Wearing Both My Lawyer and Author Hats to Examine Justice Sotomayor's Hypothetical

 These days, I blog mostly about books and publishing. But I'm still a lawyer, though quasi-retired, and I have an abiding interest in constitutional law. Combine that interest with an author's habit of asking "what if" -- especially an author, sometimes, of science fiction -- and you get this attempt to examine Justice Sotomayor's dissent in the recent decision on presidential immunity.

Justice Sotomayor opined that under the majority decision, a president could order Seal Time 6 to assassinate a political rival and be forever immune from prosecution for so doing. Various legal commentators have dismissed this assertion with words like "preposterous." It would certainly be more comfortable to do so. But I believe her hypothetical deserves more serious examination.

First, a brief recap of a few key points in the majority opinion. According to the Justices in the majority, the basic structure of the constitution assumes an energetic president, unrestrained by fears of what his political opponents may do the moment he leaves office. Accordingly, when he exercises his "core constitutional powers" -- that is, "within his exclusive sphere of constitutional authority" -- he is absolutely immune from later prosecution for doing so. And when he acts "within the outer perimeter of his official responsibility, he has "at least presumptive immunity." The former category apparently includes authority that is typically delegated to various people within the president's administration, or else the majority would not have stated several times that authority exclusive to "the Executive Branch" is covered by this absolute immunity.

The basis for the hypothetical is the president's status as Commander in Chief. The president can give orders to military personnel. Arguably, this is authority accorded exclusively to the president, or at least those within the Executive Branch -- if the various military personnel who give orders to those lower in the chain of command may be so defined. If, by giving orders to members of the military, the president is acting "within his exclusive sphere of constitutional authority," then he would (gulp) have not merely presumptive, but absolute immunity for those orders,  no matter their motivation. If this analysis is correct, even issuing a presidential order that is "illegal" under military law could not be criminally prosecuted.

If this hypothetical order somehow does not fall within the "exclusive" presidential sphere, but is instead an official act "within the outer perimeter" of presidential responsibilities, then it may be possible to rebut the presumption of immunity -- though the Court didn't actually rule that immunity in this context is only presumptive, saying rather that it didn't need to decide that question given the state of the record. If, in fact, official acts of this kind are only presumptively immune, how may that presumption be rebutted? The majority indicates that the  prosecution may attempt to prove that the conduct in question "does not pose dangers of intrusion on the authority and functions of the Executive Branch" (internal quotations  omitted). 

What about motive? Where would a president's reason for arranging a military assassination fit in? It may not, the Court held, be used to distinguish "official" from "unofficial" conduct. "Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect." However, it may be inferred that once conduct is conceded to be official, motive may be called upon to rebut the presumption of immunity, if in fact later rulings confirm that such rebuttal is allowed.

So where does all this analysis leave Justice Sotomayor's hypothetical? It seems to me that should a president indulge in political assassination by means of the military, any future prosecutor would need to argue first -- and I don't, at first glance, quite see how -- that giving orders to military personnel to kill someone is not within his core constitutional powers. If the prosecutor prevails on that point, and if no future Supreme Court opinion  has eliminated the possibility of rebutting the presumption of immunity for official acts outside that category, then we may all relax, trusting that the motive will constitute a sufficient rebuttal. But at this early stage of absorbing the decision, as we wait to see how it is applied in the future, we can hardly fault the Justice for treating the outcome as something less than guaranteed.

Resurrected Website, Upcoming Books

Hello, all! It's been too long since I wrote, as tends to happen. In fact, I have been writing -- just not blogging. To be specific, I wrote another novel, my first foray into non-romance historical fiction. It's also my first tentative movement toward telling any of the amazing stories about my family and how its members survived long enough for me to exist.

I've always been intimidated by the thought of trying to do justice to these stories, and by the related presumptuous task of putting words in the mouths/thoughts in the head of people I know and love (including some I love from across the unfathomable gap between the living and the dead). This story,  however, while possibly crucial to my father's family's survival, springs from an incident in the autumn of 1938 that took no more than ten minutes from start to finish. The central character: a Berlin policeman about whom my father and brothers learned only three salient and contradictory facts:

-- He wore, under his jacket and uniform, the brown shirt of a Nazi storm trooper.

-- He witnessed a bicycle accident that one of my uncles caused, heard my father's confession that he and his brothers were involved, and further heard my father admit that they were Jewish.

-- Rather than detaining them, he quietly but insistently commanded them to "DISAPPEAR."

Why did he make that decision? How could it possibly spring from the life story that led him to don that brown shirt?

For that matter, what was his name?

I wrote a novel trying to solve this puzzle. And I gave the policeman the name "Hans." The novel is, aptly enough, called The Decision, and the Kindle edition is now available for preorder. 

I've also collaborated with watercolor artist Tomasz Mikutel, who illustrated my previous picture book Wind, Ocean, Grass, to tackle my first nonfiction picture book, a biography of the great Spanish composer Joaquin Rodrigo. This book, A Boy Who Made Music, is available for preorder in paperback and will soon be available (again, for preorder) in hardcover. I'm moderately optimistic about putting out a Braille edition as well -- which is very much appropriate because Rodrigo went almost entirely blind at the age of three. (In a future post, I'll talk about how the conventional picture book deals with that transition.)

But wait -- didn't I tease a resurrected website? Well, yes. I don't remember just how it happened, but I stopped by my website several weeks ago and discovered, to my horror, that the newsletter signup link didn't work. Or rather, it worked to send visitors to the wrong place, a page for book excerpts and other extras. Which may explain why nobody has signed up for my newsletter recently.

The obvious fix didn't work for some mysterious reason, so I rebuilt the link. While I was poking around, I checked my master list of book reviews and saw that it was woefully out of date -- so I redid that page and either updated or added all the particular books' review pages as well. PHEW. I also cleaned up the home page a bit and added the two upcoming books to it. So to reward me for all that work, how about dropping by and (to quote a certain blog name) looking around?

Some Ways Not to Lose Story Ideas

Whether an author is first coming up with a story concept, musing over how to approach that concept, planning a future draft, actually writing a draft, or revising a draft, the author never knows when an idea worth preserving will pop up. And many of us can't count on remembering that idea for very long, or even once we walk into the next room. (There's actually something called the "doorway effect" whereby short-term memory tends to evaporate once one passes through some sort of boundary.) So how can one avoid losing ideas about character traits, plot directions, new scenes, or "just right" endings? It's easy to say "write them down," but what if you're in bed, or the car, or in the shower?

Well, you need to have a way to write notes to yourself in those places. Yes, even in the shower. There's actually a product out there that could have been tailor-made for authors: Aqua Notes. I plug it whenever this topic comes up (and no one ever pays me for doing it). It's a pad with suckers on the back for sticking to shower walls, with waterproof pages and a special pencil for writing on them. I also keep a notepad with attached light on my nightstand -- though my handwriting at 3 a.m. is not always decipherable when I get up in the morning.

It's trickier to keep ideas from escaping if they show up while I'm driving. What I generally do is mutter to myself, repeating the idea, until I can pull over and get hold of my phone. Then I send myself a quick email. (One of these days, I'll figure out how to just talk at my phone, or at my newly leased full-of-bells-and-whistles car, and send myself an email while driving.)

What are your handy ways to keep ideas from getting away? Let me know in the comments!

All My Science Fiction, for National Science Fiction Day

 Happy New Year, all, and Happy National Science Fiction Day! 

In honor of the latter, here's a list of all my science fiction novels to date. As you can see, they're a varied lot. I've included links to the Kindle editions, but they're all available in paperback from many (mostly but not entirely online) retailers.

--The Twin-Bred series (Twin-Bred, Reach, and Leaders): This series begins on a planet colonized by us Earthers about seventy years before. Communication with the indigenous intelligent species has been difficult, and bewildering conflicts keep arising, with the potential to escalate into war. Dr. Mara Cadell, a scientist with a very personal secret, has a novel proposal for how to bridge this gap between species. For more details, see the link to Twin-Bred, above. All I can say about the latter two books without spoilers is that they continue the story of the Twin-Bred. To quote one of my favorite plays, Robert Bolt's A Man For All Seasons: "I trust I make myself obscure."

Water to Water: I think of this book as science fiction, but it could be read as fantasy. It takes place on a planet which has had no contact with humans, or vice-versa. It has sufficient intelligent species without them. It has certain aspects of a YA novel, including young protagonists, a quest, and coming-of-age themes. Here's a description: "Two young Vushla questioned what everyone knew about death. What should they do with the answer? When the time comes for Vushla to die, they go into the ocean and are dissolved away. Or so Terrill has always believed, and still believes after taking part in his father's final journey. But when he meets a young Vushlu who lives by the sea, Terrill must confront information that calls this fundamental belief into question. Will the two of them discover the truth? And what should they do with what they find?"

The remaining four SF novels are all set on this planet in the near future. All of them also have extensive courtroom scenes, informed by my other head's career, practicing law. I'll list them in the order of publication.

Division: This story's tag line sums up the central conflict nicely (if I say so myself): "New technology, new choices . . . but who gets to choose?" To be more specific:
     "Conjoined twins Gordon and Johnny have never let their condition keep them from living full and fulfilling lives. Gordon looks forward to many years of closeness and cooperation. Johnny, however, faces their future with increasing restlessness, even dread.
     "When the boys are in their teens, the new technologies of accelerated human cloning and brain transplants are combined into a single medical procedure. Someone whose body has suffered such extensive damage as to make normal life impossible may -- with court approval -- be cloned and then given a brain transplant into the clone body. With Gordon's unwitting assistance, Johnny realizes that this procedure provides the chance he had never dared to hope for -- the chance to live in a 'normal,' separate body.
     "But Gordon considers their conjoined life a blessing, rather than a curse. He has no intention of accepting separation -- not without a fight . . . ."

Playback Effect: This book gave me the weirdly invigorating opportunity to have breakfast with a sociopath. Here's the description: "In the near future, new technology records the highlights of emotional experience for others to share. Buy a helmet and you can feel the exhilaration of an Olympic ski jumper, or the heat of a lucid dreamer's erotic imaginings. Commit a crime, and you may be sentenced to endure the suffering you inflicted on others. But such recordings may carry more information than the public has realized. What will criminals learn about their victims? When a husband is wrongfully convicted of injuring his wife, how will their marriage change? And what uses will a sociopath find for recordings of the experience of death?"

Who: Here's another favorite timeline: "Have they changed their minds? Or have their minds been changed?" The context is digitally stored personality and memories, and the details: "Death is no longer the end. Those who prepare, and can afford it, may have their memories and personalities digitally preserved. The digitally stored population can interact with the world of the living, remaining part of their loved ones’ lives. They can even vote. Except - someone's in charge of the code. Someone who may have an agenda. After the young and vital Thea dies and is stored, her husband Max starts to wonder about changes in her preoccupations and politics. Are they simply the result of the new company she keeps? Or has she been altered without her knowledge and against her will? And if Thea is no longer herself, what can they do?"

Lastly, Donation: This book took the longest to write, if "write" includes writing, revising, running by beta readers, revising again, deciding not to publish it, leaving it to lie fallow for months, revising it again, and sending it out into the world. It is in some senses timely, not to mention possibly controversial and/or dystopian in parts. It concerns the possible consequences of (a) a ban on abortion, made politically feasible by (b) the development of artificial wombs, and the related technology for allowing women to "donate" embryos and fetuses, with (c) the entire setup controlled by centralized government. One of those consequences: mission creep. To know what I mean by that, you can click through to the description -- or read the book!

Happy reading, all, and may science fiction continue to lead us into (with apologies to Star Trek) strange new worlds, and unexpected ways of viewing our own.

Atrocity, Barbarism, and Israel's Response

 This post will not concern books or publishing. It is a response to the attacks on Israel. Read at your own risk.

In the last hundred years, the United States has twice been attacked on its own soil with thousands of  casualties. The first was Pearl Harbor; the second, 9-11. Both of those times, it responded by going to war. And war is not, by its nature, a calibrated proportional response to the attack that led to it.

As a percentage of population, the attacks that began Saturday in Israel have dwarfed, by far, both of those events. After so many years of affirming "Never again," Jews have seen their deadliest day since the Holocaust. And there are other fundamental differences. Pearl Harbor and 9-11, especially the latter, resulted in the deaths of civilians. However, neither of them included face-to-face slaughter of entire families. Or mass rape of women. Or rape followed by murder, or by the display of the naked, bloody bodies of the victims to ecstatic crowds. Or the wholesale murder of babies, in some cases by beheading. Or children surrounded by the same crowds to be taunted and beaten. Or the taking of well over a hundred civilian hostages.

These atrocities are not unprecedented. Many hundreds of years ago, this is what happened when cities were sacked. More recently, there have been civil wars and religious conflicts featuring the same horrific barbarism. Russian forces have been accused of similar acts in their war against Ukraine. But those who are excusing or even cheering the attacks perpetrated by Hamas, supported and possibly planned by Iran, should think carefully about whether they want this way of waging war to become, in a much-used phrase, the new normal.

On both December 7, 1941 and September 11, 2001, the entities that attacked us meant to wound us to the heart, and/or to change our foreign policy in dramatic ways. In neither case did they have the ambition to wipe the United States and its citizens out of existence. Hamas and Iran have made no secret of their intent to destroy Israel and its Jews. Israel, unlike the USA when embarking on those previous wars, is facing -- not for the first time -- an existential threat.

You may recall how the USA ended World War II, the war we only entered because of the attack on Pearl Harbor. You know the names Hiroshima and Nagasaki. Israel very likely has more, and much more powerful, nuclear weapons than the United States had at that time. Israel could easily drop such bombs on Gaza, and may well have the military capacity to hit Iran with them as well. Should we expect that earthshaking outcome?

I for one doubt it, and here's why. When we dropped the atomic bomb on Japan, we had a different goal. We wanted to induce Japan to surrender, and to do so before the USA suffered hundreds of thousands of fatalities and more than a million casualties. Israel, on the other hand, knows that neither the Hamas jihadists nor the Iranian mullahs are likely to surrender, no matter how many of their people are killed. What Israel needs to do is wipe out Hamas, both its soldiers and its leadership, and permanently change Iran's regime, which probably means killing everyone currently in it. A sufficient nuclear attack could achieve that goal, but the huge number of civilian casualties involved will probably discourage Israel from taking the nuclear path unless absolutely necessary.

So Israel and its enemies are facing either a very well aimed campaign of targeted strikes, whether from the air or from the ground, or else a long, bloody conventional war. It may well be impossible to avoid igniting yet another cycle of hatred and longing for revenge. Israel will most likely strive, still, to keep civilian casualties to a minimum -- while realizing that the possible "minimum" has unavoidably changed. But no one should count on, and no one can in good conscience insist upon, any overriding concern with this war's being "proportional."

Release Day!! for fantasy novel FAR FROM MORTAL REALMS

 It's finally here! Or rather, they're finally here -- Release Day, and the book.

(I made the .gif on Photofunia, which is a delightful time sink.)

If you're reading this post, you may have already read the multiple excerpts I posted over the last couple of weeks. If not, you still can! (If you got to this post via social media, just head to my blog, Looking Around, and scroll down.) In either case, here's the book description.

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Negotiating with the Fair Folk is a tightrope walk over deadly perils. 

And even the most skilled can misstep.

The many wondrous realms the Fair Folk inhabit offer tempting opportunities for mortals hoping to benefit from faerie magic. But making bargains with the Fair Folk is a dangerous business, for the fae have a habit of leaving loopholes to snare the unwary. Father-and-daughter lawyers Abe and Adira have made a career out of helping their fellow humans reach such agreements safely.

Abe and Adira know the rules for dealing with Fair Folk: don't reveal your true name, don't say thank you, don't accept gifts, don't eat fae food, don't tell even the slightest of lies . . . . Oh, and always, no matter the provocation, be unfailingly polite.

A moment of carelessness, a brief lapse, and a professional defender of mortal interests may be in dire need of rescue.

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This is where I've been putting the preorder link, but hurrah! It's now an order link, and I hope you'll hurry over and make use of it. You should have a choice of the Kindle edition or the paperback. (By the way, what used to be called the "Look Inside" feature, available by clicking on the cover, is now "Read sample," a separate link below the cover.) As I mentioned in an earlier post, the paperback has been available for preorder on Barnes & Noble, Books A Million, and possibly elsewhere -- so it should now be available to actually purchase from those sites.

Once you read the book, I would be deeply grateful for ratings and reviews on Amazon, Goodreads, Barnes & Noble, blogs, or anywhere else that occurs to you. Thanks again for sharing this release ride with me!

Very short excerpt: the ultimate teaser

 Far From Mortal Realms comes out tomorrow! So as far as excerpts are concerned, I'll leave you with this very short and redacted cliffhanger. (I'm not bothering with ellipses where a few words have been deleted to avoid spoilers.)

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"But you may not so blithely leave this realm behind. Here you will stay.”

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I hope I've sufficiently intrigued you that you'll want to go on from there! The preorder link -- which is already the order link for the paperback edition -- is here. And here's one more look at the (IMHO) gorgeous cover -- in 3D this time.

While you're waiting for tomorrow's release, I hope you'll consider sharing the preorder/order page or the book's Goodreads page on social media -- or mentioning it to someone you know. Every little bit helps!

Thank you for accompanying me on this journey. I hope it's been entertaining or even exciting for you. For me, it never gets old.