Thursday, August 15, 2013
Crimes and Punishment
Extreme justice is extreme injustice.
— Legal maxim cited by Cicero in De Officiis
The August 12, 2013 verdict against Whitey Bulger offered some reassurance that the legal system in the United States does not always produce wrong results. That counteracted the impression left by (a) the August 12, 2013 findings of the New York federal judge that New York city’s widely touted “stop and frisk” law violates the constitutional prohibition against unreasonable search and seizure and the guarantee of equal protection and (b) three pieces in the August 11, 2013 New York Times.
With respect to Mr. Bulger, on August 12 a Boston jury found that Whitey Bulger was guilty of, among other things, murdering 11 people. Of course the trial also showed that Mr. Bulger had corrupt minders in the FBI who were upholding the criminal conduct of one of their charges rather than upholding the law. Nonetheless, good news must be taken where it can be found.
Disheartening news was offered by the three pieces in the NYT. The first, by Nicholas Kristof, captioned “Help Thy Neighbor and Go Straight to Prison,” shows what damage a mindless, but powerful U.S. attorney can do in the name of making sure his singular idea of justice is done. Many years ago Edward Young was convicted of several burglaries, none of which involved the use of any weapons. When he was released in 1996 he turned his life around, got married, had four children and got a good job until physical problems forced him to quit working and become a stay at home dad for his four children. Then a neighbor died and with his death Mr. Young’s problems were born. The neighbor’s wife asked Mr. Young to help him dispose of her husband’s personal stuff. He helped her clean out, sell and otherwise dispose of her husband’s belonging. Among items Mr. Young cleaned out but neglected to sell were seven shotgun shells that he put aside so his children wouldn’t find them. Sometime later he became a suspect in a burglary case and his home was searched and the shells were discovered. Mr. Young was prosecuted under a federal law that bars ex-felons from possessing guns or ammunition and is accompanied by a mandatory 15-year prison sentence. When Mr. Kristof asked the prosecuting U.S. attorney, William Killian, why he’d want to put Mr. Young behind bars for 15 years Mr. Killian had what Mr. Killian thought was a perfectly good explanation. He was quoted by Mr. Kristof as saying that: “The case raised serious public safety concerns.” Mr. Killian knows something the rest of us don’t or, maybe he doesn’t know anything. The latter is more probable than the former.
The next piece was by Frank Bruni entitled “Fatal Mercies.” Barbara Mancini’s ’s father, Joseph Yourshaw, aged 93, was receiving hospice care and wanted his life to end. He asked his daughter to give him the bottle containing his painkiller medicine which she did. He drank its contents and died. Barbara has been charged in Pennsylvania with a violation of the Pennsylvania criminal law dealing with “Causing or Aiding Suicide,” a felony punishable by 10 years in prison. Mr. Bruni says that in his investigation of the events he can find no evidence that Barbara did anything more than hand her father the bottle.
The last piece by John Grisham entitled “After Guantanamo, Another Injustice” takes us back to Guantanamo, a place we have visited before, to examine the inhumane practices engaged in by the administration for reasons that are best known to the administration since no one else seems able to explain them. In Mr. Grisham’s piece he describes the treatment accorded Najil Hadjarab, an Algerian man who grew up in France. Mr. Grisham describes the circumstances leading to his arrest in Afghanistan. None of what Mr. Grisham describes suggests that Mr. Hadjarab’s arrest was warranted or justified the treatment to which he was subsequently subjected. That treatment included being placed in an underground prison and tortured, being forced to sleep in bitter cold on cement floor without any covers, etc. When he finally got to Guantanamo his abusive treatment continued. In the 11 years he has been at Guantanamo Mr.Hadjarab “has been subject to sleep deprivation, sensory deprivation, temperature extremes, prolonged isolation, lack of access to sunlight, almost no recreation and limited medical care.” He has never been charged with any terrorist activity. In 2007 a review board recommended he be released. He was not. In 2009 another review board recommended he be transferred. He was not. He joined other prisoners in a hunger strike that resulted in his being force-fed, a form of torture that the administration believes is preferable to having prisoners starve to death while in U.S. custody, an outcome that would reflect badly on the country’s well known humanitarian instincts.
Mr. Grisham fears that Mr. Hadjarab may now be transferred to Algeria where he has no contacts, rather than to France where he grew up and has family. Only time will tell whether his fears are justified. What we don’t need time to learn is that enforcement of laws in the hands of the wrong people produce results as bad as the results authorities hope to prevent.
Thursday, August 1, 2013
The Snowden Effect
Whistling aloud to bear his courage up.
—Robert Blair, The Grave (1743)
For those of you who have been away from news reports for the
last few months, herewith a primer on a now famous individual who has been in the news with much frequency-Edward Snowden.
The first thing you need to know about Mr. Snowden is that he has had an effect on the media and Congress that none of the people who work in either of those place could hope to have had. The second is that he has permitted the United States to implicitly demonstrate its moral superiority to places such as Russia. First things first.
But for (as lawyers are wont to say) Mr. Snowden, none of the discussion that has consumed millions if not billions of words during the last two months would have taken place. But for Mr. Snowden the House of Representatives in the United States Congress would have continued doing nothing other than taking the 39th, 40th and 41st votes on whether or not to repeal Health Care. Thanks to Mr. Snowden those votes have been postponed. Instead, in an unusual moment of bipartisanship 94 Republicans and 111 Democrats voted to defund the National Security Agency’s telephone data collection program. It failed by seven votes. Notwithstanding that defeat, two congressmen have begun preparing a bill that would curb telephone surveillance.
But for Mr. Snowden there would have been no discussion of the FISA court. We would not have learned% that ten of the 11 judges assigned to the FISA court by Chief Justice John Roberts from among all federal judges, are Republicans appointed to the bench by Republicans. But for Mr. Snowden we would not have learned that of 1856 requests to the FISA court for secret surveillance none was denied by the FISA court. But for Mr. Snowden there would be no discussion at the national level of the fact that there is no one to represent the public when the Justice Department asks the FISA court for permission to conduct secret surveillance.
Of course Mr. Snowden didn’t give us all that information. He was just the one who forced us to have the discussion. Before he spoke all we had were a couple of senators who kept saying that if we knew all the bad things the government was doing we’d be really upset but because the bad things were highly confidential they were not at liberty to disclose them. It was Mr. Snowden who caused the discussion to occur with the result we may be protected from some of the abuses that the Senators could not disclose or prevent.
The administration wants Mr. Snowden returned to the United States so that he can be tried for having enabled the American people to have an honest discussion about what their government has been doing. The administration has one problem. Mr. Snowden is in the airport in Russia and Russia hasn’t decided what it wants to do with Mr. Snowden. The U.S. has asked Russia to transfer Mr. Snowden to the United States. It didn’t ask Russia to extradite him since the U.S. has no extradition treaty with Russia. In a friendly letter asking for Mr. Snowden’s transfer, Mr. Holder promised that the United States would not seek the death penalty for Mr. Snowden even if a jury found that his enabling the country to have a discussion about what its government was secretly doing would otherwise make him eligible for the death penalty. Mr. Holder may have felt it necessary to make that promise since the Russians probably know that the U.S. government killed Anwar al-Awlaki, an American citizen, without even giving him a trial and two weeks later, quite by accident, killed his son. The Russians who are famous for having a terrific justice system that, among other things, conducts trials without permitting defendants put on any evidence, did not want to put Mr. Snowden in the arms of a country that does not follow the rule of law.
Mr. Holder also felt it necessary to reassure the Russians that Mr. Snowden would not be tortured if he were returned to the United States. As Mr. Holder said in his letter to Vladimirovich Konovalov, the Russian Minister of Justice: “Torture is unlawful in the United States.” He probably felt it necessary to say that since everyone knows that the U.S. has been force-feeding some of the inmates in Guantanamo that some people say is like torture. The administration says it’s doing the inmates a favor because it keeps them alive so they can appreciate the fact that there is no prospect of them ever being tried or released which is, of course, the reason they are on a hunger strike in the first place. Russia may also know that Bradley Manning was kept in solitary confinement for 11 months while awaiting trial and that Juan Mendez, the UN special rapporteur on torture concluded that that was cruel and inhumane treatment and might have constituted torture. It may (or may not) be safe to assume that based on Mr. Holder’s representation, Mr. Snowden would not be kept in solitary confinement.
But for Mr. Snowden . . . .
Thursday, July 25, 2013
The Ceiling Fan and the Congresswoman
Our children will enjoy in their homes electrical energy too cheap to meter.
—Lewis Strauss, Speech on atomic energy (1954)
Albert Einstein once said, insanity is doing the same thing over and over again and expecting a different result. Republicans in the House would disagree with Mr. Einstein. They do it to make sure that the country knows what they are thinking. They do not consider themselves to be insane. Some of us do.
The House of Representatives has devoted an astonishing number of hours to debating and trying to repeal what is commonly referred to as “Obamacare.” As of this writing, since becoming law on March 23, 2010, the House has voted 37 times to modify or completely abolish it. The House deserves plaudits for its persistence if not its wisdom. Its persistence may be seen by some as a waste of the legislative body’s time but, as it turned out, those votes did not take away from its attention to other legislative matters since when not voting on health care the House was doing nothing of substantive significance. Since the vote to repeal or modify health care has been the most significant action in the House for many months and an activity of which, at least, the Republican members of that body are most proud, it was not surprising to hear House Speaker John Boehner cheerfully explain on CBS’s “Face the Nation” that “You’re going to see a lot more [votes to thwart Obamacare].” Given that somewhat dismal prospect (if one is not numbered among those who find that a productive use of the political body’s skills) it was reassuring to learn that there is one member of the House able to address something other than health care. That person is Marsha Blackburn (R. Tenn.).
The issue that Ms. Blackburn has demonstrated an interest in addressing is the movement of hot air. Since that is her interest and since she is a member of Congress the immediate assumption is that she wanted to address the verbal flatulence produced by that body. That was not, sadly, the case. The hot air that concerns her is the hot air that is circulated by the ceiling fan and it is that device that concerns her.
Ms. Blackburn’s interest in the topic was aroused because the Environmental Protection Agency has come out with 101 pages of regulations with the catchy name of “2013-03-08 Energy Conservation Standards Rulemaking Framework Document for Ceiling Fans and Ceiling Fan Light Kits Lights RIN: 1904-AC87.” Regulations pertaining to ceiling fans and their lights have not been updated since 2005. Since there is a greater awareness of the need for efficiency in all manner of things electric, it is no surprise that the proposed standards are more conservative than the existing standards and are designed to make the fans more efficient. Because the House has spent so much time on repealing the unrepealable, Ms. Blackburn has had adequate time to read the proposed regulations and has formed an opinion about them that she recently shared on the floor of the House. A search of the Internet fails to disclose whether or not she believes in the existence of climate change but what her remarks make abundantly clear is that she does not like government regulations. Her particular concern is that if enacted, the regulations will drive up the price of fans thus harming the consumer even if helping the environment. In a speech on the House floor she said: “First, they [the government of which she’s a part] came for our healthcare, then they took away our light bulbs, and raided our nation’s most iconic guitar company-now they are coming after our ceiling fans.” (The guitar raid to which she referred was a raid on Tennessee’s “Gibson Guitar Corp.” for alleged violations of the Lacy Act.) Bringing the proposed regulations to our attention was a great service since there is an outside chance that without her words, many of us would have completely overlooked the 101 pages in question.
Thanks to Ms. Blackburn’s attentiveness, the ceiling fan is protected from the EPA. She and Todd Rokita (R-Ind.) added an amendment to the fiscal year 2014 energy-and-water appropriations bill that will prevent the Energy Department from using any money in that bill to implement or enforce energy efficient standards for ceiling fans and ceiling fan light kits. That is great news and having dispensed with that issue, Ms. Blackburn and Mr. Rokita can rejoin their colleagues in focusing their attention on Obamacare. In celebration of their success it would be nice if they could schedule a vote to repeal Obamacare before the five-week recess that begins August 3 and follows, by three weeks, the Fourth of July recess.