The Pictures Won’t Lie, Which is Why We Can’t See Them

Ah, yes. The torture pictures. Anything to keep them from being seen. Even though the Government settled the case the ACLU had brought, seeking those pictures, Obama now wants to welsh on his deal.

Relative to Obama’s 180 on Abu Ghraib photos, the thing is that when you as a party to litigation enter into an agreement to resolve an issue (or all the issues) in the litigation (sometimes called a "Settlement") and you put that on the record, you wind up in a serious pickle when you try to back out on that.

I cannot tell you how many times I have written briefs, or read cases to help write briefs, all of which have said "the policy of the courts is that settlements are to be encouraged and, to support that policy, a settlement which was knowingly, voluntarily and freely entered into (particularly with the advice of counsel, will not lightly be set aside." Or words to that effect. Every lawyer knows them.

In the civil context, it is almost impossible to get a settlement set aside. You basically have to show that either the judge threatened the party trying to get out with jail if he didn’t settle, or that the party was so out of his mind that he didn’t know what he was doing when he settled.

That threat of jail, BTW, does not include the jail that comes when you are in contempt of court (or going there) for failure to obey a prior court order, and you settle the case rather than adjudicate the contempt.

Let me tell you a story about that. About a dozen years ago, I second-chaired a case – a complicated, then six-year-old multi-defendant legal malpractice case – where one of the defendant lawyers was representing himself. He decided that the date scheduled for trial would be a good day to go … out of state half a continent away. He had a story about a sick relative.

The parties spent the better part of a week hammering on settlement (the judge was one of two judges in a rural county and recognized this case would take two full months or more to try, thereby bringing most of the other cases in the courthouse to a halt) and motions, with Absent Lawyer participating, in fits and starts, by phone from out of state.

When Absent finally showed up a week late – the day after a settlement had been reached and in response to the threat of contempt proceedings – the second thing he did was to decide he was going to welsh on his part of the settlement and announced his intention. (The first thing had been to present his papers in opposition to the contempt proceeding, which included a copy of a parking ticket to prove he had, indeed, been where he said he had to be. In future, I would have a lot of fun in oral argument with "yet another example of Absent’s inability to conform his behavior to the requirements of the law".) The judge then announced that, this was fine, but the first item on the agenda (before we bring the jurors in for jury selection) would be to adjudicate Absent’s pending contempt. The judge asked the lawyers to get ready but, since it was mid-morning by now, she was going to go get a cup of coffee and check with her law clerk before taking the bench in about 15 minutes.

Absent took about 2 seconds to seize the opportunity to go back on welshing on the settlement. We told the judge, who was very pleased. We then took Absent (and all the other defendannts) through his consent to settle and wholehearted agreement with all the terms and conditions of the settlement in painstaking detail, making sure that the record contained abundant references to his voluntary decision to settle and pay ($150k) on a schedule.

Six months later, when he had not paid a cent, I went before the judge on an application to enforce the settlement. The night before, after 5 PM, Absent had faxed us (blocking the return number on the transaction report) a letter saying he had to be out of state half a continent away (in a different direction, this time) and could not attend. Same judge.

When the case was called, I stood up, and advised the judge of these developments. In addition to the relief I had sought, and apologizing for asking for it without prior notice, I asked for and got a writ called a capias. That’s what you use to send someone – Absent – to debtor’s prison.

Absent managed to dodge service of that writ – staying in Florida most of the time where the writ did not run and slipping in and out of the state on occasion – until he died, shortly after he was disbarred for other chicanery. We never did collect on the judgment – he ran all his money into his Florida house and then went through bankruptcy. But, no one would deal with him either, because he had been called out by that judge before a courtroom full of lawyers and, as things go, his name was mud as word of that spread.

He contemned the Court, settled the case against him, welshed on his settlement, backed off when threatened with prosecution for contempt, settled again, didn’t pay (welshing again), and avoided people hunting him for another 8 or 9 years until he lost his license and died.

The administration settled the Abu Ghraib photos case. They have the near-insurmountable burden of trying to withdraw from a settlement which they admitted they had to make lest they lose abysmally. Now they’re going to try to welsh on that settlement, knowing and having admitted the Second Circuit will not sustain any appeal they might have brought.

How could anyone take their word after this?

Making matters worse, the only thing Obama can interpose as a reason for backing out of the settlement is his word that harm will possibly come to the troops if these pictures come out. That is not an exception to FOIA. If Barry were smart, he’d dump all the torture information – the mountains of documents, images and video – and let it out there. Be done with it. But he is not being smart.

We therefore have a situation where, if Hellerstein buys Obama’s argument, the President’s decision and word supersedes any written law. (And any deal with the government is really not a deal.)

Which, by the way, is the same definition of tyranny Bush and Cheney operated under.

I hope Hellerstein does not buy their argument.

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