The San Antonio Express News reports:
The lead lawyer for Fort Hood shooting suspect Maj. Nidal Malik Hasan … said he learned that police guarding Hasan at Brooke Army Medical Center cut short a phone conversation Hasan was having with one of his brothers on Friday because Hasan was not speaking in English.“Police at the hospital refused to let him pray, in Arabic, from the Quran with his brother,” [the lawyer] said. “I think it’s illegal and a violation of his religious rights.” …
[Hasan's] command, the Army’s III Corps at Fort Hood in Killeen, has imposed pretrial restrictions on him, including a requirement that he speak only in English with visitors or those he talks to on the phone unless an Army-approved translator is present….
“He’s under military control,” said Jeffrey Addicott, a former Judge Advocate General’s Corps officer for 20 years, who now heads the Center for Terrorism Law at St. Mary’s University School of Law. “They can put reasonable restrictions on his movements and activities. The question is what is reasonable. In light of the fact that he is clearly influenced by radical jihad, in my opinion, it’s entirely reasonable to limit his spoken activities to English.” …
Thanks to Religion Clause for the pointer.
Dave N. says:
I think that is a reasonable restriction. Requiring Hasan to communicate in English allows monitoring. It should not be the job of military policeman, who speak little or no Arabic, to determine whether a communication in a foreign language is a prayer or something else.
December 23, 2009, 12:59 pmLester Hunt says:
Considering that English is this man’s first language, and considering that he is subject to military rather than civilian law, what the army is doing here seems entirely reasonable to me.
December 23, 2009, 1:08 pmDG says:
Cry me a river.
December 23, 2009, 1:29 pmChris Travers says:
I think it is reasonable to restrict telephone conversations to English given the circumstances.
If he wants to pray in Arabic in person, assuming his brother can physically visit it, I think he should have a right to do so. I also think it would be reasonable to require that he provide advanced notice so the army can have another Arabic speaker present to observe.
December 23, 2009, 1:37 pmAssistant Village Idiot says:
Oh, that speaking in Arabic? I was praying. No, really, it was straight from the Quran, praying with my brother. Why are you guys so suspicious? What was the prayer, exactly? Hey, you want to listen in on my prayers? That must be an anti-Muslim sentiment of some sort.
Okay, I admit it. I’m just projecting my own prejudices on this one. But I bet I’m right.
December 23, 2009, 1:42 pmBored Lawyer says:
Maybe I am missing something, but is there something in his religion which requries him to pray with his brother?
If I understand the article correctly, he can still pray in Arabic (or any other language) to Allah. Just not with others.
So what religious right of his has been violated exactly?
December 23, 2009, 1:43 pmDangerMouse says:
Why is he allowed to communicate with his brother at all?
December 23, 2009, 2:09 pmPLR says:
Hmm. Oh well, the military is different.
December 23, 2009, 2:22 pmChris Travers says:
Given that Muslim prayers are extremely formuleic and typically public, I don’t see why one couldn’t send anotuer Arabic-speaking Muslim to pray with him as well.
December 23, 2009, 2:43 pmSoronel Haetir says:
I do in fact have a problem with this. The translator bit seems like a red herring, they are allowed to record non privileged calls so hearing something live should hardly matter.
December 23, 2009, 2:52 pmChris Travers says:
One thing I find disheartening about the comments at the San Antonio Express News site is that most commenters there seem to think that no criminals have any rights, and one even went so far as to suggest that anyone who defends him in court should share his sentence.
Sigh… It seems that disdain for the rule of law is alive and well.
December 23, 2009, 2:54 pmAnonymous says:
Chris Travers, it can be convincingly argued that a murderously traitorous act deserves immediate execution. In light of that, clothing, shelter, and food seem too good.
December 23, 2009, 3:09 pmJK says:
If they were restricting his ability to pray in Arabic when he was alone that would seem silly and punitive, but that doesn’t seem to be the case. It is a bit suspicions that they’re baring him from communicating in Arabic rather than having an unseen translator monitor his communications in hopes that he would attempt to communicate something important.
I don’t think it’s a violation of the first amendment, but it does strike me as another politically ham-handed move that’s going to make Muslims feel singled out (I’m sure they’re claiming that a Jew would be allowed to pray in Hebrew with his brother).
December 23, 2009, 3:35 pmChris Travers says:
Such a statement though leaves out a key piece, that such arguments have no place in a nation where proof of guilt is demanded and legal rights exist even for those who are accused, and even convicted, of the most heinous crimes.
It can be convincingly argued, but only that the expense of our Constitutional system and our rule of law.
It can be convincingly argued that there is no need for a fair trial either or even a trial at all. Again, such an argument may be convincing in the abstract but has no place within our system of laws, UCMJ or otherwise.
December 23, 2009, 3:36 pmChris Travers says:
As long as it isn’t a Roman Rite Catholic wanting to say the Pater Noster in Latin.
We ABSOLUTELY can’t have that……
December 23, 2009, 3:38 pm11-B.2O/B4 says:
Couple points:
1: He’s a soldier, in military custody. He has no rights other than prescribed by the UCMJ. And freedom of religious practice is limited to the “convenience of the Army” i.e. if you’re jewish, you don’t get a day off on Saturday, and if the Army wants you to stand watch over Christmas, you think they care if you’re a Christian? Not in the least.
2: Even if he was a civilian in civilian custody, he has no religious right to communicate in a foreign language with an associate. If a mob boss was talking Italian to his brother, you think the cops wouldn’t either translate it or shut him off?
December 23, 2009, 3:41 pmDennis N says:
Bring the guilty bastard in. We’ll give him a fair trial. Is that gallows done yet?
/sarcasm
December 23, 2009, 3:45 pmDennis N says:
I think that translation is the substantive issue, as well as the reliability of the translation and the timeliness of it.
The authorities cannot be expected to maintain a translator on call for the convenience of the prisoner, so he should as a minimum be required to give notice. I suppose they should use a seven second delay, like they do on radio talk shows, but who’s going to pay for that or the translator? I’d object less if the prisoner had to pay for translation expenses and the cost of the delay equipment.
The translation should probably be real time, to prevent the transmission of criminal information, but I doubt there is much significant information that can be transmitted.
Finally, there’s the issue of the reliability of translation. There have been reports from Gitmo, of Muslim translators distorting translations, an act that should be prosecuted as treason, but how much care do you need to take over this mope?
It’s certainly easier to say “English Only.”
I don’t see anywhere where there is a right to communicate in foreign languages from prison, for any reason.
December 23, 2009, 3:55 pmSteve says:
The translator bit seems like a red herring, they are allowed to record non privileged calls so hearing something live should hardly matter.
Makes sense to me that if he’s doing something other than praying, the authorities want to be in a position to terminate the call immediately.
December 23, 2009, 4:01 pmVader says:
I worry that, because religious liberty is one of the rights presently unpopular with the intellectual class, it is in real danger. But really.
I am not Muslim, but I know enough about the religion to very seriously question whether there is a duty in Islam to pray with your brother. Prayer, yes. Specifically with your brother? I think it’s reasonable to presume that prayer with a Muslim military chaplain is adequate, and to put the burden of proof on the prisoner to show otherwise. (And yeah, I know. Different topic for a different thread.) If there is no such duty, given the obvious dangers, then the infringement of religious liberty claim is a non-starter.
But even if there is such a duty, the military still has a right to dictate time, place, and manner, no? The First Amendment doesn’t give fundamentalist Christians a right to hold a prayer service in the lobby of an abortion clinic. In fact, SCOTUS has pretty much held it doesn’t give them a right to hold a prayer service on the same side of the street.
On the presumption of innocence: C’mon guys. I’m not a lawyer, but I know that’s a canard when it’s being used the way some are using it here. The presumption of innocence means the state has the burden of proof when it comes time for trial and verdict. It doesn’t mean we disconnect our brains before dealing with someone regarding whom there is a mountain of witnesses that he pulled a gun and started shooting people without any legally recognizable provocation. It is unreasonable at present to assume the man is not dangerous, even in the unlikely event that it turns out there is some non-criminal explanation for what the witnesses saw.
Yes, we require the witnesses to appear in court and give testimony under oath, and we give the defendant every opportunity to explain why all these witnesses are unrelialbe, or why what all these witnesses saw doesn’t mean what it seems to mean; and only after his explanations all fall short do we put him to death by musketry at dawn (or whatever method is presently prescribed under UCMJ.) That’s presumption of innocence. It doesn’t mean that we endanger the public by presuming his Arabic utterances over the phone are innocent, or by presuming we can send him home on his own recognizance, or by making any other lamewit presumptions inconsistent with the information now in our hands.
December 23, 2009, 4:20 pmThe Watcher says:
The Watcher recalls an attorney for other Muslims accused of crimes. Lynne Stewart.
December 23, 2009, 4:48 pmGuest12345 says:
There is an issue of timeliness. What if the “prayer” actually said “Brother, take your children out of school before 2:00 PM today”? Or “Brother, please burn the book you find under the loose floorboard in my guest room closet”? If it takes hours for a translator to get around to reviewing the recording, the bomb in the school may have already gone off or the book containing his list of contacts and code words may already have been destroyed. I’m sure neither of these apply in this case, but merely providing hypothetical situations to illustrate why a recording may not be sufficient.
December 23, 2009, 5:17 pmChris Travers says:
Still, such an argument is weak. If he is providing information about a bomb, presumably it will go off whether or not he tells his brother. By insisting on English-only one ends up being denied evidence to trace the plot back to him and perhaps a couple more kids die (great outcome?). Similarly I am not entirely sure investigators would find such a well hidden book so even the knowledge of destroyed evidence would provide more information AND possibly allow obstruction charges to be filed against the brother.
December 23, 2009, 5:29 pmAnonymous says:
Except that the rules of the military differ from the rules of government at large, because its people management needs are different and they have the voluntarily-signed contract and government authority to make and keep their own. That’s why the military has its own courts.
Additionally, there’s more than a subtle difference between a civilian and a military officer committing treason. I don’t know how clear I can make that, but it shouldn’t be necessary to polish that point further, just in order to illustrate the fact that members of the military have a different relationship with government because (in the current absence of a draft) of a contract to which they willingly agreed.
December 23, 2009, 5:31 pmChris Travers says:
What legal standard would you suggest be applied in such a prosecution?
Translation is an art, not a science. It involves translating expressions which do not perfectly match and hence EVERY translation is distorted.
December 23, 2009, 5:32 pmMartinned says:
Actually, the contract angle isn’t the point. There are limits to any citizen’s ability to contract away their rights, especially when contracting with the government. You can’t contract yourself into slavery, no matter how much you want to. Those are contracts against public policy. (Ex turpi causa, etc.)
The military have separate rules because the constitution gives Congress greater power to regulate the militia than the country at large, power they used, amongst others, to enact the UCMJ.
December 23, 2009, 5:42 pmChris Travers says:
Still, my understanding is that due process requirements might be different in different circumstances but that doesn’t mean we can just summarily execute arrested individuals accused of treason without some legal process.
Nor does it mean that an accused who is preparing for whatever process is due loses all Constitutional rights.
In particular, I think the assertion in one comment at the newspaper site that it should be illegal for JAG’s to defend him constitutes an advocacy (protected by our Constitution nonetheless) for a far greater treason against our great republic than the murder of a few soldiers.
December 23, 2009, 5:46 pmLeo Marvin says:
Trial, shmial. Next you’ll be saying we shouldn’t charge him for the bullet.
December 23, 2009, 5:50 pmDennis N says:
I’m sure we could work up a mutually agreeable standard.
I’m thinking more about the cases at Gitmo, where the translator reportedly left out entire passages. There has been a demonstrable problem of Muslims covering up for other Muslims crimes. I don’t think it’s significant in this case, nor widespread in the US, but the issue needed to be raised.
December 23, 2009, 5:51 pmMartinned says:
Maybe the military shouldn’t have been so hasty firing those gay translators. If anyone is disinclined to sympathise with fundamentalist muslims, it is a gay man.
December 23, 2009, 5:55 pmDennis N says:
Enlistment into the military, even absent a Volunteer Army contract, carries certain duties that are not present in civilian life.
You can be ordered to your death, in practical terms, if not in absolute terms. We don’t do, “Crash your plans into that carrier,” but Cold War interceptor pilots were expected to crash into enemy bombers when they were out of ammunition. “Hold that bridge until relieved,” is still a valid order. And disobeying that order, in wartime, could lead to your death.
I don’t know if there has been anyone summarily executed on the spot for disobeying orders since at least the Korean War, but there have been reports (or war stories?) of cases from Korea.
OTOH, there are safeguards under the UCMJ that do not have civilian parallels, e.g. automatic appeals in certain cases.
December 23, 2009, 6:00 pmMichelle Dulak Thomson says:
Chris Travers,
Translation is an art, not a science. It involves translating expressions which do not perfectly match and hence EVERY translation is distorted.
I’d dispute that; I don’t believe that, say, a collection of proofs in Euclidean geometry is even microscopically different in French (or Tagalog, or Chinese) from the same in English. Some words and some sentence-length ideas really can be defined precisely and acontextually, because they refer to abstractions that have no truck with “cultural context” and the like.
Granted that most of our talk isn’t about abstractions, and that here there’s always inexactitude. You can’t capture everything in translating a word from another language, because “everything” includes the sound and shape of the word itself, and whatever else you manage to keep, you can’t quite have that.
But from “every translation distorts” it’s a long, long way to “any translation is arguably accurate.” If I say “I wish everyone here a very merry holiday-of-your-choosing,” and the translator renders this as “My hovercraft is full of eels,” something is, IMO, provably wrong with the translator.
Ah, I see Dennis N says the problem was omissions. You can certainly prove that someone failed to translate part of what was spoken.
December 23, 2009, 6:13 pmChris Travers says:
But this doesn’t answer my question: What legal standard would you put into place when talking about distorted translations as treason?
If you were to say you would give every reasonable benefit to the translator that would be fine. That means that if a translator rendered “the spirit is strong but the flesh is weak” as “the alcohol is excellent but the meat is not very good” such might be distorted but acceptable. Certainly it IS possible to parse the former as the latter.
But this gets to a point: there is arguably a great difference between distorting and fabricating translations. One could distort a translation by looking at issues of presentation, etc. and distorting those, or by framing parts of a translation such that, while the words match accurately enough, the intended meaning is at best concealed or even lost, depending on how much mismatch exists between the languages. Fabricating the translation (i.e. outright lying about what it says) is arguably quite different.
When I do translations of passages, I often find my footnotes end up longer than the text becuase I am interested in trying to provide as much information as I can on what it says accurately in the foreign language. Unfortunately even when translating from, say, Old English, this is hardly straight forward. If translating, for example, written Arabic into English, the task would be even more complicated by the fact that one is going across language families, and that Arabic is often written without designation of vowels, so all one has are roots, to which one has to apply context (spoken Arabic doesn’t have the latter problem but it does have the former).
December 23, 2009, 6:54 pmBob from Ohio says:
The trial should have already started. No doubt about his guilt, why wait? Then we won’t have this issue at all.
That was justice.
December 23, 2009, 7:01 pmLior says:
Having done mathematics in more than one language let me assure you that there can be non-trivial differences. The reason is that humans think in terms of defined concepts, not in formal notation — and different mathematical cultures can have different definitions. For example, the English word “field” is “corps commutatif” in French. The French “corps” means “division algebra” in English. These two usages change the connotation — cultural context — of mathematical text. This affects the translation — it would affect that natural level of generality for the results, for example.
December 23, 2009, 7:16 pmeyesay says:
Does Islam have anything analogous to to the Jewish minyan of 10? If so, is there an Islamic minyan of just two?
December 23, 2009, 7:16 pmMichelle Dulak Thomson says:
Chris Travers,
But this doesn’t answer my question: What legal standard would you put into place when talking about distorted translations as treason?
IANAL (the ultimate cop-out!), and I don’t know.
But surely, at a minimum, a translation that omits meaningful parts of the material to be translated ought to be assumed fraudulent. You could judge this by having two or more people, speakers of both languages, parse the material independently — not translating, just dividing into phrases. Or counting nouns, or something. It ought to be very easy to establish that something has been left out, if it really has.
December 23, 2009, 7:23 pmAnonymous says:
Agreed, though only from the time the standoff ended and the dust settled, of course.
As a layman (especially wrt to military courts), I perceive that in the specific and unique circumstances of this case the process between now and execution serves to ensure that handling the case and prisoner were within military-defined legal limits and perhaps as an investigation into systematic psychological and ideological problems with personnel, which it seems his supervisors had recognized and reported by ignored for the purposes of advancement. The question of capital punishment doesn’t seem to be able to be answered in the negative without a political-as-opposed-to-spiritual-Islam-related mental disorder, which I assume a court would be loathe to involve itself in, at a matter of liberal social policy.
December 23, 2009, 8:09 pmChris Travers says:
As someone who has done some translation, those sorts of practical approaches won’t work. For example, if I translate material between English and Spanish the number of verbs and/or pronouns will certainly change. Furthermore in certain cases noun phrases get replaced by single nouns, and verb phrases get replaced by verbs.
Consider the following translations (all reasonably comparable languages):
(Spanish– more use of inflection than English) “Como va?” translates to “How is it going?” (two words to four, pronoun added, verb replaced with verb phrase, order re-arranged).
When you add cased languages, you have more issues such as:
(Old English– more use of inflection and synthesis than English) “Kuning sceal on halle beargas daelan” (“A king should deal out rings in a hall”– one notes additional prepositions added to clarify case endings)
Conversely, when looking at a language like Indonesian (far less use of inflection than English), one gets far FEWER words in English because they use additional qualifying words instead of inflected tenses like we do in English.
Worse still polysynthetic languages may substitute whole sentences in English for single words. Edward Sapir in his “Language: An Introduction to the Study of Speech” provides a number of examples.
If your standard is that it has to be proven fraudulant, then (IANAL) it seems to me one would have to prove
1) A translator wilfully omitted information from the translation and
2) The omission was specifically intended to deceive.
This suggests a requirement to prove malice on the part of the translator, which would go beyond accidental errors (like missing page 3 because he grabbed two pages by accident and both pages ended at sentence breaks).
This would go beyond showing that the translation was poor and also require a showing of malice. That’s different than simply arguing a distorted translation.
December 23, 2009, 8:23 pmBama 1L says:
What else were they going to do? It’s not like there would have been anywhere to land!
In Vietnam, you could be executed on the spot for giving orders.
December 23, 2009, 9:07 pmTweets that mention The Volokh Conspiracy » Blog Archive » Jailed Ft. Hood Shooter Claims Right to Pray in Arabic with His Brother -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Jailed Ft. Hood Shooter Claims Right to Pray in Arabic with His Brother: The San Antonio Express News reports: .. http://bit.ly/74SS1f [...]
December 23, 2009, 9:27 pmrpt says:
Good memory. How do feel about public defenders? Sixth Amendment? Gideon v. Wainwright?
December 24, 2009, 12:01 amDavid McCourt says:
In June, 1942, 8 German saboteurs — including two U.S. citizens — were arrested in the U.S., before they could commit any acts of violence. Six weeks later, having been tried and found guilty, six of the saboteurs — including both Americans — were executed.
Here we are, six weeks after this traitor openly shot 43 Americans, killing 13 of them, not chafing at the interminable delays of the contemporary legal proceedings that separate this man and his right to be food for the worms, but debating whether he has the “right” to communicate with his relatives in Arabic. The disfunctional and morally bankrupt U.S. no longer has the stuff it had when FDR led it against the Axis.
December 24, 2009, 1:11 amMichelle Dulak Thomson says:
Chris Travers,
No, I didn’t mean one should compare word counts or phrase counts or anything in the original vs. the translation; I meant, have a couple of other people who know both languages make independent translations, and then compare the phrase structure of those to the possibly fraudulent one. If there are sections of your checkers’ translations that don’t seem to have analogues of any kind in the translation you’re testing, there may be a problem. Not sure how best to proceed from there — whether to get two more independent translations and see if the gap’s still there, or have one or more people look more specifically at the material right around the gap, or what. But it really shouldn’t be difficult to find out whether a translator has omitted things, if you have the text, the translation, and a number of other people on hand who know both languages.
As to whether an omission is inadvertent or deliberate: I thought we were talking about spoken translation, so there would be no question of lost pages or the like. The question is what non-reporting of what sort of speech would count as treason. I suppose that if a prisoner inserted “That guard is a jerk” in the course of his interrogation, and the translator neglected to log it, it would be technically treasonable, but that’s not really what we’re trying to get at, is it?
December 24, 2009, 1:28 amAmiable Dorsai says:
What has changed? Why does it take so much longer to bring these cases to trial?
December 24, 2009, 5:22 amMartinned says:
Since presumably the prosecutors will want to have this guy killed, the answer is simple: the defense needs to compile a huge dossier, making sure they don’t miss a single shred of mitigating evidence, and the prosecution need to compile an equally large dossier on aggravation. Look at the guy in Georgia who shot a judge in court. AFAIK, he’s still not convicted, even though it’s been years. (In that case, the budget for his public defenders kept running out.)
Since the good old days of catch ‘em and fry ‘em, the Supreme Court has substantially raised the level of what it considers “not ineffective” assistance of counsel in capital cases.
December 24, 2009, 8:06 amChris Travers says:
In anything important one shouldn’t trust a translator anyway. The translator could make innocent errors or even defensible judgement calls which could result in critical information being lost.
When you are trying to extract information from source material in any way, one should put trust only in the original document except where it is absolutely necessary to open it up further. Where translations are required they should be copiously annotated to discuss translation issues.
Most of my exposure to translation issues comes from historical studies and while the issues are different in degre, I am not sure they are different in kind.
(As an interesting aside, even well documented periods of history have surprising gaps in our knowledge even when the texts cover them. In 1990, Rudolf Simek turned our understanding of Middle Ages cosmology upside down when he published a work proving beyond a doubt that it was well known within monastic communities that the earth was a sphere from the 8th century onward, and that this had reached popular literature by the 13th century. Further work has not only confirmed Simek’s theories but expanded them, so we can say without much doubt today that the debate over whether the earth was flat or round was effectively over well before Columbus and that the only question not well settled was how big it was. It is worth wondering how much of our misunderstanding of Medieval thought was due to translation error.)
December 24, 2009, 12:23 pmLeo Marvin says:
Sixth Amendment, Shmixth Amendment. Lynne Stewart!
December 24, 2009, 1:00 pmChris Travers says:
One further point to Anonymous and also Bob from Ohio:
The conflict in Korea was put on hold by an armistice in 1953 and active military hostilities have not yet resumed. Constitutional interpretations in terms of the right to due process have changed substantially since then. See the difference between Betts v. Brady and Gideon v. Wainwright. In particular the basic interpretation has changed from a basic guarantee of fairness to a requirement for procedural safeguards. No case extending these to the military has occurred, but the change in the sense of what the Constitution requires may impact these cases.
This leaves really two possibilities: One is that active military hostilities are such that an exception to due process might be available in at least some related circumstances, as the Supreme Court has continued to be sympathetic to the idea that less process might be due in certain circumstances. In this interpretation, due process might go away only in times of active military hostilities where circumstances prevent arrest and trial, that summary execution could not be a deterrent measure and only a question of operational requirements.
A second possibility is that the Supreme Court might provide near-total deference to military detention and punishment. However, this has not been the case (see Hamdi v. Rumsfeld, Rasul v. Bush, as well as more recently cases like Boumediene v. Bush.
Obviously in a shootout a policeman (military or otherwise) who is in a shootout is under no Constitutional mandate to avoid killing the shooter. Once the shootout ends, however, due process does seem to be required.
I would thus suggest that a military defendant’s rights do not go away provided that arrest is either practical (i.e. the shootout is not ongoing, and the ability to handle such a prisoner is not substantially problematic in the field) or has occurred. Courts martial do provide that due process and they do provide those procedural safeguards.
IANAL though so I may be missing something important.
December 24, 2009, 1:58 pm