Thursday, July 18, 2013
The Quick, the Dead and the Guilty
When the reading was over, he uttered in a voice full of sorrow: “Goodness, how sad is our Russia.”
— Nikolai Gogol, Four Letters Concerning Dead Souls
Here is the news you’ve all been waiting for. As is often the case with news, it consists of two parts-the bad and the good. The bad news is he was found guilty. The good news is he won’t have to serve any time. That’s because he’s dead. I refer to the recent conviction of Sergei Magnitsky. Mr. Magnitsky is indebted to Olga Alexandrina for the fact that he even had a trial.
Olga was involved in a head-on collision in Moscow in which she was killed. The driver of the other car was a vice-president of Lukoil. Civic activists and those who reportedly saw the accident said the executive’s Mercedes swerved into on coming traffic causing the accident. Authorities, however, pressed criminal charges against Olga saying she caused the accident. Olga’s father was outraged that she was criminally charged and demanded that she be tried even though dead. His demand was turned down because of paragraph 4 of Article 24 of the Criminal Procedural Code of the Russian Federation. That paragraph says death of a criminal defendant brings criminal proceedings to an end unless “further investigation was necessary for the rehabilitation of the deceased.”. The father appealed the denial of his demand for a trial to the Russian Constitutional Court and in 2011 that court interpreted paragraph 4 to mean that the only time dead people can be tried for pre-mortem criminal activity is if the family requests a trial in order to rehabilitate the decedent. With the ruling in hand, Olga’s father persuaded authorities to permit the trial to go forward. To no one’s great surprise at the trial’s conclusion Olga was found guilty. Though herself guilty, Olga paved the way for Mr. Magnitsky to be tried.
Followers of such things may recall that Mr. Magnitsky was a Russian accountant and auditor who worked at the Moscow law firm of Firestone Duncan. While employed there he was investigating an alleged $230 million tax fraud that implicated tax officials and police officers. In November 2008, before completing his investigation, he was arrested on the pretense that he and a client had conspired together to commit tax fraud by falsifying tax returns and taking advantage of a tax break given those who employ the disabled.
Under Russian law it was permissible for him to be kept in confinement for up to one year following his arrest without being tried. He was not tried with in that period. Eight days short of one year Mr. Magnitsky died without having been tried. During his incarceration he had been placed in increasingly smaller spaces, denied medical care and denied contact with family members. He suffered from untreated pancreitis and died because of acute heart failure and toxic shock.
The family was upset at Mr. Magnitsky’s treatment, blaming his death on the refusal of authorities to provide him with adequate medical treatment. In addition, they were convinced that the only reason he had been imprisoned was because of trumped up charges designed to put an end to the fraud activities he was trying to uncover when arrested. The Russian authorities were upset with the family’s reaction. They did not appreciate the fact that the family said the reason Mr. Magnitsky died was because he was denied proper medical care. More importantly, the family insisted Mr. Magnitsky was not guilty of the crimes for which he had been arrested but not tried. The authorities did not like the fact that the family repeatedly conducted interviews in which they asserted that Mr. Magnitsky was innocent. Under the Constitutional Court’s theory, however, the authorities could not do anything because under the constitutional court’s ruling, only the family could demand a criminal trial of someone who is dead.
Since the Magnitsky family strenuously objected to the trial of their dead family member, followers of matters constitutional in Russia may wonder how the prosecutor could conduct a five-month trial of a dead man. The prosecutor provided the answer when at the beginning of the trial he said “the case was reopened to decide the issue of Magnitsky’s possible rehabilitation.” The prosecutor reasoned that even though the family had not demanded Mr. Magnitsky’s rehabilitation, their repeated interviews with the press during which they insisted that Mr. Magnitsky was not guilty of the crimes with which he and his client were charged was the same as demanding that the trial go forward so Mr. Magnitsky could be rehabilitated. Rehabilitation if successful would not, of course, have resulted in Mr.Magnitsky’s resurrection. It would only have resurrected his reputation.
At the conclusion of a five-month trial, the presiding judge, Igor Alisof found Mr. Magnitsky guilty, spending 1 ½ hours reading his findings. He observed, however, that because of Mr. Magnitsky’s “physical absence” during the proceedings, all further investigation into his conduct would come to a halt. He also declined to impose jail time because of Mr. Magnitsky’s “physical absence.” That proves that even in Russian courts the occasional defendant may find reason to be grateful for the mercy shown by the court, even if dead.
Thursday, July 11, 2013
FISA'S Secrets
If we are to regard ourselves as a grown-up nation-and anything else will henceforth be mortally dangerous-then we must, as the Biblical phrase goes, put away childish things; and among these . . . the first to go, in my opinion, should be . . .the search for absolute security. . . .
—George Kennan, The Sources of Soviet Conduct, in Foreign Affairs (1947.)
Now we know what they so badly wanted to tell us but couldn’t and what a revelation it is. I refer to the exciting and long awaited news reported in the Wall Street Journal as to what it was that Senators Mark Udall and Tom Wyden have been dying to tell the American public about the operations of the N.S.A. but were unable to disclose because the information was of such a top-secret nature that they were not authorized to disclose it.
According to the WSJ, the secret information that the senators had that was so confidential they could only hint at it was an interpretation of one word in the Patriot Act by the FISA Court. The super super secret word was “relevant.” To the non-lawyer this may seem like a secret that was hardly worth keeping and, indeed, it may even seem so to the legal mind. To understand the true import of this revelation a bit of history is important. The word “relevant” has become important because of two other words, “special needs.”
In legal parlance “special needs” has referred to two different things. In one context it refers to individuals who because of health and related issues are described as having “special needs.” In another context, and the one that concerns us today, it refers to situations that because of their great importance are used to justify the government obtaining court orders permitting it to conduct searches without first obtaining a warrant as would normally be required by the 4th amendment to the Constitution.
“Special needs” finds its genesis in a 1989 case in which a court ruled that an individual’s Fourth Amendment protection from unreasonable search was not violated when random drug tests were conducted on railway workers. The court reasoned that running a railroad was a sufficiently dangerous operation that it was reasonable for the government to conduct random drug tests of employees without first obtaining a court order permitting the tests. Following this line of reasoning, the FISA court greatly expanded the use of “special needs” to include warrantless collection of vast amounts of communication information that it claims pertain to “special needs” i.e. “terrorist activities.” Once the court adopted the broad interpretation of “special needs,” the jump to “relevant” was an easy one. Relevant, too, comes with a bit of history, however.
Until the FISA Court adopted a broader meaning for “relevant” something was considered “relevant” in criminal law if it was information pertinent to a particular investigation. If, for example, a prosecutor sought an order asking a judge to permit the prosecutor to tap the phone of Whitey Bulger so it could see if he was ordering people to be killed, a court would almost certainly have considered that “relevant” to the inquiry and permitted the tap without requiring that Whitey be given notice of the tap. If, however, the prosecutor asked the court for permission to obtain the phone records of all the residents of the community in which the prosecutor thought Whitey lived, the court would have laughed the prosecutor out of the court while denying the request. . The FISA court, as we now know, lacks a sense of humor. Not only does it lack a sense of humor, it has quite a different idea of what is meant by the word “relevant” when used in the context of its activities. It believes that because of the special needs attendant upon terrorist investigations an order permitting the aggregation of records on millions of people would be relevant to an investigation. Put another way, it would seem that anything the government wants, the FISA court thinks the government should get.
The FISA judges do not take kindly to the suggestion that the court is simply a rubber stamp for the government’s request for secret orders. That became obvious when Russell Tice, a former National Security Agency analyst described the FISA Court as a “kangaroo court with a rubber stamp.” Reggie Walton, the Court’s presiding judge took umbrage at the comment saying: “The perception that the court is a rubber stamp is absolutely false” he told the Guardian newspaper. He said “There is a rigorous review process of applications submitted by the executive branch. . . .” Judge Walton’s assertion of rigorous review was borne out by statistics.
According to a report in the Guardian, in 2012 the court received 1,856 requests for surveillance which was a 5% increase over the number of requests received in 2011. Although there was a slight increase in the number of requests received, there was one number that neither increased nor decreased during those two years. The unchanged number was zero-the number of requests for surveillance that the FISA court, applying the rigorous scrutiny described by Judge Walton, turned down. Zero does not help us understand the meaning of “rigorous review”. The requests for surveillance that were approved, however, help us understand the meaning of “special needs” and “relevant.”
Thursday, July 4, 2013
Guns and Consequences
The unexpected always happens.
— Common saying
It could be called the rule of surprising consequences. On December 14, 2012, Adam Lanza, accompanied by an assortment of weapons, burst into the Sandy Hook school in Watertown, Connecticut and killed 20 children and staff. Following the tragedy the Connecticut legislature took steps to lessen the likelihood that such an event would repeat itself. On April 3, 2013, with bi-partisan support, the Connecticut legislature passed Senate Bill No. 1160, entitled: “An Act Concerning Gun Violence Prevention and Children’s Safety.” Under the terms of the bill, certain guns can no longer be sold in that state. Included among them is the Bushmaster XM15, the type of AR-15 rifle that Adam used to kill. It bans the sale of gun magazines that hold more than 10 rounds. (Adam had 10 magazines loaded with 300 rounds. It only took 154 rounds plus one from a Glock pistol for him to kill 20 of his victims. When it was all said and done he would have had 146 left over for another day had he not killed himself instead.)
On April 4, 2013, Connecticut’s governor Dan Malloy signed the bill into law. On April 11, 2013, PTR industries, a gun maker that manufactures, among other things, the now banned Bushmaster XM15, announced that it was leaving the state in protest over the new law. In June 2013, the company moved its operation to South Carolina where there haven’t been any massacres that would cause that state’s residents to be nervous about guns.
On July 12, 2012, James Eagan Holmes went into a Century movie theater in Aurora, Colorado, during a midnight screening of The Dark Night Rises. Like Adam Lanza, James was armed with a variety of weapons that served him well. He killed 12 people and wounded 70 others. The legislature and the governor responded. In March 2013 two laws were passed that went into effect July 1, 2013. The first requires universal background checks on all gun sales and transfers and requires gun buyers to pay for those checks. The second limits the size of gun magazines to no more than 15 rounds. Those laws were signed by Governor John Hickenlooper on March 20, 2013. (Three other laws dealing with guns were signed by the governor in May 2013.) The Colorado legislation was opposed by all the Republicans in the legislature. Prior to passage of the bills, Magpul Industries, a firm that manufactures 30-round magazines and other firearm accessories, announced that if the gun legislation being considered by the state legislature were to pass, it would move its manufacturing facilities to a different state. As of this writing it has not announced a new location for its facilities but has indicated that it still plans to leave the state. HiViz Shooting Systems, a Colorado firearms company, has announced that it is moving to Laramie, Wyoming.
All of the foregoing notwithstanding, the most surprising consequence of the new law in Colorado has nothing to do with losing manufacturers. It has to do with the state of Colorado losing counties. Unlike the manufacturing companies, counties cannot pull up stakes and leave Colorado. They are fixed geographically within that state. The next best thing they can do, they hope, is secede from the state of Colorado. And that is what the county commissioners of Weld County, a rural county in northern Colorado, have proposed. The commissioners are motivated not only by their dislike of what the Colorado legislature has done with respect to guns but with other legislation passed by the legislature affecting agriculture and oil and gas development.
The new state that the three elected county commissioners in Weld County, Colorado have proposed to create by secession is to be called North Colorado. The commissioners have met with representatives from six other Colorado counties and those counties have expressed an interest in participating in the process. The Weld County commissioners are Republicans. Republicans are normally concerned about high costs of government. Although the process of seceding will be expensive and substituting two states for one state will greatly increase the cost of governance, the commissioners are not worried about those expenses if they can have a separate state. And they may also be taking comfort in the thought that one expense no one will have to incur is the expense of redesigning the American flag. That is because in early 2013, a petition bearing the signature of 125,746 Texans was sent to the White House seeking permission for Texas to secede from the union. The request was turned down by the administration. Given recent events in the Texas legislature the administration might want to reconsider. Should that happen the flag would not have to be changed. The star that used to represent Texas would now represent North Colorado, a nifty solution since North Colorado would presumably have the same political leanings as the state it replaced.