best of intentions. The prospect of averting just one more terror attack, or protecting just one more molested child, has a way of making all those technical legal details seem trivial. But both cases have been plagued by glaring errors of fact and identification: Names and ages and associations were all jumbled up, hearsay and double hearsay piled up in place of real evidence. At the time, it probably seemed like all the who’s and where’s could eventually be sorted out later. But there were real costs to surging forward ahead of the legal niceties.

I’d urge you to read the whole thing. I myself find the FLDS church to be a rather odious institution, and I’ve no doubt that there are some real bad guys being detained in Guantanamo Bay.

The problem is that by ignoring established policies and not doing a thorough investigation, in both cases there are large numbers of people suffering who aren’t guilty of any crime, which is bad enough and something that our judicial system is supposed to have evolved to avoid (sadly, it’s still not that great at it).

Worse still, as a consequnce of bungled investigations and bad procedures, you also end up with the legal instiutions in both cases being comprimised in terms of their legitimacy, the upshot of which means that the guilty go unpunished. As Lithwick concludes:

A long history of eliding detailed legal rules and procedures is the reason we’ve yet to see a single trial end in a conviction at Guantanamo Bay. Let’s hope it will not now prove the reason we don’t see a single conviction at the Yearning for Zion Ranch.

This is why the judicial process is so important. We ignore that process at our own peril.

FILED UNDER: Law and the Courts
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Cernig says:

    Which is why the head of Texas CPS should resign – – for both circumventing the judicial process, thus lumping in the innocent with the guilty, and thereby failing to protect the children.

    And the same, by extension, goes for everyone involved in creating the Gitmo farrago. They ignored the rule of law and thereby failed to protect America.

    Regards, C

  2. Wayne says:

    Comparing the Texas raid with Gitmo is like comparing apples and pine trees.

    The Texas raid was an internal, within the US border, legal action that was botch. Gitmo is a detainment camp for foreign enemy combatants acquired on foreign soil. It is much closer to an EPW camp than a criminal prison. Trying to use internal judicial procedure for enemy combatants is asinine. Doing so would mean that the most of the POW camps that we had during WWII were illegal. After all there was little chance that we could prove in a US civilian court that all those in the camps were guilty especially since most of the witnesses were still performing military duties or were dead.

    Also Texas punished a large group with “maybe” a few who were guilty. Gitmo took in many with “maybe” a few who were innocent.

  3. Alex Knapp says:

    Wayne,

    Trying to use internal judicial procedure for enemy combatants is asinine. Doing so would mean that the most of the POW camps that we had during WWII were illegal.

    Actually, during World War II, there was a tribunal in our POW camps to determine the status of prisoners whose status was unclear, as well as solid internal procedures for infractions. The decision of the Bush Administration to not simply hold courts-martial to determine the status of prisoners way back in 2002 is astoundingly stupid. There were procedures in place that could have made this an easy matter, but the Administration ignored them. I am not among those who suggest that the detainees needed to be tried in civilian courts necessarily. But why ignore procedures in place?

    Also Texas punished a large group with “maybe” a few who were guilty. Gitmo took in many with “maybe” a few who were innocent.

    How do you know without evidence?

  4. Wayne says:

    Alex
    I agree we need procedures at Gitmo for infractions and/or for determining prisoner status. Bush has done this but has been impeded due to all the lawsuits and political infighting on how exactly to do this. Frankly I think Bush has let the political pressure influence him too much.

    “How do you know without evidence?”

    “Services confirmed that 15 of the 31 “child” mothers placed in foster care were actually adults. One is 27.”

    Granted most of the evidence we have is second handed but I have much more evidence for my assertion from these second hand sources than you do.

    Surely you don’t considered US citizens guilty until proven innocent?

  5. Alex Knapp says:

    Wayne,

    Granted most of the evidence we have is second handed but I have much more evidence for my assertion from these second hand sources than you do.

    Surely you don’t considered US citizens guilty until proven innocent?

    Pardon me if I wasn’t clear: I was referring to the Gitmo detainees. I have particular concerns about them, because many (though I don’t think a majority) of them weren’t captured on the battlefield–they were turned in to U.S. troops by Afghan tribes as a result of the bounties that were being rewarded.

  6. […] Knapp at Outside the Beltway points to Dahlia Lithwick at Slate comparing the Texas raid on the FLDS Church Community with the initial […]

  7. brainy435 says:

    In WWII we actually had POWs. We have no such thing today, unless there is a small group of Iraqis fighting in uniform we detained during the initial ouster of Saddam.

  8. Zelsdorf Ragshaft III says:

    Yeah, Alex. Many of those released have rejoined the fight against us. That includes a suicide bomber. It is amazing to me there are those who want to bestow the rights enjoyed by U.S. citizens on people who were captured on the battlefield in Afghanistan. To believe they were taken innocently for bounty cannot be shown to be factual.

  9. legion says:

    To believe they were taken innocently for bounty cannot be shown to be factual.

    ZR,
    Wrong.
    Wrong.
    So wrong.
    If we had captured them, you might have a leg to stand on, but we’ve outsourced that as a matter of policy to thugs with no oversight.

    Bush wasn’t, as Wayne implies, prevented from establishing procedures by lawsuits, he was forced to do so by lawsuits. The DoD then put together such an incompetent hash of illegal, immoral, and contradictory rules that a number of people in the military no longer believe viable hearings can even be conducted.

    As Alex says, process is important. If out government refuses to even follow its own rules, how then can US citizens, let alone foreign nationals, be expected to respect them? Or us?

  10. Wayne says:

    I agree that EPWs are enemy combatants but not all enemy combatants are EPWs.

    Alex
    I am not certain what the breakdown is of Gitmo inmates in where they were capture. I have as the military does concern about authenticating bounties. As ZR has pointed out, there has been proven many that have been release that took up arms against us again. It is a tricky balance. I sure the US hasn’t been perfect on this but is refining the procedures as we speak.

    Your article accused “in both cases there are large numbers of people suffering who aren’t guilty of any crime”. One you didn’t show any evidence of the US guilt as you ask me for evidence for their innocence. Two there is evidence of undue prosecution of large % of proven innocence in the Texas raid and no, saying they “may” be guilty of something is not good enough. Three the burden of proof for being an enemy combatant in an overseas theater is much less than breaking a US law in the US.

  11. Wayne says:

    Legion
    What rules did this government break? Don’t you know that the laws that apply for US citizen in US don’t apply to everyone everywhere?

  12. Gitmo is the new Vietnam all over again, man.

    Quite a reach Ms. Lithwick has there.

  13. legion says:

    Wayne,
    The Geneva Conventions are not the only things that define how prisoners, military or otherwise, must be treated. And before anyone goes off on a “foreign laws” rant, I would point out that any treaty, once ratified by Congress, takes on the full force of Federal law…

  14. Christopher says:

    OMG Alex! u r such a bleeding heart liberal!

    Maybe Bush can rent the Guantanamo Bay detainees some houses in YOUR neigborhood and keep them there. Would THAT make you happy?

    Hypocrite liberals all of ya!

  15. Beldar says:

    It’s entirely possible to agree with you, Alex, that the FLDS situation — especially given the Austin Court of Appeals’ ruling this week — demonstrates “why the judicial process is so important,” without agreeing that the Gitmo situation is in any meaningful way comparable. The type and scope of legal “process” that are due to both parents and children in the former are completely different from that which is due to the detained combatants in the latter.

    But just as many pundits and public observers jumped to overbroad conclusions from initial press reports (sometimes drawn or leaked from the state agency’s allegations), now some pundits and public observers are drawing overbroad conclusions from this week’s decision. On his blog and my own, I’ve fussed at length with UCLA Law Prof. Eugene Volokh’s characterization of the appellate court decision as being a “sharp rebuke” of the trial judge, for example, as well as with his suggestion that this week’s ruling is likely to affect in any meaningful way potential damages lawsuits that may be brought by FLDS parents.

    Indeed, in future and more extended court proceedings “on the merits” after further investigation, the main question will no longer be whether there is an “emergency” — something the Texas Department of Family and Protective Services failed to establish as to most of the children in the initial adversary hearing. If, in those proceedings, the Department can establish that there’s a pattern of sexual predation and coercion of “child brides,” then it’s altogether possible that the trial court may rule that it’s contrary to the long-term best interest of other minor children — even ones not in imminent danger of being compelled to marry and bear children while still of tender age — to grow up in a closed society committed to fostering and concealing those practices. As a practical matter, then, those parents may be put to a decision at that point: Leave the compound, or lose custody of their children.

    For any such relief to be granted as to any of the children, however, the Department clearly needs to do a vastly better job of proving, even inferentially and circumstantially, its allegations. Its credibility is certainly hurt by the extent to which its been unable to back up with solid proof a great many of the “facts” that were originally reported.

    The Texas Department of Family and Protective Services’ performance so far hasn’t been satisfactory, but in its defense, it’s never had to deal with a case even remotely approaching this one in scale and scope. As a Texan whose tax dollars support it, I’m hoping they’ll rise to the challenge and perform more professionally in the future. But in any event, this dispute is a long way from being over.

  16. Floyd says:

    “”The state had raided the ranch after a 16-year-old girl called an abuse hotline saying she had been beaten and raped by her 50-year-old husband, but that girl has not been found.””
    “””””””””””””””””””””””””””””””””””””””””””””””””

    The “girl” has in fact been found, She was a 33year old woman from Colorado with a long history of filing false police reports.
    She “just happened to be found” days after the children were confiscated.

  17. Floyd says:

    “”The Texas Department of Family and Protective Services’ performance so far hasn’t been satisfactory, but in its defense, it’s never had to deal with a case even remotely approaching this one in scale and scope.””
    “””””””””””””””””””””””””””””””””””””””””””””””””
    Beldar;
    Do you mean to say that handling a false report of one incident of abuse would have been too much “scale and scope” for the Texas Dept of Family and Protective Services???
    I guess that’s why they let someone else handle
    Waco??