September 23, 2010
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.
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.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."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."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.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.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.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
Search the Site
Classics To Go
See more archives here
Old (Blogspot) archives
A knee sock jihad might be premature at this time
People Are Not Rational
No Biorobots For Japan
The Thorium Solution
Radiation Detector From A Digital Camera
This war of attrition is driving me bananas!
Attacking Christianity is one thing, but must they butcher geometry?
Are there trashy distinctions in freedom of expression?
Please Don't Let Me Be Misunderstood