BULLETIN
#31 Spring 2001

l RESPONDING TO TERRORISM
l TAFOL's HISTORY
l MAZZONE WINS AGAIN

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RESPONDING TO TERRORISM

[Editor’s Note: Because of publication delays, this bulletin was written and published after September 11, 2001. We retained the above date for inventory purposes.]
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Objectivists are saying that this country retaliate to the September 11 attack on America by massive bombing of countries that have supported terrorism.In response, it is argued: This kind of "precipitous action" is not appropriate for the United States. The government of this country is based on the rule of law. Before anyone can be condemned, he must be found guilty in an objective proceeding. The rules of such a proceeding, implicitly and explicitly embedded in our Constitution, require that he be advised in advance of the charges against him, that he have a speedy and public trial, that he be confronted with the witnesses against him, that he may be represented by a lawyer, that he be given every opportunity to defend himself including the right to subpoena witnesses in his favor, and that he be convicted on the basis of reliable evidence by an impartial jury.

How, then, can this country justify the killing of people who have been afforded none of these protections?

Consider two fictional incidents.

The Trojan War occurred over 3000 years ago. During that War, two Greeks, Odysseus and Diomed, are looking for intelligence concerning their Trojan enemy. They capture a Trojan, Dolon (who was seeking intelligence of the Greeks for the Trojans). In an effort to avoid death, and under a promise from Odysseus that he will not be killed, Dolon gives the Greeks valuable information concerning the plans of the Trojans and the distribution of their forces. Then he seeks the benefit of his bargain:

     Now, therefore, take me to the ships or bind me securely here, until you come back
     and have proved my words whether they be false or true.

But he does not get that benefit.

     Diomed looked sternly at him and answered: "Think not, Dolon, for all the
     good information you have given us, that you shall escape now you are in
     our hands, for if we ransom you or let you go, you will come some second time
     to the ships of the [Greeks] either as a spy or as an open enemy, but if I kill you
     and make an end of you, you will give no more trouble."

On this Dolon would have caught him by the beard to beseech him further, but Diomed struck him in the middle of his neck with his sword and cut through both sinews so that his head fell rolling in the dust while he was yet speaking.¹

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This is brutal. It is not the objective method of determining guilt one envisions in a civilized society. How can it be justified? Can it be justified in modern times?

An analogous incident is presented in the 1998 movie, Saving Private Ryan. During the Second World War, an American patrol captures a German soldier. To imprison the German is impractical; he must either be freed or killed. The American leader decides on the former. Later in the movie, there is a brutal battle in which the German soldier who had been freed kills a number of brave American soldiers.

Back to the Trojan War. After ten years of fighting, the Greeks (using the famous Trojan horse) are victorious. They burn the City, kill all the men they can find, and capture the women and children to be made Greek slaves. Two of the prisoners are Andromache, wife of the dead warrior Hector, and her infant son, Astyanax.

A Greek, Talthybius is in charge of the Trojan women. He is sympathetic to their plight; but he comes with news that the Greeks have decided that Astyanax is to be killed because "the son of so distinguished a father cannot be allowed to attain manhood."² He tells Andromache that she should quietly accept this decision because, if she complains, her son will not only be killed but that he will also be denied a decent burial.

Can killing an innocent child be justified? In modern times?

On the front page of The Los Angeles Times of October 15, is a picture of a man watching a boy assembling a rifle. It bears the caption: "Little Brother. In Afghanistan, moujahedeen fighters adopt lost boys such as 14-year-old Alauddiln, above, who dreams of avenging his father’s death in battle as he learns the art of war."

The argument against massive retaliation ("precipitous action") presented above presupposes a civilized society. In that context, the Constitutional rules protect the rights of innocent individuals. The present international situation is not being carried on in a civilized society. As recent events demonstrate, to apply the rules now is to cause the death of the persons whom they are designed to protect. We are in a war. War is, and has always been (to paraphrase General Sherman), hell.³ To engage in the generosity of the American leader in Saving Private Ryan amounts to self-sacrifice. He who turns the other cheek deserves what happens to it.
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References and Notes:

1. Homer (Butler Tr.), Iliad, Book X

2. Euripides, The Trojan Women. The method of Astyanax' death is unnecessarily cruel. He is to "be thrown down from the battlements of Troy." Odysseus appears over and over in these
stories. The Trojan horse was his scheme. And he convinces the Greeks to kill Astyanax.

3. Sherman's full quotation comes from an address to the graduating class of the Michigan Military Academy: "I am tired and sick of war. Its glory is all moonshine. It is only those
who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, more vengeance, more desolation. War is hell." In a reply to protests over his
treatment of the city of Atlanta, he said: "war is cruel and you cannot refine it."

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TAFOL's HISTORY

On July 16, 2001, Steve Plafker gave a personalized historical summary of The Association for Objective Law at a meeting held at the Second Renaissance Conference in Anaheim, California. The following is a summary of what he said.

I attended my first Objectivist conference in August 1987. On the schedule at that conference were several meetings of professionals. The purpose of each meeting was to organize a group to advance Objectivism in a profession. Arline Mann, a New York lawyer, was in charge of the lawyers' group. She led a general meeting to outline possible activities of such an organization.

The following May, the future TAFOL Board of Directors met in Detroit to follow-up on the work at the conference. We spent a weekend planing the organization. For several months afterward, we developed a charter. As an example of the effort necessary to run such an organization, much of the time was spent finalizing the statement of the purpose, which is: to advance Objectivism as the basis of a proper legal system.

One important provision of the charter is that TAFOL is run by a self-perpetuating Board of Directors. This was to ensure that TAFOL maintains a truly Objectivist perspective. We have since become a Missouri nonprofit corporation. Our charter provides that we have no members. (We have only contributors.) The reason is that, under Missouri law, members have rights. To have members with rights would destroy the self-perpetuating nature of the Board of Directors.

In the 13 years of our existence, we have published a Bulletin containing commentary on the law from an Objectivist viewpoint. We have written and submitted op-eds. One, on abortion, was considered for publication in the Christian Science Monitor.

We wrote a position paper on mandatory pro bono (a program that requires lawyers to donate their time for the benefit of the poor) that did get published. One day I came home from work and opened up my copy of the Los Angeles Daily Journal, a (very good) legal newspaper. On the editorial page, there was an op-ed favoring mandatory pro bono written by an associate of the Rev. Jesse Jackson. As I read it, I got angry, and I outlined a letter to the editor in my mind. After finishing the article, I looked elsewhere on the page. There was another article entitled, "Mandatory Pro Bono, a form of slavery." I started to read this article. This is a good article, I

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thought. Then: This seems familiar. Then: I helped write it. It was a very well edited version of our position paper. Later this position paper was almost published in a magazine of wider circulation. It failed because the magazine had a policy against publishing anything which had been published previously.

TAFOL has presented discussion panels at Objectivist conferences. Its directors and officers have given legal advice to the Ayn Rand Institute.

For several years, we ran an essay contest for law school students. Its purpose was to generate interest in Objectivism among law students. We discontinued it after a few years for several reasons. The contest generated no new Objectivists, and the quality of essays we received deteriorated over the years. The potential to generate interest in Objectivism was not worth the work involved in writing the questions, in getting them printed, in distributing them to law schools and in grading them. This experience illustrates the experimental nature of programs to advance Objectivism.

We have filed amicus curiae (friend of the court) briefs in several cases. Our first was filed in the Third Circuit Court of Appeals. It attacked a program in Pennsylvania that denied a diploma to any high school student who refused to provide 60 hours of unpaid community service. We followed this brief with a similar one in a Second Circuit case from Rye Neck, New York. Although both cases were lost, TAFOL got an opportunity to express to the court the proposition that enforcing altruism on public school students is immoral.

We supported an attack on an IOLTA (Interest On Lawyers Trust Accounts) program with money and amicus curiae briefs. Some details are in the following article.

In recent years, some states passed laws that required this money to be held in interest-bearing accounts; the interest went, not to the lawyer, not to the client, but to the state for use in supporting lawsuits by indigents.

The Washington Legal Foundation, a conservative legal group, and Michael Mazzone who, at the time, was TAFOL's president brought a case attacking this law. TAFOL supported Michael with money in the trial court and in the Fifth Circuit Court of Appeals. The case eventually went to the United States Supreme Court where TAFOL filed an amicus brief. The Supreme Court ruled in Michael's favor on one of several issues and sent the case back to the trial court for further proceedings. Michael lost in the trial court and again appealed. On October 15, the Court of Appeals again ruled in Michael's favor. For details, see the next article.

We supported the Miami relatives of Elian Gonzalez in their attempts to keep him in the United States with briefs in the trial court and the Court of Appeals. One of Elian's lawyers told me that she (the lawyer) was so impressed by our trial court brief that she intended to use certain of its reasoning in the argument. The judges were not so perceptive.

We filed an amicus brief in the Circuit Court in the Microsoft case.

TAFOL is now planning an Objectivist law review. The first issue is projected for the summer of 2002. This is an exciting new direction. It should have a bigger effect on the law than any amicus brief. First, we should be able to get it into law school libraries where students and professors can read it. Second, even in court cases, a law review article can have a bigger influence on judges than a brief.

To continue with our program we will need money. I understand the natural inclination to use

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your money to support The Ayn Rand Institute. I do that. And if I thought the choice was between The Ayn Rand Institute and The Association for Objective Law, I would choose The Ayn Rand Institute. But that is not the choice. I recently discussed this with a contributor. He had sent us a little money but indicated that he was reserving the majority of his money for The Ayn Rand Institute. I told him I thought this is right; we cannot hope to influence the culture as much as The Ayn Rand Institute. However, we can be an adjunct to what they do; we can complement their efforts.

To receive our bulletin, a $25 minimum is required. Any contributor of $50 or more gets a copy of our Supreme Court IOLTA brief. And, to encourage you to give as much you can, I remind you that we are a tax-exempt organization, i.e., that your contributions are tax-deductible.

[Note the Bulletin is no longer published in a paper format and paper copies brief copies are no longer available. See this web site for briefs.]

MAZZONE WINS AGAIN

One of the problems with non-objective law is that no problem is simple. Issues that need not arise or which should be settled in two sentences must be debated ad nauseam. An example is the IOLTA case which TAFOL has been supporting.

IOLTA, as readers of this Bulletin know from repetition over the years, stands for Interest On Lawyers Trust Accounts. Most lawyers will, at one time or another, hold money which belongs to their clients, not to them. The law requires that this money be segregated from the lawyers' personal money. It is usually kept in a separate bank account, called the lawyer's trust account. Since, in most cases, small amounts of money are held for short periods of time, the trust accounts have traditionally been non-interest-bearing checking accounts.

The IOLTA program requires that lawyers' trust money be held in interest-bearing bank accounts. The interest is taken by the state and used to provide legal services to low-income persons.

To anyone with decent principles, it is governmental theft, therefore immoral, therefore unconstitutional. Easy. But, the modern court system regards every altruistic "interest" as a proper subject for governmental intervention. Therefore, it is taking years to resolve this issue.

Plaintiffs (former TAFOL president Michael Mazzone, one of his clients, and the Washington Legal Foundation) filed a suit against the State of Texas in federal district court attacking the Texas IOLTA program as unconstitutional. They lost a motion for summary judgment in the District Court, but the Fifth Circuit reversed this decision. The State appealed to the United States Supreme Court which ruled for plaintiffs on one of several issues and sent the case back to the District Court for resolution of others.¹ After a trial, the District Court again ruled against the plaintiffs. They again appealed.

We reported on this in the Fall 2000 issue of this Bulletin. The last sentence of that article was: "We are hopeful once again for a favorable ruling."

On October 15, the favorable ruling occurred. The Court of Appeals once again reversed the District Court and directed the District Court to enter judgment for the plaintiffs. This means that, unless the State appeals to the Supreme Court, Michael and his associates have won. This should also destroy the mandatory IOLTA programs in other states as well.
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References:

1. Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998)
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Copyright © 2001 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.