Towards a more culturally expansive Constitution

The discussion in the comments to my post about a Saudi citizen convicted of rape in Colorado raised some interesting questions about presidential power, in particular, presidential pardon power. As the topic of my post involved my frustration understanding Saudi morality (or "morality" depending on your POV), it struck me that the issue of presidential pardon power (which is interesting in itself) merited a new post.

Responding to comments, I pointed out that the president only has the power to pardon federal offenses, and that therefore the group of influential Saudis who are lobbying President Obama to pardon the rapist are misdirecting their efforts. They should be lobbying the governor of Colorado.

This is a very basic, long-settled constitutional issue. Article II, Section 2 of the Constitution:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
So the president simply lacks the power to grant a pardon for an offense committed against the state of Colorado; only the Colorado governor can do that.

End. Of. Discussion.

Right?

Well, leave it to Veeshir to up the ante by raising what he called "an interesting question":

What happens if Obama does pardon him? I mean, Obama doesn't appear to see (or respect) any restrictions on his power, so I could see him doing it.
Especially as he might not even understand that distinction.
But we have as president a man who has been a professor of Constitutional Law, do we not?

By what theoretical stretch of the imagination might he claim that he has power to pardon state criminal offenses? Does he think he has the same power to disregard the plain language of the Constitution that, say, Congress has?

While he might have sounded bitterly sarcastic, Veeshir raised a good point. Why couldn't the president just do it?

Suppose he were to simply sign a document purporting to be a pardon of Mr. Al-Turki. Let's just use the same language President Ford did in his pardon of Richard Nixon as a template:

I, Barack H. Obama, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Homaidan Al-Turki for all offenses against the United States which he, Homaidan Al-Turki, has committed or may have committed or taken part in during the period from 1995 through 2006."
Interestingly, the man has become a cause celebre, and he has a Wiki page, which lists a number of federal crimes with which he was originally charged.
Al-Turki and his wife were arrested by federal and state agents at their home on December 6, 2005. They were accused with forced labor, aggravated sexual abuse, document servitude, and harboring an illegal immigrant. Additionally, federal authorities told them they were subject to a "full fledge investigation" because Mr. Al-Turki is suspected of being "closely aligned to terrorists and may be providing material support to terrorism."

The U.S. Department of Labor also filed a civil suit against the Al-Turki's for illegally paying the woman below minimum wage and failing to keep employment records. They allegedly owed her roughly $62,500 in unpaid wages.[6]

So a theoretical Obama pardon would certainly cover all of the above federal crimes, and would also include any other federal crimes relating to that time period that might have been charged (or could be in the future) regardless of whether he was ever charged and convicted.

But it is very clear that what sent him to prison in Colorado were the state crimes. Here's what was alleged:

Arapahoe County District Court initiated criminal trial proceedings against Homaidan Al-Turki and Sarah Khonaizan on February 16, 2006, with the defendants both entering not-guilty plees. Prosecutor Ann Tomsic began the state's case by explaining how the couple brought the young Indonesian woman to the U.S. from Saudi Arabia to work as a housekeeper when she was a teenager. The affidavit states her domestic services included child care, cooking, and cleaning for 12-hours a day, seven days a week without time-off from 2000 to 2004. While not working, she was confined to an unheated basement and repeatedly sexually assaulted by Homaidan Al-Turki. Tomsic added that the woman was allowed out of the house alone only to remove trash, bring in mail and clean the yard. Prosecutors claimed the couple intentionally created a climate of fear and intimidation through aggravated sexual abuse, which was intended to cause the victim to believe disobedience would result in serious harm. The couple also allegedly threatened the victim with abuse of law and the legal process, confiscating her Indonesian passport and visa for the purpose of obtaining labor for little or no pay.
Al-Turki's attorneys mounted a defense which is novel but growing trend -- that the case resulted from cultural bias:
A strategy utilized by the defense contended that Turki's Arabian cultural norms are alien to most Westerners, and hence, vulnerable to prejudice and cultural bias. For example, court documents filed by Al-Turki's lawyers illustrated that "there are Saudi Arabian customs regarding a host family's retention of funds for their domestic servant until she leaves their service."

In his testimony, Al-Turki denied any wrongdoing and said authorities had targeted him because of his religion. He insisted that the woman was treated the same way any observant Muslim family would treat their daughter and defended his actions to District Judge Justin Mark Hannen, saying that:

"The restrictions placed on her contact with non-relative males were also the same as those applicable to my daughters and other Muslim women in our community. You cannot ask somebody from a different religion to be American to the fullest. You cannot ask them to go dancing, go to the bars. We are Muslim. We are different. The state has criminalized these basic Muslim behaviors. Attacking traditional Muslim behaviors is a focal point of the prosecution."

--Homaidan Al-Turki,[10] District Court Testimony

However, Prosecution lawyer Natalie Decker adamantly contested the accuracy of this statement, stressing that the trial proceedings had nothing to do with the defendants beliefs or ethnicity and instead "has to do with what he did to her (the maid) for five years" and that Mr. Al-Turki's actions represented "a clear-cut example of human trafficking." The prosecution also pointed out that the alleged victim, the Indonesian maid, is also a Muslim.[11] Responding to rising accusations of cultural bias, prosecution attorney Ann Tomsic requested that Judge Hannen should strive to treat Al-Turki as he would any American citizen who committed similar crimes. Tomsic further emphasized that "the world is listening, and the court needs to make a statement that in the United States, or at least in...(Colorado), this kind of slavery will not be tolerated."[12]

So, if slavery is part of your cultural heritage, then it really isn't fair that you should have to face criminal charges if you are caught holding slaves.

Hmmmm.... I wonder how that defense would work out if some demented KKK activists decided to reinstitute their hallowed cultural heritage of slavery. I can think of many more examples, and in fact there was an article about this in the California Bar Journal, titled Cultural differences: New defense tactic?:

A Mexican-American man is convicted of second-degree murder for shooting a poker companion who used an offensive slur about the defendant's mother. A Muslim Albanian man in Texas loses his parental rights for touching his daughter's genitals. A Thai man who shows no remorse or other emotion for his part in a Garden Grove robbery in which two people were killed receives the death penalty.

All three were influenced in their actions by their native culture, says University of Southern California professor Alison Dundes Renteln, and that culture, she believes, should have been considered in each of those cases, an argument she makes in her chapter of the new book, "Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense," which she co-edited with Marie-Claire Foblets of the University of Leuven in Belgium.

"Cultural differences deserve to be considered in litigation because enculturation shapes individuals' perceptions and influences their actions," she writes in the book. She is calling for formal acceptance in the legal community of a cultural defense in which legal systems acknowledge "the influence of cultural imperatives" in illegal acts.

Obviously, a lot of people felt very strongly that Saudi cultural standards should be controlling on the Colorado state criminal courts, but he was convicted by a jury anyway. After which the people who were screaming about "cultural bias" erupted:
After two and a half weeks, Homaidan Ali Al-Turki's criminal trial concluded on June 30, 2006. In the end, a jury of citizens from Arapahoe County convicted him on twelve felony counts of unlawful sexual contact with force, one felony count of theft of services over $15,000, and two misdemeanor counts of false imprisonment and conspiracy to commit false imprisonment. On August 31, 2006, he received a sentence of twenty-eight years-to-life in state prison by Judge Mark Hannen. The unusual courtroom atmospherics while the verdict was announced are worth noting. Dozens of representatives from the Metro Denver Muslim community, including Al-Turki's friends, relatives and the Imam (prayer leader) of the state's largest masjid, packed the courtroom. Another prominent attendee was Mohammed Jodeh, former president and chairman of the Colorado Muslim Society. Many had written to the judge expressing their support for Al-Turki. Other letters of support came from several faculty members and academic colleagues at the University of Colorado.

Nine sheriff deputies attempted to keep the peace while nearly two dozen of Al-Turki's supporters "howled at the verdict that was delivered after only one day of deliberation. One man had to be forcibly removed because of his loud sobbing. Al-Turki's supporters contended that the rape charges were primarily based on circumstantial evidence, and complained that neither DNA or material evidence were exhibited at trial. A woman collapsed at the courtroom door after seeing Al-Turki taken away in handcuffs." As for Al-Turki, "wearing a white robe, at first showed little emotion - touching his left index finger to his nose - as Judge J. Mark Hannen read the verdicts. After the jury vacated the courtroom, Al-Turki began to cry and embraced his family and friends." During these histrionics, the Indonesian woman who accused him "wept and plugged fingers into her ears to shield the sounds of wailing family and friends." As of May 29, 2009, Homaidan Al-Turki is currently incarcerated at the Limon Correctional Facility in Lincoln County, Colorado.[13]

The case has been affirmed on appeal and it was appealed all the way to the United States Supreme Court. Obviously, there's a lot of money behind it. (Probably some of it comes from the damned money we pay at the gas pump whenever we fill up.)

As to why they're asking for a pardon from President Obama even though that would legally be an idle act on his part, who knows? But I'm thinking that maybe the idea is to apply the "Cultural Differences" standard to the pardon process, and the executive branch of the U.S. government. After all, in Saudi Arabia, the king has the absolute right to pardon any criminal convicted within his realm, so why not treat Obama as our king, with similar privileges?

And maybe he could try invoking his new-found privileges, you know, to promote the idea that cultural differences ought to be respected.

It is an interesting idea. Progressive, even!

Seen in that overall context, he most important thing to remember is that the conviction was grounded in Islamophobia:

Homaidan Ali Al-Turki (born 1969) is a Saudi national convicted in a Colorado court for sexually assaulting his Indonesian housekeeper and keeping her as a virtual slave for four years. On August 31, 2006, Al-Turki was sentenced to 28 years in prison on twelve felony counts of false imprisonment, unlawful sexual contact, theft and criminal extortion. Despite the allegations, Al-Turki has consistently denied any wrongdoing, insisting that the fraudulent charges resulted from a government conspiracy, cultural differences or "cynical Islamophobia" and rising anti-Muslim sentiment in the United States.[1]
Hear hear!

So with that standard in mind, let's try reworking the pardon to make it culturally inclusive:

I, Barack H. Obama, President of the United States, pursuant to the power conferred upon me by Article II, Section 2, of the Culturally Expanded Constitution, as evolved in recognition of cultural differences with a view towards eliminating racism and Islamophobia in all of their various emanations, have granted and by these presents do grant a full, free, and absolute pardon unto Homaidan Al-Turki for all offenses -- whether committed against the United States or whether committed in any state therein, which he, Homaidan Al-Turki, has committed or may have committed or taken part in during the period from 1995 through 2006."
I realize that many of the backwards-thinking constitutional literalists like me will argue that he simply doesn't have the power, because the Constitution doesn't give him the power, but haven't we already been proven wrong many times, and by better minds than our own?

Don't laugh. When I venture out into the real world of trendy leftist cocktail parties and the topic of the Constitution comes up, occasionally I'll mention what the document says and what the founders intended, and I get that rolled eyeballs look, as if I am worthy of ridicule. So maybe I should get with the times, and get with the program. Laughable though I might think the idea is, if I asserted that the Constitution should be culturally expanded and the presidential power should be made culturally inclusive, few would laugh. Hell, if I kept a straight-enough face, I might even be taken seriously.

After all, who wants to be laughed at?

posted by Eric on 09.23.10 at 12:00 PM










Comments

The fact that I know you're probably right about this makes me a little sick. What makes me even sicker is that I can totally see Obama trying this in any other year but this one.

John S.   ·  September 23, 2010 1:14 PM

I am reminded of a comment by General Sir Charles Napier on multicultural values when he was viceroy of India: "You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours."

Seems worth applying in 21st century America.

mark L   ·  September 23, 2010 2:54 PM

And clearlt Mexiicans have the right to cut out people's hearts to feed them to Huizilopopochtkli and he chacs for rain--you wouldn't want the sun to stop rising, would you?

John Costellol   ·  September 23, 2010 5:22 PM

While he might have sounded bitterly sarcastic,

Or is it merely realism based on observation?

Colorado is a state right? Therefore, the offense was done to one of the States, therefore, ipso facto, prresto chango, it's covered.

He might do it the way Clinton pardoned Marc Rich, on his last night in office.

I wonder what will happen then. Somehow, I don't see Colorado going gently into that good night.

Veeshir   ·  September 23, 2010 6:52 PM

Wonder how well the courts in Saudi Arabia observe cultural differences when foreigners break their laws?

ML   ·  September 25, 2010 7:55 PM

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