More than a week ago, one of my blogging, legal, ethics idols, Ken at Popehat, took issue with my post stating that the midnight questioning of Nakoula Basseley Nakoula (the alleged producer of “Innocence of Muslims,” the crude anti-Islam film then being blamed by the Obama administration for all the violence that erupted in the Middle East on September 11) would appear both abroad and at home to be in retaliation for his exercise of his free speech rights, and should have been avoided even if it was otherwise justified by his parole violations. Ken wrote:
“…What separates us from the mob is the rule of law. We shouldn’t ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn’t hinder the rule of law to avoid the appearance of appeasement, either. That’s still letting the mob dictate our actions and our adherence to our own laws. “We would normally do X, but we mustn’t because it might enrage the mob” is just the flip side of “We would normally do X, but we mustn’t because it might embolden the mob.” Both are a sucker’s game. The mob’s actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck ’em if they don’t like it.”
On this blog, commenter tgt was more succinct:
“Jack’s view of law is that if you are enough of a dick, you should be immune from prosecution for any action.”
Today Nakoula was arrested. Here is how CNN’s Headline News described it as I watched: “Nakoula Basseley Nakoula, the alleged producer of the anti-Islamic film “Innocence of Muslims” which has been blamed for inciting protests and violence against American Embassies, was arrested by Federal agents. The judge said that Nakoula doesn’t deserve bail…”. Here is the Washington Post headline, from the print addition:
Man Behind Anti-Islam Film Arrested, Detained in California.
More than half the article is about the film; there is one paragraph about the parole violation that is, ostensibly, the reason for the arrest. This is Voice of America’s headline on the same story…get that? Voice of America?
Anti-Islam Filmmaker Detained Without Bail
This Radio Free Europe’s headline on the web:
US Man Linked To Anti-Islam Film In Custody
The Hollywood Reporter:
‘Innocence of Muslims’ Filmmaker Nakoula Basseley Nakoula Arrested
The Financial Times:
Anti-Islam filmmaker held without bail
And there are many, many more. It is not just the mob on the Arab streets that are getting the message that the U.S. is punishing a film maker for the content of his film. That is the message Americans are getting too, and it was completely predictable that this would happen. The harm this does to free speech in the country is incalculable. I don’t know that this is the message that the Obama Administration wants to send abroad, or to Americans. I regard the administration’s commitment to free speech questionable, but I also doubt its competence: either way, I believe, as I stated before, that the wide-spread perception that the United States government was punishing a film-maker who dared to express anti-Islam sentiments was sufficiently damaging to the nation that a responsible government would avoid it, even if it allowed a parole violator to escape legitimate sanctions. To the contrary, it seems that our justice system has gone out of its way to encourage this perception. Why was this evocative midnight scene…
…created at the zenith of international calls for U.S. censorship of anti-Islam speech and official actions against the makers of “Innocence of Muslims”? Why did the judge say yesterday that he was withholding bail because Nakoula was “a danger to the community”? Why was Nakoula finally arrested the day after the White House’s efforts to blame his film trailer for the attack on our Libyan embassy were finally shown to be a disinformation campaign, and two days after President Obama ominously told the United Nations, “The future must not belong to those who slander the prophet of Islam”? Could the message be any clearer?
I agree with Ken that the rule of law is crucial, and that threats of violence from terrorists should not cause us to betray it. But Ken is a former prosecutor. He knows that prosecutors waive prosecution in a myriad of cases on utilitarian grounds, and that the exercise of rational prosecutorial discretion is considered a strength of the system. Sometimes prosecutors refuse to prosecute because the costs of prosecution outweigh any benefits to society, or simply because the state doesn’t think it can prevail. Sometimes they refuse to prosecute because a law is outdated, or never enforced, and rigid enforcement will diminish respect for the rule of law in the community. Sometimes they refrain from prosecuting on humanitarian grounds, as when an elderly husband kills his cancer-ridden spouse who begged him to end her pain. Criminals are spared prosecution to get their testimony against worse offenders, or have them serve as informants. It seems to me that both upholding and appearing to uphold America’s enshrinement of free speech for all, regardless of content, is as important an objective as any of these, and certainly outbalances a relentless enforcement of “the rule of law” against a parole violation by a small-time swindler like Nakoula.*
I believe the way Nakoula has been handled chills speech in this country, emboldens the advocates of “hate speech” censorship, and signals to the mob abroad that indeed their violent tactics will cause us to compromise our most cherished principles. If our rule of law is as important as Ken says, and it is, then the core principles of the document that forms the foundation for our laws is equally important.
UPDATE: From CBS Radio (Transcript excerpt)…
ANCHOR (Steve Kathan): The man behind the anti-Islam video that sparked outrage in the Muslim world is still in jail in Los Angeles. It’s for a probation violation.
RAVIV: I’m Dan Raviv in Washington. The short movie posted on YouTube has had a lot of diplomatic impact. It was clearly designed to insult the Prophet Mohammed, and a senior Obama administration official told CBS News last week that no one in the Middle East seems to believe that the US government could not stop the film from getting out. Now at least Federal authorities might be able to punish the filmmaker.”
ANCHOR The Dow is down 69. This is CBS News.
* ASIDE: I also find the nature of Nakoula’s parole violation troubling in context. Nakoula was ordered, as part of his parole, not to misrepresent his identity. His chosen speech, however, protected by the Constitution, predictably made him a target of Muslim vengeance, making an alias a matter of survival. Should a technical parole violation that is reasonably necessary to protect a parolee’s life and safety as he engages in legal and constitutionally protected activity be just cause for his arrest and imprisonment?
__________________________________________
Source: Popehat
Graphic: Yukaripeerless
Ethics Alarms 
I get into a heated argument while at a football game. The cops noticed, and pull me aside to ask me to quiet down. During our discussion the cops ask for my name and ID and run a quick check on their system. Since I have an outstanding warrant for not completing my community service I’m arrested, and spend the next 3 months in jail to satisfy my suspended sentence.
If Nakoula wanted to not run afoul of the law he should have not committed the fraud in the first place, made the movie under his real name, or wait until the terms of his probation were complete and then he could say what ever he wanted with out fear of law enforcement, or extremists.
Regardless, he committed the crime, agreed to terms of his probation then violated those terms.
If you think punishing one dumb bigot for a violation is worth undermining free speech and America’s integrity abroad, while laying the groundwork for future government censorship, then this is a completely rational analysis. Personally, I think it’s nuts. Nakoula is not the issue, nor the problem.
I’m not being obtuse here intentionally, but are you saying that we have to not hold Nakoula accountable for his violation of probation because it looks to the uninformed that the government is punishing him for what he said? That’s the ends justifies the means, and certainly not ethical behavior.
The comparison I made in an earlier post is one I teach in corporate ethics. If there is a troublesome employee that you have every reason and right to fire, but he files a sexual harassment grievance against the company, you can’t fire him, at least not for a long while. Otherwise, you send the message that those who exercise their legal rights when harassed will be retaliated against, even if that’s not what you are doing.
The ends sometimes justify the means; that’s utilitarianism, or balancing. It’s the ethical system government use more than any other. If you read the post, I think I made the two scales pretty clear. I don’t think its even a particularly close call: who cares about Nakoula? Punishing him just isn’t that important in the long run. If he were a serial killer, rather than a parole violator, obviously the scales swing the other way.
… and if that bad employee is suspected of embezzlement or assaulting customers? He files a sexual harassment grievance the same day you’re meeting with the police to file a report? I, personally, cannot ignore the rule of law because of the appearance of impropriety by those who don’t have the facts.
I step out of my high school classroom with my cel phone to report I think a student is being abused. While I’m in the hallway several parents walk by and see a teacher making a social call while neglecting his students. I’m not going to delay reporting for even a second because of the appearance of impropriety.
Furthermore, to assume the genesis of the investigation is the US Federal Government assumes facts not in evidence. It’s equally likely that the probation officer was watching the news, found out that this movie was made by Nakoula under an alias and decided to bring him in because the alias potentially a parole violation.
All that being said. Thanks again for the ethics lesson.
Yes, Eric, if the cause is immediate and serious enough, what I said doesn’t apply. And if Nakoula is a killer, or a bank robber on the loose, then the balancing is different, that’s all, and nobody gets the wrong message either. I am not claiming a general principle that all criminals shold escape punishment anytime they may have aroused ire somewhere with “hate speech.” I’m talking about what this particular combination of facts required—-an exception to the usual rule, in an exceptional combination of facts.
Nor have I insisted that the Obama administration was behind the arrest, though I would not be surprised if it was. I do insist that it was within its power to stop the arrest, and it should have. A competent White House would have.
I agree with Ken’s points, insofar as not being swayed by “possibilities” owned by some distant, reactive force.
Closer to home, though, I despair: I think the law has already fallen prey to “the mob” beyond any hope of “ rule of ‘law’ ” ever being anything but “Rex lex” and Maoism – as in, “Political power grows from the barrel of a gun.”
On the list for most likely next inmate/cellmate of Nakoula: Michael Savage, for his sarcasm when making reference to “the religion of peace.”
Ken’s points are unassailable, but he’s wrong in this instance.
But again, the consequences of this act, and the message it sent, wee not “possibilities,” but near certainties. I expect the government to guard the First Amendment over punishing one parole violator, if it comes down to one or the other.
Why doesn’t everybody?
I like the idea of feeding back to the devil some of his own deception. I will never accept that Nakoula’s “audiovisual product” was the catalyst of everything it’s being blamed for. Let the damned fools (and we know who they are) think they’ve been caved-to, pandered to, appeased, validated, “understood” (now we’re getting into hilarity), and respected as they insist, with a grand spectacle of vengeance against Nakoula for his mortal threat (that is sarcasm) to their idols and idolatry. Such pathologically petty suckers are incapable of suffering any further, not even from any further self-suckering (ahh, Justice!). They’re already trapped in the hell of their own making by their own lies. We thus need not even nurture the sentiment, “To hell with them.” It’s done; that is a given. So we can do things our way.
Nakoula’s public torture-death and dragging through the streets on every TV and channel in existence would only feed more lying to the liars-to-themselves. For now, we’ve still got a civil society to take care of, over here, and sometimes, it gets complicated, and what we do, even when it’s right, looks to some (including, some delusional enemies) like we’re playing right into our enemies’ hands. Whatever we do in that taking care, we need to be steadfast in rejecting any association between how we run our society, and how supremely delusional and ignorant external observers of it say, or demonstrate, or clamor for, or kill and riot for, how they think it ought to be run.
I think of failure to punish one parole violator as reason for concern that the government could fail to guard the First Amendment, too.
I expect that soon we’ll be able to cull a lot of comments (from the internet, public statements, etc.) from the Muslim world soon validating the idea that many of them see this arrest as capitulation to the embassy terrorists. In fact you can pretty much take that to the bank.
What’s not so certain is whether this means that we will see more related terror attacks now. There are plenty of other Youtube videos, books, articles, etc. making similar accusations against the prophet (in much more scholarly and competent fashion.) I’ve talked personally to Muslim clerics in Malaysia who told me that anyone who ideologically opposes Islam is technically an enemy, so if mockery can be silenced by violence, maybe polite discourse will be next.
Jack:
I assume you are aware that a federal supervised release revocation happens like this: a probation officer — an employee of the U.S. Probation Office, an arm of the U.S Courts, the judicial branch of government — files a petition with the sentencing judge asking the judge to start a revocation proceeding and issue a summons or arrest warrant for the defendant. If the judge finds cause, he or she issues the warrant or summons, and the process under Federal Rule of Criminal Procedure 32.1 begins. The U.S. Attorney’s office appears to represent the executive branch. However, the U.S. Attorney’s Office does not begin the process. It does not file the charges.
I assume that you don’t have direct evidence that the executive branch caused the Probation Office to file the request in this case. There is circumstantial evidence, which I would characterize as ambiguous. For the sake of my next question, let’s assume that the executive did not interfere, but the U.S. Probation Office learned of Nakoula’s violations by watching the news about him. (That news was encouraged, in part, by the government confirming that Nakoula was Bacile.)
What should the executive and the U.S. Probation Office have done?
Should the U.S. Probation Office have declined to investigate, or to seek revocation, based on the geopolitical context? If so, what principled rules should the U.S. Probation Office have consulted? In other words, how, exactly, should the decision to allow Nakoula to violate his terms of release with impunity been governed by the rule of law?
Ditto to the question if you think the judge should have refused to issue the warrant.
As to the executive: do you believe the executive should have intervened in the process to try to persuade the U.S. Probation Office or the federal judge not to proceed? If so, what are the specific principles under which the government should intervene? How does the rule of law help govern which cases they should intervene and which they should not?
“Should the U.S. Probation Office have declined to investigate, or to seek revocation, based on the geopolitical context?”
No. That’s not their job; I agree with you.
“If so, what principled rules should the U.S. Probation Office have consulted? In other words, how, exactly, should the decision to allow Nakoula to violate his terms of release with impunity been governed by the rule of law?”
One would hope, but not expect, that the U.S. Probation Office, if it was paying attention and recognized the unusual circumstances in what would otherwise be routine, would attempt to consult with the Justice Department, and through them, the State Department, regarding some guidance. As a hypothetical, it took me two phone calls to reach someone who said that he could have but me in touch with someone who could communicate how the Administration would like the situation handled from a foreign policy, terrorist policy and First Amendment policy standpoint. Admittedly, I’m in DC, but I assume that the U.S. Probation Office could do the same.
“Ditto to the question if you think the judge should have refused to issue the warrant.”
No. Absolutely not. That is not a judge’s role, nor should the judge be submitted to any pressure by the Executive, State Department or Justice.
“As to the executive: do you believe the executive should have intervened in the process to try to persuade the U.S. Probation Office or the federal judge not to proceed?”
I do.
“If so, what are the specific principles under which the government should intervene? How does the rule of law help govern which cases they should intervene and which they should not?”
Good questions all.
I don’t think the rule of law does govern cases like this, any more than principles of journalism can be reconciled to cases where the government asks that a legitimate news story be delayed in the interest of national security and the lives of foreign operatives. A case like this is sui generis, and the only specific principle it can or should stand for is that in the chaotic world of international politics, situations occur that require off-the-books, improvised solutions that can’t and shouldn’t create a general precedent. Such an example was FDR conspiring to defy the will of Congress by assisting Great Britain surreptitiously before the US entered World War II. Responsible, thoughtful, trustworthy and competent leaders can vary from the strict rule of law in extraordinary circumstances without losing their way. I’m not saying its easy or that it should become a habit, but I am saying that the Nakoula double-bind, which the Administration helped create by making him and his film the scapegoat for the entire Middle East implosion, should have been resolved in favor of not appearing to give future terrorists and violent zealots the impression that violence could impel the U.S. to punish its own citizens for insulting Islam….and US citizens the idea that this is true as well.
Look, Barry! I think I’m being called an Obama flack now!
I don’t like the judicial branch deciding to consult with the executive branch about how to do the judicial branch’s job.
If a person on supervised release were someone the executive WANTS us to be tough on — say someone affiliated with terrorists — are you OK with the probation officer calling the executive to ask “hey, this guy’s violation is kind of marginal, and normally I’d just give him a warning, but I know you guys have a hard-on form him, so I’m calling to ask — want me to revoke him?”
No it’s not. It’s just the example of the week. Terrorists and mobs and their apologists will keep threatening violence if the United States doesn’t change its policies or values. Some people will keep advocating appeasement. Some people, like you, will keep advocating reverse-appeasement. Both categories are dancing to the barbarians’ tune.
Tell me, Jack. What distinguishes your argument from the arguments of people who say that allied servicemen who commit war crimes should not be prosecuted because doing so appeases or encourages or seems to yield to the demands of the terrorists?
“If a person on supervised release were someone the executive WANTS us to be tough on — say someone affiliated with terrorists — are you OK with the probation officer calling the executive to ask “hey, this guy’s violation is kind of marginal, and normally I’d just give him a warning, but I know you guys have a hard-on for him, so I’m calling to ask — want me to revoke him?”
Nope. Wrong and outrageous.
No it’s not [sui generis]. It’s just the example of the week. Terrorists and mobs and their apologists will keep threatening violence if the United States doesn’t change its policies or values. Some people will keep advocating appeasement. Some people, like you, will keep advocating reverse-appeasement. Both categories are dancing to the barbarians’ tune.
Yours is a slippery slope argument, and I agree that the slope is slippery. But it IS sui generis. You are wanting to make this a general principle, which obviously it cannot sustain such status, and I reject that. I’ve never seen this situation before, and if it were handled properly we might never see it again for a long time. This is simple balancing. Letting one guy’s parole violations slide is a miniscule price to pay to avoid appearing to appease terrorists, chill free speech domestically, and encourage future efforts at extortion by extremists. It’s not even a close call, in a balancing comparison. Not even close.
Tell me, Jack. What distinguishes your argument from the arguments of people who say that allied servicemen who commit war crimes should not be prosecuted because doing so appeases or encourages or seems to yield to the demands of the terrorists?
Oh, you can come up with a better stumper than that! In your case, the conduct the terrorists are protesting is also the illegal act. In the Nakoula situation, what they are protesting is not only legal, but fundamental. I wouldn’t hesitate to do what terrorists were agitating for if we would do it anyway, which is why the description “reverse appeasement” isn’t quite correct.
I believe we have reached the conclusion of productive conversation.
Elegantly put!
Also:
Let’s look at some context of the alias:
http://latimesblogs.latimes.com/lanow/2012/09/nakoula-basseley-nakoula-aliases-innocence-muslims.html
I think you’re being taken by a career con man.
Ken, I have no doubt that he is a career con-man, and I’m persuaded that his aliases are at least as much for deception as self protection. I have no doubt that he richly deserves to have his parole revoked, and should, under 99.99% of conceivable circumstances. Here, I think utilitarianism applies well. Letting one scumbag go free, at least for a while, is a small price to pay for letting him stand as a symbol of what the United States tolerates and protects in the speech of its citizens.
But that’s not what you said. That’s your OTHER argument. The argument you made in the part I quoted is that the alias was necessary for his survival. The facts I cited show that, in fact, he was getting multiple aliases under circumstances suggesting they were related to the con, not to protecting his ability to speak freely.
That’s why I think you’re buying his con.
(Also, note, to the extent you believe he was using aliases because he had to protect his life, bear in mind that he shot the film with a crew and cast that didn’t know how it would be dubbed, let them put their real names and faces on it, then re-dubbed it with more explicitly anti-Islam stuff. In other words, under that scenario, he deliberately protected himself from a known and expected risk while exposing his crew and cast unknowingly to it. That’s one reason I think he’s vermin.)
Yes, If I was unclear, I’m sorry. I concede that his use of aliases was for the con.
And therefore, his use of aliases was a very real parole violation separate from his speech.
Yes.
All other ethical considerations aside, I think this fellow should ask the courts for a secret, long-term name change. His life will be at risk for a long time to come. Some gov’t functionary in Afghanistan has offered a $100K reward to anyone who will kill him.
Also all other ethical questions aside, I’ve been wondering: do the Middle East rioters really and truly believe that such murderous violence is pleasing to God (Allah)?
“This is simple balancing. Letting one guy’s parole violations slide is a miniscule price to pay to avoid appearing to appease terrorists, chill free speech domestically, and encourage future efforts at extortion by extremists. It’s not even a close call, in a balancing comparison. Not even close.”
Well said, and in a manner that clearly illustrates the relative ethical priorities. I cant help but feel like this is the obvious conclusion.
Jack,
Why wasn’t this a post about how the media is misrepresenting the story?
Ok, was this 1) Serious 2) a shot about my proclivity for complaining about the media? 3) a satire of the “why didn’t you write B rather than A?” complaints, which you know drive me crazy? If it’s 1), I think it was inevitable that the media would misrepresent the story, just like it was inevitable that the foreign critics would misunderstand the story. And I think, without anything you would or should accept as proof, that is exactly how the administration hoped it would be understood.
I was pointing out that your irrationality over Nakoula seems to have overrun your usual rationality on the stupidity of the media. While this is an open and shut case of media error, that you didn’t even mention the media error is extremely surprising. You treated the media error as if it wasn’t error at all.
You went from “The administration should have done nothing because there’s an apparant conflict of interest” to “The administration was intending to send the wrong message”. While your original reasoning is flawed, this latest comment seems completely unsupported. It fit your preconceived notions, so you ran with it.
No, in this case the media is mirroring the predictable perceptions of the public, which it also feeds. I think most of the American public, like most of the foreign public, and the media, believe that Nakoula was arrested as punishment of the international response to the film. And since this was so predictable, either the Feds didn’t care how it was perceived, did care and wasn’t competent enough to take measures to counter it, or wanted that perception. Take your pick. In my view, all three are evidence of incompetence.
No, in this case the media is mirroring the predictable perceptions of the public, which it also feeds.
You could say this about pretty much everything the media gets wrong.
I think most of the American public, like most of the foreign public, and the media, believe that Nakoula was arrested as punishment of the international response to the film.
So?
And since this was so predictable, either the Feds didn’t care how it was perceived, did care and wasn’t competent enough to take measures to counter it, or wanted that perception.
That it was likely that the media would screw it up isn’t evidence that the Feds acted badly. A science writer that releases a study with any pop-friendly terms knows that their work is going to be misrepresented no matter what they do. That doesn’t mean they desire the misrepresentation.
If Nakoula had been arrested the day before his film blew up, and then was released from custody 2 days later, the headlines would all say: “Blasphemer released by Government” adn the like. That doesn’t mean that was desired by releasing him.
Basically, your argument is that because the government didn’t treat this guy specially, they intended to treat him specially. it’s bunk.