Goliath vs Goliath

It’s Apple Inc. versus the Federal Bureau of Investigation.   The fight is in the federal courts, the Congress of the United States and the great court of public opinion.  The contest rises on the heels of the disclosures about the National Security Agency’s domestic surveillance of ordinary citizens and with ever growing fears by some that the government is following a script written by George Orwell.

The FBI wants Apple to create a digital key to bypass the security in an iPhone assigned by the county of San Bernardino to its employee Syed Rizwan Farook, an Islamic extremist who killed 14 innocent Americans on December 2, 2015 and wounded 22 more.  The FBI reasonably believes that there may be information on the iPhone related to other terrorists who could pose a threat to citizens of the United States.  It is the FBI’s mission to protect those innocent citizens.  On the other hand, Apple asserts that once the security of the iPhone is breached no one’s iPhone information will ever again be secure.  Security versus privacy must remind us of Benjamin Franklin’s famous admonition that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Powerful allies are lining up on each side of the big fight.  Microsoft’s Bill Gates believes that Apple should cooperate completely with the FBI while, Microsoft, the company he founded, is on Apple’s side.  AT&T also supports Apple, as does Facebook’s Mark Zuckerberg.  

Perhaps, surprisingly, retired four-star general Michael Hayden, who, as director of the National Security Agency, installed and still defends the controversial surveillance program to collect telephone metadata on millions of Americans, opposes the FBI’s effort to force Apple to install a digital back door into the iPhone.  

Blinded, as we are by the larger dispute, let’s not rush past two important points.  First, isn’t it amazing that Apple’s security is so effective that the FBI with all of its assets and knowhow cannot break into Farook’s iPhone?  It is true that in recent days the FBI has disclosed that someone from outside of this famed law enforcement agency may be able to get past the iPhone's security but the FBI has not been able to do so itself.  Second, the County of San Bernardino California owns the iPhone.  The phone did not belong to Farook.  Farook was a county employee and he was provided with the iPhone by the government to perform his duties as a county employee.  The county bought the phone and the county paid the monthly bill.  Even so, the County of San Bernardino did not make provision to control the security locks on its iPhone.  

Whatever we think about the battle between Apple and the FBI, between security and privacy, let us all take heart about one thing.  These issues, in the Congress, in California’s San Bernardino County and in the federal courts play out in public, before our eyes.  We do not, not yet at least, live in a country where these important issues are decided in secrete.  We will know the result of the contest.  We can hope to know if the FBI succeeds in gaining access to our phones and to our computers and to all of the information that describes and defines our lives.  We may or may not like the result but we will know.  We will know if Apple succeeds in depriving the FBI of the opportunity to determine if there is information vital to national security on the iPhone loaned to Farook by San Bernardino County.  

Is Big Brother watching?  You betcha!  He likes to look at everything, everywhere, always.   It is yet to be seen if we can keep him narrowly focused.  Stay tuned.  

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Scalia and Ginsburg

You would have a hard time finding two judges further apart in their philosophies and beliefs about how the United States Supreme Court is to construe the Constitution than were Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg.  They were truly polar opposites - polar opposites and, yet, “best buddies”.

Their disagreements, rooted in the most profound philosophical differences about how government should work, in the meaning of the guarantee of personal liberty and in how judges should construe the Constitution, were not personal.  In disagreeing, they did not reduce themselves to the sort of personal accusation and name calling that we, unfortunately, sometimes see in political contests.  Mud slinging is not new in American politics.  Since the very founding of the Republic, political adversaries have engaged in vile personal attacks on their opponents directly and through proxies.  

Scalia and Ginsburg each consciously made the work of the other better by thoughtful, intelligent and respectful disagreement.  They deeply disagreed but they liked and respected each other.  They spared and exchanged contrary ideas on the most divisive issues in our country and yet, still, they were “best buddies”.  Their families vacationed together.  They spent holidays together and Antonin and Ruth very much enjoyed attending opera together.  This is the very best of what lawyers and judges do and, in the long history of American jurisprudence, no others ever did it better that Antonin Scalia and Ruth Bader Ginsburg.  

Lawyers and judges are in the business of disagreement.  We lawyers come to conclusions and to the resolution of highly disputed issues by engaging in a combat of the intellect.  We test our ideas against each other and sometimes we do this in front of juries who will decide and sometimes before judges who will decide.  In appellate courts, cases are heard by groups of judges who decide by majorities of the number of judges hearing the case.  Argument is the tool.  Confrontation cannot be avoided.  There are winners and there are losers.  

In remembering Justice Antonin Scalia, we need not agree or disagree with his numerous written opinions or his philosophy of government.  Rather, let us remember the example that he and his still serving “best buddy” Ruth Bader Ginsburg gave us about just how to disagree about ideas.  With the passage of time, the fire goes out of even the ugliest of disputes.  Forever lasting, however, as the very best example for lawyers and judges and even for politicians and citizens in general, is the real human warmth and sincere respect and friendship that Justice Scalia and Justice Ginsburg shared as they disagreed so fundamentally about ideas.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Oh no, it's OJ again.

Just when we were beginning to believe that we could finally forget about the Juice, Hollywood drags him out of his Las Vegas jail cell and parades before us what many believe was the travesty of his murder trial for the barbaric slaughter of the mother of his children and young Ron Goldman.   Here is the lesson of that trial and the best lesson that we should take from the TV dramatization called The People versus OJ Simpson.

Only in the institution of the jury trial do Americans really experience democracy because only in the jury trial do citizens make decisions for the state directly – government by the People.  Except for the jury trial, all of our so-called democratic governing institutions are representative bodies.  Citizens vote for representatives.  Representatives make decisions.  Citizens abide by the decisions of their representatives.  In a jury trial, citizens make decisions directly without intermediary representatives.  

I have stood before many juries over the years and delivered a closing argument reminding those 12 chosen citizens of the power and trust that our constitutional system places in them.  “No power on earth can tell you what to do: not the judge, not the lawyers, not the Congress or even the Supreme Court of the United States.  In this trial, you are the state.”  We, the People, are willing to give over to representatives the power to make laws through legislative representatives.  We are willing to let representatives in the executive departments of our state and national governments, governors and the president, execute those laws in our names as our representatives.  Whether elected or appointed, judges, in trial courts and appellate courts, all the way up to the United States Supreme Court, represent us when they administer and interpret the laws enacted by our other representatives.  In every function and aspect of government, except the jury trial, representatives act for us, and democracy is indirect and remote.  In a jury trial, the People decide, not through representatives but directly as an exercise of pure democracy.

Although we Americans have a great affection for democracy, democracy is far from perfect.  Democracy is fickle and it is flawed.  In reserving to ourselves decisions in civil and especially in criminal trials, we have decided to accept the flaws and mistakes of direct democracy.  We have decided that it is better to accept the risk of mistakes made by citizens who decide who is liable and for how much and who is guilty and who is not.  Tragically, it does happen that the innocent are convicted after prosecution by myopic, mistaken or over zealous prosecutors who make convincing arguments to citizen juries.  Sometimes severely injured people are unjustly not awarded money damages by a jury.  Sometimes the guilty go free.  

The injustices that result from the direct democracy in jury trials are sacrifices to our certainty that government by the People, pure and direct, is the best government.  We hold that more and worse mistakes would be made if representatives, government agents, were to make the decisions that juries make today and history proves this to be true.

For those who believe that OJ Simpson was guilty of stabbing Nicole and Ron to death, OJ’s acquittal by a Los Angeles jury is a travesty.  It is a big sacrifice to democracy but do any of us believe that there would be fewer mistakes and fewer travesties if civil servants were to make the decisions that juries make today?  Just imagine that world, the world in which government paid civil servants decide who is guilty and who is liable.  OJ’s acquittal is part of the price to be paid so that citizens rather than civil servants make the most intimate decisions of government.  There is no perfect justice in this world but we hold that citizen juries, with all of their imperfections, in every case every time will bring us closer to perfection than government civil servants ever could.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.