Saturday, October 25, 2008

A LITTLE WONDERMENT IS A DANGEROUS THING in the Holy Land Foundation (re)Trial

Any university professor of writing knows nothing is more absurd than a first-year university student’s attempt to make an “argument” about a subject that she has only just discovered and researched for one evening. With this writing, I am not unlike my students.

A little learning is a dang'rous thing;
Drink deep, or taste not the Pierian spring:
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.

A layperson’s reading of legal opinion is a dangerous thing. I don’t have a clue. All I can do is read and wonder. I wonder why courtroom proceedings (in the HLF trial, at any rate) seem to devolve into nonsense. Don’t take my wonderings for anything like knowledge; that would be a dangerous thing.

I wonder why the US District Court of the Northern District of Texas seems to have adopted the rules of evidence of a foreign country.

“Israeli judges and legal scholars [argue] that rules of admissibility [are] conceptually alien to the Israeli legal system: they were devised primarily for juries, to shelter lay fact finders from exposure to unreliable evidence and data that would unfairly bias their decision. Israeli judges [voice] frustration with . . . .rigid admissibility rules that often [force] judges to disregard . . . evidence” (2).

The HLF prosecutors (and the court itself) seem to believe that the Israeli model of admissibility of evidence that might be “unreliable” applies to US trials. Never mind that the Israeli system does not have juries, but has only “professional” judges. Because the Israeli system allows professional judges “exposure to unreliable evidence,” assuming they are capable of sorting it out, the HLF prosecutors think US courts should follow the Israeli example and hope the “lay fact finders” (the jury) can sort out unreliable from reliable evidence. I wonder.

“American judges citing foreign law already bear a considerable burden to prove why the United States. . . . should care or follow what others say or do. . . .it may be useful (and humbling) to pause and wonder why the United States should be different and whether, when standing alone on a legal issue, it is on the proper side of the debate” (3).

It is no wonder to me. The reason our legal system is different is we have a constitution (which Israel, for example, does not) that guarantees certain rights to all citizens (and to foreigners living in the US). Among those rights are trial by a jury of one’s peers, the right to confront witness against oneself, and the right of protection from unlawful search and seizure, that is, the right—as interpreted by the Supreme Court—to be accused of crimes based only on evidence which is gathered by certain inviolable rules.

“The standard of cross-examination required…ultimately seeks to assure the reliability at trial of statements previously made by witnesses. Since that reliability depends on the perception, memory, and veracity of a witness whose credibility may be wholly unknown, effective cross-examination of the witness assures that the evidence may be sufficiently probed” (4).

I wonder why, if the Supreme Court has ruled that “effective cross-examination of the witness assures that the evidence may be sufficiently probed,” a District Court in Texas can allow anonymous witnesses (agents of a foreign government testifying under the government’s claim that their work is “classified” for “security” purposes) to testify since there is no way the defense can “sufficiently probe” their testimony. Of course, I’m not alone in wondering this. And many of us have been wondering about this for a couple of years. It is indeed perplexing (to say nothing of frightening).

And then there is the overarching wonder that evidence and testimony that is imprecise, nuanced, and completely subjective permeates this trial so as to make it, as I have said before, “surreal.”

“Although [translators] describe themselves as ‘neutral mouthpieces,’ ‘invisible,’ or mere ‘bridge[s] of communication,’ they are actually none of these; the act of interpretation invariably alters the meaning of a speaker’s utterance . . . . Despite the high stakes involved, legal scholars and practitioners remain largely unaware of the way interpretation works and of the effect of interpretation on testimony. Instead, they view interpretation merely as a technical issue” (5).

Almost all of the evidence in this trial involves translation. My wonder reaches the point of stupefaction. Am I, lowly professor of rhetoric—that is, merely someone who is interested in words and what they mean and how they are used—the only one who believes that translation is more than trying to make a word in one language equal a word in another? When a German speaker in the middle of a sentence says ja, does she mean yes or Ummm? When my mother said she wanted pop, did she mean she’d like a Coke or was looking for my dad?

“What makes interpretation so difficult is that it is useless to translate words into their literal equivalents because people do not communicate only by the strict denotative meanings of words. Ideally, all interpretation aims to achieve an “integral communication of meaning” that centers on ideas expressed rather than individual words uttered. Specifically, an interpreter. . . . [does] his or her best to preserve the import of the speaker’s words, phrases, colloquial expressions, gestures, and the like” (6).

Matthew Levitt, Agent Burns, Agent Miranda, Bruce Hoffmann, and the Israeli Mystery Guests all rely on translations that may or may not give any real sense of what was actually said or written.

“The U.S. Supreme Court has given legal force to this notion: ‘Language permits an individual both to express a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond.’ Of course, some of this misunderstanding is due to bias and ethnic, religious, or racial prejudice of trial participants. Bias on the part of translators may also contribute…” (7).

I wonder.
(1.) Pope, Alexander. (1688 - 1744) in An Essay on Criticism, 1709. (In Greek mythology, Pieria was the home of Mount Olympus and the seat of worship The Muses. Drinking at the “Pierian Spring” would give one great knowledge and inspiration.
(2.) Blum, Binyamin. “Doctrines without Borders: The ‘New’ Israeli Exclusionary Rule and the Dangers of Legal Transplantation.” Stanford Law Review 60.6 (Apr2008): 2146.

(PhD candidate, Stanford School of Law. The Hebrew University BA, JD, Law. Law Clerk, Supreme Court of Israel, 2003-2004.)
(3.) Blum 2163
(4.) “The Supreme Court, 1969 Term.” Harvard Law Review 84.1 (Nov70): 113.
(5.) Karton, Joshua. “Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony.” Vanderbilt Journal of Transnational Law 41.1 (Jan2008): 3-4.

(PhD Candidate, University of Cambridge; Columbia University School of Law, Juris Doctor, 2005; Yale University, Bachelor of Arts in Political Science and Humanities, 2001.)
(6.) Karton 26
(7.) Karton 28