The Uproar Over Pat-Downs

Americans understand the need for security screenings at airports and are remarkably patient. So there is no excuse for the bumbling, arrogant way the Transportation Security Administration has handled questions and complaints about its new body-scanning machines and more aggressive pat-downs.

The Times reported on Friday that civil liberties groups have collected more than 400 complaints since the new pat-downs began three weeks ago. That is a minuscule number compared with all the people who flew. But there are far too many reports of T.S.A. agents groping passengers, using male agents to search female passengers, mocking passengers and disdaining complaints.

Lawsuits have been filed asserting that new, more powerful body-scanning machines violate the Fourth Amendment’s protections against unreasonable searches. In general, it seems to us that the scanners are not unconstitutional, but the lawsuits are a healthy process that will require the government to prove that the scanners are reliable and more effective than other devices.

The Fourth Amendment would certainly protect Americans from unnecessary, overly intimate security checks. And nothing in the Constitution permits power-happy or just downright creepy people from abusing their uniforms and the real need for security. The government could start by making their screening guidelines clear. And they should respond to the concerns of people like the woman who told The Times that she is patted down every time because of an insulin pump.

Some passenger groups are planning demonstrations during the Thanksgiving rush. That’s their right, although if they interfere with air travel, or with security measures, they have to assume the risk that applies to any civil disobedience: they might be arrested.

The federal authorities need to take customers’ complaints seriously. And while they’re at it, they should be hard at work filling in the really huge hole in the security of air travel: the inadequate screening of cargo.

Editorial, New York Times


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Russia’s Dictatorship of Law

Russia’s newly outrageous legal treatment of Mikhail Khodorkovsky, the former owner of the country’s largest oil company, is a reminder that Russia has yet to grasp the idea of equal justice under law — especially when the Kremlin decides someone is in the way.

Mr. Khodorkovsky was convicted in 2005 on trumped-up charges of fraud and disobeying a court order and lost his company to Kremlin loyalists. Russians call his sort of case “telephone law,” imposed by the politically powerful through a call to the courthouse. With his sentence almost up, he was just tried again on suspect charges of embezzling and money-laundering. The judge is expected to reach a decision in December.

Two decades ago, the United States State Department urged the new Russia to resurrect the jury system, as The Times described this week, to put the law in the hands of the Russian people. Juries had been abolished after the Soviet revolution, along with anything recognizable as courts and lawyers. They were reborn in 1993.

Defendants have a right to a jury trial in a small fraction of crimes like murder and kidnapping. Compared with non-jury trials in the Soviet era, when the acquittal rate was likely less than 1 percent, the rate with juries has climbed to between 15 and 20 percent. Because of this apparent success, it is tempting to look for the growth of a familiar sense of justice. That search ends in disillusionment.

The Soviet system relied on prosecutors to find what passed for the truth in criminal cases, so the foundation for reform is at odds with the new system that juries are part of, with truth supposedly emerging from the competing accounts of the prosecution and the defense.

More to the point, the old system is not dead. Russia, the scholar Jeffrey Kahn said, has “a lot of bad legal habits.” One is the prosecutor’s “case file,” which sealed the guilt of countless Soviet citizens and retains its terrifying force. Of the 791,802 criminal cases disposed of this year through September, only 465 were decided by a jury. Mr. Khodorkovsky wasn’t allowed a jury in either of his trials. Deliberately, the prosecution charged him only with crimes that didn’t give that right. A jury couldn’t be trusted, apparently, to look out for the state’s interests.

When Vladimir Putin heralded the start of the era of law and democracy, he repeatedly described it as “the dictatorship of law.” As the Khodorkovsky case dramatizes, that is a chillingly accurate description.

Editorial, New York Times


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When Rights Get Squeezed

If you want to understand the spontaneous outrage that combusted this week at the introduction of new airport security procedures—an electronic undressing for those who go through the fancy X-ray machines and a groping for those who “opt out”—just look at the pictures of our fellow citizens passing through the scanners. They stand, dishearteningly, with their hands above their heads in the universal pose of defeat and surrender.

A TSA officer at Reagan Airport looks at a scanner image last year.

Yet the Department of Homeland Security and the Transportation Security Administration are, frankly, annoyed at the “traveling public” for making such a fuss.

A senior Homeland Security official (who would not allow his name to be used) told CNN this week that “the mood at DHS and TSA is anger.” The official griped to CNN that the real outrage was how TSA agents were being treated. In San Diego, one such agent “was accosted and verbally abused by a member of the traveling public,” said the official. “The fact that some in the media would hail the traveler as some kind of folk hero is shameful.”

He was talking about John Tyner, the young man from Oceanside, Calif., who surreptitiously recorded his run-in with the TSA and posted it online. Mr. Tyner chose not to subject himself to radiation from the X-ray machine and was taken aside for a “standard pat-down.” The TSA agent explained to him how the “groin check” part of the pat-down would be executed. It was then that Mr. Tyner “accosted” the poor TSA agent by saying the immortal words, “If you touch my junk, I’m gonna have you arrested.” For shame, all of you who cheered. For shame.

Shame on those of you who have bought the “Don’t Touch My Junk” T-shirts that entrepreneurs made available this week. Shame too on the Tea Party types who mocked the inviolable authority of the TSA by replacing the Gadsden Flag’s “Don’t Tread On Me” with Mr. Tyner’s impertinent slogan. And treble shame on the blogger Iowahawk who demeaned not only the TSA but Frank Sinatra by recasting “Come Fly With Me” as “Comply With Me.” (The lyric “Once I get you up there” became “Once I get all up there.”) You should all be aware that the TSA is not amused.

“If you touch my junk…” may have garnered all the attention, but it is not the most important thing on Mr. Tyner’s recording. A TSA supervisor told him that if he was uncomfortable, he could be escorted out “and you don’t have to fly today.” Mr. Tyner asked how “sexual assault can be made a condition of my flying.” After a bit of back and forth, the TSA supervisor played the trump card: “By buying your ticket you gave up a lot of rights.”

Do we really want to make a practice of giving up “a lot of rights” (and without the advice of counsel, at that), especially when the TSA makes it clear it will use its authority to punish those who inconvenience or embarrass it? The agency’s San Diego office chief announced that he is pursuing charges and an $11,000 fine against Mr. Tyner for leaving the airport without allowing his naughty-bits to be inspected. Such blatant payback hardly inspires confidence in the TSA as a steward of our surrendered rights.

But it’s all in keeping with the “love pats” (Sen. Claire McCaskill’s unfortunate euphemism). The Atlantic’s Jeffrey Goldberg has flown several times since the new procedures went into effect Nov. 1. He has refused the X-ray machine every time and found that the TSA agents inspecting his “crotchal area” (as one of them said in a newly coined bit of bureaucratese) admit the procedure is meant to be so unpleasant that fliers will choose the naked-picture machine instead.

I’m gratified that enough Americans are still jealous guardians of their rights to have made this an uncomfortable week for the TSA. And I admire the impulse behind making Wednesday—one of the heaviest travel days of the year—”Opt-Out Day.” The idea is for everyone to gum up the works by refusing the X-ray. If the TSA has to give its lengthy semimolestations to everyone, the thinking goes, they won’t be able to do it to anyone. Alas, security gridlock isn’t likely to discomfit the TSA much. It is Thanksgiving travelers who will bear the brunt of the nightmare—hardly the best way to build popular support for a protest movement.

Instead, perhaps we should make 2011 “Opt-Out of Flying” year. Since buying a ticket means giving up “a lot of rights,” the best way to protect those rights is not to fly unless you absolutely have to. It will help if you let the airlines know why they haven’t had the pleasure of your company.

The old saw is that a conservative is a liberal who got mugged. Tom Wolfe riffed that “a liberal is a conservative who has been arrested.” We might add one more variation: A libertarian is anyone whose wife and children have had their groins groped by the TSA.

Eric Felten, Wall Street Journal


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Chechen Exile Murder Trial Begins in Vienna

Kadyrov’s Web of Influence

Kadyrov (seen here in 2007) denies all involvement in the murder case.

A trial involving the spectacular murder of a Chechen exile begins Tuesday in Vienna. Austrian investigators believe it was a contract killing which may be linked to Chechen President Ramzan Kadyrov, who is alleged to have a network of ruthless agents across Europe.

The room in the Berlin apartment has a dark wooden table and oil paintings on the wall. Water is being heated in a samovar. Men with serious expressions come in, embrace each other and sit down to drink tea.

The apartment is home to the translator Ekkehard Maass. The 51-year-old was a dissident in the former East Germany and now runs the German-Caucasian Society. It’s a meeting point for Chechen exiles, people who have fled the violence in the Caucasus region and emigrated to the West.

When exiles meet for tea these days, two names are frequently mentioned: Ramzan Kadyrov and Umar Israilov. Israilov, a Chechen exile, was murdered in Vienna on Jan. 13, 2009. Kadyrov, the feared 34-year-old president of Chechnya, a man who likes to pose for photographs with a tiger or holding a gold-plated pistol, was allegedly behind the murder. Both Chechen exiles and Austrian investigators believe that it was a contract killing. Israilov had accused Kadyrov of torture and had brought a case against him before the European Court of Human Rights.

The trial of the suspected killers opens in Vienna on Tuesday. The spectacular murder is likely to be followed by an equally spectacular trial, in which prosecutors will seek to shed light on the exact circumstances of the crime, and on a “military intelligence service” that terrorism experts in Vienna believe Kadyrov developed in Europe. Kadyrov is currently being investigated, although charges have not been brought yet. He denies all involvement in the murder case.

Living in Fear

German investigators are also interested in the Chechen president’s activities. His agents have been spotted in Germany, where about 6,000 Chechens live. Some 500 of them are believed to be tied to extremist groups. German intelligence officials find it difficult to get a clear picture of the milieu. The distinctions among freedom fighters, terrorists and ordinary criminals are complicated. In addition, some Chechens owe their asylum status to their cooperation with German intelligence, and the lines are sometimes blurred between informants and troublemakers.

One thing is clear, however: Chechens in Germany live in fear of Kadyrov, who has unscrupulous bodyguards. Chechen exiles have frequently told German authorities about Kadyrov’s influence in Berlin. The president is apparently determined to convince exiles to return home, if necessary with rough measures. He allegedly has middlemen and agents that he uses specifically for this purpose.

The award-winning Chechen poet Apti Bisultanov was one of the exiles who received an unwanted visit from Kadyrov’s men in Berlin. Apparently two former members of the Chechen government were working as agents for Kadyrov in Berlin: the brothers Umar and Magomed Khanbiyev. A witness told Viennese authorities about a conversation he had had with Umar Khanbiyev in Berlin. The Chechen agent apparently told the witness that a major campaign was underway to bring Chechens home, and that Kadyrov was behind it. According to the agent, Kadyrov had a team of six agents working in Europe. They had been provided with Russian visas and were apparently staying in a Berlin hotel.

Kadyrov’s agents, say Chechens in Berlin, try to entice exiles to return home with promises of jobs. Apparently the agents have also threatened violence against the exiles’ families at home in Chechnya. In the case of Bisultanov, Kadyrov’s men and Russian officials worked hand in hand. Russia had demanded his extradition and was trying to torpedo his application for asylum, but was unsuccessful on both counts.

Car Was Found near Crime Scene

One of the men now on trial in Vienna has also been seen in Berlin: Otto K., who was born Ramzan E. in the Chechen capital Grozny in 1968. Among fellow Chechens living in Austria and Germany, he was considered an amiable father and an opponent of Kadyrov. But, as it turns out, he is the owner of a green Volvo that police found near the scene of the crime after the Israilov murder. That is one reason why he is at the center of the Vienna case. Investigators believe K. is one of Kadyrov’s henchmen, but K., who is in custody, denies the charges. But if K. is really an opponent of Kadyrov, then why did he go to Grozny in 2008 to meet with the Chechen president? The investigators’ files contain photos showing the two men meeting.

And what brought Otto K. to Germany? Officially, the asylum seeker was there in his role as the chairman of a Chechen cultural association in Vienna. Investigators believe, however, that K.’s work on behalf of the association was just a front that was intended to help him gain an insight into the exile community in Germany. In any case, the association’s activities appear to not be entirely cultural. During a raid several years ago, German police found firearms in the trunk of a car from Vienna. The car, a BMW, was registered to the cultural association.

In some ways, the conflict in Chechnya already reached Germany a long time ago. Domestic intelligence officials believe that some Chechen refugees are raising money in Germany, money that couriers later forward to rebels in Chechnya. Apparently there have also been attempts to recruit fighters in Germany and to smuggle them to the restive Russian republic.

‘There Was a Bad Person Among You’

The discussion around the table in Maass’s apartment, however, mainly centers on Kadyrov’s attempts at intimidation. The men talk about the Chechen agents’ attempts to blackmail exiles on the phone. The Viennese investigators are also familiar with the agents. The police have listened in on many telephone conversations in which the name Kadyrov is mentioned again and again, as are thinly concealed threats. The following exchange is an excerpt from the transcript of one of the calls:Agent: “There was a bad person among you, who has already been eliminated.”

Exile: “The one who was already murdered? I didn’t know him.”

Agent: “I know who you are. Do you want a few people to come to see you tomorrow and pick you up? Come to us voluntarily. You don’t want us to come and get you using force.”

Wealthy Suspect

In May 2009, a Chechen living in Vienna who had received similar calls contacted the authorities. The terrorism experts were even able to identify the suspect in the case: a wealthy Russian citizen known in Berlin for his big cars and his villa. Was he planning a murder from his base in Berlin? The files suggest that the telephone surveillance and the subsequent investigation did not lead to any action against the suspect in Berlin, however. A memo from Vienna states matter-of-factly that officials took “no further steps.” Police investigators in Berlin were told nothing about the case.

Kadyrov’s men are also interested in Maass’s apartment, but they’re not the only ones. As paradoxical as it may seem, German authorities are also keeping an eye on Maass, whose name crops up in the files of the Office for the Protection of the Constitution, Germany’s domestic intelligence agency. The files describe him as the representative of a Chechen government-in-exile. Exiled Chechen politician Akhmed Zakayev, who lives in London, named the Berlin-based translator as an honorary consul, prompting the Russian government to lodge a protest with the Foreign Ministry in Berlin. Maass, for his part, has reacted calmly to the Russians’ objections.

Sometimes suspicious-looking cars park near Maass’s home. The drivers and their passengers are not interested in talking to him, however.


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The Backdating Embarrassment

How did a meaningless violation of accounting rules become the crime the of century?

An array of influential friends urged leniency for Bruce Karatz in his stock-option backdating sentencing last week, including former Los Angeles Mayor Richard Riordan and philanthropist Eli Broad. But these personages weren’t the reason Judge Otis D. Wright II rejected prosecutors’ request for a six-year prison sentence and instead gave Mr. Karatz probation. Judge Wright said he couldn’t see putting the former CEO away for a crime that did no harm to his company, KB Home, or its shareholders.

So endeth another episode in the annals of backdating, in which a fairly meaningless violation of accounting rules (though violation it was) became trumpeted from the media pulpits as the business crime of the century.

We suppose it’s humanly understandable that, finding themselves compelled to bring these cases, federal prosecutors stretched and kneaded the evidence to fulfill the media’s stereotype of backdating as theft and fraud against shareholders. Let this be a lesson to the children in how not to respond constructively to cognitive dissonance.

Such prosecutorial misconduct led to the dismissal of the backdating case last year against Broadcom founder Henry Nicholas. A judge also threw out the guilty plea of his partner, Henry Samueli, saying he didn’t think Mr. Samueli committed any crime. The first conviction of former Brocade Communications CEO Greg Reyes was similarly overturned on grounds of prosecutorial misconduct (though Mr. Reyes was retried and convicted by a new jury, and now is appealing).

A further irony is that backdating was abetted by a nonsensical accounting rule at the time that treated one kind of option as having value and another kind as having no value (though both have value). This split-the-baby rule itself arguably evolved out of the media’s perennial insistence on portraying stock options as emblems of greed rather than as business tools.

By the estimate of the University of Iowa’s Erik Lie, some 2,000 public companies must have engaged in backdating at some point, as testified by otherwise inexplicable patterns of options pricing. Some 150 companies eventually restated their past results to conform to the proper rule for expensing such options. Yet only a few executives were singled out for criminal prosecution, in a manner that left an observer scratching his head as to why the justice roulette wheel chose some but not others.

Further reason for pause: The handful of subsequent convictions seemed to turn less on the act of backdating than on the self-preserving prevarications executives uttered once the posse arrived at their doorstep.

The ultimate statement in this vein, of course, was the decision by Kobi Alexander, former CEO of Comverse Technology, to decamp to Namibia. We can think of two reasons somebody might flee the law—because he fears he will get justice, or fears he won’t. Presumably Mr. Alexander will one day appear in a U.S. court. It will be interesting to see what countenance he puts on his decision to become a fugitive—perhaps he will cite as a precedent the behavior of the legal system in Salem, Mass., circa 1692.

Meanwhile, the larger lessons of the backdating furor were drawn in an epic piece in May in the American Bar Association’s ABA Journal. By freelance reporter Anna Stolley Persky, the piece connected the dots between (among other things) the backdating witch-hunt, the tainted prosecution of Sen. Ted Stevens, and the government’s use of the vague “honest services” statute to criminalize various kinds of behavior post hoc (a practice the Supreme Court finally curbed earlier this year).

One critique can be found in the title of a book by Boston defense attorney Harvey Silverglate: “Three Felonies a Day: How the Feds Target the Innocent.” Mr. Silverglate believes that only a mobilization of “civil society” can stop what he calls rampant abuse of prosecutorial discretion.

In contrast, former federal prosecutor Joseph diGenova puts the onus on DOJ overseers: “If anyone thinks it’s anything other than prosecute at any cost, then they are wrong. . . . The department has been AWOL in supervising the ethics of its prosecutors,” he told ABA Journal.

But it’s also hard not to see the self-interested ethics of the plaintiff’s bar spilling across the entire legal profession. In their official roles, prosecutors invent Kafkaesque new ways to ensnare the unpopular wealthy in legal trouble, then jump to private law firms and make seven-figure livings protecting the wealthy from the monster they themselves unleashed.

Shakespeare had a solution, but, alas, this would also be illegal. Thus it must fall to bloggers, the media and judges like Judge Wright to protect Americans from overzealous prosecutors.

Holman W. Jenkins Jr., Wall Street Journal


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Forget any ‘Right to Be Forgotten’

Don’t count on government to censor information about you online.

The stakes keep rising in the debate over online privacy. Last week, the Obama administration floated the idea of a privacy czar to regulate the Internet, and the European Union even concocted a new “right to be forgotten” online.

The proposed European legislation would give people the right, any time, to have all of their personal information deleted online. Regulators say that in an era of Facebook and Google, “People should have the ‘right to be forgotten’ when their data is no longer needed or they want their data to be deleted.” The proposal, which did not explain how this could be done in practice, includes potential criminal sanctions.

Privacy viewed in isolation looks more like a right than it does when seen in context. Any regulation to keep personal information confidential quickly runs up against other rights, such as free speech, and many privileges, from free Web search to free email.

There are real trade-offs between privacy and speech. Consider the case of German murderer Wolfgang Werle, who does not think his name should be used. In 1990, he and his half brother killed German actor Walter Sedlmayr. They spent 15 years in jail. German law protects criminals who have served their time, including from references to their crimes.

Last year, Werle’s lawyers sent a cease-and-desist letter to Wikipedia, citing German law, demanding the online encyclopedia remove the names of the murderers. They even asked for compensation for emotional harm, saying, “His rehabilitation and his future life outside the prison system is severely impacted by your unwillingness to anonymize any articles dealing with the murder of Mr. Sedlmayr with regard to our client’s involvement.”

Censorship requires government limits on speech, at odds with the open ethos of the Web. It’s also not clear how a right to be forgotten could be enforced. If someone writes facts about himself on Facebook that he later regrets, do we really want the government punishing those who use the information?

UCLA law Prof. Eugene Volokh has explained why speech and privacy are often at odds. “The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you,” he wrote in a law review article in 2000.

Indeed, there’s a good argument that “a ‘right to be forgotten’ is not really a ‘privacy’ right in the first place,” says Adam Thierer, president of the Progress and Freedom Foundation. “A privacy right should only concern information that is actually private. What a ‘right to be forgotten’ does is try to take information that is, by default, public information, and pretend that it’s private.”

There are also concerns about how information is collected for advertising. A Wall Street Journal series, “What They Know,” has shown that many online companies don’t even know how much tracking software they use. Better disclosure would require better monitoring by websites. When used correctly, these systems benignly aggregate information about behavior online so that advertisers can target the right people with the right products.

Many people seem happy to make the trade-off in favor of sharing more about themselves in exchange for services and convenience. On Friday, when news broke of potential new regulations in the U.S., the Journal conducted an online poll asking, “Should the Obama administration appoint a watchdog for online privacy?” Some 85% of respondents said no.

As Brussels and Washington were busily proposing new regulations last week, two of the biggest companies were duking it out over consumer privacy, a new battlefield for competition. Google tried to stop Facebook from letting users automatically import their address and other contact details from their Gmail accounts, arguing that the social-networking site didn’t have a way for users to get the data out again.

When users tried to import their contacts to Facebook, a message from Gmail popped up saying, “Hold on a second. Are you super sure you want to import your contact information for your friends into a service that won’t let you get it out?” The warning adds, “We think this is an important thing for you to know before you import your data there. Although we strongly disagree with this data protectionism, the choice is yours. Because, after all, you should have control over your data.”

One of the virtues of competitive markets is that companies vie for customers over everything from services to privacy protections. Regulators have no reason to dictate one right answer to these balancing acts among interests that consumers are fully capable of making for themselves.

L. Gordon Crovitz, Wall Street Journal


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Acquittal in terror case shows justice system’s strength

THE STUNNING verdict in the first civilian trial of a Guantanamo detainee is an embarrassment for the Obama administration, but it should not deter officials from considering federal court prosecutions for others being held at the U.S. naval base.

Ahmed Khalfan Ghailani was acquitted of 284 of the 285 charges lodged against him for his role in the 1998 bombings of the U.S. embassies in East Africa that killed 224 people, including 12 Americans. Mr. Ghailani, who was indicted in federal court months after the attack and then captured in 2004, was convicted only of conspiracy to destroy U.S. property and buildings. According to the U.S. Attorney’s Office in Manhattan, Mr. Ghailani purchased the truck and the tanks of oxygen and acetylene gas used in the suicide bombing of the embassy in Tanzania. Prosecutors also presented evidence that the day before the bombings, Mr. Ghailani used a fake passport and an assumed name to depart Africa on a flight with two al-Qaeda operatives also implicated in the attacks. The presiding judge prohibited the government from calling a witness who claims he sold Mr. Ghailani TNT because the government learned of the witness only after subjecting Mr. Ghailani to what his lawyers say was torture at an overseas CIA prison.

Administration critics say the multiple acquittals prove that a federal court is the wrong venue for such trials. They are right that a trial by its nature is a risky proposition, notwithstanding Attorney General Eric H. Holder Jr.’s brave assertion in 2009 that “failure is not an option.” Defense lawyers in this case effectively painted Mr. Ghailani as an unwitting accomplice.

But Mr. Ghailani did not escape responsibility. His conviction carries a mandatory minimum sentence of 20 years, and the judge may impose a life sentence. Moreover, there is no guarantee that a military commission, the preferred alternative of many critics, would have produced a tougher result. Such commissions are not apt to admit statements coerced through torture, so the star witness rejected by a federal judge probably would have been excluded by the military court as well. And in 2008, a military jury rejected the Bush administration’s argument that Osama bin Laden’s former driver, Salim Ahmed Hamdan, was a hardened al-Qaeda operative, acquitted him of the most serious charges and sentenced him to a mere five months on top of time served.

The fact that a jury sitting in a terrorism case just blocks from Ground Zero declined to rubber-stamp the government’s assertions shows not the weakness of the federal court system but one of its principal strengths: independence.

Military commissions are a legitimate option to try accused terrorists, and in rare cases – if the administration would have the courage to seek a legal framework, with judicial oversight – indefinite detention is as well. But the Ghailani verdict provides no sound argument to remove federal courts from the mix.

Editorial, Washington Post


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Investigators Zero in on Massive Art Forgery Scandal

The Hippy and the Expressionists

Beltracchi briefly tried to make a go of it as an artist before turning to forgery. This piece is called “Durchdringung, Melatenerstr. Nr. 4” (Penetration, Melatener Street, No. 4). Investigators estimate total damages at more than €15 million.

Over the past 15 years, the art world has been amazed at the number of lost expressionist masterpieces from the early 20th century that have found their way to auction. Investigators now believe that many of them could be forgeries. An ex-hippy, his wife and an art fan from Krefeld may be behind the scandal.

Flickering torches lit the path up to the villa. The guests were led through a modernistic gate, past a glass-covered swimming pool and on to a series of minimalist bungalows, the facades of which were freshly clad in Siberian larch. Champagne was served out of Magnum bottles. A Flamenco band had been brought in from Spain. Wolfgang Beltracchi, the owner of the property, stood in front of his studio welcoming the guests as they arrived, long blond hair hanging down to his shoulders.

Beltracchi’s villa is situated in the hills above Freiburg among the city’s high society: professors, lawyers and managing directors. Beltracchi and his wife Helene paid €1.1 million for their property and are said to have invested another €4 million remodeling it. The Beltracchis appeared in Freiburg seemingly out of nowhere, without a past or a present. But the money had to have come from somewhere — and there was gossip. Some said Beltracchi was an artist who only painted for millionaires who regularly commissioned his services. Some thought he was a successful art dealer or the owner of a valuable collection. Others, like a relatively famous plastic surgeon in Freiburg, insisted Beltracchi toured flea markets, where he had found a number of undiscovered masterpieces.

Such was the mood at the party held at the Beltracchis’ new house on September 22, 2007.

Just three years later, at 7:35 p.m. on Aug. 27, 2010, police officers detained the Beltracchis not far from their villa as the couple was going out to dinner. The officers had been sent by the district attorney’s office in Cologne, which also had a theory about how Wolfgang and Helene Beltracchi had amassed their fortune. It can be found in file number 117 Js 407/10, and if they are confirmed in a court of law, the Beltracchis will officially become the main characters in one of Germany’s greatest ever art-forgery scandals.

Alleged Forgeries of 35 Paintings

Since their arrest, the couple has been held in pre-trial detention. They stand accused of organized professional fraud. Prosecutors are also investigating Jeanette S., the sister of Helene Beltracchi, who is also currently in pre-trial detention, as well as the two women’s mother and an art dealer from Krefeld identified only as Otto. Lawyers representing the defendants are refusing to comment on the allegations.

The case centers on the alleged forgery of at least 35 paintings dating back to the first decades of the 20th century. The defendants are accused of systematically supplying the art market with paintings they claimed were undiscovered works by famous painters, and this over a period of more than 14 years. These pictures were sold not only through auction houses in Germany, but also ended up in the art world via traders in London and Paris. The investigators estimate the total damage at more than €15 million. Gallery owners, auctioneers and art historians alike now worry the case could become what the fake so-called “Hitler diaries” were for Stern magazine: A fiasco.

The market for 20th century classics is booming at the moment. In May a second painting was sold for more than $100 million at auction. An anonymous bidder paid the equivalent of €81 million for a Picasso nude at Christie’s in New York. There’s plenty of money to be earned on art, and the competition to find new goods in a limited market is extremely tough. It could be that auction houses are asking too few questions out of fear the would-be seller will take his business elsewhere. Likewise, experts naturally prefer to attest that a picture is genuine rather than voicing suspicions of forgery and thereby potentially ruining their clients’ business. Added to this, the art market has always been a somewhat shady operation in which money is passed under the table and art-loving rich people often seek to keep their identities hidden. All this plays into the forgers’ hands.

Two Mysterious Art Collections

In the present case, only one of the paintings has been confirmed beyond a doubt by two analyses as being fake. But the investigators are also considering at least 34 others, all of which have a number of similarities: They are all in similar frames and have yellowed stickers from famous galleries on their backs. No photographs exist of any of them. Many had been considered lost. And all allegedly come from two mysterious art collections.

One of these collections is said to have belonged to a businessman from Cologne called Werner Jägers, the grandfather of the two sisters awaiting trial. According to a letter Helene Beltracchi sent to an art historian, Jägers had acquired a number of paintings in the “late 1920s and early 1930s,” particularly works by Rhenish expressionists artists “like Campendonk, Pechstein, Nauen, Mense, Ernst” as well as French painters “like Braque, Derain, Dufy, Marcoussis.” She claimed several “important works in his collection” had been bought from the Jewish art dealer Alfred Flechtheim, “who owned display rooms near one of her grandfather’s business premises” and had been a “good friend” of Werner Jägers. When the Nazis came to power, Jägers was allegedly loath to give up his precious artworks — officially derided as “degenerate” during the Third Reich — so he hid the pictures at a property in the Eiffel region of Germany. “A few years before his death,” Beltracchi claims, he had passed on “a part of his collection” to her and her sister.

One aspect of her story is certainly correct: Her grandfather really existed.

Werner Jägers was born in Belgium in 1912. He married four times and lived mainly in Cologne, where he subsequently died in 1992. But the entrepreneur who made most of his money with industrial construction had relatively little interest in art. Both a close business associate and Jägers’ last wife have confirmed he did no more than paint in his spare time — and only originals like small calendar pictures and fruit baskets.

Hardly a Collection

Neither the man’s widow nor his business partner have any memory of an art collection. Although Jägers purchased a few paintings, these were definitely not valuable and certainly did not constitute a collection. Nor are there any records that suggest Jägers, a member of the German Nazi Party, ever knew the Jewish art dealer Alfred Flechtheim.

There is, however, ample evidence that the key to the mystery of the artworks lies with his granddaughter from his first marriage. When Jägers died, in 1992, Helene Beltracchi was 34 years old and had recently started dealing in antiques. The young, attractive blonde ran an antiques store in Cologne. As the daughter of a Belgian trucker, she and her four sisters grew up in a public housing apartment in Bergisch Gladbach. Helene studied business before diving into the world of junkshop owners, collectors and antique-lovers.

It was probably here that Helene Beltracchi’s world intersected with that of her future husband, Wolfgang. At the time, his surname was still Fischer, and he was trying his hand as an artist. In 1978, the Haus der Kunst museum in Munich exhibited three of his acrylic-on-canvas works. They were entitled “Zu Hause” (At Home), “Durchdringung bei Geilenkirchen” (Penetration Near Geilenkirchen) and “Durchdringung, Melatenerstr. Nr. 4” (Penetration, Melatener Street, No. 4). Perhaps the young artist had already realized how difficult it was to earn his keep with conventional art.

The First Sale

Acquaintances remember him as a hippy who dreamt of the good life in southern climes and claimed to have driven around on his motorbike delivering illegal psychedelic drugs to US soldiers on their military bases in his youth, a show-off who said he’d learned about art from his father, a church muralist and restorer who had taken him up on the scaffolding from an early age. In actual fact, his father appears to have been a normal house painter in Geilenkirchen, a town near Aix-la-Chapelle on the border with Belgium and Holland. At least, that’s how relatives remember him.In the 1980s Wolfgang “disappeared for longer periods,” and spent time living in Morocco and in a commune. After that he is said to have returned to Germany “on foot.” Back home, he was seen as a “luxury hippy.” He organized theme parties, including a baroque fete at a castle in the Dutch town of Renesse, where guests paid a few hundred German marks for the privilege of dressing up in period costume and re-enacting 18th-century life.

Eventually he decided to go into the movies and wrote the screenplay for a road movie set in the Moroccan desert. The working title was “Die Himmelsleiter” (The Ladder to Heaven). Next he wanted to shoot a documentary about pirates in the South China Sea. But after the three-mast ship with built-in video studio had cast off from Majorca and sailed to Gomera, the adventurers fell out and the plan was never realized. In October 1990 Wolfgang and a friend paid 305,000 deutschmarks (€156,400) at a bank auction for an old farm in Viersen in the Lower Rhine region of Germany. By now the drifter was calling himself a “director,” and began renovating the place at great expense. Neighbors remember a “first-floor warehouse converted into an artist’s studio,” where “easels, painting utensils and pictures lay strewn about.”

More Success with Christie’s

In June 1992 a woman moved into the artist’s farm: Helene Beltracchi. She and Wolfgang married a year later. The painter took his wife’s name, and together — as the neighbors recall — they started a thriving art dealership. While Wolfgang constantly walked around in slippers looking “organic,” Helene apparently took on the “serious role” and looked after the business side of things.

In February 1995, the couple owed several hundred thousand marks on their property. Helene contacted the Lempertz art dealership in Cologne and offered the long-established auction house a painting by Hans Purrmann, a friend and student of the great French painter Henri Matisse. She said the work belonged to her maternal grandfather, the aforementioned Werner Jägers. But a Purrmann expert doubted the authenticity of the painting, entitled “Southern Landscape,” whereupon Lempertz declined to put the work up for auction.

Eight months later, Beltracchi had more success with Christie’s, the world’s largest auction house. As part of its “German and Austrian Art” sale in October 1995, Christie’s offered a painting by Heinrich Campendonk entitled “Girl with Swan.” It sold for £67,500.

In the auction catalog, art historian Andrea Firmenich waxed lyrical about the “intense, shining, expressive colorfulness” of the pictures of the Krefeld-born expressionist painter. “Dr. Andrea Firmenich,” Christie’s informed its customers, “has been kind enough to confirm the authenticity of this work.” The origin of the painting was stated by Christie’s as “Alfred Flechtheim, Dusseldorf; Werner Jägers, Cologne.”

A sticker on the back of the picture, which bore the inscription “Flechtheim Collection” and a crude portrait of the legendary art dealer, was also shown in the catalog. Nobody appeared to be too bothered by the fact that the sticker, which looked like a potato print, simply didn’t match the style of the elegant gallerist. Such stickers have only appeared on the paintings that are now suspected of having been forged. Most of these stem from the “Werner Jägers collection.”

Famous for its Light

The Beltracchis soon turned their backs on the provincial Lower Rhine. Acquaintances recount that Wolfgang bought himself an old Winnebago motor home, restored the interior in rosé and turquoise, and sold his farm in Viersen to a firm of realtors for 2.6 million deutschmarks (€1.3 million) in July 1996.

He and Helene rented a vacation home with studio in Marseillan, 50 kilometers (30 miles) from Montpellier in the south of France. The Languedoc region is famous for its light, and it’s quite possible that this inspired Beltracchi’s creativity. Visitors to his studio speak of a “large piece on a mythological theme” onto which he copied faces with the aid of a projector. The fake Purrmann that Lempertz had refused to auction off hung in the Beltracchis’ living room. When he wasn’t painting, Wolfgang and Helene researched the local art scene, visited antique stores, art trade fairs and galleries.

In June 1998 Lempertz in Cologne auctioned off a picture ostensibly from the “Werner Jägers collection”: “Le Havre Beach” by the French painter Raoul Dufy. “For once, it was a real one,” Lempertz Managing Director Henrik Hanstein says today. Hanstein says the couple had been particularly devious by selling a genuine picture in addition to the fakes. A Lempertz spokesman is similarly shocked about the ruse. He says the auction house had been “the victim of an extraordinarily clever and mean gang of forgers.”

More than a Million

If the allegations prove to be true, the modus operandi was indeed remarkably shrewd: The alleged forgers didn’t fabricate Picassos, but Pechsteins, not Beckmanns, but Campendonks. They kept well away from the truly great artists, whose works had been researched in minute detail. Instead they concentrated on second-tier painters, whose paintings can still fetch more than a million euros.

It appears they began by studying old catalogs of exhibitions by artists in whose names they wanted to create pictures, preferably catalogs of the gallery of Alfred Flechtheim, one of the most important art dealers of the Weimar Republic, the period from the end of World War I to the Nazis’ ascent to power. Flechtheim fled the Nazis in 1933, moved first to Paris, and then died in London in 1937. Large parts of his collection have been lost to this day, and documents from his gallery have never been recovered.

The list of pictures from the Flechtheim catalogs was compared to the lists of paintings by the relevant artists. Were any of the paintings listed as missing, ones that had not been photographed?

Such pictures have been traded in increasing numbers since the late 1990s, and it is assumed that some of the profits from the sales landed in the bank account the Beltracchis held with the discrete Credit Andorra in the tax-shelter principality of the same name, where Wolfgang Beltracchi was also registered as having a residence.

The Fraud Is Discovered

Soon the Beltracchis bought the “Domaine des Rivettes” near the port town of Mèze in the Languedoc region of France on the Mediterranean. Built in 1858, the country estate had its own private river and vineyards. The property underwent luxurious restoration, and was furnished with palm trees and a 170-square-meter (1,700 square foot) studio.The reconstruction must have cost millions. An artist and former friend of the Beltracchis remembers the “many paintings” that hung in the house, works he was told were “heirlooms from an uncle of Helene’s.” The Beltracchis said they were the pieces by Campendonk, Pechstein and Max Ernst, and that they would be selling them at auction.

A neighbor said he “never dreamed they could have been forgeries.” Nevertheless, he did suspect that something was awry, although he attributed the wealth of pictures to “a collection amassed during the Third Reich.”

Valuable paintings were now being offered at ever shorter intervals, sometimes by Helene Beltracchi, sometimes by her sister Jeanette, a sophisticated officer’s wife, and sometimes by an old acquaintance from the Lower Rhine: The art-lover Otto from Krefeld.

An artist living near the Baltracchis’ French residence recalls Wolfgang once inquiring about “how valuable pictures could be transported to Germany” and “how the insurance worked.” In the end the painter had allegedly found a shipping company that didn’t ask too many questions and was willing to take the canvasses on one of its trips rolled up and packed into cardboard tubes.

A Minor Sensation

In 2001 Helene Beltracchi’s sister Jeanette presented the Lempertz auction house in Cologne with a new picture from the “Werner Jägers collection.” This oil painting, entitled “Seine Bridge with Freight Barges” and allegedly painted by the expressionist Max Pechstein, was sold to a collector in Montevideo. Two years later, she delivered another supposed Pechstein for auction. “Reclining Nude with Cat” (1909) was sold to the Bern-based art dealer Wolfgang Henze for €498,000. The nude was considered a minor sensation in the art world. After all, hadn’t Pechstein mentioned precisely this motif in his memoirs? And didn’t the find exactly match a small Pechstein aquarelle in the Brücke Museum in Berlin?

Indeed it did — though a little too well. As art historian Aya Soika has since discovered, key details of the aquarelle were copied “almost one-to-one” onto the later auctioned canvas, apparently with the aid of a projector. Soika found other astonishing similarities when comparing the picture of the barges with another of Pechstein’s drawings.

After the two supposed masterpieces had been sold, the Beltracchis expanded their family estate. In mid-October 2005 the couple bought the exclusive villa in Freiburg for €1.1 million. Wolfgang Beltracchi paid part of the purchase price using money from his account in Andorra.

The reconstruction of the villa took 19 months to complete, by which time the builders were furious about the special wishes of the property’s rich owner, whose demands included a countertop in the kitchen shaped like angels’ wings.

During his visits to Freiburg, Beltracchi always stayed at the Colombi, a prime location on the main square, and a “leading hotel of the world.” And while his luxury villa was gradually taking shape, with builders installing olive doors, panorama windows and casements made from zebrano wood, the “Werner Jägers collection” was gradually converted into cash. In February 2006 Christie’s auctioned off the next Campendonk. A few months later the auction house offered a list price of £3.5 million on the supposed Max Ernst painting “La Horde.” It was purchased by a German collector.

Scientific Testing

In late November 2006 Lempertz was sent a painting that would put an end to the suspected massive fraud. The painting was ostensibly “Red Picture with Horses.”

Once again the painting had been brought in by Helene’s sister. The picture graced the front cover of the auction catalog, and eventually changed hands for €2.9 million — more than had ever been paid for a work by a Rhenish expressionist artist. The painting was bought by a company in Malta called Trasteco Ltd.

Because the Maltese didn’t want to take any risks, they sought the advice of a gallery in Geneva, Switzerland. Experts there found it strange that the authenticity of the painting had not been certified before the auction, and they asked Lempertz for the relevant paperwork.

However the auction house in Cologne replied that Campendonk’s son had verbally declared the picture to be authentic. Trasteco also hired art historian Andrea Firmenich, who had written her Ph.D. thesis on Campendonk. This time, however, the art critic recommended the work undergo scientific testing.

In October 2008, Firmenich contacted Flechtheim expert Ralph Jentsch and asked him to assess the strange gallery sticker on the frame of “Red Picture with Horses.” Jentsch said he laughed out loud when he saw Flechtheim’s face on the sticker. The art historian also knew what the gallery’s stickers really looked like — and confirmed that they did not bear the owner’s portrait. More damning still, when Firmenich inquired about the “art collector Werner Jägers,” Jentsch said he had never heard of him.

Trasteco thereupon commissioned Friederike Gräfin von Brühl, a lawyer in Berlin, to sue Lempertz for an annulment of the sale. Extensive research was also initiated. Investigators discovered that “Red Picture with Horses” contained a color that had not been invented yet in 1914, the year in which the picture had allegedly been painted.

An Art Lover from Krefeld

Suddently, after his name had been circulating for more than a decade, people started wondering about the identity of the mysterious Werner Jägers. The man tasked with attesting to the ominous collector’s passion for art in Trasteco’s civil suit against Lempertz was an old acquaintance of Beltracchi: Otto, an art-lover from Krefeld, whom state prosecutors also began investigating after several forged paintings from his “family collection” apparently made their way onto the market.

Otto is actually in advertising, though he once tried to set up an artists’ collective à la Joseph Beuys. The legend he wove around the origins of his paintings is strikingly similar to that which Helene Beltracchi told about Werner Jägers: In a letter to a friend Otto wrote that his “maternal grandfather” had had “Jewish acquaintances” and bought “many pictures through Flechtheim.” Likewise, the collection of tailor Knops — the grandfather’s name — primarily consisted of the works of Rhenish or French expressionists. Otto claims he received “packages containing the pictures” after his parents’ death.

In the civil case, he backed the Beltracchis up. He said his grandfather knew Jägers well, and that the two families had even wanted to exchange two Campendonks in the 1950s. He said he distinctly recalled the pictures, which hung on the wall at the time.

Knops’ collection also contained several paintings supposedly by the surrealist Max Ernst, all of which were authenticated by art historian Werner Spies, a long-standing features writer for the Frankfurter Allgemeine newspaper and Germany’s leading authority on Max Ernst.

‘The Work of a Brilliant Forger’

Otto and Spies exchanged letters about one Max Ernst painting the art-lover was particularly proud to possess. Spies took a look at the piece, entitled “The Forest,” at an art gallery in Berlin. Later it was even exhibited at a major Max Ernst retrospective held at the New York Metropolitan Museum.Werner Spies certified a total of seven alleged Max Ernst pictures from the collections of Knops and Jägers. “From a stylistic point of view I still believe the pictures given to me to authenticate were the works of Max Ernst,” Spies says.

Most of the suspicious paintings weren’t auctioned off, but rather sold to private collectors — in some cases with Spies’ assistance. They apparently fetched up to €4.6 million. “If the pieces are forgeries,” Spies says, “they can only be described as the work of a brilliant forger.”

An old friend of Beltracchi’s says the itinerant artist was “touched by God,” adding: “He is extremely talented, and can paint everything from memory.”

In June, after the lawyer von Brühl had pressed charges, officers at the art crime division of the regional criminal investigation bureau in Berlin began looking into the case. At the same time, private investigators from the Munich-based ADS detective agency started researching Werner Jägers’ life. Within a matter of days, they discovered what the art world had refused to see for 15 years: Werner Jägers may have been a businessman, but he was never an art collector.

‘That Bastard Wolfgang’

On August 25 detectives searched several apartments. The same day, investigators recorded a telephone call Helene Beltracchi’s sister received in France from her son in Cologne, who had nothing to do with the art trading. “I just wanted to say that we had eight police officers in the apartment five minutes ago,” the son explained excitedly. “What?!” his mother asked, perplexed. “Eight cops!” he explained. “And they had a search warrant because of that bastard Wolfgang.”

The son assured her that he hadn’t told the officers anything about her, his mother, taking pictures to Lempertz for auction. When Wolfgang Beltracchi, whose phone was also tapped, called his son and urged him to hide his laptop immediately, the investigators knew the time had come to act.

Work is now underway to determine whether Wolfgang Beltracchi did indeed forge the pictures, who he may have been assisted by, and how many paintings really are fakes. It also remains to be seen whether he can still be punished for acts beyond the decade laid down in the statute of limitations. One thing is sure: The case will rob art dealers of any shred of credibility that they still possess. The civil cases brought by the alleged victims of the fraud will probably drag on for years.

The public attorney’s office recently entered two debt-securing mortgages on the renovated villa in Freiburg that Wolfgang Beltracchi had unveiled so lavishly. The total value of the mortgages: €2,545,577.20.


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Accountability for Torture (in Britain)

The contrast could not be more distressing.

The British government has decided to pay former detainees at Guantánamo Bay, Cuba, tens of millions of dollars in compensation and conduct an independent investigation into its role in the mistreatment of prisoners.

The United States still operates the Guantánamo camp, with no end in sight. None of the truly dangerous terrorists there have been brought to justice, while many prisoners are still held who never should have been. The government not only refuses to come clean on this ignoble history, but it is covering up the Bush administration’s abuses by denying victims a day in court.

In July, Prime Minister David Cameron announced that there would be an independent investigation into Britain’s role in the mistreatment of detainees. On Tuesday, the government announced that it was compensating British citizens who were held at Guantánamo, six of whom filed a lawsuit accusing government agencies of complicity in their detention, torture and incarceration.

Three years ago, Canada apologized and paid compensation to Maher Arar, a Canadian torture victim, following an investigation into how the Royal Canadian Mounted Police mistakenly identified him as a terrorist. American authorities acted on that false information to arrest Mr. Arar and “render” him overseas. Even after the mistake was revealed, they continued to hold him.

The United States has neither compensated victims of illegal detention and abuse nor taken steps to hold the architects of the human rights abuses accountable. Indeed, some of the Obama administration’s biggest legal victories have come in shielding Bush-era officials by getting lawsuits brought by victims with credible claims of kidnapping and torture thrown out of court on specious secrecy grounds, without any testimony being heard.

Among the former detainees whom Britain has agreed to compensate is Binyam Mohamed, an Ethiopian-born former detainee with a British right of residency who said that he was tortured after American authorities sent him to Morocco. In September, a federal appeals court dismissed his case on unconvincing security grounds presented by Obama administration lawyers.

It will do no good for this nation’s tarnished human rights reputation that at the same time Britain took responsibility for its comparatively minor role in the ill treatment of terrorism suspects, former President George W. Bush was bragging in a new book that he had personally authorized the repeated use of a form of simulated drowning called waterboarding on Khalid Sheikh Mohammed, the accused mastermind of Sept. 11.

At least someone is owning up to the awful legacy of Mr. Bush’s illegal detention policies.

Editorial, New York Times


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The New Dealers’ Court

We have entered a new season of intense constitutional debate. Today’s Supreme Court will, in the next few years, face serious challenges to the unprecedented constitutional reach of Barack Obama’s health-care program—and likely to other ambitious federal ventures. As if to prepare the ground for a new confrontation, President Obama used his State of the Union address last January to scold the Supreme Court—with the chief justice and several other justices sitting right before him in the House chamber—for a decision giving free-speech protection to corporate political spending.

In this climate, Noah Feldman, Harvard law professor and prolific author, offers an overview of the intertwined careers of Justices Hugo Black, William O. Douglas, Felix Frankfurter and Robert Jackson. They were all appointed by Franklin Roosevelt in the aftermath of the bruising battle, in 1937, when FDR tried and failed to expand the size of the Supreme Court to ensure a pro-New Deal majority. Retirements in the next few years allowed him to appoint new justices who reinterpreted our constitutional doctrines to accommodate ambitious federal agendas.

Seven justices of the Supreme Court visiting the White House in 1939: (from left) Solictor General (and future justice) Robert H. Jackson, Felix Frankfurter, Hugo Black, Harlan F. Stone, Chief Justice Charles Evans Hughes, Owen J. Roberts, Stanley F. Reed, William O. Douglas, and Attorney General Frank Murphy.

So “Scorpions” might seem very timely. Mr. Feldman has certainly shown a knack for placing himself in the middle of great contemporary debates. On the strength of a brief period studying Arabic literature at Oxford, he was recruited in 2003 to advise on Iraq’s interim constitution—when he was, himself, only a few years out of law school. His subsequent book, “What We Owe Iraq” (2004), was a liberal plea for a continuing military effort to stabilize Iraq. As opposition to the war mounted, however, Mr. Feldman distanced himself from other democracy advocates with “The Fall and Rise of the Islamic State” (2008), depicting Sharia law as a historic and still promising check on abusive government.

He is certainly alert to the politics that surrounded (and often threatened to engulf) FDR’s Supreme Court appointees. Mr. Feldman devotes well over a third of the book to tracing the paths by which these “great justices” got to the court. Hugo Black (1886-1971) used his affiliation with the Ku Klux Klan in the 1920s to get himself elected to the Senate. Then, as a Supreme Court nominee, he reassured fellow senators with carefully worded (and misleading) disavowals of Klan connections. Roosevelt, grateful that Black had supported his court-packing plan, looked the other way.

Felix Frankfurter (1882-1965), a Harvard professor and Roosevelt confidant since the latter’s days as New York’s governor, was not consulted about the court-packing plan in advance. But he withheld public criticism—offending his long-time patron, Justice Louis Brandeis, an open opponent of FDR’s scheme. William O. Douglas (1898- 1980) had charmed Roosevelt with his bullying of Wall Street as SEC chairman in the mid-1930s. Robert Jackson (1892-1954) caught FDR’s eye arguing the administration’s dubious and partisan tax claims against former Treasury Secretary Andrew Mellon. Even after taking their seats on the court, both continued to attend intimate White House poker games. While a justice, Frankfurter was not invited to play cards, but he continued to offer private advice on all manner of subjects to the Roosevelt White House and the Justice Department.

The book offers a wealth of anecdotes but no revelations. Almost all the material in “Scorpions” is drawn from previously published accounts. Mr. Feldman tells these stories in a graceful narrative, cutting back and forth between different characters, situating personal doings in the great events of the era. It’s effective popular history.

For a scholar who holds a chair at Harvard Law School, though, Mr. Feldman is remarkably uninterested in legal analysis. The core of the book takes readers through a dozen or so landmark legal disputes of the 1940s and 1950s, but even here he keeps his focus on the interplay of personalities on the Supreme Court. He makes little effort to evaluate the weight of these cases as precedents and offers no discussion at all of the cases in the early 1940s, when the Roosevelt appointees repudiated all past limits on federal regulatory power. It is not much compensation to get two chapters on Justice Jackson’s dramatic moments as Nuremberg prosecutor—with no explanation of the actual charges in these cases and the simple assurance that “most historians consider the Nuremberg tribunal to have been a highly consequential historical event.”

The biggest problem with Mr. Feldman’s account is that, while all the Roosevelt appointees agreed that there should be broad constitutional scope for New Deal programs, they emphasized different reasons and followed the arguments to different results as they encountered new issues. Frankfurter, for example, consistently urged judicial deference to legislative judgments, while Black insisted that the courts must uphold the words of the Constitution—which in his reading allowed almost limitless scope for economic regulation but set sharp limits on government in other areas.

Over the years, their divisions became increasingly personal and acrimonious (so much so that Black and Douglas threatened to resign if Jackson were appointed chief justice after the war). Mr. Feldman acknowledges these differences—starting with his title (drawn from a Frankfurter law clerk’s characterization of the Supreme Court as “nine scorpions in a bottle”)—but tries to celebrate all four “great justices” equally, as if their negative estimations of each other were mere personal foibles. He acknowledges, for example, that some legal scholars view Douglas’s opinions as “arbitrary and outrageous”; others view him as “the most advanced exponent of liberal principle ever to sit on the Court.” Mr. Feldman is content to acknowledge that “there is truth in both propositions”; he is not interested in defining any possible boundary between “liberal principle” and “arbitrary” constitutional decisions.

At the end, Mr. Feldman assures us, whether “by principle, by pragmatism or by policy, the justices at their best make the Constitution their own.” And so, he thinks, do we all: “To interpret the Constitution by one’s own best lights is to be an American.” What if your best lights are dim or distorting? Do we have millions of constitutions or only nine?

If this was intended as a defense of liberal jurisprudence, it suggests that, even at Harvard, what liberals are mainly selling is nostalgia. There was a time when simply supporting the New Deal could earn a judge a great reputation. Those happy days don’t seem to be here again, now.

Mr. Rabkin is professor of law at George Mason University.


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Going postal

A history of parcel bombs

Sending explosives through the post has a long and murky history

Rogue mail in the Raj

PRINTER cartridges and air freight may be new, but lethal missives are not. The Bandbox Plot of November 4th 1712, foiled by Jonathan Swift (author of “Gulliver’s Travels”), was an attempt to kill Robert Harley, Earl of Oxford and Lord Treasurer. A hatbox left at his door was configured to fire cocked pistols when the lid was lifted.

On January 19th 1764 a Danish diarist, Bolle Willum Luxdorph, described perhaps the first successful parcel bomb. A Colonel Poulsen received a box by post. “When he opens it, therein is to be found gunpowder and a firelock which sets fire unto it, so he became very injured.”

Politicians have long been targets of such attacks. One was aimed at Senator Thomas Hardwick and exploded (unsuccessfully) on April 29th 1919. It was the first of nearly 30 devices sent by anarchist groups to politicians, judges and businessmen, all intended to explode on May Day. A campaign in June involved eight larger bombs that killed several people, including one of the anarchists.

In June 1939 50 letter-bombs exploded in postboxes and post offices in London, Birmingham and Manchester. The Irish Republican Army claimed responsibility, as part of their S-Plan campaign, encouraged by Nazi Germany, to disrupt Britain.

Governments have used parcel bombs too. In 1961 Israel’s secret service, Mossad, sent one to Alois Brunner, a fugitive Nazi; it cost him an eye. Another attack in July 1980 took four fingers.

On February 21st 1970 Swissair Flight 330 to Tel Aviv crashed after a parcel bomb exploded in its cargo hold; 38 passengers and nine crew died. This was a rare case of a parcel bomb (as opposed to a baggage bomb) crashing an airliner. The blame fell on Palestinian terrorists.

On September 19th 1972 a letter-bomb in London killed Ami Shachori, an Israeli diplomat. Almost all the 51 similar bombs posted to Israeli embassy employees around the world were intercepted. Following the Munich Olympics massacre in 1972, Israel launched the Wrath of God operation, which dispatched many parcel bombs to its foes.

In December 1977 Donald Woods, a journalist and anti-apartheid activist, received a package containing children’s T-shirts laced with acid: his young daughter was badly burned. He blamed the South African authorities, which were also probably behind explosive parcels that killed anti-apartheid figures, including Ruth First (in Mozambique in 1982) and Jeannette and Katryn Schoon, wife and daughter of the activist Marius Schoon (in Angola in 1984).

America’s best-known postal terrorist was the “Unabomber”, Ted Kaczynski, who sent 16 bombs, claiming three lives. One of his devices ignited, but failed to explode, in the cargo hold of an American Airlines passenger plane.

Letters containing anthrax spores were sent to American senators and news outfits in autumn 2001, killing five and infecting seventeen. The main suspect, Bruce Ivins, died in an apparent suicide in 2008, his motive unknown.


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Not as Easy as A,B,C

Fighting crime in one of Manhattan’s rougher neighborhoods.

The New York City of today is so far from the 1980s version of the city depicted in “Alphaville,” a real-life account of crime fighting in what was then one of Manhattan’s rougher neighborhoods, that many readers may find the stories of criminality and chaos improbable. Hollywood’s version of New York before the mid-1990s ascent of Rudolph Giuliani is a good reminder of how bad things once were. Think only of “Midnight Cowboy” (1969), “Taxi Driver” (1976) or, for that matter, “Alphabet City” (1984), a film about drugs wars on the Lower East Side. Perhaps appropriately, Michael Codella, a former detective with the New York City Police Department, and Bruce Bennett, a freelance writer, tell the story of Mr. Codella’s policing days in an almost film-like fashion.

“Alphaville” opens in the early summer of 1988, when Mr. Codella and his partner, Gio, patrol Avenue D while “sticky black bubbles on a new piece of macadam silently pop and drool.” In those bad old days, locals claimed that among Manhattan’s alphabetized street names—in a warren of east-side tenement blocks stretching down from 14th Street to Houston Street—”D” stood for “Death” and “A” for “Assault.”

The area—a neighborhood of immigrants and poor people for most of its history—became, after World War II the site of public-housing projects, concentrating poverty in government- financed towers. During the 1960s and early 1970s, it became as well the home of counterculture dropouts and, eventually, of a ragtag anarchist community centered near Tomkins Square Park. The neighborhood’s easy access to the FDR expressway and the city’s bridges and tunnels, the authors note, helped to make Alphabet City the heroin crossroads of the world.

Mr. Codella and his partner believed in solid, traditional police work. They guarded their territory like panthers, watching, waiting, ready to pounce. “We size up everybody,” he recalls (deploying a you-are-there present tense), “the steerers calling brands, the dealers making hand-to-hands, and the junkies crawling in feeling bad, hoping to walk out feeling nothing. We audition every face, every swinging arm, every sweating neck, every open eye that we pass.”

Equally important, the pair understood instinctively—maybe every good cop does—the principle that William Bratton, Mayor Giuliani’s first police commissioner, applied to the NYPD’s efforts to clean up New York a decade later. Drug dealing is a business and, like any business, it can be harassed to death. When the 1990s crackdown began, many police officers, not to mention pundits, protested that arresting small-time dealers would serve no purpose. Prosecutors, it was argued, would refuse to prosecute, the courts would order the dealers released, and the dealers would stroll out of their cells at Rikers Island the next day to resume their business. Commissioner Bratton didn’t care: Arrest them, he ordered: Disrupt their sales, cost them money, keep doing it. The strategy worked. Long- standing drug markets—for instance, certain blocks of Manhattan’s Upper West Side where yuppies in BMW’s bought dope from corner dealers—dried up.

Commissioner Bratton would have loved what Mr. Codella and his partner were doing: “We make every possible collar we can. We terrorize customers, hassle the dealing crews, even stake out a store on St. Mark’s Place that sells the glassine dope bags these guys use—anything to make business hard to conduct.” Back in the 1980s, though, such tactics didn’t sit well with the brass or even the detectives’ fellow cops. The partners were rate-busting—bringing in too many arrests. They were also functioning in a post- Serpico, post-Knapp Commission NYPD that was intent on staving off scandal, to the point of policing less than aggressively.

According to “Alphaville,” an edict came down to uniformed police: Do not make street drug-sale arrests. If some beat cops, the authors say, happened to see “a guy with a needle sticking out of his arm selling a quart-size Ziplock of heroin to Mickey Mouse on the corner of Second Street and Avenue D,” they were to do nothing more than write down the pertinent information and forward it to the precinct’s Organized Crime Control Bureau. The act of making a narcotics arrest became “its own trial by bureaucracy.” The laborious process of vouchering evidence and processing drug collars, they say, was a major contributor to the city’s street-heroin nightmare.

“Alphaville” makes another crucial point about drug dealing: As in any business, there has to be a top guy. “Somebody somewhere is enforcing the peace, keeping supplies going, sanctioning necessary killings and earning themselves a generous cut of the profits for doing it.” The search for the top guy on Mr. Codella’s beat—a man named Davey Blue Eyes, renowned for his ruthlessness and cool—becomes a major story line of “Alphaville,” unifying its otherwise scattered vignettes of brutal contract killings and after-hours partying.

The detectives’ most useful device, it turns out, is their network of informants and the federal anticrime money that pays the talkers. Mr. Codella says that because he grew up in Brooklyn’s Canarsie neighborhood, where the mafia’s code of omertà and the police department’s blue wall of silence pervaded the neighborhood’s ethos, he initially had an exaggerated idea of how far people would go to keep secrets. What he learned is that everyone on the wrong side of the law has a price.

The cocky and often triumphant confrontations with bad guys make “Alphaville” a strangely entertaining read. But the book is also a reminder of how far into danger and degradation New York fell in the late 20th century. Today New York is the safest major city in America. Yet the homicide rate so far this year is 15% higher than last, and the numbers for rape and robbery are rising, too. The watchword for urban safety, as for so much else, is eternal vigilance. We never want to return to the bad old days—which aren’t all that old.

Ms. Vitullo-Martin is director of the New York-based Center for Urban Innovation at the Regional Plan Association.


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Crime and Punishment

Recidivism doesn’t prove that prison doesn’t work.

New figures published by the U.K. Ministry of Justice last week show that three quarters of prisoners are convicted of another crime within nine years of their release. Since most crimes result in no conviction, it seems reasonable to assume every ex-prisoner remains a criminal.

Many take this unsurprising fact to be both surprising and an indictment of the prison system. Even the new Justice Secretary, Ken Clarke, has concluded that his former colleague, Michael Howard, was wrong when he claimed that “prison works.”

This is a peculiar objection to imprisonment—rather like complaining that your TV is not working because it does not defrost chickens. Reducing repeat offending is not the purpose of prison. Its purpose is to reduce offending. It does this in two ways: by deterring people from committing crimes and by positively preventing them from doing so while they are inside.

But doesn’t the high recidivism rate show that prison is not an effective deterrent after all? It does not. Testing the deterrence effect of prison by observing the proportion of ex-prisoners who commit crimes is a bad case of the statistical error of “sample bias.” Prisoners are, by hypothesis, people for whom the threat of prison is an insufficient deterrent to crime. That prison does not deter ex-prisoners tells us nothing about how much it deters the rest of the population, nor therefore by how much it reduces crime.

Once you think of criminal punishments as deterrents, 100% recidivism is unsurprising, because the first conviction is the most expensive for a criminal. This is when he incurs the one-off, irrecoverable costs of becoming a known criminal, such as diminished career and social prospects. If the chance of incurring these costs (in addition to the penal costs) did not deter him from committing a crime, then the inevitably lesser costs of subsequent convictions are unlikely to deter him. This is true whatever the legal penalty for crime—be it torture, prison or “community service”—and however effectively it deters first crimes. Recidivism is a red-herring.

Alas, those who complain about recidivism do not think of imprisonment as a deterrent. They think of it as being more like a medical treatment, aimed at “rehabilitating” people who have succumbed to a behavioral disease that they caught from our unhealthy society or, perhaps, from their genetic inheritance. Crimes are not the actions of people weighing costs and benefits; they are the symptoms of a condition, like the suppurating blisters of an impetigo sufferer. Criminals need to be cured, not punished.

To understand the mistake here, consider my misspent youth. I often achieved mediocre grades for my schoolwork. This would prompt my teachers to speak rudely to me, usually accusing me of being unacceptably lazy. Yet I noticed that when one of my notoriously stupid classmates achieved the same mediocre grades, praise was heaped upon him. This struck me as unfair because, as I pointed out to my teachers, I could no more help being lazy than he could help being stupid. And then they spoke rudely to me again.

Whatever the justice of it, my teachers’ unequal treatment was justified. For, although we may all have dispositions that we did not choose, some of these dispositions still respond to incentives. Because I was lazy, I required more badgering than most pupils did. Nevertheless, enough badgering would make me work. We lazy people are not immune to incentives. No amount of badgering or other punishment, however, would have improved the mental powers of my stupid classmate. Because stupidity does not respond to incentives, scolding him for it would have been pointlessly cruel.

Many criminals may well have unchosen dispositions that incline them toward violence or disobedience, or that make it harder for them to find paid employment and hence incline them toward illegal sources of income. Discovering such causes of crime makes many people move into the anti-punishment camp. But it should not. Punishment would be misguided only if, like stupidity, such criminal dispositions did not respond to incentives.

Yet they obviously do. Imagine that some technological advance meant that every theft resulted in a correct arrest, and that the convicted thieves were brutally tortured. Can anyone doubt that thievery would go into sharp decline? Or, if you prefer real world examples, compare the amount of drug-related crime in the U.K., where convicted drug dealers are imprisoned, with the amount in Singapore, where they are executed.

The new British government plans to replace punishment with attempted rehabilitation. Since this will reduce the cost of committing crimes, it will increase the number of people who become criminals. In other words, the policy will encourage criminality for the sake of then curing it. This would be absurd even if a cure for criminality existed, even if attempts at rehabilitation were generally successful. Given that rehabilitation remains no more than a fantasy of penal reformers, however, the policy is not merely absurd but positively wicked.

Mr. Whyte is a management consultant and author of “Crimes Against Logic” (McGraw Hill, 2004).


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The case against evidence

From fingerprints to high-tech CSI, forensic science plays a much smaller role than you would think

At criminal trials, there is always talk about doubt, reasonable doubt. But in recent years, with the rise of DNA technology and other forensic evidence techniques, many Americans have a growing sense of confidence, if not certainty, that we’re locking up the guilty and freeing the innocent. The backbone of modern justice, it seems, is not a judge in a long, black robe, presiding over a courtroom, but a forensic analyst in a crisp, white coat, laboring over a microscope. In science we trust.

A 2006 survey of more than 1,000 Michigan jurors found that nearly half of the jurors expected to see some sort of scientific evidence in every criminal trial. Nearly 75 percent expected to see scientific evidence presented in murder trials. And still another study, published just this year, found that people trusted such evidence almost blindly. In this study, a random sample of 1,201 potential jurors in California said they considered scientific evidence, like DNA and fingerprints, to be far more reliable than the testimony of police officers, eyewitnesses, or even the victims themselves.

Prosecutors call it the CSI effect, suggesting that fictional television shows, like the long-running “CSI,” helped convince science-wary Americans to believe in the power of forensics. But the facts haven’t hurt, either. At trial, when possible, prosecutors are always keen on

calling forensic experts to testify — even when no forensic evidence has been found. Failure to do so, prosecutors say, would almost surely sink their chances of winning a conviction.

But does forensic evidence really matter as much as we believe? New research suggests no, arguing that we have overrated the role that it plays in the arrest and prosecution of American criminals.

A study, reviewing 400 murder cases in five jurisdictions, found that the presence of forensic evidence had very little impact on whether an arrest would be made, charges would be filed, or a conviction would be handed down in court.

A mere 13.5 percent of the murder cases reviewed actually had physical evidence that linked the suspect to the crime scene or victim. The conviction rate in those cases was only slightly higher than the rate among all other cases in the sample. And for the most part, the hard, scientific evidence celebrated by crime dramas simply did not surface. According to the research, investigators found some kind of biological evidence 38 percent of the time, latent fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides.

“Forensics had no bearing on the outcome at all,” said Ira Sommers, professor of criminal justice at California State University, Los Angeles, who coauthored the research with colleague and fellow professor Deborah Baskin. “It was not a significant predictor of the district attorney charging the case and had no relation to actually getting a conviction. That’s a pretty stunning finding considering all the hype around forensic evidence.”

And according to Baskin and Sommers, there’s reason to believe that the findings aren’t limited to murder cases alone. In research yet to be published, the California professors say they have made similar conclusions regarding the small role that forensic evidence plays in solving other crimes as well. In assault, robbery, and burglary cases, investigators collect forensic evidence less than a third of the time, the researchers have found, and only a small fraction of that evidence ever gets submitted to a lab for study, making it essentially “a nonfactor,” Sommers said, “a rare phenomenon.”

The new research, to be published in the Journal of Criminal Justice, comes at a time when forensic science is already under siege, with some questioning whether certain forensic practices are even that scientific. The National Academy of Sciences authored a report last year questioning the reliability of many forensic methods, deploring the lack of standardization and certification within the trade, and calling for sweeping reforms. The report, which gave voice to concerns that many forensic scientists had been whispering for years, reached the White House, where President Obama directed a subcommittee on forensic science to study the suddenly prickly matter.

That committee is expected to report its findings and make policy suggestions in the coming weeks. Meanwhile, twice in the last 18 months, the Senate Judiciary Committee has held hearings generally bemoaning the state of American forensic science — and perhaps with good reason.

Hundreds of crime labs across the country are unaccredited; laws in most states don’t require them to be. And even those with accreditation have had problems. In 2008, the city of Detroit shuttered its crime lab after an audit found a 10 percent error rate in ballistic evidence. Last year, New York’s inspector general chastised the state police there for overlooking evidence that a crime lab analyst was fabricating data. Just last spring, San Francisco was forced to shutter its drug analysis unit after allegations that an analyst was skimming seized drugs for personal use. And Massachusetts hasn’t been immune to problems. In 2007, the state Executive Office of Public Safety commissioned a report that documented a backlog of untested DNA from 16,000 cases, including homicides and sexual assaults — a discovery that the report labeled “a crisis.”

Meanwhile, across the country, a backlog of DNA evidence continues to fester and grow despite the $330 million dedicated since 2004 to attack the mountain of untested evidence. The problem, according to a special report published in June by the National Institute of Justice, is that crime labs’ capacity for the work has not kept pace with increased demand for testing. The scientific samples just keep coming in, queuing up to be analyzed.

“I think the district attorney is just like us, just like everybody,” said Sergeant Paul McLaughlin, supervisor of one of the homicide squads at the Boston Police Department. “The more the better. The more of this stuff you can get, the more they like it.”

Police investigators first began using forensics — specifically, fingerprint identification — near the turn of the 20th century. And as late as the 1960s, such information — as valuable as it was — was stored on rudimentary cards, recalled Frank Jordan, San Francisco’s former chief of police, forcing police officers seeking an identification to wade into a sea of paper.

“You had reams and reams of files — file cards with fingerprints — and you had to check them, by hand, in our crime lab,” recalled Jordan, a 33-year veteran of the force before his retirement in 1990. “It could easily take a couple of weeks to do that. And if you were going further, and sending it on to the national lab, it would take another three to four weeks again.”

Computerization began altering that in the 1980s, Jordan said. And soon thereafter, DNA changed the entire ballgame. In 1990, a federal report determined that DNA evidence was “both reliable and valid.” Police and prosecutors quickly began seeking out such evidence, given its power to link a suspect to a crime scene — or exclude a suspect from a crime scene — through a genetic footprint.

Since 1989, according to the Innocence Project, a legal clinic dedicated to exonerating the wrongfully convicted, 261 people have been exonerated and freed from prison due to DNA evidence. And every day, in courtrooms across the country, prosecutors use such evidence to lock up the guilty.

“I can name, off the top of my head, a dozen cases that were practically solved exclusively through forensic evidence,” said Patrick Haggan, chief trial counsel for the Suffolk County district attorney’s office. “It was the main — if not the only — evidence presented to the jury.”

Undeniably, Haggan is right. Across the country, there are many examples where the discovery of DNA, or other scientific evidence, cracked a case that had long gone cold. Just last month in Suffolk Superior Court, prosecutors won a murder conviction in a case that had gone unsolved for 26 years, thanks to DNA that finally linked a career criminal to the rape and murder of an 18-year-old woman.

But Baskin and Sommers say that forensic evidence, while compelling, isn’t nearly as important to a murder case as other factors. Analyzing 400 murder cases committed in 2003 in California’s Los Angeles County, Indianapolis, and three smaller Indiana cities, the researchers found that cases were more likely to end up in court if witnesses came forward or if the victim and the suspect knew each other. Such factors made cases easier to solve and, apparently, easier to prosecute, according to the research, while, on the other hand, forensic evidence was “not a significant factor.”

“I think it’s pretty clear that forensic evidence has at best a limited impact on criminal case outcomes — at best,” Baskin said. “Really, it’s not determinant in the vast majority of cases. It does not significantly impact the conviction of cases. And I think the other point is, few cases actually have forensic evidence.”

Perhaps not surprisingly, these findings have not been met with universal applause among investigators, prosecutors, and the people actually doing the work: forensic analysts.

“You’re telling me that it doesn’t have anything to do with the prosecution?” said Pete M. Marone, who oversees Virginia’s four state crime labs and who served on the National Academy of Sciences panel that authored last year’s report on the state of American forensics. “If it’s insignificant or inconsequential, then why do my people always have to go testify why they didn’t find DNA?”

Haggan went a step further, saying the new research seemed “completely inaccurate.” He suggested that a broad overview of cases misses the subtleties within a trial and cannot account for how the mere presence of forensic evidence forces the defense to change its tactics. Take, for example, he said, the 2005 murder of cab driver Heureur Previlon in Brighton, in which police linked two suspects to the crime scene through blood found on their clothes. “By placing them at the scene,” Haggan said, “they could no longer claim they didn’t do it. They had to go with self-defense.”

However, both police and prosecutors acknowledge that there is some truth in the new findings. DNA evidence in homicide cases can be hard to come by, they acknowledge, especially in gang-related incidents, drive-by shootings, and cases where victims were randomly targeted. In Fresno, Calif., this year, police have investigated 38 murders, but found DNA in just four, according to Captain Dennis Bridges, commander of the Fresno Police Department’s violent crime bureau. And even if they had DNA evidence in more cases, Bridges added, detectives wouldn’t know that for days, maybe weeks, after the crime. What matters in the immediate aftermath of a murder, he said, is finding eyewitnesses — just as the new research concludes.

Eyewitness testimony has its own flaws; recent studies have documented deficiencies in our ability to accurately identify our attackers. But police and prosecutors agree that jurors want to hear from real people just like them, who happened to see something horrifying.

“Every case is different. But in the vast majority of extremely serious cases, you need a mix of percipient witnesses and corroboration through forensic evidence,” said Middlesex District Attorney Gerard T. Leone. “If all you have is forensic evidence — even if it’s ultra-definitive on its face; DNA matching the defendant and it’s in a critical place — jurors still want to hear from people.”

Given that reality — and the new findings — Baskin and Sommers say the lesson is clear: Police should spend more time out in the community before a homicide happens, making connections with everyday people, especially in high-crime neighborhoods, so that when a dead body turns up on a street corner, investigators have a better chance of getting witnesses to come forward.

But there’s also a secondary lesson, they say, about American society at large and the paradoxical nature of what we say we expect and what we really want. Potential jurors may say in surveys that they want scientific evidence in a criminal trial or that they find DNA evidence more reliable than the testimony of others. “But when push comes to shove,” Baskin said, “they’re still convinced by someone else testifying that they saw it.”

In this way, perhaps very little has changed about criminal trials. Perhaps modern justice isn’t so modern after all. Despite all our scientific know-how, jurors weighing life and death decisions still crave what Leone calls the “human element:” the act of watching another person testify and deciding if they’re telling the truth.

As these witnesses enter the courtroom, a hush often falls on the gallery. Jurors — bored by days of dry testimony given by well-rehearsed experts — lean forward in their seats, pens at the ready to take notes about what the eyewitness has to say. They have seen this moment on television, too, and it’s usually really, really interesting.

Freelance writer Keith O’Brien, winner of the Casey Medal for Meritorious Journalism, is a former staff writer for the Globe.


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Serving Two Masters: Shariah Law and the Secular State

A few weeks ago, the Cardozo School of Law mounted a conference marking the 20th anniversary of Employment Division v. Smith (1990), a case in which the Supreme Court asked what happens when a form of behavior demanded by one’s religion runs up against a generally applicable law — a law not targeted at any particular agenda or point of view — that makes the behavior illegal. (The behavior at issue was the ingestion of peyote at a Native American religious ceremony.) The answer the court gave, with Justice Antonin Scalia writing for the majority, was that the religious believer must yield to the law of the state so long as that law was not passed with the intention of curtailing or regulating his or anyone else’s religious practice. (This is exactly John Locke’s view in his “Letter Concerning Toleration.”)

“To make the individual’s obligation to obey . . . a law contingent upon the law’s coincidence with his religious beliefs” would have the effect, Scalia explains, of “permitting him, by virtue of his beliefs, ‘to become a law unto himself.’” And if that were allowed, there would no longer be a single law — universally conceived and applied — but multiple laws each of which was tailored to the doctrines and commands of a particular faith. In order to have law in the strong sense, Scalia is saying, you can have only one. (“No man can serve two masters.”)

The conflict between religious imperatives and the legal obligations one has as a citizen of a secular state — a state that does not take into account the religious affiliations of its citizens when crafting laws — is an old one (Scalia is quoting Reynolds v. United States, 1878); but in recent years it has been felt with increased force as Muslim immigrants to Western secular states evidence a desire to order their affairs, especially domestic affairs, by Shariah law rather than by the supposedly neutral law of a godless liberalism. I say “supposedly” because of the obvious contradiction: how can a law that refuses, on principle, to recognize religious claims be said to be neutral with respect to those claims? Must a devout Muslim (or orthodox Jew or fundamentalist Christian) choose between his or her faith and the letter of the law of the land?

In February 2008, the Right Reverend Rowan Williams, Archbishop of Canterbury, tried in a now-famous lecture to give a nuanced answer to these questions by making what he considered a modest proposal. After asking “what degree of accommodation the laws of the land can and should give to minority communities with their strongly entrenched legal and moral codes,” Williams suggested (and it is a suggestion others had made before him) that in some areas of the law a “supplementary jurisdiction,” deriving from religious law, be recognized by the liberal state, which, rather than either giving up its sovereignty or invoking it peremptorily to still all other voices, agrees to share it in limited areas where “more latitude [would be] given in law to rights and scruples rooted in religious identities.”

Williams proceeded immediately to surround his proposal with cautionary safeguards — “no ‘supplementary’ jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights” — but no safeguards would have satisfied his many critics, including Prime Minister Gordon Brown, who declared roundly that there is only one common law for all of Britain and it is based squarely on “British values.”

Prompted by Williams’s lecture and the responses it provoked, law professors Rex Ahdar and Nicholas Aroney have now put together a volume, to be published in 2011, under the title “Shari’a in the West,” a collection of learned and thoughtful essays by some of the world’s leading scholars of religion and the law. The volume’s central question is stated concisely by Erich Kolig, an anthropologist from New Zealand: “How far can liberal democracy go, both in accommodating minority groups in public policy, and, more profoundly, in granting official legal recognition to their beliefs, customs, practices and worldviews, especially when minority religious conduct and values are not congenial to the majority,” that is, to liberal democracy itself?

This is exactly the question posed by John Rawls in a preface to the second edition of “Political Liberalism,” his magisterial account and defense of liberal political principles: “How is it possible for those affirming a religious doctrine that is based on religious authority . . . also to hold a reasonable political conception that supports a just democratic regime?” The words to stumble on are “reasonable” and “just,” which at once introduce the requirement and indicate how hard, if not impossible, it will be to meet it: “reasonable” means confirming to rational, not religious, principles; “just” means respecting the equality of all, not just male or faithful, individuals.

With these concepts as the baseline of “accommodation,” accommodation is going to fall far short of anything that will satisfy the adherents of a religion that “encompasses all aspects of public and private law, hygiene, and even courtesy and good manners” (A. A. An-Na’im). In liberal thought these areas are the ones in which the individual reigns supreme and the value of individual choice is presupposed; but, as Ann Black explains, “Muslims do not conceptualize Islam in terms of the Westernized sociological categorization of religion which places the individual at the centre of all analyses.”

And so, perhaps predictably, the essays in Shariah in the West tack back and forth between the uneasy alternatives Williams names in his lecture — “an assumption on the religious side that membership of the community . . . is the only significant category,” and on the other side secular government’s assumption of a “monopoly in terms of defining public and political identity.” These assumptions seem to be standing obstacles to the ability of secular Western states to think through the problem presented by growing Muslim populations that are sometimes militant in their demand to be ruled by their own faiths and traditions.

On the one hand, there is the liberal desire to accord one’s fellow human beings the dignity of respecting their deepest beliefs. On the other hand, there is the fear that if those beliefs are allowed their full scope, individual rights and the rule of law may be eroded beyond repair. It would seem, at least on the evidence of most of these essays, that there is simply no way of “finding a viable path that accommodates diversity with equality” (Ayelet Shachar), that is, accommodates tolerance of diverse religious views with an insistence that, in the last analysis, the rights of individuals cannot be trumped by a theological imperative. No one in this volume quite finds the path.

Except perhaps theologian and religious philosopher John Milbank who puts forward, the editors tell us, “the striking argument that only a distinctly Christian polity — not a secular postmodern one — can actually accord Islam the respect it seeks as a religion.” The italicized phrase is key: the respect liberalism can accord Islam (or any other strong religion) is the respect one extends to curiosities, eccentrics, the backward, the unenlightened and the unfortunately deluded. Liberal respect stops short — and this is not a failing of liberalism, but its very essence — of taking religious claims seriously, of considering them as possible alternative ways of ordering not only private but public life.

Christianity, says Milbank, will be more capable of deeply respecting Islam because the two faiths share a commitment to the sacred and to a teleological view of history notably lacking in liberalism (again, this is not a criticism but a definition of liberalism): A “Christian polity can go further in acknowledging the integral worth of a religious group as a group than a secular polity can.” Christianity can acknowledge the worth of Islam not merely in an act of tolerance but in an act of solidarity in the same way that Christian sects can acknowledge each other. If you are a Catholic, Milbank explains, “and you do not agree with the Baptists you can nevertheless acknowledge that, relatively speaking, they are pursuing social goals that are comparable with, and promote a shared sense of human dignity” as defined by a corporate religious identity. Liberalism can acknowledge individual Muslims or individual Baptists or individual Catholics, but the liberal acknowledgment detaches these religious believers from their community of belief and turns them into citizens who are in the things that count (to liberalism) just like everyone else.

“Liberal principles,” declares Milbank, “will always ensure that the rights of the individual override those of the group.” For this reason, he concludes, “liberalism cannot defend corporate religious freedom.” The neutrality liberalism proclaims “is itself entirely secular” (it brackets belief; that’s what it means by neutrality) and is therefore “unable to accord the religious perspective [the] equal protection” it rhetorically promises. Religious rights “can only be effectively defended pursuant to a specific and distinctly religious framework.” Liberal universalism, with its superficial respect for everyone (as long as everyone is superficial) and its deep respect for no one, can’t do it.

If that is so, then the other contributors to this volume are whistling “Dixie,” at least with respect to the hope declared by Rawls that liberalism in some political form might be able to do justice to the strongly religious citizens of a liberal state. Milbank’s fellow essayists cannot negotiate or remove the impasse he delineates, but what they can do, and do do with considerable ingenuity and admirable tact, is find ways of blunting and perhaps muffling the conflict between secular and religious imperatives, a conflict that cannot (if Milbank is right, and I think he is) be resolved on the level of theory, but which can perhaps be kept at bay by the ad-hoc, opportunistic, local and stop-gap strategies that are at the heart of politics.

Stanley Fish, New York Times


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In the mid-1980s, Meredith Maran, a thirtysomething wife and mother of two young boys, came to believe that, when she was a little girl, her father had molested her. She wasn’t absolutely certain. She didn’t remember any such heinous act, nor did she have any evidence, outside of vague nightmares, strange “flashbacks” and intensely complicated feelings about her father. But she did have a Greek chorus of women thinking similar thoughts, including feminist psychologists, activists and therapy patients, a number of whom she knew personally in the San Francisco Bay-area lesbian community that is her home.

Ms. Maran, who recanted her accusation a decade later, does not go easy on herself in “My Lie,” a memoir of her journey through what she calls “Incest Nation.” As a journalist for the San Jose Mercury News and the editor of a book on the subject, she admits that she “helped to spread the panic” as incest accusations raged in the 1980s and early 1990s. Ms. Maran gullibly embraced all the gothic charges that occupied that hysterical time: Satanic rituals at day-care centers, multiple personalities caused by long-forgotten traumas, the claim that one in three girls was a victim of sexual abuse.

She also doesn’t shy from describing the poison she injected into her own family. Her growing obsessions helped to break up her marriage as she began to think of her sympathetic husband as another “predatory male.” She deprived her boys of their beloved grandfather. Terrified by paternal perfidy so close to home, her young niece began to fear her own father. That father, Ms. Maran’s brother, fretted that he, too, had been victim of the abuse.

The most aggrieved victim of the story, the self-involved but harmless patriarch, Stan Maran, spent his last decade before descending into Alzheimer’s knowing that his daughter believed the worst thing a daughter can believe about a father and knowing that his once happy, now traumatized, third wife was considering divorce.

“I’d found the perpetrator and it was me,” Ms. Maran concedes. Still, for all the soul-searching, “My Lie” is as much a defense as a mea culpa. She interviews neuroscientists about the chemical roots of groupthink but fails to ask why, before she had any inkling of her putative abuse, when she was married to the likable father of her two sons, she was drawn to a group of radical feminists, “wommin” whose lives were defined by therapy sessions, self-defense classes and the incest-survivor’s bible, “The Courage to Heal.”

After her marriage ended, Ms. Maran had a long, live-in relationship with a clearly disturbed woman who was convinced that she had been molested by her father (who had died when she was 5) and who was haunted by fantasies of dark-robed people chanting at forest campfires when she was a child. Neuroscience can’t explain Ms. Maran’s decision to pick this woman, belatedly, as the stepmother of her sons.

Ms. Maran, who wrote about her involvement with leftist politics in a previous memoir, concludes here that her lie about her own personal experience was no different from the belief of some people that President Barack Obama is a Muslim or that Saddam Hussein possessed weapons of mass destruction. History is “rife with examples of the damage done when millions of people become convinced of the same lie at the same time.” This is political posturing substituting for self-knowledge, a distinction you’d hope the author of a book called “My Lie” would have learned.

Kay Hymowitz, Wall Street Journal


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We the People

It seems that they are on the news programs every night: Americans dressed as 18th-century Founders, waving placards saying “Don’t Tread On Me” and complaining that members of Congress pass legislation without regard for the Constitution. Perhaps never before have so many citizens invested so much of their political energy in the proposition that we should return to the first principles of the Founding.

Critics of the tea-party movement have been quick to question its members’ constitutional bona fides. Washington Post columnist E.J. Dionne, for instance, sniffed that tea-party supporters more closely resemble Anti-Federalists—opponents of the Constitution in 1788—than they do the Founders.

In a sense the critics are right. To a remarkable extent, the tea-party movement is raising the same questions of constitutional governance that Anti-Federalists (and not a few Federalists) raised in the debates over whether to adopt a new Plan of Union in 1788. Just a few days ago, a poll by Rasmussen Reports showed that fully 61% of American adults believe that the federal government has too much power; 66% think Americans are overtaxed; and 70% believe the government does not spend taxpayers’ money wisely or fairly.

Too bad Rasmussen wasn’t around in the 1780s—the results might have been strikingly similar. Even while ratifying the Constitution, at least seven of the state conventions—representing the vast majority of Americans—expressed the view that the new government had been given too much power. The conventions demanded amendments to curb the government’s potential for oppression. And the most popular of the amendments—the only one agreed on by all the states proposing the changes—limited the federal government’s broad power of taxation.

Yet it’s doubtful that many Americans today, even tea-party enthusiasts, are aware that those debates took place.

The arrival of Pauline Maier’s “Ratification,” then, could not be more timely. It is the first comprehensive account of the debates in the 13 states over adoption of the Constitution. Others have written about specific aspects of the ratification struggle—about the arguments of one side or the other, or about the debate in a particular state—but remarkably, until now, no historian had written a full-length account of the politics, personalities, arguments, and outcomes between Sept. 17, 1787, when the Constitutional Convention completed its work, and May 29, 1790, when the last of the original states, Rhode Island, ratified the document.

“Ratification,” for all its scope and technical detail, is a gripping and eye-opening read. Ms. Maier is a member of that rare breed of historians who write vividly and with a flair for depicting dramatic events. She has benefited from an ongoing project led by John Kaminski and Gaspare Saladino called The Documentary History of the Ratification of the Constitution, an effort to collect and publish all extant records, newspaper articles, letters and notes bearing on the subject of ratification. Much of this material, Ms. Maier writes, “I suspect no historian has ever used before.” She mined the papers to produce a description of the ratification process that is rich in detail, bringing to light episodes and arguments previously unknown even to constitutional historians.

For example, the supporters of the Constitution in Pennsylvania were so determined to make it appear that the state overwhelmingly supported ratification that they suppressed publication of the proceedings. Despite weeks of spirited debate, in which opponents raised numerous issues of substance, only two speeches, both by supporters, made it into the official reports. The Federalist majority even voted to expunge any mention of defeated motions for amendments from the journal of the proceedings. Most prior accounts of the Pennsylvania events thus missed most of this fight.

Drawing on freshly uncovered archival sources, Ms. Maier tells the story of a Pennsylvania backwoods opponent of the Constitution, William Findley, who denounced the absence of a provision for civil jury trials in the Constitution—an omission later rectified by the Seventh Amendment. He commented that when Sweden had abandoned jury trials, “the commons of that nation lost their freedom.” Immediately, two lions of the Pennsylvania legal establishment pounced. James Wilson (later associate justice of the United States Supreme Court) and Thomas McKean (who had served 10 years as chief justice of Pennsylvania) declared that trial by jury never existed anywhere but in England and mocked Findley’s supposed ignorance.

The next day, however, Findley produced the third volume of William Blackstone’s “Commentaries on the Laws of England,” which attributed the invention of the jury to Scandinavia and recounted that when the jury ceased to be used in Sweden, that nation “degenerated into a mere aristocracy.” Wilson, who should have been more embarrassed than he was, conceded that Findley was correct—but added, superciliously, that he had forgotten more law than Findley had ever learned. No wonder Wilson was burned in effigy by Pennsylvanians who thought he was high-handed, and no wonder the opponents of the Constitution felt abused by the arrogance of the Federalists.

In Pennsylvania and elsewhere, as Ms. Maier reports, debates sometimes broke into violence. The Pennsylvania legislature gained the quorum necessary to call a ratifying convention only when a mob broke into the homes of two recalcitrant legislators and dragged them forcibly to the statehouse. When the New York convention, dominated by delegates from upstate counties, appeared adamantly opposed to ratification, metropolitan New Yorkers threatened to secede from the state, even at the risk of possible civil war. Later, Rhode Island was coerced into ratification by an act of Congress cutting off all trade. Any merchant caught trading with Rhode Islanders would face confiscation of his ship, a substantial fine and up to six months’ imprisonment.

A particularly notorious incident occurred in Albany, N.Y., on the Fourth of July, 1788. After hearing news of Virginia’s ratification, supporters of the Constitution staged a noisy celebration. Infuriated opponents counter-marched, publicly burned a copy of the Constitution, and later assaulted a group of supporters with clubs, stones and bricks. Federalists then trashed the tavern where the Anti contingent met and took several prisoners.

Later that month, in the middle of the night, 500 supporters of the Constitution in Manhattan attacked the premises of the New-York Journal, the one newspaper in the city that had regularly published essays critical of the Constitution. According to Ms. Maier, they smashed the windows and threw printing equipment into the street. The publisher, Thomas Greenleaf, escaped through a back door. The publisher of a rival paper commented: “God save us, if these be the dawnings of the new federal government.”

Religion, too, reared its head in unexpected ways. The Constitutional Convention famously conducted its proceedings without a chaplain or daily prayer, but the Virginia and New York ratifying conventions began each day with a prayer, without controversy or objection. Two of the ratifying conventions met in church buildings. Delegates in several states worried that the Constitution would allow “Jews, deists, and infidels” to hold office. Yet when the New York City supporters of the Constitution scheduled a procession to celebrate ratification by the nine states necessary to form the new government, they postponed it out of respect for a Jewish holiday. When the procession did take place, clergy of various denominations walked hand-in-hand. Among them was a bearded rabbi.

History is written by the winners. Opponents of the Constitution have long been dismissed as being motivated by fear of outsiders, narrow self-interest, and localized concerns. It used to be thought that most of the critics fought against the Constitution because its superior court system and prohibitions on paper money would force them to pay their lawful debts. And of course there was some of that. But Ms. Maier emphasizes that the overriding concern of the Constitution’s opponents was with the defense of liberty against federal overreach and the lack of proper representation of the people.

Still more interesting: Federalists shared these concerns. The vast majority on both sides of the issue wanted a decentralized federal system of limited government, responsive to the people and protective of their rights. The difference was over how to achieve this. As Ms. Maier tells the story, the Constitution’s critics sought more to improve the plan through amendments than to scuttle it, and to a great extent they succeeded. Not only did they obtain amendments, which we call the Bill of Rights, but the critics also won a host of other assurances: states would retain their autonomy; the federal government would be allowed to impose few taxes other than tariffs; and the nation would rely mostly on state militias rather than a large standing army. All of these concessions addressed Anti-Federalist demands or concerns.

Far more than the Constitutional Convention, the ratification debates touched on fundamental questions of liberty and order, and their relation to centralization and practical democracy. The immediate concerns of the young nation were resolved—the Constitution was ratified, with amendments. But those fundamental questions would recur, as fundamental questions always do, at key junctures of history when citizens feel the need for guidance about how to carry forward what Washington called “the experiment entrusted to the hands of the American people.” We seem to live in such a time.

Mr. McConnell, a former federal judge, is the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution.


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The Defense Rests

A longtime champion of the Rosenbergs tries to confront the evidence.

Attending a 1983 debate in New York City on the Rosenberg spy case, a correspondent for the New Republic—as it happens, the distinguished Harvard philosopher Robert Nozick—commented that he had “never before seen anyone exude such absolute self-righteousness, or any adult exhibit such petulance.” He was watching the journalist Walter Schneir defend, in the face of mounting contrary evidence, the atomic spies Julius and Ethel Rosenberg—and denounce a recondite government conspiracy to frame them—30 years after their execution. Presenting the opposite case, for the Rosenbergs’ guilt, were Ronald Radosh and Joyce Milton, who had recently published “The Rosenberg File.” In the atmosphere of the evening—to judge by Mr. Nozick’s account—Mr. Radosh and Ms. Milton were made to play the role of villain, McCarthyites masquerading as historians, to be mau-maued by New York’s beau monde.

Mr. Schneir at the time was known, along with his wife, Miriam, as one of the Rosenbergs’ most dogged defenders. Together they had written “Invitation to an Inquest” (1965), a book positing a massive government conspiracy to frame the Rosenbergs. The only problem with their position was that it proved to be wrong. Starting in the 1990s, with the release of intelligence decrypts and the testimony of ex-KGB employees, historians firmly established that Julius Rosenberg was a Soviet agent and that his wife, Ethel, helped the network to courier documents and recruit pro-Moscow leftists.

Now, almost a half-century after the publication of “Invitation to an Inquest” we have “Final Verdict,” again revisiting the Rosenberg case. Mr. Schneir, who died in 2009, is the author; Mrs. Schneir provides a preface and afterword. The book does grudgingly admit that Julius Rosenberg was a Stalinist agent (Ethel remains, in the Schneirs’ view, an innocent bystander). But “Final Verdict,” a slim volume purporting to tell “what really had happened” in 200 pages and two-dozen footnotes, makes no serious attempt at reaching historical truth, instead offering a selective and ultimately unconvincing attempt at personal vindication.

It is evident that the Schneirs were never unbiased, truth-seeking historians. Upon discovering yet another piece of evidence suggesting that Julius Rosenberg labored on behalf of the Kremlin, Mr. Schneir sighs that the new information is “not what we would have hoped.” The couple “had to admit” that new, contradictory evidence was damaging to the case for innocence. The revelations of the past two decades, he writes, were “painful news for many people, as it is for us.”

It is advisable to discount the judgments of those who, when attempting to solve a historical riddle, declare archival revelations “painful” or contrary to the investigator’s “hopes.” But after decades of impugning the integrity of scholars with whom they disagreed, Mr. Schneir declares grandly that he has “no regrets, no apologies.” (Before her execution, Ethel Rosenberg wrote that she had “no fear and no regrets.”)

Mr. Radosh and Ms. Milton, who were right, barely merit a mention in “Final Verdict,” much less an apology. The work of America’s two most prolific historians of Soviet espionage, Harvey Klehr and John Earl Haynes—whose most recent book, “Spies: The Rise and Fall of the KGB in America,” closes the books on both the Rosenberg and Alger Hiss spy cases—is haughtily dismissed, as are their revelations that Ethel Rosenberg was involved in the recruiting of agents.

Readers are told instead that the Rosenbergs engaged in mere “prevarications,” while prosecutors offered “concocted evidence,” “hyperbole” and “perjurious testimony,” spinning a “monstrous web of lies” that provoked baying “lynch mobs” in the media. “Faced with an impossible predicament,” Mr. Schneir explains, “the Rosenbergs merely denied everything.”

And they lied with good reason, he theorizes, because “disclosing [Soviet espionage networks in the U.S.] would have fuelled the hysteria of the times and perhaps resulted in mass pickups and incarceration in concentration camps of tens of thousands of Communists and other leftists.” Really? American intelligence agencies were aware of many Soviet networks and yet never submitted to the instinct—of which the Stalinist Julius Rosenberg would surely have approved—to construct gulags for political dissidents. Indeed, while Moscow was terrorizing anyone who stood against the glorious Soviet future, the U.S. government was sentencing Alger Hiss, a State Department employee working for Soviet military intelligence, to a mere five years on a perjury charge.

Despite its acknowledgment of Julius’s guilt, “Final Verdict” is still leavened with arguments that espionage on behalf of a contemporaneous ally wasn’t such a big deal. In her afterword, Miriam Schneir writes that the Rosenbergs’ orphaned son Michael works as director of the Rosenberg Fund for Children, an organization assisting those whose parents “suffered some form of injury as a consequence of activities in progressive causes.” Among those causes, apparently, is performing espionage on behalf of a communist government.

Ms. Schneir explains that her late husband was “in the era of 9/11 . . . more certain than ever that the Rosenberg case provided an instructive example of how easily the justice system can be corrupted by fear of dissident ideas.” Julius Rosenberg’s “dissident ideas” aren’t addressed at any length, lest the reader get a glimpse at the grotesque ideology that allowed for defending Soviet totalitarianism.

Ms. Schnier cites the Czech dissident writer Milan Kundera, who described the “men and women who were falsely charged with crimes against the state, convicted in sham trials, and hanged.” But Mr. Kundera was thinking of those in occupied Czechoslovakia accused by communist apparatchiks of phantom crimes, not communist apparatchiks in America convicted of real crimes.

Mr. Moynihan is a senior editor of Reason magazine.

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How to speak sharia

Islam’s legal lexicon

Telling the fard from the fatwa

Those were the days, m’learned friend

LITERALLY the “path” or “path to water”, sharia is a catch-all term for Islamic codes covering everything from social mores to crime. Based on the Koran and the sayings attributed to Muhammad, as well as the work of ulema (Muslim scholars), it is clear and strict in some matters (such as family law) and fluid and evolutionary in others (such as commerce). It comprises five main schools of interpretation (four Sunni and one Shia). In Muslim lands sharia courts are overseen by a kadi (judge) who will have studied both fiqh (legal interpretation) and how to apply qiyas (analogy).

Fiqh classifies behaviour into one of five categories: fard (mandatory), mustahabb (advisable), mubah (neutral), makruh (inadvisable), and haraam (prohibited). Huddud refers to the corporal and capital punishments that are laid down in traditional Islamic law for certain offences, including death by stoning for adultery. However, fatwa (ruling or opinion), contrary to popular opinion in the West, refers to theological, not legal, pronouncements in which one or more scholars opine on some pressing issue (the subjects of recent fatwas have ranged from questions of personal hygiene to the ethics of suicide-bombing).

Nikah (an Islamic marriage) usually requires an imam to officiate and must involve a mahr (marriage settlement) conferred on the bride. It may end in a Talaq: this usually means a unilateral invocation of divorce by the husband. Khula is a divorce granted by a judge at the wife’s request.

Baffling? Perhaps. In a well-worn English legal anecdote a judge asks a lawyer acting for a thief from Yorkshire: “Is your client familiar with the principle of Nemo dat quod non habet (nobody gives away what he does not possess)?” The apocryphal answer is: “Indeed, m’lud, in Barnsley they speak of little else.” Fewer lawyers know Latin now, but in Yorkshire towns the relationship between, say, mahr and talaq is increasingly well understood.


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Out for Blood

A portrait of the prosecutor charged with investigating the causes of the 1929 crash.

As night follows day, so inquests follow crashes. What followed the 1929 crash were the sensational stock-market hearings of 1933 and 1934. Michael Perino’s “The Hellhound of Wall Street” is the story of the chief inquisitor.

Contrary to the book’s overpromising subtitle, the Senate Banking and Currency Committee investigation did not, in fact, “forever change American finance.” Dramatic it was, and shocking, too. But if Ferdinand Pecora, the committee’s chief counsel, were gazing down on Wall Street today, he might be struck not by how much has changed but how little. Regulations we have in profusion, and regulators, too. Yet fallible human beings persist in buying high and selling low, rather than the other way around.

Mr. Perino roots hard for his protagonist, who had spunk enough for three. Ferdinand Pecora was born in Sicily in 1882 and brought to New York City at age 4. He grew up in a cold-water basement flat that was part residence, part shoe-repair shop. When his father, Luigi, the cobbler, was incapacitated in an industrial accident, 14- year – old Ferdinand became the family’s principal bread winner.

The striving young immigrant had energy left over to attend law school at night. He passed the bar exam and cast his political lot with the city’s Democratic Party machine. In 1918, now 35, he became a deputy assistant district attorney. A decade later he made a run for the DA’s office. Defeated, he left the city payroll for private practice on Dec. 31, 1929. The stock market had already crashed, of course, but the Depression was just beginning.

The inquisition that would make Pecora a household name in Depression-era America was set in motion by President Hoover in 1932. Led by Sen. Peter Norbeck of South Dakota, the Republican chairman of the Senate Banking and Currency Committee, the panel was charged with unmasking the short sellers who, according to urban legend, were undermining share prices. Hoover wasn’t out to regulate American finance, Mr. Perino relates, but rather to finger the scoundrels he suspected of wrecking the market and ruining his presidency.

Norbeck’s investigation went nowhere. The villains he hoped to expose—notably, Richard Whitney, the imperious head of the New York Stock Exchange—walked all over a succession of ineffectual chief counsels. With Franklin Roosevelt’s election, Norbeck would soon lose his committee chairmanship. How to reinvigorate his moribund investigation? The Republican senator hired the eager, obscure, Democratic ex-assistant DA.

What little Pecora knew about banking and finance he had gleaned from prosecuting low-level frauds. He was, however, a master cross-examiner, a quick study and a tireless worker. He wanted blood, too. In a dinner speech to the Elks Club of New York, he assailed the “men of might” on Wall Street who had taken “millions and millions of the hard-earned pennies of the people.” As for what his investigation might achieve, Pecora ventured: “When the nation again comes to days of plenty and prosperity, let us seek to make it impossible for water and hot air to be sold to men and women for gold taken from their life savings.”

For 10 days in March 1933, Pecora’s investigatory target was Charles E. Mitchell, chief executive of National City Bank, later to become Citigroup. “Sunshine Charley,” as Mitchell was mockingly known after his fall from grace, came pre-convicted, but his bank was a pillar of strength. Today, in the wake of the serial bailouts of 2008-09, Mitchell’s managerial achievement seems almost mythical. From the 1929 peak to the 1933 depths, nominal GDP fell by 45.6%—the American economy was virtually sawed in half. By contrast, during our late, Great Recession, nominal GDP dropped by only 3.1%. Yet this comparatively minor perturbation sent Citigroup into the arms of the federal government to the tune of $45 billion in TARP funds and wholesale FDIC guarantees of the bank’s tattered mortgage portfolio.

National City did accept a $50 million federal investment in 1934, after Mitchell resigned. However—and herein lies the difference—the bank’s solvency didn’t hinge on that cash infusion. Many banks did fail in the Depression, of course. But from today’s perspective the wonder is that so many didn’t.

To Pecora, though—and to Mr. Perino, too—the health of the National City balance sheet was not the question. Mitchell was a whipping boy from central casting. If, Pecora reasoned, he could expose Mitchell as a tax evader, ridicule his boom-time predictions and reveal his high-pressure sales tactics, an enraged public would demand that the Roosevelt administration put capitalism in its place. “Pecora gave them proof,” Mr. Perino writes, “proof that the honesty and integrity of the financial establishment were inadequate—proof that laissez-faire didn’t work. If Wall Street could not or would not regulate itself, Washington would have to regulate for them.”

Thanks in good part to Pecora’s work, investors today have prospectuses to read and an SEC to complain to. Bank depositors have federal deposit insurance to protect them. And banks like Citi operate in the certainty that they won’t be allowed to fail, however much they deserve to.

Pecora went on to become an SEC commissioner, a judge on New York state’s Supreme Court and a crusader for progressive political causes. Mitchell, who resigned in disgrace from National City and lost his houses to foreclosure, refused to file for personal bankruptcy. Rather, he honorably worked to pay every last dollar of debt. Later he built Blyth & Co into a thriving investment bank.

Mitchell or Pecora—who’s your hero?

Mr. Grant is the editor of Grant’s Interest Rate Observer and the author, most recently, of “Mr. Market Miscalculates.”


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The Economics of Drug Violence

Competition in the narcotics trade is preferable to monopolistic syndicates.

President Felipe Calderón still has two years left in office. But he is already on track to go down in history as having presided over the bloodiest Mexican sexenio since the revolution of 1910. By December, when Mr. Calderón completes his fourth year as president, the national death toll from his war on the drug cartels could reach 30,000.

Statistically speaking, Mexico is a relatively safe place with 12 murders per 100,000 inhabitants in 2009. The trouble is that the violence is concentrated, and according to one economist I talked with here, that’s because the drug-trafficking business is structured much like Colombia’s was in the 1980s and ’90s.

Marijuana and weapons seized in Tijuana. Monopolistic syndicates control Mexico’s cross-border drug trade and could move north.

Powerful monopoly suppliers need to control key zones so they can guarantee an army of contract employees. These “ants” carry the drugs over the U.S. border at a limited number of strategic points in small shipments. Without mafia-style terror, the cartel’s domination along the route cannot be maintained.

Mexican law enforcement has been courageous in trying to confront these monopolies, but firepower has not done the job. That’s because this is an economic problem. Lower levels of violence in the U.S., despite widespread availability of drugs, and an improved picture in Colombia, where cocaine still flows, are best explained by competition and the smaller scale of the operators. It wasn’t always that way in Colombia. In Mexico it could also change.

To help Mexico deal with this “antitrust” problem, the U.S. has to recognize that competition in the narcotics sector is preferable to the monopolistic syndicates that threaten the state and could move north. But this would require greater flexibility from U.S. drug warriors.

Some progress may be in the making on marijuana, and Mexicans will be watching the California ballot initiative that asks the electorate to approve the legalization of the ubiquitous weed. It is far from clear that Proposition 19, as it is known, will pass. The combination of conservatives who fear that legalization would transform us into a hash-happy heap of hippies, drug warriors who make a living off of the criminalization of pot smoking, and gangsters whose profits are tied up in prohibition could be enough to defeat it by a narrow margin.

Nevertheless, the competitiveness of the “yes” vote on this proposition suggests that attitudes toward “grass” have generally softened, and that many Americans would prefer the business be run legally. For sure, the U.S. market is robust, and “medical marijuana” looks like a way of legalizing without admitting to it. There is also the fact that the stuff seems to move around the country quite easily, demonstrating some tolerance on the part of U.S. law enforcement for the retail sector that distributes it.

More competition in marijuana production and distribution in the U.S. would help beleaguered Mexico. As it stands now, the gangsters have good reason to pull out all the stops to get their marijuana across the border where the market is large, barriers to distribution are low and prohibition adds value. Profit margins are not huge but the sales volume is there.

Mexican officials estimate that the marijuana business makes up more than half of the Mexican cartels’ income. Legalizing grass in the U.S. would mean increased competition for Mexican exporters and lower profit margins, thereby depriving the monopolies of important income.

The bigger problem for Mexico is U.S. cocaine demand. Here there seems to be at least some recognition among drug warriors of what hasn’t worked. Wrote former Drug Enforcement Administrator Robert Bonner in a recent issue of Foreign Affairs magazine: “The goal must be clear. In Colombia, the objective was to destroy the Cali and Medellin cartels—not to prevent drugs from being smuggled into the United States or to end their consumption.”

This is risible. The entire raison d’être of the last 40 years of U.S. drug policy abroad has been to stop supply in order to reduce demand in the U.S. Of course when this plan backfired and Colombian cartels grew more powerful, American and Colombian authorities had to adjust. But their war was predicated on the belief that interdiction of supply could diminish U.S. drug consumption.

If Mr. Bonner is now backing away from that argument, it can only be because he is looking at the numbers. Andean cocaine production in 2008 was down only 8% since 1999, and even that might be explained by a shift in preferences in the U.S.

Analysts and policy makers agree that a crackdown on Caribbean narco-routes has driven the business through Mexico, though it hasn’t reduced U.S. drug use. The economist I talked to argued further that if cocaine moved more easily through the Caribbean as it once did and the Mexican border were more porous, it would be harder for a big cartel to monopolize the traffic, even through violence.

It’s an interesting theory and of course runs totally counter to the direction of U.S. policy. But if that policy is proven wrong, it wouldn’t be the first time in the long history of the drug war.

Mary Anastasia O’Grady, Wall Street Journal


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Lethal Force Under Law

The Obama administration has sharply expanded the shadow war against terrorists, using both the military and the C.I.A. to track down and kill hundreds of them, in a dozen countries, on and off the battlefield.

The drone program has been effective, killing more than 400 Al Qaeda militants this year alone, according to American officials, but fewer than 10 noncombatants. But assassinations are a grave act and subject to abuse — and imitation by other countries. The government needs to do a better job of showing the world that it is acting in strict compliance with international law.

The United States has the right under international law to try to prevent attacks being planned by terrorists connected to Al Qaeda, up to and including killing the plotters. But it is not within the power of a commander in chief to simply declare anyone anywhere a combatant and kill them, without the slightest advance independent oversight. The authorization for military force approved by Congress a week after 9/11 empowers the president to go after only those groups or countries that committed or aided the 9/11 attacks. The Bush administration’s distortion of that mandate led to abuses that harmed the United States around the world.

The issue of who can be targeted applies directly to the case of Anwar al-Awlaki, an American citizen hiding in Yemen, who officials have admitted is on an assassination list. Did he inspire through words the Army psychiatrist who shot up Fort Hood, Tex., last November, and the Nigerian man who tried to blow up an airliner on Christmas? Or did he actively participate in those plots, and others? The difference is crucial. If the United States starts killing every Islamic radical who has called for jihad, there will be no end to the violence.

American officials insist that Mr. Awlaki is involved with actual terror plots. But human rights lawyers working on his behalf say that is not the case, and have filed suit to get him off the target list. The administration wants the case thrown out on state-secrets grounds.

The Obama administration needs to go out of its way to demonstrate that it is keeping its promise to do things differently than the Bush administration did. It must explain how targets are chosen, demonstrate that attacks are limited and are a last resort, and allow independent authorities to oversee the process.

PUBLIC GUIDELINES The administration keeps secret its standards for putting people on terrorist or assassination lists. In March, Harold Koh, legal adviser to the State Department, said the government adheres to international law, attacking only military targets and keeping civilian casualties to an absolute minimum. “Our procedures and practices for identifying lawful targets are extremely robust,” he said in a speech, without describing them.

Privately, government officials say no C.I.A. drone strike takes place without the approval of the United States ambassador to the target country, the chief of the C.I.A. station, a deputy at the agency, and the agency’s director. So far, President Obama’s system of command seems to have prevented any serious abuses, but the approval process is entirely within the administration. After the abuses under President Bush, the world is not going to accept a simple “trust us” from the White House.

There have been too many innocent people rounded up for detention and subjected to torture, too many cases of mistaken identity or trumped-up connections to terror. Unmanned drones eliminate the element of risk to American forces and make it seductively easy to attack.

The government needs to make public its guidelines for determining who is a terrorist and who can be targeted for death. It should clearly describe how it follows international law in these cases and list the internal procedures and checks it uses before a killing is approved. That can be done without formally acknowledging the strikes are taking place in specific countries.

LIMIT TARGETS The administration should state that it is following international law by acting strictly in self-defense, targeting only people who are actively planning or participating in terror, or who are leaders of Al Qaeda or the Taliban — not those who raise funds for terror groups, or who exhort others to acts of terror.

Special measures are taken before an American citizen is added to the terrorist list, officials say, requiring the approval of lawyers from the National Security Council and the Justice Department. But again, those measures have not been made public. Doing so would help ensure that people like Mr. Awlaki are being targeted for terrorist actions, not their beliefs or associations.

A LAST RESORT Assassination should in every case be a last resort. Before a decision is made to kill, particularly in areas away from recognized battlefields, the government needs to consider every other possibility for capturing the target short of lethal force. Terrorists operating on American soil should be captured using police methods, and not subject to assassination.

If practical, the United States should get permission from a foreign government before carrying out an attack on its soil. The government is reluctant to discuss any of these issues publicly, in part to preserve the official fiction that the United States is not waging a formal war in Pakistan and elsewhere, but it would not harm that effort to show the world how seriously it takes international law by making clear its limits.

INDEPENDENT OVERSIGHT Dealing out death requires additional oversight outside the administration. Particularly in the case of American citizens, like Mr. Awlaki, the government needs to employ some due process before depriving someone of life. It would be logistically impossible to conduct a full-blown trial in absentia of every assassination target, as the lawyers for Mr. Awlaki prefer. But judicial review could still be employed.

The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors — along with proof of its compliance with international law — and get the equivalent of a judicial warrant in a timely and efficient way.

Congressional leaders are secretly briefed on each C.I.A. attack, and say they are satisfied with the information they get and with the process. Nonetheless, that process is informal and could be changed at any time by this president or his successors. Formal oversight is a better way of demonstrating confidence in American methods.

Self-defense under international law not only shows the nation’s resolve and power, but sends a powerful message to other countries that the United States couples drastic action with careful judgment.

Editorial, New York Times


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Descent Into Legal Hell

On the afternoon of Sept. 28, 1999, sheriff’s deputies pulled into the driveway of Cynthia Stewart’s Ohio home and arrested her. Her crime: taking pictures of her 8-year-old daughter playing in the bathtub. She had sent the photos to a film-processing lab, and the lab called the police. The police took the pictures to the town prosecutor, who viewed them as harmless and declined to press charges. The police then turned to the county prosecutor, who was all too happy to take the case. He promptly brought child- pornography charges against Ms. Stewart.

“Framing Innocence” is Lynn Powell’s reported account of Ms. Stewart’s descent into legal hell. For two years, the case meandered through the justice system. Child Services filed suit, seeking custody of Ms. Stewart’s daughter on the grounds that the young girl had been abused. Ms. Stewart was threatened with 16 years in jail. Her legal bills ran upwards of $40,000. In the end an intense public campaign on her behalf forced the ambitious prosecutor (who is now a federal judge) to cut a deal in which Ms. Stewart was absolved of wrongdoing.

The case is not unique. By the time Ms. Stewart’s saga ended, another mother in Ohio and a grandmother in New Jersey had also been arrested on similarly absurd charges. The relevant case law, Osborne v. Ohio, gives such a loosely worded standard for child pornography that it allows the state nearly unfettered intrusion into family life. Like the Supreme Court’s eminent-domain decision (Kelo v. City of New London), Osborne has had the effect of unleashing the power of the state on unsuspecting individuals. If you have ever taken a picture of a naked toddler, the only thing standing between you and criminal prosecution is the good judgment of government workers.

The Stewart case is particularly notable in that it took place in Oberlin, Ohio, which is Middle America’s version of Berkeley, Calif. Nearly every character in the cast is liberal to the point of self-parody. Before her court appearance Ms. Stewart had never owned a bra. Her cat was named after a Sandinista spy. Her then-partner worked for the Nation magazine. (They have split up since.) And yet the liberals who rallied to Ms. Stewart’s defense are undiverted from their belief that government should have a great deal to say about how people live their lives.

“Framing Innocence” is thoroughly and fairly reported, without a strong polemical thrust. If there is a point to this morality tale, in Ms. Powell’s telling, it seems to be that in the justice system mistakes can be made—sometimes terrible mistakes. True enough, but more could be said. If a well-meaning law about child pornography can wreak such havoc on families, anyone care to speculate on what a 2,000-page health-care law might do?

Mr. Last is a senior reader at the Weekly Standard


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European Parliament Balks at US Data Deals

‘The Americans Want to Blackmail Us’

Representatives of US security agencies want further concessions from the EU to ensure free access to police computers, bank transfers and airline passenger data in the fight against terror. But members of the European Parliament have said they will resist the moves.

Washington’s army of diplomats in Europe has been taking on one country at a time. Germany stood at the top of the list and, initially, surrendered without even a whimper to the American demands. In 2008, the federal government in Berlin signed an agreement pushed by Washington allowing American officials wide-ranging access to the databases of German security agencies. It was only after leaders in Hamburg raised their objections to the deal that it was, temporarily, stalled in the Bundesrat, Germany’s upper legislative chamber, which represents the interests of the states. The city-state has since withdrawn its objections after securing minor concessions on data protection provisions in the document, and the treaty is now set to be approved.

Step by step, and largely unnoticed by the public, the US has been pushing through similar arrangements in a number of European capitals. Washington reported its latest success in Vienna last week: The Austrian government said it was ready to grant US security agencies with free access to its police computers, complete with DNA and finger print data and a criminal registry.

The proceedings were not entirely peaceful. One Austrian government official reported “massive pressure.” American Ambassador William C. Eacho, III. was apparently “very charming and friendly,” when he appeared in the Austrian Chancellery and offered his “help.” President Barack Obama’s emissary said the administration in Washington was considering discontinuing the visa-waiver program for Austrians traveling to the United States because Austria wasn’t sufficiently cooperating in the fight against terrorism.

In order to hinder the plans of the “boys in Washington,” they would have to “work something out together.” Apparently they were also able to achieve that with the guidance of the friendly ambassador. “Participation in the United States’ ‘Visa Waiver’ program,” Austrian Chancellor Werner Faymann wrote in a letter to the Viennese parliament, has been “linked to additional requirements for the exchange of information,” including “an agreement to exchange data relating to the detection of terrorists.” In other words, no data, no visa waiver. The small Alpine republic buckled.

In Washington’s Sights: Facebook, Blackberry, Money Transers and Trips

But that’s not the only front on which Washington’s anti-terror combatants are active. A few days ago the US government announced further legislation designed to facilitate monitoring of new communication tools such as Twitter and Facebook as well as modern technologies such as Blackberrys and Skype. At almost exactly the same time, the US Treasury presented draft legislation that will allow security agencies free access to the details of all money transfers conducted through banks or credit cards.

And Washington doesn’t just want to tap into and store this data on its own citizens, but on people worldwide, including Europeans.

European interior ministers have, so far at least, shown a good deal of understanding for these demands because they profit from the work of the US authorities, who sometimes share intelligence that European investigators could never hope to otherwise obtain. That’s why matters will most probably be kept on a friendly and cooperative level with European interior ministers meeting on Thursday in Luxembourg with representatives of the US Department of Homeland Security and other agencies to discuss the terrorist threat and counter-terrorism measures.

Last weekend, the US issued a travel warning for Europe on the basis of possible imminent terrorist attacks. Germany Interior Minister Thomas de Maizière, however, has warned against scaremongering. There is apparently no concrete evidence of imminent attacks in Germany. But perhaps, speculates one European Union security expert, it was just a little “background music” for the real questions to be discussed in the trans-Atlantic talks: How deeply can American terrorism investigators peer into European computers, how extensively can they monitor European bank accounts, tap into Blackberrys or listen in on Skype calls?

And however much understanding EU security circles may have for Washington’s requests, they are now having to take on opponents in their own camp, who are further complicating the issue: the members of the European Parliament (MEPs).

EU Parliament Threatens Resistance

Many MEPs concerned with data privacy and domestic security issues are up in arms over the revelations in Vienna and the news from Washington. “The Americans want to blackmail us,” said an agitated Alexander Alvaro, home affairs spokesman of the Germany’s Free Democratic Party (FDP) in the European Parliament. The Americans have become “like a data octopus,” he said, as if their tentacles were reaching out to all the world’s data. He said that Europeans would not go along with it and that they would “defend themselves.” Alvaro’s Dutch colleague Sophie in ‘t Veld is also outraged: “Americans think everything is permitted.” This attitude, she said, is now beginning to rub off on European investigators. Time and again executives come to in ‘t Veld in her role as chair of the European Parliament’s Civil Liberties, Justice and Home Affairs committee to tell her confidentially that they have been illegally forced to hand over “their complete customer data.” 

In a letter to the president of the European Commission, the Liberals (as the FDP and similar parties in other countries are called in the European Parliament) have called on him to “clarify urgently” the details of the US government’s intentions and to immediately inform parliament. Jan Philipp Albrecht, interior affairs expert for the German Green Party, has called for the “European Commission to put the US government in its place.”

Comments such as this would previously have only caused a few smiles — the European Parliament never had much of a say in matters or any real power. However, that changed when the Lisbon Treaty came into force on Dec. 1, 2009, and parliament now has a decisive say on numerous issues. The fact that MEPs take this new role very seriously, especially when it comes to data protection, was made clear when they blocked the so-called “SWIFT” agreement for months in the face of intense pressure from Washington.

“SWIFT”: The First Strike

Secretly and illegally at first, and later even with the consent of EU governments, the US authorities monitored the bank transfers of tens of thousands of European citizens for years as part of its anti-terrorism operation. This was done via access to the mainframe computers of the Society for Worldwide Interbank Financial Telecommunication (SWIFT).

The Belgian company processes money transfers between around 8,000 financial institutions in over 200 countries. Largely unchecked, the Americans were able to simply help themselves to the data. European governments and, especially their interior ministers, didn’t think it was a bad thing. They also would have been keen to simply extend their deal allowing the Americans access to the transfers data. But members of the European Parliament didn’t want to play along. At first a handful, then many and finally almost all the members of parliament joined forces to hinder the process for months.

The Americans finally yielded. And even after parliament’s intervention, things still aren’t totally clean. But it has, at least, forced Washington to agree to accept European data protection standards. For example, US officials must now state concrete grounds for suspicion when requesting to see a European citizen’s financial transfers.

And they even have to tolerate an EU watchdog in their own bank intelligence offices in Washington. That’s why, data protection experts suspect, Washington is now bringing in new laws. They want a return to the good old days of unbridled spying. And that’s exactly what Europe’s brave MEP’s are fighting to prevent — and they’ve already chosen their weapon.

An agreement between the EU and the US on the exchange of airline passenger data — the “Passenger Name Records (PNR)” in US government jargon — is currently due for renewal. The agreement allows the US Department of Homeland Security access to the databases of European airlines and the information they hold on their customers. Under the current terms, Homeland Security officials have been able to collect anything that interested them. If it was up to Europe’s interior ministers, they would continue to be able to do so in the future.

MEPs Warn of a “Data Wild West”

But now, at the end of the process, Europe’s interior ministers must obtain the approval of the European Parliament. And “I can guarantee they won’t get it for an agreement like the old one” said Dutch politician in ‘t Veld. Only in limited cases of well-founded suspicion should an airline be forced to surrender data on its customers, she said. Data storage should also be restricted and the US should be barred from transferring data to third party governments. A “Wild West” approach to data will no longer be accepted, said Axel Voss, an MEP with Germany’s Christian Democratic Union (CDU) who is a member of the interior and justice committee.

Many MEPs also have the feeling that they are being tricked. If the United States first signs an agreement, like SWIFT, and then tries to overturn it in other ways, or if Washington forces through what is not achievable at EU level by blackmailing individual national governments one by one, then how and why should negotiations continue? asks Civil Liberties, Justice and Home Affairs Committee chairwoman in ‘t Veld.”The Americans’ word doesn’t count for much anymore anyway,” she said.

Indeed, long and tricky negotiations are likely to be up next on the agenda between Washington, Europe’s interior ministers and the MEPs.


Full article:,1518,721811,00.html

The ACLU Is Dismissed

Obama wins one for the Presidency on the state-secrets privilege

Another week, another legal vindication for the Bush, er, the Obama Administration’s war on terror. On Wednesday, the Ninth Circuit Court of Appeals cited the executive branch’s state-secrecy privilege to dismiss an ACLU attempt to challenge the legality of sending terror suspects from the U.S. to other countries. Our friends on the left are now going nuts about “torture flights,” but we’ll take this decision as evidence that this Administration has its grown-up moments.

The case involves flight-logistics company Jeppesen DataPlan Inc., a Boeing subsidiary the ACLU accuses of being involved in arranging flights to move five terrorist suspects to prisons in Morocco, Egypt and elsewhere so they could be held for questioning by the CIA and local authorities. The five suspects—three of whom are now free—all claim they were tortured, while the ACLU claims Jeppesen personnel knew (or should have known) what was in store for them when they arranged the flights.

How much of that is true remains to be seen; the court made no determinations of fact. What is clear is that the ACLU and the rest of the anti-antiterror left have targeted Jeppesen and companies such as AT&T as part of a legal intimidation strategy aimed at preventing them from cooperating with the government in the war on terror. In the contest between considerations of patriotic duty and legal liability, the ACLU reasons that the latter will usually win out.

That may even be true. But the ACLU’s litigation also required the disclosure of secret information, which former CIA Director Michael Hayden described in a public declaration as having the potential “to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States.”

Gen. Hayden also provided the court with a classified declaration, laying out the damage the lawsuit could do to national security. In its ruling, the court noted that it was persuaded that “the government is not invoking the [state secrets] privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”

The court’s decision this week invoked Supreme Court precedents going back to the 1870s, when it ruled in the Totten case that “public policy forbids the maintenance of any suit . . . the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” A larger and more recent body of case law fleshes out the breadth of the state-secrets privilege.

But perhaps the more noteworthy aspect of this case is that it was dismissed—albeit by a 6-5 vote—by the most liberal Circuit Court in the country, with Judge Raymond Fisher, a Bill Clinton appointee, writing for the majority. That gives the ACLU little hope that it can get the decision overturned should the Supreme Court decide to hear it.

Nor will the ACLU find much solace in the Obama Administration, which has largely preserved the antiterror legal regime established by its predecessor even as it has tinkered with some of the language. Ask terror imam Anwar al-Awlaki, the detainees at Bagram air base whose habeas corpus petitions have been denied, or the enemy combatants still in Guantanamo. Their justified predicaments are testimony to Barack Obama’s education as Commander in Chief.

Editorial, Wall Street Journal


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‘The Roma Are EU Citizens — Everywhere in the European Union’

The World from Berlin

Demostrators protest against the French government’s immigration policy in the western city of Nantes on September 4.

France’s expulsion of Roma people could be copied by other governments unless it is vigorously condemned by the European public, warn German media commentators. They argue that Brussels is right to voice its misgivings against a policy that flies in the face of the principles the French nation has stood for since the revolution.

Tens of thousands protested in France on Saturday against the government’s repatriation of Roma people to eastern Europe, chanting “stop repression” and “No to Sarkozy’s inhumane policies.”

The expulsions of Roma people this year is seen as an attempt by President Nicolas Sarkozy to revive his flagging popularity and detract from controversial reforms and spending cuts.

The French government has insisted it will push ahead with the expulsions after almost 1,000 people were sent back to Romania and Bulgaria since a government crackdown on crime and immigration at the end of July. Sarkozy is facing mounting opposition to the expulsions from rights groups, left-wing opponents and even some politicians from his own conservative camp. Under the French crackdown, Roma who agree to leave the country receive €300 euros ($387) and an additional €100 ($129) for each of their children.

Roma in Europe

Saturday’s protests also targeted the revocation of French citizenship for immigrants found guilty of attacking police officers.

According to media reports, the European Commission has doubts whether the dismantling of Roma camps and repatriations are legal, and is requesting clarification of the policy.

German media commentators say the number of demonstrators on Saturday was surprisingly low given how heated the debate has been in recent weeks. But that doesn’t necessarily reflect tacit approval of Sarkozy’s policies. In fact, even many conservative voters object to the expulsions because it runs counter to French national ideals that they still cherish — the notion that France is defined not by blood but by common values, and that the country is a refuge from persecution and a haven for human rights.

Center-left Süddeutsche Zeitung writes:

“French Interior Minister Brice Hortefeux is pleased. Only a few tens of thousands of people turned up to demonstrations against the Roma expulsions. That isn’t very many if one considers how the debate has dominated France in recent weeks. But the modest attendance doesn’t mean the majority of citizens approves of the populist stance the Sarkozy government is taking. Even many conservative voters are turned off by the way the president is attacking weak minorities like the Roma without solving the real problem of social decay and rising crime in the suburbs.”

“France is a nation that defines itself not through blood but through common values. That gave the country tremendous attraction as a home for human rights and a refuge for the persecuted. Many French people cherish this France. They want to preserve it at a time when the integration of countless immigrants is going wrong, Islamists are preaching hate and some of the immigrant Romanis are causing problems for the police.”

“But why did so few citizens take to the streets to protest against a policy that pits the ‘real French’ against immigrants and thereby plays the race card? The answer lies in a growing fatigue with politics. But Sarkozy’s opponents are also saving their energy for Tuesday when they want to demonstrate in force against a rise in the retirement age — even though the president has the better arguments on this issue.”

Left-wing Die Tageszeitung writes:

“Officially it isn’t a crime yet in France to be a Roma from Romania or Bulgaria. But de facto the French government is no longer treating these European Union citizens as individuals with fundamental rights. They are being treated as enemies — as members of an ethnic group that, the government claims, arouses hostile prejudices in society and has thereby brought its problems upon itself.”

“The Roma are an easy target for a policy that is seaking cheap applause from worried citizens. Like the term ‘gypsies’ in the past, the word ‘Roma’ is being used by government propaganda as a synonym for thieves and troublesome beggars whose expulsion doesn’t require any further reason: their ethnic background suffices.”

“Who can seriously claim that these poor families who live on the fringes of society in their country of refuge and their country of origin pose a danger to France’s security?”

“This hunt for publicly branded scapegoats serves as a deterrence. The Roma are being made an example of for a policy that Nicolas Sarkozy was already considering when he was still interior minister talking about ‘selective immigration.'”

“This policy deliberately instrumentalizes existing prejudices. There is a big risk that this policy will spread from France and Italy to the rest of Europe if it isn’t rejected firmly enough by the European public.”

The Berlin daily Der Tagesspiegel writes:

“The Roma are EU citizens — everywhere in the European Union. That means that Roma who come from within the EU can move freely everywhere in the bloc. And it also means that the integration of the Roma, hard though it may be, is a task for all member states: their countries of origin which are mostly in the east, and their new host countries. Those include France, Italy and not least Germany.”

“The Roma have virtually no lobby. That is why Sarkozy until recently had no problem clearing the illegal camps — until church representatives, the opposition and members of his own party started voicing their objections. His brutish policy of expulsion has also prompted the European Commission to get involved. Commissioner Viviane Reding has indicated that she won’t let the president get away so easily with his law-and-order policies. Reding’s caution is understandable given that it is not easy to prove that the French president has broken EU rules. But it is good that Brussels has shown its colors, albeit after some hesitation. After all, most EU member states have a charter of basic rights. And the inhumane treatment of the Roma is hardly compatible with that.

“Sarkozy is by no means the only European leader to be tough with the Roma. Germany’s current repatriation of Roma refugees to Kosovo poses the question: are we really checking every individual case here too?”


Full article and photos:,1518,715900,00.html

Video Game Tort: You Made Me Play You

A federal judge in Hawaii ruled last month that a man claiming to be addicted to a videogame can sue the game’s maker for gross negligence in not warning him he could become a joystick junkie. Craig Smallwood alleges in his lawsuit that, as a result of playing the online game “Lineage II,” he has “suffered extreme and serious emotional distress and depression, and has been unable to function independently in usual daily activities such as getting up, getting dressed, bathing, or communicating with family and friends.”

Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado.

Silly as the suit may be, it isn’t without legal ramifications. Steven Roosa, a lawyer doing research at Princeton’s Center for Information Technology Policy, sounded almost giddy this week at the prospect that a court might chip away at the enforceability of End User License Agreements, or EULAs. These software license agreements often radically limit how, and for how much, customers can sue if they feel harmed by an electronic product.

Mr. Roosa cheered on his blog that the judge in Hawaii has opened an avenue for escaping the tyranny of these one-click, liability-limiting contracts. He called the judge’s refusal to throw the case out in its entirety a “stunning defeat” not only for the maker of Lineage II, but for the whole business of locking customers into contracts that consist of miles of electronic fine print that hardly anyone ever reads.

Alleged culprit: Lineage II

No doubt we do live in a time of kudzu legalese, with weedy contractual tendrils crawling into every electronic transaction. It’s alarming to think about everything we sign off on these days, with endless demands to click “I agree” as the non-negotiable price of entry into our electronic worlds. Alarming, because few of us ever peruse the legal documents to which we so regularly and glibly affix our electronic signatures.

Last April, the British retailer Gamestation set out to prove the point by including in its boilerplate some Mephistophelean contractual language: “By placing an order via this Web site,” read the clause, “you agree to grant us a non-transferable option to claim, for now and for ever more, your immortal soul.” In just one day, some 7,500 customers “agreed” to hand over their souls for a mess of virtual pottage.

Do EULAs threaten to make us into so many Esaus? Mr. Roosa wants courts to rethink treating EULAs as though they were binding contracts. He wrote that “the Smallwood decision, if it stands, may achieve some lasting significance in the software license wars.”

Let’s hope not. Because a new opportunity for parasitic litigation isn’t exactly the way to boost technological progress.

The proliferation of annoying and obnoxious license agreements has been driven, primarily, not by companies’ desire to abuse their customers, but by a need to keep their rather more litigious customers from abusing them (and the legal system). As Jonathan Zittrain, who teaches both law and computer science at Harvard, puts it, “EULAs are, for most companies, a shield not a sword.”

“The reason you don’t see tech companies dragged into court for their buggy software,” Mr. Zittrain says, “is that you need to prove actual physical harm,” to overcome to overcome the liability limits of the standard EULA. Imagine what the state of the computer industry would be if every time someone lost their tax records because of a glitchy hard drive, they sued the manufacturer to recover the costs of making nice with the IRS. Bad software is best punished by the market, not the courts.

Which isn’t to say that it is inconceivable that a software company could cause physical injury. Strobe lights, at certain frequencies, can cause seizures in some people with epilepsy. In 1997, a Pokémon cartoon broadcast in Japan included a strobe effect blamed for causing seizures in hundreds, perhaps thousands of children. The epileptic epidemic proved to be largely a case of media-fed hysteria, but there were indeed some susceptible children who suffered seizures because of the strobe.

Mr. Zittrain says that if a video game included a strobe, and the maker learned it was causing actual seizures but then couldn’t be bothered to remove the effect or even just include a warning, gross negligence might well be proved and a EULA would provide no cover. In such a case, he says, there would be “a clear link between the behavior of the company and a demonstrable physical harm.”

Back in Hawaii, Mr. Smallwood is indeed claiming physical harm, even if it is of a psychological sort. In his ruling, U.S. District Court Judge Alan Kay noted that Hawaii’s supreme court allows emotional trauma to be treated as physical harm if the “plaintiff’s psychological distress is trustworthy and genuine.”

It remains to be seen whether a jury will find that Mr. Smallwood’s claims of psychic injury meet that standard. And there’s plenty of legal maneuvering to go. Judge Kay already threw out the bulk of Mr. Smallwood’s voluminous complaint; what’s left may yet get tossed before ever going to trial

And a good thing that would be, because discovering some newly elastic definition of injury, combined with an expanded concept of “gross negligence” would be just the stuff to spur a new tortious gold rush. Do we want the tech biz focused on innovation or litigation?

Then again, given the time my son spends playing Wii, I might want to rethink my own answer to that question. Maybe there’s a payday to be had for the Feltens.

Eric Felten, Wall Street Journal


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Opening Statements: What to Wear to Court

Pleas of ‘Not Guilty by Reason of Temporary Fashion Insanity’ Won’t Cut It; Lawyers and Witnesses Are Also Offenders

Sloppy jeans and exposed tattoos are common in court.

There’s a place where first impressions are even more crucial than at a job interview or at dinner with our future in-laws: the courtroom.

Yet court officials are constantly surprised by the imprudence of people’s courtroom-clothing choices.

One doctor in Texas appeared at his own medical-malpractice trial in blue jeans. “In the old days, parents used to teach us to dress up in certain places,” says Richard Waites, a psychologist and trial consultant who was working for the hospital that employed the doctor.

Can clothes tip the scales of justice? We’d like to think not. There are the merits of the case, after all. But as Dr. Waites suggests, “Justice isn’t black and white. It’s gray most of the time.”

One California judge I spoke with says she takes account of both the appearance and the behavior of those who come before her court. Sloppy dress at trial might seem to add to the case against a father accused of neglectful child-rearing, she says. Or a woman who is claiming poverty in a financial hearing might undermine her case if she’s wearing highly expensive clothing.

Juries may be even more judgmental, especially as they sit for hours with little to look at … but you.

“Jurors notice everything,” says Patricia Glaser, a business litigator whose clients have included Kirk Kerkorian and Conan O’Brien. “They notice the wedding ring, they notice if your hair is parted on the right or left, they notice if it’s an Italian-cut suit or a Brooks Brothers, they notice if your shoes are scuffed every day, just like they notice if you’re on time or not.”

Courts have rules of decorum for both behavior and dress. It’s rare for judges to impose sanctions. When it does happen, it sometimes makes headlines: In May, a woman was held in contempt of court and jailed over a T-shirt with a message a judge found offensive, according to news reports. In April, a man wearing black jeans was turned away from an Inkster, Mich., court—missing his traffic-court date.

When going to court, most of us would be advised to look like the embodiment of the Boy Scout creed—trustworthy, loyal and helpful. “It’s like dressing for church,” says divorce lawyer Stacy Phillips, whose clients have included a sweet-looking Britney Spears in polka dots. She has lent her own clothes to ill-prepared clients, and their moms, on the way in to court.

It’s also important to think about the more subtle messages that apparel can send. While a business suit is usually a safe choice, there may be cases in which it’s not. Ms. Phillips says she represented a high-ranking female executive recruiter, who favored severe dark business suits, in a child-custody case. She sent the woman shopping for “pastels and skirts,” she says. “I wanted her to look vulnerable.” Meanwhile, a double-breasted suit, with its air of entitlement, may be too smug.

Even ties—while usually advisable if the choice is conservative and doesn’t attract attention—may not be right in every situation. Ms. Glaser says she recently asked her real estate-developer clients not to wear ties in order to soften their edge. They don’t normally wear ties, she noted, so they don’t look comfortable in them.

For women, conservative slacks are as acceptable as a skirt or dress, according to nearly every court official I interviewed. Yet all of the women (the judge and the attorneys) say they prefer to wear skirts themselves in court.

While there was little consensus on pantyhose, there’s no downside to wearing them (fashion considerations aside). There is, though, a possible downside to going bare-legged: Plenty of people believe fervently that a lady isn’t fully dressed without her hose. If you get one of those judges, a pair of sheer nylons could prove a worthy investment.

Charlie Sheen wears a loose tie and knit cap for his June assault hearing.

I spent a day in Los Angeles Superior Court recently—for research purposes, thankfully—and was surprised at the variety of looks. I saw a tattoo on a lawyer’s neck, for instance, and a lot of tees, untucked shirts, and jeans, both neat and sloppy, on litigants and witnesses. Dr. Waites says tattoos and business casual garb are more common these days, even among lawyers, but he wagers they’re a fad that will quickly disappear.

The judge I spoke with says it isn’t necessary to wear expensive clothes. I observed a middle-aged Latino couple who were tenants testifying in a trial involving housing code violations. The couple looked as though they had dressed up for church, she in a blue floral dress and jacket, and he in a pressed shirt and slacks. The landlord’s representatives looked wrinkled and overly business-casual. They also seemed cocky. Was it the evidence or fashion factors that left my sympathies with the tenants?

“What we wear says so much about you,” says Nina Garcia, a judge on the Lifetime Television show “Project Runway” and author of the recently released book “What To Wear Where.” Before a court appearance, she suggests asking, “How do you want to portray yourself?

Ms. Garcia’s list of courtroom no-nos includes see-through or low-cut clothes, mini dresses, heavy makeup, loud patterns, clashing colors and noisy bangles. She advises looking for conservative clothes from “wholesome brands” like Banana Republic, Ann Taylor or Brooks Brothers.

One parting and practical piece of advice, from Ms. Phillips, the lawyer: Take a jacket or sweater. Courtrooms can get chilly in many ways.

Christina Binkley, Wall Street Journal


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Investigators Look into Frameups and Iniquity at German Bank

Moral Bankruptcy at HSH Nordbank

HSH Nordbank’s legal advisor Wolfgang Gössmann (left) was allegedly involved in a smear campaign against bank manager Frank Roth as well as an effort to frame a bank employee in the US, Roland K. Gössmann has since been relieved of his duties. Here, he is speaking with lawyer Joachim Erbe, whose Potsdam lawfirm was allegedly also involved in the scandal.

Child pornography planted on a work computer, a house break-in and illegal wiretapping: The leadership of Germany’s HSH Nordbank stands accused of going to great lengths to rid itself of unwanted senior officials. Prosecutors in both New York and Germany have launched investigations.

The memo from top management, issued at 4:18 p.m. on Friday, Aug. 20, was sent to everyone in the company. Reading it today, one has to wonder what is more shocking about the 22 lines in that note addressed to the bank’s “dear employees,” the chutzpah that led HSH Nordbank to take its employees for fools, or the cynicism that prompted it to claim that it loves its employees.

The memo, after all, was coming from a bank that apparently had no scruples about lambasting its employees, both professionally and personally.

The internal memo was HSH management’s way of preparing employees for the story SPIEGEL would publish the following Monday: Before the bank fired Chief Operating Officer Frank Roth in April 2009 without notice or compensation (the same Frank Roth CEO Dirk Jens Nonnenmacher had long been trying to get rid of), Roth’s office was allegedly bugged and his apartment broken into. Moreover, the evidence that led to his immediate dismissal, namely that Roth had revealed bank secrets to the press, was presumably false. Indeed, it appears that he was framed.

According to the HSH internal memo, management had only learned of these charges 14 days earlier, but now it was looking into the allegations. And to ensure that everything would take its proper course “under these circumstances,” the bank’s legal advisor, Wolfgang Gössmann, had been “relieved of his duties.” The “circumstances” in question were that Gössmann, who reported to Nonnenmacher, had supposedly been involved in the smear campaign.

If a half-truth is defined as something that contains at least half of the truth, the memo was closer to a lie than the truth. According to information SPIEGEL has obtained, Gössmann was not relieved of his duties because of the Roth case, or at least it wasn’t the primary reason. In fact, the story is even darker. There is another case in which Gössmann is allegedly involved, which revolves around the suspicion that the bank was also trying to rid itself of another top executive. The methods used in that case were as vile as could be.

Planted Pornography

This follows from a report by the WilmerHale law firm, which the bank itself commissioned. The report states that a New York district attorney has launched a criminal investigation against members of an HSH team, including Gössmann. The group was involved in a raid on HSH’s branch in Manhattan, targeting Roland K., the director of HSH New York, who the bank wanted to get rid of.

The HSH team quickly found what it was looking for during the Sept. 17, 2009 search: child pornography images, which it turned over to the New York police. The photos would not only have deprived Roland K. of millions in severance pay, but could also have ruined him in every other respect. But the investigation quickly took another tack. According to the WilmerHale report, the US investigators concluded that Roland K. was possibly the victim of a conspiracy, and that his employer was behind it all. The WilmerHale attorneys also concluded that there were many signs that the alleged child pornography evidence was planted prior to the raid.

It is a disaster for the bank: The district attorney’s office in New York now lists both Gössmann and CEO Nonnenmacher as possible suspects. Germany’s bank regulator, BaFin, launched a special investigation of the matter on Monday of last week. The Hamburg public prosecutor’s office has received the roughly 100-page “Preliminary Investigation Report” prepared by the US law firm, and prosecutors in Kiel, where HSH has its second headquarters, have also shown an interest in the report.

The decision to dismiss Gössmann was apparently based on the first preliminary results from this report, a connection that Gössmann disputes. Still, nothing about the New York case was to be revealed to the public. There was also word of it in HSH’s memo to its dear employees, which solely addressed the Roth matter (which was already impossible to keep secret).

Fabricating Evidence?

Of course, the American scandal now casts the Roth firing in a new light — and has piqued the interest of investigators. It raises questions as to connections between the Roland K. case and the Roth case — and whether such a dirty intrigue to shed unwanted employees could have involved Nonnenmacher as well.

The public prosecutor’s office in Kiel dropped its case against Roth after concluding that there was insufficient evidence that Roth had in fact leaked secret bank information to the press. Now the investigators are revisiting the case, but from a different perspective: Did HSH fabricate the evidence against Roth?

One clue suggesting it did is that the same names appear in both cases. A lawyer from the law firm of Joachim Erbe in Potsdam outside Berlin provided assistance in the raid of HSH’s New York branch. Roth, as it happens, had already encountered Erbe, who was present and taking the minutes when the bank notified him that he was being fired. Erbe also works closely with a Munich security firm, Prevent AG, which is staffed with former senior police officials and has been awarded contracts worth millions by HSH.

Prevent AG also played a role in both cases. First, it was involved in the New York raid. Second, several witnesses say that one of Prevent AG’s subcontractors, a man named Arndt Umbach, had admitted that he had bugged Roth’s office and broken into his apartment. More than two weeks ago, when Umbach suddenly denied ever having said or done any such thing, it was Prevent AG that released his statement a short time later.

Moral Bankruptcy

This certainly gives one pause. At issue is a German bank that resulted from the merger of two state-owned banks. The German states of Hamburg and Schleswig-Holstein still own 85.5 percent of HSH Nordbank.

Everyone knew that HSH was in serious financial difficulties. The two states had to bail out the bank to the tune of €3 billion ($3.8 billion) and provide it with another €40 billion in loan guarantees, because its managers had made bad investment decisions. But while the government shareholders were filled with panic and barely managed to keep their bank from collapsing, none of them noticed that HSH was also threatened by a different sort of bankruptcy: moral bankruptcy. Or perhaps no one wanted to notice.

HSH was in such serious trouble that its supervisors chose to place their unconditional trust in CEO Nonnenmacher, believing that he had the professional competence and ability to rescue the bank. One man in particular, Supervisory Board Chairman Hilmar Kopper, tied his fate to that of Nonnenmacher. By insisting that if Nonnenmacher went, so would he, Kopper went from being a watchdog to a participant. The bank’s supervisory board accepted as a necessary evil the possibility that Nonnenmacher, the mathematics professor, analyst and numbers man, had a worrisome blind spot when it came to matters of morality. He insisted on his special payment of €2.9 million, with no regard for the crisis it triggered in the governments of Hamburg and Schleswig-Holstein and the deep resentment it generated among bank employees whose bonuses he had cancelled during the crisis.

Nonnenmacher, it would seem, pays little attention to such trivialities; he hardly allows anyone to come very close to him. He is uncomfortable around people and unwilling to open up; he finds photo ops excruciating, perhaps explaining why he looks so awkward in photos. He didn’t even tell members of his staff that he had become a father. He keeps his distance and, most of all, is suspicious of others. “It’s practically pathological,” says one bank executive.

Last spring, the German business publication Manager Magazin reported that he planned to replace everyone on the executive board. A board member who knows him says that he has little appreciation for compromise and has a hard time settling differences in a spirit of goodwill.

A Password Behind a Picture Frame

Still, the question as to whether HSH Nordbank used every means at its disposal, particularly the Munich security firm Prevent AG and its subcontractors, to rid itself of those executives Nonnenmacher wanted gone, remains open. HSH Nordbank and attorney Erbe declined to comment on the case last Friday, while officials at Prevent have only said that the questions were based on “incorrect assumptions” in several respects and that the complexity of the matter meant that it needed more time. Gössmann, the legal advisor who has been relieved of his duties, finally issued a statement claiming that he was not involved in any campaign to tie the New York branch manager to child pornography. And such accusations, he said, are “false and improper.” 

Clearly the bank and its key officials must be considered innocent until proven guilty. But if the operation did in fact take place, it would less surprising that the culprit was HSH Nordbank, with Nonnenmacher in charge, rather than another bank.

Roland K., a US citizen, had been the head of the New York branch since 2002. When two employees were let go in 2007 in an effort to cut costs, they claimed that K. had only decided to dismiss them and not another female employee because he had had an affair with her.

The bank had the case investigated twice by law firms, with both concluding that K. had not discriminated against the fired employees. Although some felt at the time that the investigations had whitewashed the alleged discrimination, a ruling by a US court in one of the two cases has since arrived at the same conclusion as the two law firms.

Painful Defeat

The situation changed for K. when, in May 2009, German media reported on the two former employees’ pending lawsuits in the United States, and on sexual escapades within the bank. K. had become a burden. A new investigation by the accounting firm PriceWaterhouseCoopers focused on expense accounts. The auditors had their suspicions about an inordinately expensive ski trip to Wyoming with customers, but in the end it seemed that nothing would come of it. But that would have been a painful defeat for Nonnenmacher.

According to the strictly confidential WilmerHale report, that was when the bank resorted to cruder methods. In May 2009, when it was becoming clear that PriceWaterhouseCoopers and an additional law firm could not come up with sufficient evidence to fire Roland K., HSH legal advisor Gössmann met with employees of Prevent AG. The meeting marked the beginning of “Project Liberty,” which allegedly cost the bank at least €900,000. As Gössmann apparently later told WilmerHale in blunt terms, the purpose of Project Liberty was to speed things up at Prevent so that the security firm would come up with results more quickly than PriceWaterhouseCoopers. To achieve this, Prevent had completely different options at its disposal, options that Gössmann claimed he preferred not to know about, so as not to lose his good faith.

Gössmann has told SPIEGEL that he never said any of this. He also claims that the investigation was not directed against Roland K., but that it was merely a “neutral and open-ended review of expense account procedures at the New York branch.”

According to the WilmerHale report, Nonnenmacher also met early on with then Prevent board member Thorsten Mehles to be briefed on Project Liberty. Later on, when he became dissatisfied with Prevent’s apparent inability to turn up any solid evidence against Roland K., he pressed the firm for results. The goal of Project Liberty was to enable the bank to get rid of K. It was Nonnenmacher’s project, a secret project that was to be kept from fellow executive board members, including Deputy Chairman Peter Rieck.

An Email Address and a Password

On Sept. 17, 2009, the plan was ready to be put into action. According to the WilmerHale report, Nonnenmacher had scheduled a videoconference with K. for 10 a.m. to make sure that he would be in the office. A 13-member HSH team arrived at the New York branch at the same time. The team, headed by Gössmann and personnel manager Stefan B., included a partner from the Erbe law firm, Prevent AG official Mehles and four of his employees, as well as computer specialists from an IT firm and security personnel.

WilmerHale describes what happened next as follows: Roland K. hadn’t arrived at the office yet, but the team began searching his office as planned. A Prevent AG employee immediately suggested taking a closer look at the picture frames in the office, noting that picture frames were often used to conceal things. And, lo and behold, when the Erbe attorney pushed open a frame containing a photo of K.’s daughter, she found a sticker with an email address on it that included the word “kid.” Next to it was a term that could have been a password: “000ROBI.”

For the IT specialists, who were working on K.’s computer at the time, it was a piece of information that quickly yielded results. They had already found two suspicious-looking emails from a “Jan Nowak,” and one of the emails contained the email address pasted to the back of the photo of K.’s daughter. When they used the password on the sticker to access the email address, they immediately found an email from “Jan Nowak” that contained child pornography images.

According to WilmerHale, the team immediately turned everything over to the New York police, which launched a child pornography investigation. But on April 22, the investigators informed the bank’s attorneys that they believed that Roland K. was the victim of a conspiracy.

Trap Snapping Shut

It isn’t clear yet what prompted the New York police to arrive at such an assessment. There are rumors that a member of the team confided in the US investigators, but there is no mention of this in the WilmerHale report. Nevertheless, the New York district attorneys’ report concludes: “There is no compelling evidence that Mr. K. viewed the child pornography images from the email account on his office computer. However, there is compelling evidence that a trap was set for Mr. K., that the email accounted was created by someone else and that both the sticker on the back of the photo of Mr. K.’s daughter and the emails from Jan Nowack were planted.”

The goal, according to WilmerHale, was to “create the false impression” that K. was the owner of the email mailbox containing the child pornography images. But if it was a trap, it didn’t snap shut. For one thing, an unknown individual sent an email from the email address in question from an Internet café at a time when K. could prove that he was somewhere else. Instead, the trap is now snapping shut on those who presumably set it.

The bank had hardly learned that the New York district attorneys believed that Roland K. was the victim and not the culprit when the team members insisted that they were innocent. They claimed that they had no knowledge of any such smear campaign and were certainly not involved. Erbe had organized the group denial, although one member of the team preferred to remain silent.

In the end, the internal investigators were forced to conclude that there was no clear evidence to convict anyone. Nevertheless, they did notice something else that was unusual about the case. According to WilmerHale, Gössmann found out on April 22 that the New York district attorney’s office was investigating him. But he waited until April 28 to notify Martin van Gemmeren, the executive board member assigned to the case. In the meantime, presumably on April 23, Gössmann had his laptop repaired, which likely resulted in all of the files on the computer being deleted.

Searching for a Mole

Gössmann staunchly denies this account of events and insists that he only found out about the investigation in New York through van Gemmeren. “The insinuation” that he “deliberately deleted or had someone else delete data” is bizarre, says Gössmann. 

The WilmerHale report creates a credibility problem for the team, particularly Prevent AG investigator Mehles, who once worked as a department head in the Hamburg State Office of Criminal Investigation. While Mehles says that he was not involved in the decision to take the pornographic photos to the New York police, an employee wrote in an email that precisely the opposite was the case. And while Mehles claimed that he didn’t find out about the child pornography rumors surrounding Roland K. until August, Nonnenmacher and Gössmann said that Mehles was in fact the one who told them — in June or July.

This would support the assumption in the preliminary report that the team had already secretly agreed, long before the raid, on what exactly it was looking for: evidence of child pornography, not receipts for business expenses. Why else, WilmerHale argues, would the team have taken apart picture frames?

Besides, how would Mehles have heard about child pornography rumors tied to K. in faraway New York in the first place? Nonnenmacher says that Mehles told him that he found out from the FBI. In yet another contradiction, Mehles told WilmerHale that he had received the tip from journalists in Germany.

No Longer Viable

It is clear that the alleged attempt to get rid of Roland K. on the cheap has now turned into the most costly severance of an employee in company history. K. sued the bank for $2.49 million in severance pay and $10 million in damages. HSH has reportedly reached a settlement with K. for $7.5 million, a sum that represents something between a confession of guilt and hush money. The bank is also believed to have paid $1 million to K.’s attorney. An insider estimates that these costs, together with the costs of the internal investigation and the legal fees, bring the total cost to $18.5 million. “And that’s just because Nonnenmacher doesn’t know how to come to reasonable agreements with people,” say bank employees.

Even if Nonnenmacher’s role in the intrigue outlined by WilmerHale remains unclear, now that the attorneys have presented their report, he is no longer viable as the CEO of a bank in crisis. His bank’s survival depends on the confidence of its customers and, even more so, on that of the public sector. But HSH, true to form, is still trying to hang on to Nonnenmacher. Last week, the supervisory board announced that it believes Nonnenmacher is innocent, and that the report shows that he “acted in accordance with his duties at all times.” But anyone who hopes to find such a statement in the WilmerHale report is certain to come up empty-handed.

Gössmann was also spared. Despite being relieved of his duties, he says that he was still given an access card and company mobile phone. Perhaps this was to ensure that Nonnenmacher could still reach him after he had checked into a clinic.

It was only on a Friday, now almost three weeks ago, when there were already signs that the case could be made public, that the executive board issued an internal memo stating that Gössmann was on temporary leave because of the Roth matter. Now the damage-control plan was apparently to keep New York a secret while at the same time doing everything possible to dispel the accusations in the Roth case, particularly the charge that wiretapping specialist Arndt Umbach had spied on Roth for the bank, broken into his apartment and falsified evidence against him.

Bank Out of Control

The bank denies having applied pressure to Umbach. But it hardly seems coincidental that even before SPIEGEL published the story a week ago, Umbach went to a notary public on a Sunday to make the statement that he had never done anything illegal nor had he admitted to wiretapping. It was an about-face that had arrived at the right moment for the bank.

In fact, however, the circumstances in the Umbach case are such that his about-face does not necessarily take the pressure off the bank. There are too many indications that he is not telling the truth, that Roth was given a raw deal, and that he, like K., is apparently the victim of a bank out of control.

According to Gössmann’s testimony in the 2009 preliminary investigation against Roth, Nonnenmacher had complained in late 2008 that secret bank information was being leaked. Gössmann said that the two men had decided, in confidential conversations, to set a trap for the mole in the form of a management document. Each recipient would receive a copy with a slightly different mark on it. If the document were sent to the press and then returned to the bank, it would be clear who was responsible for the leak.

But who was to be the target of the trap? If Gössmann is to be believed (and this is certainly plausible, given Nonnenmacher’s character), the CEO speculated that the mole was trying to harm him and not the bank. The most likely culprit, he believed, was one of his fellow executive board members, chiefly Roth. This, Gössmann said during the hearing, quoting Nonnenmacher, was because “Mr. Roth knows that I want to get rid of him.”

Wim de Jong-Niehoff, a handwriting expert, prepared the documents. On an evening in February, at about 9 p.m., Gössmann and Nonnenmacher placed four slightly altered copies of the memo into envelopes for the remaining board members. Gössmann says that he handed the copies to Nonnenmacher, who then placed them in white envelopes and addressed them to the board members.

The document was apparently not leaked to the press, and more than three weeks later, says Gössmann, he attempted to set another trap, this time with a management document that was emailed to the board members.

Absurd in the Extreme

The plan worked the second time. Nonnenmacher received an anonymous letter from England containing both the first page of the hard copy document from February and a printout of the document that had been sent by email more recently. In a letter accompanying the documents, the individual, apparently a journalist, claimed that the documents had been sent to him so that he would publish them. But because they contained HSH company secrets, he added, he had decided to return them to the CEO.

Gössmann says that the markings on the documents clearly showed that they were the ones that had been sent to Roth. The name Arndt Umbach does not figure in Gössmann’s version.

Although the evidence against Roth may have seemed clear enough, it is in fact so absurd that the public prosecutor’s office in Kiel has long since withdrawn its case against Roth for revealing company secrets. The method Nonnenmacher and Gössmann chose to allegedly uncover an unknown mole seems more likely an attempt to target a specific individual: Roth. The prosecutors argue that it is quite possible that Roth was in fact the victim of planted evidence, partly because of the way in which the list of suspects was selected. A member of the supervisory board or a second-tier manager could just as easily have been responsible for the leaks, but none of these people received any marked documents — only the executive board members.

Did Nonnenmacher or Gössmann seriously expect their document to even reach the press? Or did they have a completely different plan in mind, namely to ensure that a copy of the version intended for Roth would be sent to an individual who they knew would send it back to Nonnenmacher?

The bank and Gössmann deny this, but there are strong indications to support this suspicion, a view that the prosecutors in Kiel also share. They too could hardly imagine that a real journalist would have returned the documents in question. Most of all, if the anonymous person had truly intended to take the honest approach and return the document to HSH, why didn’t he include all the pages? Instead, only the first page of the first document was returned to Nonnenmacher, and that page was the one that included the marked word, “Kernbank” (core bank). It was as if the sender had known that the first page was sufficient evidence.

Credibility Problem

Again, the various statements are fraught with contradictions. For example, Gössmann testified that Wim de Jong-Niehoff also prepared the second decoy, the management document that was sent via email. But in his statement to the police in Kiel, de Jong-Niehoff said: “I can rule out that we were involved in the incident.”

Who was it then?

The board members received the marked email from then Director of Corporate Communications Michaela Fischer-Zernin in early March. Gössmann had already filled her in on their plan to find the leak, and Nonnenmacher had also spoken with her. The document was emailed to her so that she could send it to the targeted board members. Then an unknown individual prepared it in less than an hour. Who could it have been, if it wasn’t de Jong-Niehoff?

About five months later, on July 29, Umbach attended a meeting at a Hamburg law firm with HSH supervisory board members Olaf Behm and Rieka Meetz-Schawaller, as well as the former head of HSH corporate security. If the minutes of the meeting are to be believed, Umbach admitted that he had prepared and sent the email on orders coming from the bank.

On the Friday of the week before last, Umbach was still sticking to his story. But he was also talking about the money he needed to disappear. He changed his story two days later and hasn’t been heard from since.

His new version has a serious credibility problem, because the people at the Hamburg meeting aren’t the only witnesses. Umbach and the former HSH security chief drove to Kiel to meet with prosecutors right after the meeting.

An hour later, three public prosecutors were sitting across the table from Umbach and his attorney. Umbach kept insisting that he be given immunity if he confessed. But there was no interrogation, partly because Kiel had transferred the case to the Hamburg public prosecutor’s office. But why would someone ask for immunity from prosecution if he hadn’t committed a crime? “Umbach’s retraction means nothing to us,” say the Hamburg investigators. Meanwhile, their counterparts in Kiel are weighing whether to bring charges against bank officials for falsely accusing Roth.

Poor Shape

This is an accusation that Hilmar Kopper, the supervisory board chairman, should also be pursuing. But Kopper, seemingly paralyzed by loyalty, is standing where he has always stood: behind Nonnenmacher. “The Supervisory Board has absolute confidence in the determination of the CEO to put a stop to such illegal machinations,” the supervisory board announced on Thursday after a meeting of the general committee, adding that it assumed that Gössmann, too, would be “fully rehabilitated” after all the investigations were complete.

Once again, this raises a number of puzzling questions. For instance, didn’t Kopper and the others read the WilmerHale report? Or do they hope that they’ll be the only ones who will ever be given access to it? And did they feel that the destruction of a person’s personal and professional life with trumped-up child pornography charges was nothing but collateral damage in a banking crisis?

A few days, Kopper stubbornly claimed that he still had no reason to doubt that Roth had leaked bank secrets to the press. He failed to mention that Nonnenmacher is listed as a suspect in the US investigation and that WilmerHale specifically concludes that there were parallels in the handling of both Roland K. and Frank Roth. He also said nothing about the fact that Nonnenmacher may have violated German stock corporation law when he set traps for his fellow board members without informing the supervisory board. Apparently the supervisory board feels that the best way to approach Nonnenmacher’s actions — the fact that he went over their heads and thus eliminated their supervisory role — is to forgive and forget.

But the bank has never been in as poor shape as it is today.


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The World Trade Center Mosque and the Constitution

The plan to erect a mosque of major proportions in what would have been the shadow of the World Trade Center involves not just the indisputable constitutional rights that sanction it, but, providentially, others that may frustrate it.

Mosques have commemoratively been established upon the ruins or in the shells of the sacred buildings of other religions—most notably but not exclusively in Cordoba, Jerusalem, Istanbul, and India. When sited in this fashion they are monuments to victory, and the chief objection to this one is not to its existence but that it would be near the site of atrocities—not just one—closely associated with mosques because they were planned and at times celebrated in them.

Building close to Ground Zero disregards the passions, grief and preferences not only of most of the families of September 11th but, because we are all the families of September 11th, those of the American people as well, even if not the whole of the American people. If the project is to promote moderate Islam, why have its sponsors so relentlessly, without the slightest compromise, insisted upon such a sensitive and inflammatory setting? That is not moderate. It is aggressively militant.

Disregarding pleas to build it at a sufficient remove so as not to be linked to an abomination committed, widely praised, and throughout the world seldom condemned in the name of Islam, the militant proponents of the World Trade Center mosque are guilty of a poorly concealed provocation. They dare Americans to appear anti-Islamic and intolerant or just to roll over.

But the opposition to what they propose is no more anti-Islamic or intolerant than to protest a Shinto shrine at Pearl Harbor or Nanjing would be anti-Shinto or even anti-Japanese. How about a statue of Wagner at Auschwitz, a Russian war memorial in the Katyn Forest, or a monument to British and American air power at Dresden? The indecency of such things would be neither camouflaged nor burned away by the freedoms of expression and religion. And that is what the controversy is about, decency and indecency, not the freedom to worship, which no one denies.

Although there is of course no question of reciprocity—no question whatever of a church in Mecca or anything even vaguely like it—constitutionally and if local codes applied without bias allow, there is unquestionably a right to build. Reciprocity or not, we have principles that we value highly and will not abandon. The difficulty is that the principles of equal treatment and freedom of religion have, so to speak, been taken hostage by the provocation. As in many hostage situations, the choice seems to be between injuring what we hold dear or accepting defeat. This, anyway, is how it has played out so far.

The proponents of the mosque know that Americans will not and cannot betray our constitutional liberties. Knowing that we would not rip the foundation from the more than 200 years of our history that it underpins, they may imagine that they have achieved a kind of checkmate.

Their knowledge of the Constitution, however, does not penetrate very far, and perhaps they are not as clever as they think. The Constitution is a marvelous document, and a reasonable interpretation of it means as well that no American can be forced to pour concrete. No American can be forced to deliver materials. No American can be forced to bid on a contract, to run conduit, dig a foundation, or join steel.

And a reasonable interpretation of the Constitution means that the firemen’s, police, and restaurant workers’ unions, among others, and the families of the September 11th dead, and anyone who would protect, sympathize with and honor them, are free to assemble, protest and picket at the site of the mosque that under the Constitution is free to be built.

A reasonable interpretation of the Constitution means that no American can be forced to cross a picket line in violation of conscience or even of mere preference. Who, in all decency, would cross a picket line manned by those whose kin were slaughtered—by the thousands—so terribly nearby? And who in all decency would cross such a line manned by the firemen, police and other emergency personnel who know every day that they may be called upon to give their lives in a second act?

Michael Bloomberg, the mayor of New York, says of those who with heartbreaking bravery went into the towers: “We do not honor their lives by denying the very constitutional rights they died protecting.”

Mr. Mayor, the firemen, the police, the EMTs and the paramedics who rushed into those buildings, many of them knowing that they would die there, did not do so to protect constitutional rights. They went often knowingly to their deaths to protect what the Constitution itself protects: people, flesh and blood, men and women, mothers and fathers, sons and daughters, sisters and brothers. Although you yourself may not know this, they did.

The choice is not between abandoning them or abandoning the Constitution, for although the liberties the Constitution guarantees sometimes put us at a disadvantage even of self-preservation, they also make it possible for 300 million Americans to prevail—reasonably, peacefully, and within the limits of the law—against provocations such as this.

They make it possible to prevent the construction of the mosque at this general location—with no objection whatsoever to, but rather warm encouragement of, its construction elsewhere—not by force or decree but by argument, persuasion, and peaceable assembly. These are rights that the Constitution guarantees as well, and clearly it is one’s constitutional right to oppose the mosque, not to participate in the building of it, and to convince others of the same.

This small and symbolic crisis is not a test of constitutional liberties, for in regard to the question at hand the Constitution allows discretion. It is rather a test of how far America can be pushed, and America is not at all as powerless as it has been portrayed.

That is because the street in front of the mosque that the Constitution says can be built can be filled with people who can effectively protest it because the Constitution says that they are free. Those who do not fear to do so need only go there and stand upon their convictions, their beliefs, their reason, their laws, their history, and what is in their hearts.

Mr. Helprin, a senior fellow at the Claremont Institute, is the author of, among other works, “Winter’s Tale” (Harcourt), “A Soldier of the Great War” (Harcourt) and, most recently, “Digital Barbarism” (HarperCollins).


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Pop Star Is No Angel, But Neither Are Prosecutors

German pop star Nadja Benaissa (seen here with her lawyer, Oliver Wallasch) is currently on trial in Darmstadt, charged with one count of aggravated battery and three of attempted battery.

HIV Hysteria

The trial of German pop star Nadja Benaissa, who is accused of infecting a sexual partner with HIV, is the culmination of a witch hunt against the singer. The case revolves around the question of who is responsible for safe sex and whether Benaissa, who was only 16 when she learned her HIV status, was a victim of the pressure of the music industry. 

Perhaps the case could have been settled with a simple penalty order, which would have avoided a trial. But that would only have been possible if five men — a circuit judge, a chief prosecutor, an official solicitor and two detective superintendents — had not met on April 2 of last year at the district attorney’s office in the western German city of Darmstadt and decided to give the case such a high profile. Or if they had later found their way back to a more levelheaded approach. But once it had been set in motion, the stigmatizing witch hunt had to run its course. 

During that fateful meeting in Darmstadt, the five men agreed on how they would proceed in the case of the German pop singer Nadja Benaissa, who is a member of the band No Angels, Germany’s biggest girl group. In June 2008, a former boyfriend had accused Benaissa, who is HIV-positive, of infecting him with the virus by having unprotected sex with him four years earlier. On the evening of April 12 of last year, the defendant was to be arrested during a performance at the Frankfurt music venue “Nachtleben” and immediately brought before an investigating judge. For someone who had hoped to provoke a spectacular case, the charges against the celebrity pop star came at an opportune time. 

On April 9, 2009, the chief prosecutor and the circuit judge discussed the planned arrest once again. Realizing that the singer’s place of residence was “unclear” and that her performance in Frankfurt would be the only opportunity to apprehend her, they made a slight change to their plan. Instead of having Benaissa arrested after the concert, they decided it would be preferable to make their move before the performance. Fearing an angry reaction from her loyal fans, they also decided to avoid having her taken away through the crowd. 

Instead, Benaissa was arrested near the entrance to the club, where fans were waiting in line for tickets — a move clearly intended to stir up publicity. The investigating judge immediately ordered that Benaissa be remanded in custody. Apparently no one felt it was necessary to consider whether it was appropriate to take Benaissa into custody on the strength of a suspicion that allegedly stemmed from an incident that had happened five years earlier. 

‘Risk of Re-Offending’ 

The Darmstadt district attorney’s office launched its second offensive on the first business day after Easter. Although it didn’t provide the name of the singer in a press release it issued that day (her identity was already widely known after the Frankfurt arrest), it did state she was HIV-positive and that she was suspected of having “had unprotected sexual intercourse with three individuals in 2004 and 2006,” and that she had allegedly failed to inform her partners about her infection. “With at least one of the partners, a test showed that he — presumably as a result of the contact — is now also HIV-positive,” said district attorney Ger Neuber. 

The investigators claim that the police had tried to approach the singer for months. “After that, we initiated further investigations when it became known, in the late phase of the undertaking, that two other men had also allegedly had unprotected sex with her,” said Neuber. “This meant that there was a strong suspicion that she had committed a crime and that there was a risk of re-offending.” 

The tabloid newspaper Bild asked the logical question: “How many men has No Angels star Nadja infected?” And then it reassured its readers by writing: “Now Nadja is in pre-trial detention on suspicion of aggravated battery, to protect other men against infection!” 

The disclosure of the most intimate details of the singer’s sex life and, most of all, the questionable use of the “risk of re-offending” to justify her arrest — whatever happened to the presumption of innocence? — sparked a heated debate in the ensuing months among members of the legal system, the media and politicians. Suddenly the courts were barring reporting on a case that prosecutors had already deliberately thrust into the limelight. Whether the Benaissa case was truly about aggravated battery and the question of who had infected whom, which was completely unresolved at the time — all of this was drowned out by the dispute over the limits of judicial public relations and the “pressing public need” to know “when someone uses her body as a biological weapon,” in the words of Siegmund Ehrmann, a member of the German parliament for the center-left Social Democratic Party. 

Benaissa ‘Trusted’ Doctors 

Now Benaissa is being tried in a juvenile court in Darmstadt, charged with one count of aggravated battery and three of attempted battery. On the first day of the trial, her lawyer, Oliver Wallasch, who appeared to be treating her gently as he accompanied her to the court, submitted a statement for his client in which he stated that the charges were “probably correct.” Wallasch also stated that it was true that the defendant had known that she was HIV-positive since 1999, the year her daughter was born. 

But doctors had apparently assured her that the risk of acquiring AIDS was close to zero, provided she remained sufficiently disciplined and remained under constant medical supervision. According to the statement, the doctors had told Benaissa that this also applied to the risk of infection “if the viral load was undetectable.” 

“I trusted those doctors,” Benaissa insisted. But, she added, she “wrongly and, in retrospect, more than negligently” pushed the residual risk to the back of her mind and told herself that she would never become sick. 

Then she addressed a sensitive issue. “I also thought that my respective partners also bore some of the responsibility to talk about and contribute to preventing infection by using condoms. In this respect, I neglected my own responsibility. Today I have to admit that this was a big mistake on my part.” 

Who Was Responsible for the Unsafe Sex? 

Aggravated battery is an intentional crime. This means that the Darmstadt juvenile court and its presiding judge, Dennis Wacker, will have to prove that the defendant knew about the risk of infecting her sex partners and accepted the possibility of infection. 

Speaking through her attorney, Benaissa argued that she had never intended to infect someone else with the virus, and that she had always insisted that her partners use condoms. But “in some cases the partners dealt with the issue in a completely careless way.” The question is: Should she have been equally casual about accepting their behavior? 

Men tend to leave contraception up to women, be it prevention of an unwanted pregnancy or avoiding infection. Their sex partners often seek to excuse their behavior with the argument that they were young and were drunk on the evening or night in question, and that “it just happened.” 

Empty Promises 

In light of what Benaissa says about the music industry and its countless advisers and so-called artist agents, who take advantage of young girls by promising them a big career, she apparently now knows that she listened to too many of the wrong advisers. 

She had recently given birth to her child, at the age of 16, and had hardly recovered from her drug addiction and a miserable life on the street when she found out that she was HIV-positive. And before she could even understand what this meant, she was already a star in the limelight, sexy, glitzy and euphoric, surrounded by hysterical fans. “A week later, I didn’t know what I wanted anymore,” she told the court. 

Is she trying to protect herself when she says that she ignored the risks? She was little more than a child when she received the shocking diagnosis. Is it something a 16-year-old girl is even equipped to handle? 

Afraid to Speak Out 

Naturally she didn’t want anyone to find out about the infection, and naturally she felt ashamed. There was a lot at stake: the band’s career and the money it stood to earn. Naturally, she was under pressure from the advisers and agents, who stood to make money with her and the other girls. And of course she was afraid and sought to numb her fears with success, allowed others to control her and dictate her role to her, all in an effort to escape the truth. But should she have kept her silence when she was about to have sex with someone who didn’t want to use a condom? Shouldn’t she have disclosed her status? 

She described how the rumor that “Nadja is positive” was spread on the social networking website Facebook when the band made its comeback, and how others looked askance at her and whispered behind her back. It was revealed during the trial that a newspaper had tried to force her to come clean, and that there had been blackmail threats. “I was being terrorized from all sides,” Benaissa said. “It was simply too much for me, having to do everything right in that situation.” All of this may be true. But it’s also true that, in the public’s perception, HIV infection is still equated with AIDS, while the person who is infected can feel perfectly healthy. 

The man she allegedly infected is six years older than Benaissa. He has known since 2007 that he is infected with the possibly deadly virus. His life has become unhinged as a result. 

During the trial, he spoke disparagingly of “her over there,” or referred to her sarcastically as “that nice lady” who has “brought so much suffering into the world.” His voice was full of loathing and thinly veiled hate. He said things that no man should say about a woman. He tried to maintain his composure. When he was asked when he found that he too was HIV-positive, it doesn’t take him long to answer, as if the date and place had been burned into his mind: “Paris, Feb. 7, 2007.” 

Testimony from Former Boyfriends 

On Wednesday, an expert from the University of Munich will explain to the court whether it is in fact possible to trace the man’s infection to the defendant. There have been significant advances in the study of HIV recently. Perhaps it will soon be possible to keep an HIV infection under such control with drugs that the risk of infection is virtually eliminated. But science hadn’t reached that stage yet when Benaissa was having unprotected sex. 

One of the first witnesses to testify was a 38-year-old musician who was friends with the defendant between 2003 and 2004. She trusted him and told him that she was HIV-positive. “My impression was that she handled the infection very responsibly,” he said. He added that they spoke about it openly, and that when the friendship turned into a relationship, there was no question that they used condoms. Another 37-year-old man who had had an on-off relationship with Benaissa between 1999 and 2001 told the court on Monday that Benaissa had informed him about her HIV status on the evening they first met and had always insisted on using condoms. In other words, responsible sex was apparently also an option for Benaissa. 

The verdict in the case is expected on Thursday. In recent days, some voices in the media have predicted that Benaissa will probably end up with a 10-year prison sentence. But this seems unlikely, given the way the trial has been going. The prosecution, the defense, the lawyers for the joint plaintiff and the court are clearly making an effort to bring the overinflated case back down to earth. 

If she is sentenced to probation, no one need worry that this young woman will ever use her body as a “biological weapon” again. 


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New Law to Stop Companies from Checking Facebook Pages in Germany

Potential bosses will no longer be allowed to look at job applicants’ Facebook pages, if a new law comes into force in Germany.

Good news for jobseekers who like to brag about their drinking exploits on Facebook: A new law in Germany will stop bosses from checking out potential hires on social networking sites. They will, however, still be allowed to google applicants.

Lying about qualifications. Alcohol and drug use. Racist comments. These are just some of the reasons why potential bosses reject job applicants after looking at their Facebook profiles.

According to a 2009 survey commissioned by the website CareerBuilder, some 45 percent of employers use social networking sites to research job candidates. And some 35 percent of those employers had rejected candidates based on what they found there, such as inappropriate photos, insulting comments about previous employers or boasts about their drug use.

But those Facebook users hoping to apply for a job in Germany should pause for a moment before they hit the “deactivate account” button. The government has drafted a new law which will prevent employers from looking at a job applicant’s pages on social networking sites during the hiring process.

According to reports in the Monday editions of the Die Welt and Süddeutsche Zeitung newspapers, Interior Minister Thomas de Maizière has drafted a new law on data privacy for employees which will radically restrict the information bosses can legally collect. The draft law, which is the result of months of negotiations between the different parties in Germany’s coalition government, is set to be approved by the German cabinet on Wednesday, according to the Süddeutsche Zeitung.

Although the new law will reportedly prevent potential bosses from checking out a candidate’s Facebook page, it will allow them to look at sites that are expressly intended to help people sell themselves to future employers, such as the business-oriented social networking site LinkedIn. Information about the candidate that is generally available on the Internet is also fair game. In other words, employers are allowed to google potential hires. Companies may not be allowed to use information if it is too old or if the candidate has no control over it, however.

Toilets to Be Off-Limits

The draft legislation also covers the issue of companies spying on employees. According to Die Welt, the law will expressly forbid firms from video surveillance of workers in “personal” locations such as bathrooms, changing rooms and break rooms. Video cameras will only be permitted in certain places where they are justified, such as entrance areas, and staff will have to be made aware of their presence.

Similarly, companies will only be able to monitor employees’ telephone calls and e-mails under certain conditions, and firms will be obliged to inform their staff about such eavesdropping.

The new law is partially a reaction to a number of recent scandals in Germany involving management spying on staff. In 2008, it was revealed that the discount retail chain Lidl had spied on employees in the toilet and had collected information on their private lives. National railway Deutsche Bahn and telecommunications giant Deutsche Telekom were also involved in cases relating to surveillance of workers.

Online data privacy is increasingly becoming a hot-button issue in Germany. The government is currently also working on legislation to deal with issues relating to Google’s Street View service, which is highly controversial in the country because of concerns it could violate individuals’ privacy.


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Blagojevich 23, Fitzgerald 1

Chicago’s jester politician humiliates the Justice Department.

Rod Blagojevich was charged with everything from shaking down a Chicago children’s hospital to attempting to sell or trade the U.S. Senate seat once held by President Obama, yet on Tuesday the former Illinois Governor was convicted on only the least serious of the 24 felony counts against him. The fiasco marked another defeat for U.S. Attorney Patrick Fitzgerald, whose conduct more and more suggests another unaccountable federal prosecutor run amok.

Blagojevich may or may not be corrupt, though he has repeatedly proved his stupidity. In any event, Mr. Fitzgerald’s legal team failed to persuade a jury that Blagojevich was guilty of racketeering, conspiracy, wire fraud, extortion, kickback schemes and a litany of other crimes, despite five weeks of argument and testimony that included incriminating selections from thousands of wiretapped phone calls. The defense did not call a single witness. The jury also deadlocked on four charges against Blagojevich’s brother, while his chief of staff earlier copped a plea.

Blagojevich’s sole conviction was for lying to FBI agents investigating his fund raising. Under questioning, he had suggested that he maintained “a firewall between politics and government” and that he “does not track, or want to know, who contributes to him or how much they are contributing to him.” If such a stock denial is a crime, we can think of several hundred politicians who could also be convicted.

A more triumphant outcome might have been expected judging by Mr. Fitzgerald’s bravura press conference two years ago, which he held following a pre-dawn arrest at the Blagojevich home. Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world.

A truly new low would truly be something in Chicago politics, where money and power seem to be especially fungible. But even Chicago politicians deserve the full and fair protection of the law, while the Fitzgerald method is to abuse the legal process to poison media and public opinion against high-profile, unsympathetic political targets.

As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

But then, this was merely one of Mr. Fitzgerald’s extrajudicial public declarations. Another notable episode occurred during his pursuit (as special prosecutor) of former Vice Presidential chief of staff Scooter Libby in the Valerie Plame affair. At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analysts’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

This pattern points to a willful prosecutor who throws an exaggerated book at unpopular defendants and hopes at least one of the charges will stick, even as he flouts due process and the presumption of innocence when the political winds are high. If Mr. Fitzgerald doesn’t resign of his own accord, the Justice Department should remove him—especially after such other recent examples of prosecutorial bad faith or bad judgment involving Blackwater contractors in Iraq, the forgotten backdating accounting scandal and the late Senator Ted Stevens.

Prosecutors have vowed to retry Blagojevich this fall on the other 23 mistrial counts. But if he really is guilty, then incompetence alone is grounds for Mr. Fitzgerald’s removal.

Editorial, Wall Street Journal


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‘No Reason to Discriminate Against Gay Partnerships’

Germany’s top court has ruled that registered homosexual partnerships should have the same inheritance tax rights as married couples.

Germany’s highest court has ruled that gay couples in civil partnerships are entitled to the same inheritance tax rights as married couples. Most of the German press welcomes the ruling, with many editorials arguing that the next step is full income tax equality.

Germany is gradually working toward giving gay couples equal rights in many areas. On Tuesday, it took a further step, when its top court ruled that same-sex couples in civil partnerships are entitled to the same inheritance tax rights as married couples.

The Constitutional Court, based in the western German city of Karlsruhe, found that inheritance tax law between 2001 and 2008 had disadvantaged registered homosexual partnerships. Germany introduced a form of civil partnership for same-sex couples in 2001, yet when a partner passed away, the surviving partner had to pay much higher tax on anything they might inherit.

New legislation in December 2008 helped remedy this situation and the government has prepared draft legislation that would bring about full equality on inheritance taxes. The court ruled on Tuesday that the German parliament had until Dec. 31 to produce legislation that rectified the disadvantage to gay and lesbian partners for the years 2001 to 2008.

The judges were responding to appeals lodged by a man and woman whose respective partners had died. In one case, the beneficiary had inherited €140,000 ($185,000) from his partner and had to pay €30,000 in taxes. In another, a woman had to pay €12,000 in taxes on an inheritance of €58,000 from her deceased partner.

Bias in Inheritance

The court ruled that while heterosexual marriage enjoys a unique status under the Basic Law, as Germany’s constitution is known, it was unconstitutional for couples who had made a long-term commitment — including a pledge to pay maintenance if they separated — to face bias in inheritance.

Justice Minister Sabine Leutheusser-Scharrenberger, a member of the liberal Free Democrats (FDP), welcomed the decision. She said that the center-right governing coalition — made up of the FDP and Chancellor Angela Merkel’s conservatives — was working on ironing out remaining disadvantages in tax policy. In Germany, married couples can combine their income when filing their tax returns, which can significantly lower their tax bills.

Germany’s lesbian and gay association, the LSVD, welcomed the ruling, but also argued that there was still much to be done. “Lawmakers must now act as quickly as possible to ensure there is complete equality on income tax,” said spokesman Manfred Bruns in a statement.

On Wednesday the German press is largely in favor of the ruling and many argue that the next step is to ensure equality for same-sex couples in income taxation.

The conservative daily Die Welt writes:

“The ruling shows that not only are political reforms doing some good, but also that the alignment of the law with changing living arrangements is more than just a side-effect of modernization. Rather, reforms like this are a way of implementing the equality principle in our constitution, which forbids treating people worse because of their sexual orientation.”

“It is good when people are there for each other. When homosexuals do this in committed partnerships, they should be treated as married partners and have the same right to benefit from the assets of the deceased in cases of death.”

The left-leaning Die Tageszeitung writes:

“When people are there for one another and take care of one another, when they take on responsibilities for each other, then they should have the same rights as others — both in terms of ideals and economics. And in a society like ours, which is so concerned with the protection of property, this should also include inheritance.”

“The ruling is just a further step towards the equal treatment of gay men and women. There is still a lot to do. … There is the issue of equal rights when it comes to income tax. There is no reason why lesbians and gay men should not be taxed together with their partners just like heterosexual married couples, instead of being treated as single people.”

“In the conservative ideology, the image of the family is often connected with children. However, there are plenty of heterosexual couples with no children, who are still treated as a family. Should childless couples be taxed as single people?”

“Regardless of whether one considers the institution of marriage to be modern or outmoded, as long as there are marriages, then there should be no difference made between homosexuals and heterosexuals.”

The center-right Frankfurter Allgemeine Zeitung writes:

“The convictions of the majority are decisive in a democracy — except when the Constitutional Court speaks. It has now decided that homosexual partnerships should have the same inheritance rights as marriages. It was particularly easy for the court to brush aside a constitutional principle that for decades had privileged marriage.”

“Those who promote tolerance were not waiting for the ruling from Karlsruhe. The Justice Ministry has long been working on equality legislation. And the draft legislation probably also includes equality for gay couples when it comes to adoption rights. It looks like marriage will gradually really need that ‘particular protection of the state.'”

The Financial Times Deutschland writes:

“If gay marriages and classic marriages are treated equally when it comes to inheritance rights, then why not when it comes to other taxation?”

“Within the government, only the FDP is asking this logical question. Large parts of the CDU and the entire CSU, the CDU’s Bavarian sister party, would rather not hear it at all.”

“Little wonder, as they would have to admit that there are no sensible reasons for discriminating against gay partnerships — for example when married couples combine their income tax returns. While heterosexual couples can share the income between two people and so pay less tax, gay couples are denied this possibility.”

“The old argument that gay couples cannot have children is hardly applicable, because many classic marriages these days remain childless.”

“If the CDU/CSU politicians really want to use the tax system to promote people having children then they shouldn’t link any incentives with marriage. In reality, there are so many colorful constellations these days that families shouldn’t be encouraged according to marriage certificates or sexual orientation, but according to whether they are adults who will care for children in a stable and reliable way.”

Süddeutsche Zeitung writes:

“There remain differences between marriage and civil partnerships, particularly when it comes to taxation and adoption rights. They cannot be allowed to remain. The lawmakers have to differentiate between couples with and without children. Not, however, whether the couple is made up of a man and a woman, a woman and a woman or a man and a man.”

“The state provides a framework to people who wish to make a commitment to one another. It cannot make these people love each other, or remain faithful to one another, or have children, or give their marriage a deeper, religious meaning. The discomfort that some people feel, with regards to the ruling by the court in Karlsruhe, comes from the fact that they realize how uncertain all of these relationships have become — and how little the law can do to change this.”


Full article and photo:,1518,712473,00.html

Blagojevich and Legal Bribery

IN May 1980, during the height of the movement to add an Equal Rights Amendment for women to the Constitution, an activist named Wanda Brandstetter delivered a note to Nord Swanstrom, an Illinois state representative. “Mr. Swanstrom,” it said, “the offer to help in your election and $1,000 for your campaign for pro-E.R.A. vote.” Things did not go as Ms. Brandstetter hoped. The measure was never ratified by the Legislature, while her offer of $1,000 lead directly to her conviction for bribery in the Illinois courts.

Since Ms. Brandstetter’s case, it has been clear in Illinois (and eventually in the federal courts too) that, notwithstanding the First Amendment protections the Supreme Court has applied to political contributions, prosecutions for bribery and extortion may be brought when a donation is tied directly to a specific act by an elected official.

So, people are right to wonder how the jury in the trial of Rod Blagojevich, the former governor of Illinois, could possibly be unable to come up with a verdict on any bribery-related charges, finding Mr. Blagojevich guilty only of lying to federal agents when he characterized himself in 2005 as uninvolved in political fundraising.

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois’s leading children’s hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury’s indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

For example, in June 2009, the court decided a case involving Massey Coal and its chief executive, Joe Blankenship. (Coincidentally, Massey was the operator of a coal mine in West Virginia that exploded in April, killing 29 miners.) In 2004, after Massey had lost a $50-million fraud verdict to a rival coal company, Mr. Blankenship spent $3 million supporting the successful candidacy of Brent Benjamin to the West Virginia Supreme Court of Appeals, where Massey’s challenge of the fraud verdict was going to be heard.

Although Mr. Blankenship’s spending eclipsed the contributions of all of Judge Benjamin’s other donors put together, the judge subsequently refused to remove himself from Massey’s appeal. Unsurprisingly, the court voted to overturn the verdict against Massey, with Judge Benjamin providing the deciding vote.

The case eventually came to the United States Supreme Court, which by a 5-to-4 vote decided Justice Benjamin should have recused himself because of the “disproportionate” influence Mr. Blankenship’s money had in the election. Nonetheless, the court pointedly refused to require the same from other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them.

Moreover, the court appeared persuaded that nothing criminal had occurred, even though its ruling concluded that it was “reasonably foreseeable” at the time that Mr. Benjamin would decide the Massey case and that Mr. Blankenship had a “vested interest” when he spent the money. Given that logic, who can blame Mr. Blagojevich — or Wanda Brandstetter — for asking, “Why me?”

Despite such cases, which demonstrate the obvious perils when public officials become the beneficiaries of campaign largesse from those with business before them, the Supreme Court last January said that the First Amendment required erasing the decades-old federal ban on independent campaign spending by corporations and unions on the eve of elections.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-six years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits “to prevent … the appearance of corruption.” In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court’s elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

With all respect to Wanda Brandstetter, the Constitutional amendment this nation most urgently requires is one that reverses the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?

Scott Turow is the author, most recently, of the novel “Innocent.”


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Glorious failures

WHEN it comes to criminal justice, Winston Churchill’s saying that Americans can be relied on to do the right thing after they have tried everything else has to be modified: the right thing tends to get its day only when states run out of cash. A squeezed budget is one reason why Los Angeles County’s DA, Steve Cooley, is hostile to three strikes laws. Lack of money also explains why Republicans in South Carolina are considering a halt to imprisoning non-violent drug offenders. Sending someone to prison at a cost to the taxpayer of some $50,000 a year for trying to steal $29 worth of plumbing supplies is not only a daft idea; it is strictly a bull-market approach to criminal justice.

With some unlikely people now receptive to the idea that it would be good to imprison fewer people, a new book looking at failed experiments in criminal justice over the past decade or so is well timed. The premise of “Learning from Failure” by Greg Berman and Aubrey Fox of New York’s Center for Court Innovation is that research into criminal justice suffers because so much attention is paid to programmes that succeeded and so little to the flops. The effect is familiar to pharmaceutical companies: a handful of successful drug trials get headlines while thousands of failures, with all the promising hypotheses they entail and data that they can yield, are forgotten.

The authors try to correct this bias by examining six programmes that excited lots of interest from fellow researchers (and even from the White House) but ultimately failed. A handful of problems recur, killing off the best experiments:

1. Promising programmes can be sabotaged by police departments.

The St. Louis police force ran a scheme in which officers went to houses and asked permission to search them for stolen or unregistered firearms. In exchange for co-operation, the officers explained, the search would not result in a prosecution, even if drugs or stolen goods were discovered. Parents in crime-ridden neighbourhoods were delighted to have gun-free homes and sometimes asked officers to come back next week and look again. 98% of those who were asked allowed the police to enter their homes, with the result that in 1994 the small unit running the programme seized 402 guns. This cost much less than an earlier programme of gun buybacks and did not result in people selling their guns to the police force and then going and buying better ones with the proceeds.

But “Consent to Search” in St. Louis was killed by a change in personnel at the top of the police department, and the officer responsible for creating it was reassigned. By the time anyone noticed what had happened it was too late. An attempt to recreate the programme was ill-thought through and so it died a second death.

2. Good schemes can wither when transplanted.

Drug courts are one of the most promising recent ideas in criminal justice. For non-violent drug users, conventional courts tend to lead to a cycle of drugs/court appearances/more drugs/more court appearances/some petty theft/prison/some less petty theft. This is unjust and expensive. A drug court presided over by a paternalistic judge, who can sentence non-violent drug users to mandatory treatment programmes and monitors their progress, with the threat of imprisonment as a sanction, can get better (and ultimately cheaper) results. The authors cite a study that suggests that every dollar spent on drug courts accrues a saving of $2.21. While it is possible to pick holes in such estimates, the point holds: not sending people to prison saves money

Yet the idea flopped in Minneapolis and in Denver. The reason, the authors reckon, is that the drug courts were overly dependent on a single charismatic judge who started them up. The programmes suffered when these judges moved on. They had failed to win over the police, prosecutors and journalists, who observed that the scumbags were never sent to prison. Stories of violent dealers being sentenced to treatment abounded, and the drug courts in Minneapolis and Denver withered.

3. Fights over who should take the credit for success can kill a programme.

Operation Ceasefire was launched in Boston in 1995 at a time when the city police were being called out to six or seven shootings a night. In what is perhaps the best example of criminologist as crime fighter, a group of Harvard academics crunched the numbers and realised that 1% of young people in the city were responsible for 60% of youth homicides. The police often knew who these people were and a strategy was put in place: officers would go after these people for any violations they could, from parking fines to petty theft, harassing them until the murders stopped. (This plan may be familiar to people who watched “The Wire”—David Simon, the main writer on the series, was a crime reporter in Baltimore in the mid-1990s.)

The results were striking: homicides in Boston dropped from 152 in 1990 to 31 in 1999. Operation Ceasefire was imitated in other cities. A priest involved in its implementation was hailed as the “Saviour of the Streets” in a Newsweek cover article. But at the height of its fame a vicious squabble broke out: who deserved credit for Ceasefire? Amid the squabbling, the programme imploded in the city that had invented it. Boston’s murder rate subsequently climbed between 1999 and 2005.

4. Many of the problems eating criminal justice in America stem from a wholesale transfer of power to the legislative branch.

Since the 1980s America has fallen into a pattern when it comes to sentencing. A horrible crime is committed. Politicians call for new tough laws, tougher than the last set of tough laws, to make sure nothing of the sort will ever happen again. Sometimes the new law is lent the name of the victim (Megan, Kendra and Laura all have eponymous laws). Three-strikes laws exacerbate the problem. The whole process is repeated again and again, with the result that judges often have no discretion as to how offenders are punished and America sends nine times more people to prison (as a share of its population) than Germany.

Yet it doesn’t have to be this way. Mike Lawlor, a Conneticut state senator, successfully fought off a ballot initiative to bring in a three-strikes law after a particularly horrible triple-murder in 2007. With the blessing of the family’s sole survivor, Mr Lawlor pointed out that a three-strikes law would not have prevented the crime; that the state could not afford to build the prison places it would need if the ballot initiative passed; and that the whole idea was a distraction from the real failure, which was that the parole board had not been handed a report that would have told its members that the man they were about to release early for good behaviour was considered extremely dangerous. Mr Lawlor won the argument and the law was never passed.

“Learning from Failure” aims to prompt changes in America but it has lessons for other countries too. Aubrey Fox, one of the authors, is in London at the moment trying to create a British branch of the Center for Court Innovation. The authors are careful to temper expectations about what enlightened schemes can achieve. Their book cites Joan Petersilia of Stanford to the effect that, “there is nothing in our history of over 100 years of reform that says we know how to reduce recidivism by more than 15 or 20 percent.” In a country as keen on prison as America, that’s still a lot of people.


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Gay Marriage: Leave It to the Voters

I support it as a policy matter, but having the courts mandate it promises trauma of the sort that followed Roe v. Wade.

In his State of the Union address last January, President Barack Obama attacked the justices of the Supreme Court for making a deeply unpopular decision. He demanded that Democratic members of Congress, who lustily rose to their feet, overrule the court’s 5-4 decision and restore more than a century of settled constitutional law.

Mr. Obama was only too happy to resort to such demagogic tactics when campaign finance was the target. Now, thanks to a federal district judge in San Francisco, he must decide whether to follow the same script on another momentous issue: gay marriage.

Chances are that Mr. Obama will try to avoid the gathering political storm by pledging, with all apparent solemnity, to obey the court. But Mr. Obama opposed gay marriage during the 2008 campaign, and when the issue moves up through the federal courts, his Justice Department will have to decide whether to support the many states that agreed with him.

His Supreme Court appointees, Justices Sonia Sotomayor and Elena Kagan, will have to vote on gay marriage in the next few years. And when opponents of gay marriage seek to reverse unfavorable court decisions, as they inevitably will, every member of Congress will have to go on the record regarding whether to send the Federal Marriage Amendment, introduced in 2004 to define marriage as between one man and one woman, to the states for ratification.

For all this, Mr. Obama and the nation have to thank Judge Vaughn Walker. In deciding Perry v. Schwarzenegger last week, he struck down California’s Proposition 8, which banned gay marriage, as a violation of the rights of gays to equal treatment under the law. Judge Walker did more than distort settled precedent and sweep aside centuries of practice. He short-circuited the Constitution’s democratic process for the resolution of moral disagreements.

A single judge, he elevated himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials. We all fondly hope that our government acts only to improve the welfare of society. But Judge Walker believes that this job is best done not by elected legislatures or executives, but by a single judge armed only with social science studies.

Judge Walker denied that Prop 8’s ban on gay marriage was rationally related to its goals of promoting more marriage and less divorce, as well as procreation and social stability. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages,” Judge Walker ruled. Prop 8, therefore, only represented irrational contempt against gays by the people of California.

Anyone who lives in this bluest of blue states might be forgiven for laughing out loud at the charge of bigotry. Does the charge apply also to Mr. Obama and Hillary Clinton, who both opposed gay marriage during the 2008 campaign?

Judge Walker’s social science studies could not have relied on much data, as only a handful of states allow gay marriage and none has done so for longer than seven years. Yet he made extravagant claims. The ban on gay marriage, for example, “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.” “That time,” the court declared, “has passed.” According to the court, “gender no longer forms an essential part of marriage; marriage under law is a union of equals.” The plaintiffs in Perry “do not seek recognition of a new right,” but instead simply the existing fundamental right of marriage.

Imagine if the courts were to apply Perry’s approach consistently. Many have observed, including Justice Antonin Scalia in dissenting from the ruling in Lawrence v. Texas (2003), that no logic distinguishes antisodomy laws (struck down in that case) and gay marriage bans from prohibitions on adultery, prostitution, polygamy and pornography, or from age limits on marriage and sex. All laws based on morality would be unconstitutional.

Suppose the courts demanded that other laws survive this heightened test of rationality. Did the stimulus and bailout bills increase economic growth and reduce unemployment? Do the drug laws improve health and reduce crime? Is the redoubled use of drones to kill al Qaeda leaders making the terrorism problem better or worse?

The Constitution does not set up the federal courts as a roving commission of do-gooders to correct all of the nation’s problems. The courts, populated by a small number of older lawyers deliberately isolated from the people and inexpert in any field, are likely to cause more social diseases than they cure.

This distortion of the judicial role and rending of the political fabric are wholly unnecessary. The Constitution creates a far better approach to decide contentious moral issues: federalism. Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences. Arizona, Oregon and Hawaii can compete to attract gay couples dissatisfied with Prop 8 (as if California’s fiscal mismanagement weren’t reason enough to leave).

As “laboratories of democracy,” in Justice Louis Brandeis’s famous words, states can test a diversity of policies and produce a wealth of information on their effects. If gay marriage depresses heterosexual marriage, increases divorce, or leads to lower birth rates, we will see the proof soon enough.

We trust federalism on other fundamental questions, like life and death. Gay marriage should be treated no different than capital punishment, euthanasia and the basic questions of education, welfare and the family. During the Constitution’s ratification, Alexander Hamilton assured New Yorkers that the Constitution would never permit the federal government to “alter or abrogate” a state’s “civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.”

Federalism will produce the political durability that supporters of gay marriage want. If states steadily approve, a political consensus will form that will be difficult to undo.

Consider, by contrast, abortion. Roe v. Wade (1973) only intensified political conflict at a time when the nation was already moving in a pro-choice direction. The decision tied the fate of abortion to the whim of the courts. It poisoned our politics, introduced rounds of legislative defiance and judicial intervention, and undermined the neutral principles of constitutional law.

As someone who supports gay marriage as a policy matter, I trust in the ultimate good will and generosity of the American people, if given the chance to express themselves through the Constitution’s traditional system for social change. Prematurely nationalizing gay marriage—either by banning it through constitutional amendment or allowing it by judicial fiat—only promises a replay of the abortion drama.

Mr. Yoo, a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03. He is the author of “Crisis and Command” (Kaplan, 2010).


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Closure of 9/11 Mosque ‘Was Long Overdue’

Police officers guard the entrance of the Taiba mosque, which is in the second floor, following the closure of the mosque on Monday.

Monday’s closure of Hamburg’s Taiba mosque, where Mohammed Atta and other members of the 9/11 terror cell worshipped, was long overdue. Media commentators argue that the legal wrangling that preceded the ban highlights Germany’s weakness in tackling Islamic extremism.

The Hamburg authorities have won praise from media commentators in Germany for closing the city’s Taiba mosque and banning the society that operated it. The mosque where some of the 9/11 suicide pilots had prayed had been a meeting place for Islamic extremists for years, authorities said on Monday. The statement came after police sealed off the building and searched it, as well as the homes of society members, and seized its assets, computers and documents.

On Germany’s editorial pages, commentators argue that the closure was long overdue and that the length of time it took for authorities to get court approval for the ban highlighted Germany’s weakness in the fight against Islamic terrorism. They say the country needs to become more pro-active in dissuading young Muslims tempted by extremism, and should follow the British example of enlisting former hate preachers who have renounced violence to approach them.

Left-wing Die Tageszeitung writes:

“The authorities had good reasons to close the mosque. And it isn’t an attack on ‘the Muslims’ in Hamburg or in Germany. The radical Taiba community didn’t want anything to do with the majority of Muslims — and vice versa. But one shouldn’t expect too much of this closure. Privately, intellence agents say that they lose sight of a radical scene whenever a ban is imposed. Meeting places can act as a kind of spy hole for investigators. Besides, experts have long since registered that mosques have lost significance as contact points for young people who want to wage jihad. The Internet, private homes, fitness studios or even prisons are becoming more important in this respect.”

“What Germany lacks is a comprehensive deradicalization strategy that doesn’t confine itself to banning individual meeting places like the Taiba mosque. Britain is more advanced in this respect. Former radical preachers who have credibly renounced violence are talking to youths deemed in danger of succumbing to extremism. Why isn’t that happening here?”

Conservative Frankfurter Allgemeine Zeitung writes:

“What do violent Islamists have to do in this country to arouse enough suspicion to have their activities banned? A lot had to happen in Hamburg before the mosque where the Hamburg cell of the 9/11 suicide pilots drew their ideological weaponry was finally shut down. The imam at whose feet Mohammed Atta and his comrades once sat was still delivering his hate sermons here. The mosque, despite its name change, was still known as a main meeting point for jihadists and all other Muslim communities in Hamburg had distanced themselves from this society. A whole year had to pass for authorities to react to the fact that a group from the Taiba mosque left for the holy land of jihadists, the Pakistan-Afghanistan border region, to learn the terrorist trade.”

“Given such patience, it is hard to believe Hamburg Interior Minister Christoph Ahlhaus when he says the problem has been dealt with.”

Conservative Die Welt writes:

“The official reason for the ban itself shows that Germany has spent too long fighting Islamic terrorist organizations with blunt weapons. Ahlhaus said the Taiba society had ‘spent years’ spreading its aggressive and undemocratic ideology and its view of religion. The hurdles for banning societies are high, and there are good reasons for that. But given that this society was known to have dispatched groups of ‘jihadists’ to training camps in Pakistan, and that sermons held there attacked our democracy, swifter action would have been necessary.”

“The aim was to deprive the Islamists of a symbol, authorities said yesterday. But in the final analysis, the last few years have been a symbol of Germany’s weakness in the fight against terrorism.”


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Naomi Campbell and the ‘Blood Diamond’ Hoax

Diamonds aren’t a major reason for Africa’s conflicts, and the Kimberley Process is no guarantee of a stone’s pedigree in any case.

Thanks to Naomi Campbell’s clueless testimony before the U.N. Special Court for Sierra Leone in The Hague, the manufactured nonscandal of “blood diamonds” is once again being trundled before the collective gullibility of the world.

The hoopla is over some diamonds that allegedly were given during a gala fund-raiser hosted by the sainted Nelson Mandela to Ms. Campbell by Charles Taylor, the apparently infatuated accused mass murderer and ex-president of Liberia (and erstwhile friend of Americans such as Jesse Jackson and Jimmy Carter).

But despite what much media coverage would have you believe, the parallel occurrences of diamonds and internecine mayhem in Africa are in no way related—certainly no more than are violence and any other commercial commodity found on the continent. When was the last time we heard of “blood manganese,” or “blood copper,” or, for that matter, “blood bananas” or “blood cut flowers”?

The fact is that most African diamonds are produced in places that are reasonably-to-perfectly peaceful (such as Botswana, Namibia and South Africa), whereas there are murderous African conflicts that rage elsewhere without the slightest “assistance” from diamonds (such as Rwanda, Uganda and the Sudan).

Naomi Campbell testifies at Charles Taylor’s war crimes trial.

Alas, this simple truth is no match for the combined forces of liberal guilt and the commercial interests of a few players in the diamond industry. So the “blood diamond” charade has marched on unimpeded, passing through Congress (where I testified about the absurdity of the whole notion 10 years ago), through Hollywood in the hands of Leonardo DiCaprio (in “Blood Diamond”), and most recently last week with a supermodel’s testimony in The Hague about her “dirty pebbles.” In this faux-morality play, everyone has an assigned role:

• Cover-seeking panjandrums of the diamond industry—egged on by the canny PR spinners at DeBeers. The latter’s main interest is in eliminating independent diamond production. But the campaign against “blood diamonds” is eagerly latched onto by many others in the industry who see any intergovernmental anti-“blood diamond” scheme, no matter how unworkable or feckless, as an opportunity to reap respectability and goodwill.

• Cynical NGO charlatans who know a good racket when they’ve stumbled on one, and who know that emotive images of amputees and child soldiers, when pictured (no matter how incongruously or unjustifiably) beside diamond-bedecked Naomi Campbell types, will prove irresistible to the unknowing public.

• Venal politicians on every continent, who will leap onto any bandwagon that provides a vehicle for cheap moral preening.

The result of this toxic mixture of ignorance, conscience-lining and moral hucksterism is something called the “Kimberley Process.” This Inspector Clouseau-like agglomeration of squabbling national boards and committees attempts to identify and guarantee the provenance of every diamond in the world—a task as hopeless as trying to identify the lineage of every dollar bill in circulation.

The accuracy and validity of a particular diamond’s “birth certificate” lasts exactly as long as it takes for that diamond to join one other single diamond or parcel of diamonds. In the course of being bought and sold, rough diamonds can be—and are—thrown together like blended coffee beans, thereby completely losing their “lineage.” Thus, it is quite common for an international diamond dealer to buy a parcel of rough diamonds from, say, a Canadian mine, another from diggers in the Congo, and another from DeBeers in London (which itself has already mixed its diamonds from its suppliers in various countries), re-sort the mixed whole, and then sell small lots from that larger “mix” to individual diamond cutters.

In this situation, is it remotely plausible that a diamond cutter could certify from which country a particular stone has emanated? And this scenario doesn’t even begin to apply to an utterly anonymous, changed-beyond-all-recognition, cut diamond that a “civilian” will buy in a jewelry store.

In short, diamonds have no legally dispositive geographical DNA. As I believe they say on 47th Street, “fuggeddabahdit.”

To the extent that this intercontinental tail-chasing of a “Kimberley Process” results in anything at all (other than the moral salving of the consciences of the world’s bien-pensants), it is to diminish the desperately needed revenue of those who are most courageous and blameless in the entire diamond pipeline—i.e., the independent, artisanal local diggers in Africa (and to a lesser extent, in South America).

If the campaigns of groups like Global Witness result in any fewer sales of diamonds from Sierra Leone, Liberia or the Congo, it will not diminish the income of Harry Winston or Cartier or Bulgari, nor of Africa’s “Big Men,” whether in presidential palaces or rebel redoubts. The only loser would be the poor devil in torn shorts and flip-flops on a muddy riverbed with a shovel and a wheelbarrow, who, if he knew what was being done supposedly in his name, would not be grateful in the slightest.

Wherever outside intervention has succeeded in ending carnage in Africa, it certainly hasn’t been because of any fall in diamond sales. Rather, it has been thanks to the discreet and efficient armed intercession of Western special forces—the British in Sierra Leone, the Americans in Liberia, and the French elsewhere.

But back to the ongoing “blood diamond” soap opera: Just what was Charles Taylor doing as an invited guest in Nelson Mandela’s house in 1997? Well, never mind.

Mr. Jolis is an independent rough-diamond consultant. He is an American based in Europe and has worked for many years throughout Africa.


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The Marriage Ideal

Here are some commonplace arguments against gay marriage: Marriage is an ancient institution that has always been defined as the union of one man and one woman, and we meddle with that definition at our peril. Lifelong heterosexual monogamy is natural; gay relationships are not. The nuclear family is the universal, time-tested path to forming families and raising children.

These have been losing arguments for decades now, as the cause of gay marriage has moved from an eccentric- seeming notion to an idea that roughly half the country supports. And they were losing arguments again last week, when California’s Judge Vaughn Walker ruled that laws defining marriage as a heterosexual union are unconstitutional, irrational and unjust.

These arguments have lost because they’re wrong. What we think of as “traditional marriage” is not universal. The default family arrangement in many cultures, modern as well as ancient, has been polygamy, not monogamy. The default mode of child-rearing is often communal, rather than two parents nurturing their biological children.

Nor is lifelong heterosexual monogamy obviously natural in the way that most Americans understand the term. If “natural” is defined to mean “congruent with our biological instincts,” it’s arguably one of the more unnatural arrangements imaginable. In crudely Darwinian terms, it cuts against both the male impulse toward promiscuity and the female interest in mating with the highest-status male available. Hence the historic prevalence of polygamy. And hence many societies’ tolerance for more flexible alternatives, from concubinage and prostitution to temporary arrangements like the “traveler’s marriages” sanctioned in some parts of the Islamic world.

So what are gay marriage’s opponents really defending, if not some universal, biologically inevitable institution? It’s a particular vision of marriage, rooted in a particular tradition, that establishes a particular sexual ideal.

This ideal holds up the commitment to lifelong fidelity and support by two sexually different human beings — a commitment that involves the mutual surrender, arguably, of their reproductive self-interest — as a uniquely admirable kind of relationship. It holds up the domestic life that can be created only by such unions, in which children grow up in intimate contact with both of their biological parents, as a uniquely admirable approach to child-rearing. And recognizing the difficulty of achieving these goals, it surrounds wedlock with a distinctive set of rituals, sanctions and taboos.

The point of this ideal is not that other relationships have no value, or that only nuclear families can rear children successfully. Rather, it’s that lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support.

Again, this is not how many cultures approach marriage. It’s a particularly Western understanding, derived from Jewish and Christian beliefs about the order of creation, and supplemented by later ideas about romantic love, the rights of children, and the equality of the sexes.

Or at least, it was the Western understanding. Lately, it has come to co-exist with a less idealistic, more accommodating approach, defined by no-fault divorce, frequent out-of-wedlock births, and serial monogamy.

In this landscape, gay-marriage critics who fret about a slippery slope to polygamy miss the point. Americans already have a kind of postmodern polygamy available to them. It’s just spread over the course of a lifetime, rather than concentrated in a “Big Love”-style menage.

If this newer order completely vanquishes the older marital ideal, then gay marriage will become not only acceptable but morally necessary. The lifelong commitment of a gay couple is more impressive than the serial monogamy of straights. And a culture in which weddings are optional celebrations of romantic love, only tangentially connected to procreation, has no business discriminating against the love of homosexuals.

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.

Ross Douthat, New York Times


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The next chapter in civil rights

Cassandra Smith, 20, of Roseville, Mich. filed a lawsuit against Hooters, saying she was placed on a 30-day weight probation and told to agree to lose weight or lose her job.

Beauty may only be skin deep, but that’s plenty deep enough to cost you a job, a promotion, or the training to get one. Marie Smith, a Hooters waitress, who was 5-feet 8-inches and 132 pounds, was placed on involuntary weight probation until she could fit into a company uniform: the only sizes available were small, extra small, and extra extra small. Brenda Lewis was an Iowa hotel desk clerk who lost her job despite excellent performance ratings because she appeared “tomboyish,” and lacked the “pretty” “Midwestern girl look” that the operations manager thought appropriate. Sharon Russell was expelled from a nursing school not because of her record but because of her weight and because administrators worried that she would provide a poor “role model [for] good health habits” when counseling patients.

Are these unusual cases? The research available suggests not. In a recently released Newsweek poll, over half of corporate hiring managers believed that unattractive but qualified employees would have a harder time getting hired, and two thirds thought looks would affect performance ratings. When asked to rate nine qualities relevant in employment decisions, appearance came in third in importance, below experience and confidence, but above educational credentials.

Other studies similarly confirm the pervasiveness of the “beauty bias.” About the same proportion of employees report discrimination based on appearance as discrimination based on race and sex. And economists have quantified a substantial “plainness penalty” even in occupations like law, where looks generally bear no relationship to competence. In educational settings, a cottage industry of studies have shown that teachers give lower grades to unattractive students; students give lower course evaluations to unattractive teachers.

Part of the problem is the lack of consensus that any of this is a problem. “So you Want to Hire the Beautiful” ran the title of one Business Week column. “What’s wrong with that?”

What’s wrong is the same thing that’s wrong with discrimination based on race, ethnicity, or gender. Prejudice based on looks rather than performance violates principles of equal opportunity and social justice that this nation has fought hard to establish. Beauty bias is the last frontier of acceptable bigotry. Except in a few localities, it is now perfectly legal. That needs to change. In schools and workplaces, people should be judged on how they perform, not how they look.

All too often, discrimination based on appearance, like other forms of bias, rests on inaccurate stereotypes. Assumptions that overweight individuals are lazy, undisciplined, or unfit are a case in point. In one typical example, a woman failed to get a job as a Texas Bus Lines driver because a company doctor assumed that her weight would prevent her from effectively protecting passengers in an accident. He later acknowledged that she had no health problems and that he had performed no agility tests; he had based his conclusion on watching her “waddling down the hall.” Similarly, Jazzercise denied a franchise to Jennifer Portnick, a 240-pound San Francisco aerobics instructor, on the grounds that she lacked the right image — “fit” and “toned.” But in fact, she was both. She worked out six days a week and had no trouble attracting students. All she wanted was to be “judged on my merits not my measurements.”

A related problem with discrimination based on appearance is that it compounds other forms of discrimination based on gender, race, ethnicity, age, and sexual orientation. For example, women are held to higher standards than men and punished more for falling short. The grooming policy at Reno’s Harrah’s casino is a typical illustration. It required female bartenders to wear makeup and nail polish, and to have their hair “teased, curled, or styled.” Male bartenders needed only short haircuts and fingernails that were “neatly trimmed.” Darlene Jespersen, a bartender with an outstanding performance record, lost her job and then her lawsuit challenging the policy on grounds of sex discrimination. A federal appellate court rejected her claims for lack of evidence that the standards imposed disproportionate burdens of time and expense on women.

Yet does anyone, except apparently some federal judges, really need expert testimony comparing the time and money required for trimming fingernails with applying makeup and styling hair? As one dissenting judge pointed out, cosmetics “don’t grow on trees.” Such makeup and manicure requirements may seem trivial, but the broader principle is not. As another dissenting judge noted, the assumption underlying the casino’s policy was that “women’s undoctored faces compare unfavorably to men’s.” Holding only women to sexualized standards diverts attention from competence and perpetuates gender roles that are separate and by no means equal.

In some instances, such policies can also impose physical costs. Requirements of “stylish” high heel shoes are a major contributor to women’s foot and back problems, and unduly restrictive weight requirements contribute to unhealthy dieting practices. A representative case involved Atlantic City’s Borgata Hotel Casino & Spa demand that cocktail servers maintain an “hourglass figure.” When the thyroid condition of one of the Borgata Babes caused weight fluctuations that sent her from a size 4 to a size 6, she was told “Borgata Babes don’t go up in size.” The only exception was for women who got breast implants, who were entitled to a paid recovery period and a bigger bustier. Other servers experienced eating disorders and related health difficulties.

Female workers can be penalized for being too attractive as well as not attractive enough. In upper-level positions, beautiful or sexy women are subject to what social scientists label the “boopsy” or bimbo effect — their competence is questioned and their professionalism is discounted. Older women are also subject to a double standard and a double bind. Men can look distinguished as they age; they can gray with gravitas. But women of a certain age are often thought to need “work done.” Television viewers will accept a Larry King, but not the female equivalent. Yet women who attempt to conform to society’s airbrushed ideals risk ridicule for being vain and narcissistic, and for trying too hard to pass for young.

A final problem with appearance-based discrimination is that it infringes rights of privacy, self-expression, and religious or cultural identity. Examples include employers who refuse to allow corn rows, headscarves, and yarmulkes. These standards sometimes reflect homophobic biases. A blatant case of appearance discrimination based on sexual orientation involved Nikki Youngblood, a high school senior who challenged a Florida school board requirement that female students sit for yearbook portraits in a scoop neck dress. Youngblood was a lesbian who had never worn dresses. As her lawyer noted, she was not “a rebellious kid trying to destroy the sanctity of the school yearbook. She simply wanted to appear in her yearbook as herself, not a fluffed-up stereotype of what school administrators thought she should look like.”

So why not have a law banning such appearance discrimination? The most common objection is that employees’ attractiveness can be an effective selling point and a way to reinforce a “brand” look. As one Hooters spokesperson explained, “A lot of places sell good burgers. Hooters Girls, with their charm and all-American sex appeal, are what our customers come for.”

Yet that is an argument that courts have generally rejected in other discrimination contexts, and with reason. During the early Civil Rights era, Southern employers often argued that hiring blacks would be financially ruinous; white customers would go elsewhere. So too, airlines in the 1970s claimed that they should be allowed to refuse to hire men as flight attendants because male business passengers liked stewardesses in hot pants. In rejecting such customer preference defenses, Congress and the courts recognized that the most effective way of combating race and sex discrimination was to deprive people of the option to indulge it. The same should be true of discrimination based on appearance, unless image is the essence of the job, such as in modeling or acting.

Opponents of appearance laws, however, argue that even if discrimination on that basis is unfair, the law is incapable of eliminating it and efforts to do so will result in loony litigation, excessive costs, and corrosive backlash. These are real concerns, but it is by no means self-evident that prejudice based on appearance is harder to eradicate than other forms of bias. In fact, considerable evidence suggests that racial, gender, and disability biases are also deeply rooted, but the law has clearly helped change attitudes. And none of jurisdictions that now prohibit appearance discrimination have triggered the exorbitant costs or backlash that critics predict. The costs and difficulties of proving discrimination are generally enough to prevent frivolous claims. Cities like Santa Cruz, San Francisco, and Madison, Wisc., average between zero and nine complaints a year, and the state of Michigan averages about 30, only one of which typically ends up in court.

But these laws, even if infrequently invoked, can have broader positive effects. For example, Jennifer Portnick was able to sue Jazzercise for denial of a franchise under San Francisco’s law banning height and weight discrimination. In the wake of unfavorable publicity, the company changed its policy and publicly acknowledged that “people of varying weights can be fit.” Given recent scientific research suggesting that fitness, rather than body size, is generally the more important predictor of health in overweight individuals, that is an important social message.

The law is, of course, only a small part of the answer to appearance discrimination. Our social prejudices run deep. But the same is true of bias based on race and sex. Opponents who once argued against civil rights laws insisted that “you can’t legislate morality.” But you can legislate conduct. Although we have not eliminated racism or sexism in the workplace, we have made enormous progress. Tackling beauty bias would be another step towards a more just society, one that truly judges people on their merits. Shouldn’t we try?

Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession at Stanford Law School. She is the author of “The Beauty Bias: The Injustice of Appearance in Life and Law” (Oxford University Press, 2010).  


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Disgusting but Not Illegal

Chief Justice John Roberts Jr., who has become one of the First Amendment’s most adamant defenders, led the Supreme Court earlier this year in refusing to create a new exception to the free speech clause. With only one dissent, the court struck down a law that banned depictions of animal cruelty. The House has come back with a replacement bill that is an improvement over its predecessor but still misses the constitutional point Justice Roberts made.

Historically, the Supreme Court has recognized only a small handful of exceptions to free speech. As Justice Roberts explained in his opinion in April, the court has long held that government can ban obscenity, defamation, fraud, incitement and speech integral to criminal conduct, a category that includes child pornography. When Congress tried to add depiction of animal cruelty to this list, the court balked.

Justice Roberts said the court cannot create a new exception to free speech by simply balancing the value of the speech against its harm to society. The First Amendment “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” he wrote. “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Almost no one would say depictions of animals being crushed or mutilated are worthwhile. The concept is so repulsive that animal rights advocates persuaded a very busy House to pass a new bill outlawing them.

Unlike the first one, the new bill excludes videos of hunting, trapping or fishing, or of normal agricultural practices. It bans any images of actual conduct in which animals are intentionally crushed, burned, drowned, suffocated or impaled in a manner that would violate federal or state animal cruelty laws. Most important, it simply declares that all such images are obscene.

Obscenity, however, is limited in American law to certain prurient sexual content. Cruelty to animals does not fit that category, and Congress cannot simply create a new category of obscenity. A better analogy would have been to child pornography, in which the act of taking pictures of children is itself illegal. But Justice Roberts said animal cruelty is not in that category either.

The First Amendment is a remarkably fragile institution that does not need more exceptions carved from its meaning. But attempts to do that arise all the time. A California case coming before the court in the next term attempts to ban the sale of violent video games to minors, though there is no recognized exception to the First Amendment for violence, either. These games, and animal cruelty videos, may be repugnant to many, but America’s legal tradition keeps them from being illegal.

Editorial, New York Times


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Independence day


VUK JEREMIC, Serbia’s foreign minister, looked ashen. He knew what was coming. Kosovo’s 2008 declaration of independence from Serbia did not violate general international law, said Hisashi Owada, the president of the International Court of Justice (ICJ) in The Hague, in a non-binding advisory opinion. Ten judges voted in favour of this ruling, with four against. Serbia’s strategy of attempting to outmanoeuvre its former secessionist province through the international court lay in ruins.

In Pristina, Kosovo’s capital, cars began hooting in celebration. Cheers erupted from bars and cafes, where people had gathered to watch the judge deliver the court’s opinion. Shkelzen Maliqi, a well-known intellectual and commentator, summed up what most Kosovars were thinking: “Perfect. Who would have expected such a clear answer?” In Belgrade there seemed no room for doubt either. “It was a classic knockout,” said Braca Grubacic, an analyst. “I don’t know how the government can get out of this.”

To date 69 countries have recognised Kosovo’s independence, including the US and 22 of the 27 EU member states. But Russia, China, Brazil, India and many other important countries have refused to follow suit. Whether a flood of new recognitions will follow today’s ruling remains to be seen, but would not be surprising. It is, however, unlikely that China, with its eyes on Taiwan and Tibet, Russia, with its problems in Chechnya, and other countries in the world with secessionist movements will recognise Kosovo any time soon.

Of Kosovo’s 2m people, 90% are ethnic Albanians who would rather fight than see a return of Serbian rule. In 1998 a guerrilla movement, the Kosovo Liberation Army, took up arms to fight the Serbs. In 1999 NATO launched a 78-day bombing campaign which saw the expulsion of Serbian forces from all of Kosovo and Serbian rule from all but Serb areas. From then until February 2008 Kosovo came under UN administration.

Serbia contends that Kosovo, as a Serbian province rather than a republic of the former Yugoslavia, did not have the right to self-determination. On the eve of the court’s ruling Mr Jeremic, the architect of the strategy of taking the question to the ICJ, said that if the court came out in favour of Kosovo, “no border in the world in the world would ever be secure”.

The court had been widely expected to give an ambiguous answer. The fact that the opinion is heavily in Kosovo’s favour leaves open the question of what Serbia will do now. It had planned to go to the General Assembly of the UN to demand new talks. Now that plan appears in jeopardy, if not doomed. The EU, however, has been planning talks between Kosovo and Serbia on technical matters.

Serbia’s government will be rocked by this result. The Serbian Orthodox Church has called for bells to be rung out this afternoon and a protest rally has been called by Serbs in the divided northern Kosovo city of Mitrovica. In the last few weeks there have been three violent incidents there, resulting in one death. Mitrovica’s Serbs have been preparing an armed response in case jubilant Albanians try to cross the river Ibar, which divides the city. In the wake of the opinion helicopters from the NATO-led peacekeeping force in Kosovo have been circling above the city.

In the Serbian Orthodox monastery of Visoki Decani in western Kosovo, Father Sava warns that he fears for the church’s security. In the last few weeks he says Albanian teenagers have thrown stones at the monastery and hurled insults at the monks in a way reminiscent of the run-up to anti-Serbian riots in 2004. “We are in serious danger because we are seen as a symbol of Serbia, even though we are not acting politically,” he says.

The monastery lies in the heartland of support for Ramush Haradinaj, Kosovo’s former prime minister and leader of the main opposition party. Mr Haradinaj was acquitted of war crimes by the UN’s war crimes tribunal in 2008, but yesterday was rearrested because the appeals chamber found his trial to have been marred by witness intimidation. The arrest leaves the way clear for Hashim Thaci, the prime minister, to move at a time of his own convenience towards elections, which he is likely to win now that the opposition has been effectively decapitated.

Serbia’s president, Boris Tadic, is due to address the nation. Mr Jeremic has declared that the struggle will continue. Kosovo’s president, Fatmir Sejdiu, jubilantly declared: “God bless Kosovo!” But after the party Kosovo will remain one of the poorest parts of Europe, a country that does not control all of its territory and one that is riddled with corruption. Until now, Kosovo’s leaders have been able to blame Serbian intransigence for their failure to implement reforms and improve living standards. That excuse will now lose some of its potency, especially if more countries recognise the state.

Serbia too faces problems. Its EU accession process has slowed of late. As Mr Grubacic points out, Mr Tadic had promised Serbs both the EU and Kosovo. Now neither looks likely. Yet while Serbia’s EU bid may be stymied for now, it is certainly not dead. Dreams of Kosovo are another story.


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Rough justice

America locks up too many people, some for acts that should not even be criminal


IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.

Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling. Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.


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Too many laws, too many prisoners

Never in the civilised world have so many been locked up for so little

THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.

Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”

Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.

He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates.

A long love affair with lock and key

 Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

Some criminals belong behind bars. When a habitual rapist is locked up, the streets are safer. But the same is not necessarily true of petty drug-dealers, whose incarceration creates a vacancy for someone else to fill, argues Alfred Blumstein of Carnegie Mellon University. The number of drug offenders in federal and state lock-ups has increased 13-fold since 1980. Some are scary thugs; many are not.

Michelle Collette of Hanover, Massachusetts, sold Percocet, a prescription painkiller. “I was planning to do it just once,” she says, “but the money was so easy. And I thought: it’s not heroin.” Then she became addicted to her own wares. She was unhappy with her boyfriend, she explains, but did not want to split up with him, because she did not want their child to grow up fatherless, as she had. So she popped pills to numb the misery. Before long, she was taking 20-30 a day.

When Ms Collette and her boyfriend, who also sold drugs, were arrested in a dawn raid, the police found 607 pills and $901 in cash. The boyfriend fought the charges and got 15 years in prison. In a plea bargain Ms Collette was sentenced to seven years, of which she served six.

“I don’t think this is fair,” said the judge. “I don’t think this is what our laws are meant to do. It’s going to cost upwards of $50,000 a year to have you in state prison. Had I the authority, I would send you to jail for no more than one year…and a [treatment] programme after that.” But mandatory sentencing laws gave him no choice.

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ½-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

Ms Collette underwent drug treatment before being locked up, and is now clean. But in prison she found she was pregnant. After going through labour shackled to a hospital bed, she was allowed only 48 hours to bond with her newborn son. She was released in March, found a job in a shop, and is hoping that her son will get used to having her around.

Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.

Watching hairs go white, and lifetimes ebb away

Many Americans assume that white-collar criminals get off lightly, but many do not. Granted, they may be hard to catch and can often afford good lawyers. But federal prosecutors can file many charges for what is essentially one offence. For example, they can count each e-mail sent by a white-collar criminal in the course of his criminal activity as a separate case of wire fraud, each of which carries a maximum sentence of 20 years. The decades soon add up. Sentences depend partly on the size of the loss and the number of people affected, so if you work for a big, publicly traded company, you break a rule and the share-price drops, watch out.

Eternal punishment

Jim Felman, a defence lawyer in Tampa, Florida, says America is conducting “an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone”. One of Mr Felman’s clients, a fraudster called Sholam Weiss, was sentenced to 845 years. “I got it reduced to 835,” sighs Mr Felman. Faced with such penalties, he says, the incentive to co-operate, which means to say things that are helpful to the prosecution, is overwhelming. And this, he believes, “warps the truth-seeking function” of justice.

Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.

Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.)

The “honest services” statute, if taken seriously, “would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” fumes Antonin Scalia, a Supreme Court justice. The Supreme Court ruled recently that the statute was so vague as to be unconstitutional. It did not strike it down completely, but said it should be applied only in cases involving bribery or kickbacks. The challenge was brought by Enron’s former boss, Jeff Skilling, who will not go free despite his victory, and Conrad Black, a media magnate released this week on bail pending an appeal, who may.

There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.

“The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.”

“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.

Society wants retribution

Such cases account for only a tiny share of the Americans behind bars, but they still matter. When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring. Ms Thompson, for example, was prosecuted just before an election, at a time when allegations of public corruption in Wisconsin were in the news. Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.

Prison deters? Not much, not the worst

Some people argue that the system works: that crime has fallen in the past two decades because the bad guys are either in prison or scared of being sent there. Caged thugs cannot break into your home. Bernie Madoff’s 150-year sentence for running a Ponzi scam should deter imitators. And indeed the crime rate continues to drop, despite the recession, as Michael Rushford of the Criminal Justice Legal Foundation, an advocacy group, points out. This, he says, is because habitual criminals face serious consequences. Some research supports him: after raking through decades of historical data, John Donohue of Yale Law School estimates that a 10% increase in imprisonment brings a 2% reduction in crime.

Others disagree. Using more recent data, Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. A recent study found that, over the past 13 years, the proportion of new prisoners in Florida who had committed violent crimes fell by 28%, whereas those inside for “other” crimes shot up by 189%. These “other” crimes were non-violent ones involving neither drugs nor theft, such as driving with a suspended licence.

And now the reckoning, in dollars

Crime is a young man’s game. Muggers over 30 are rare. Ex-cons who go straight for a few years generally stay that way: a study of 88,000 criminals by Mr Blumstein found that if someone was arrested for aggravated assault at the age of 18 but then managed to stay out of trouble until the age of 22, the risk of his offending was no greater than that for the general population. Yet America’s prisons are crammed with old folk. Nearly 200,000 prisoners are over 50. Most would pose little threat if released. And since people age faster in prison than outside, their medical costs are vast. Human Rights Watch, a lobby-group, talks of “nursing homes with razor wire”.

Jail is expensive. Spending per prisoner ranges from $18,000 a year in Mississippi to about $50,000 in California, where the cost per pupil is but a seventh of that. “[W]e are well past the point of diminishing returns,” says a report by the Pew Center on the States. In Washington state, for example, each dollar invested in new prison places in 1980 averted more than nine dollars of criminal harm (using a somewhat arbitrary scale to assign a value to not being beaten up). By 2001, as the emphasis shifted from violent criminals to drug-dealers and thieves, the cost-benefit ratio reversed. Each new dollar spent on prisons averted only 37 cents’ worth of harm.

Since the recession threw their budgets into turmoil, many states have decided to imprison fewer people, largely to save money. Mississippi has reduced the proportion of their sentences that non-violent offenders are required to serve from 85% to 25%. Texas is making greater use of non-custodial penalties. New York has repealed most mandatory minimum terms for drug offences. In all, the number of prisoners in state lock-ups fell by 0.3% in 2009, the first fall since 1972. But the total number of Americans behind bars still rose slightly, because the number of federal prisoners climbed by 3.4%.

A less punitive system could work better, argues Mark Kleiman of the University of California, Los Angeles. Swift and certain penalties deter more than harsh ones. Money spent on prisons cannot be spent on more cost-effective methods of crime-prevention, such as better policing, drug treatment or probation. The pain that punishment inflicts on criminals themselves, on their families and on their communities should also be taken into account.

“Just by making effective use of things we already know how to do, we could reasonably expect to have half as much crime and half as many people behind bars ten years from now,” says Mr Kleiman. “There are a thousand excuses for failing to make that effort, but not one good reason.”


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It’s a deal

Trading prisoners in the Low Countries

Dutch ease chock-a-block Belgium

THE border between Belgium and the Netherlands can be easy to miss: a road sign here, a flagpole there, a change in the colour of cars’ licence plates. When it comes to penal policies, though, the neighbours differ sharply. The Dutch prison population has been falling for some years and, with 14,000 cells for 12,000 prisoners, the government last year decided to close eight jails. But in Belgium the numbers locked up keep rising, causing serious overcrowding.

On February 5th this year, the Dutch and Belgian governments drew the logical conclusion, and agreed on a deal. Belgium took possession of the Dutch prison of Tilburg, a modern affair with tennis courts and a football pitch but a chronic shortage of residents.

For a rent of €30m a year, 500 Belgian prisoners now live behind Tilburg’s barbed wire. The governor is Belgian, most of the guards are Dutch. At first there was grumbling about language (some of the Belgian prisoners speak French, not Dutch) and ease of access (many supplies come from the nearest Belgian prison, 40km—25 miles—away). Now the arrangement causes little fuss.

Belgium and the Netherlands lock people up at the same rate: about one per 1,000 inhabitants. The Dutch boast that falling crime rates explain its empty cells. The reality is more complex. The Dutch built new jails as their prison population grew fast over the 20 years to 2005. They also promoted alternatives to custody, notably, in 2001, allowing judges to order community service for crimes that had previously earned six months in jug. By 2008, 40% of criminal trials were ending with community-service orders. And more drug-smugglers are caught nowadays in the Dutch Antilles, a Caribbean possession, before boarding flights for the Netherlands.

Belgian prisons have been crowded since the 1970s, but the country did not build many new cells. Two factors lie behind the continuing rise in prisoner numbers: high rates of pre-trial detention, which accounts for 35% of all those behind bars, and longer sentences. The courts have also become much warier of releases on parole. Officials point, above all, to the case of Marc Dutroux, who abducted six girls in 1995 and 1996, murdering four, after his early release from prison for child rape. His case revealed grave flaws in Belgian policing. Judges feel public pressure on them, to this day.


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Being Neutral Is Oh So Hard to Do

In the opening paragraph of his dissent in Christian Legal Society v. Martinez (June 28, 2010) Justice Samuel Alito names the principle he finds animating the majority opinion: “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” I have come to think he is right.

But before I say why, let me review the facts of the case.

The Christian Legal Society is an organization with chapters at a number of law schools. The purpose of the society, according to the petitioner’s brief, is to “provide opportunities for fellowship, as well as moral and spiritual guidance, for Christian lawyers,” to promote “justice religious liberty, and biblical conflict resolution” and encourage “lawyers to furnish legal services for the poor.”

Anyone can attend and participate in a C.L.S. meeting, but voting members and officers are required to “affirm their commitment to the group’s core beliefs” by signing a Statement of Faith that declares a trust in Jesus as one’s savior, and a belief in the Trinity as well as in the Bible as the inspired word of God. Those who sign the Statement of Faith are expected to live up to its precepts, and if they do not — if they do not refrain from “either participation in or advocacy of a sexually immoral lifestyle” — they disqualify themselves from C.L.S. membership. “Sexually immoral” behavior includes pre-marital sex, adultery and homosexual conduct.

And there’s the rub, at least as far as the University of California-Hastings College of the Law is concerned; for, according to its briefs, the school requires all R.S.O.’s (registered student organizations) to maintain an “all-comers” policy with regard to memberships and candidacy for group officers. In a deposition, the law school’s dean explained that “in order to be a registered student organization you have to allow all our students to be members and full participants if they want to.” (There is a dispute about just when this policy was put in place, the petitioners claiming that it was conveniently invented in the middle of the case, the law school claiming that it had been in force since 1990.)

Organizations that will not open their membership rolls to all comers can still form and have a campus presence and petition to use school facilities for meetings, but they will not be granted the benefits that come along with official recognition (which is different, Hastings is careful to point out, from positive sponsorship).

So the issue is joined: must C.L.S.’s right under the First Amendment to form an association of like-minded persons around an idea or an agenda give way — at least with respect to the privilege of R.S.O. status — to the nation’s and the university’s compelling interest in eliminating “invidious” discrimination? Or should the all-comers policy be relaxed in recognition of the right of an association to maintain the integrity of its declared purposes and beliefs?

C.L.S. argues that all “expressive associations, regardless of their beliefs, have a constitutionally protected right to control the content of their speech by excluding those who do not share their essential purposes and beliefs” (petitioner’s brief). Hastings responds that “the people of California, through their elected representatives, have barred discrimination based on various enumerated factors, including religion and sexual orientation ‘in any program . . . conducted by any postsecondary educational institution that receives . . . state financial assistance’”; and therefore the law school is precluded “from allowing any such discrimination in its publically funded R.S.O. program” (respondent’s brief).

One more complication: the case unfolds under the Supreme Court’s “limited forum” doctrine, which says (among other things) that once a state or state entity has established a forum for expressive activity, it cannot exclude from the forum speakers or groups whose viewpoints it disfavors. It may, however, impose restrictions on participation that are viewpoint-neutral, restrictions that do not flow from an official disapprobation of what is being expressed. The question, then, is does the Hastings all-comers policy involve a viewpoint-neutral restriction that only incidentally sweeps up C.L.S. in its wake, or is the policy, as Justice Alito claims, designed to discriminate against the Christian viewpoint?

Writing for the majority, Justice Ruth Bader Ginsburg aligns herself with the first prong of my question and agrees with the district court’s conclusion that the policy is “neutral and of general applicability” and “does not target or single out religious beliefs.” After all, she declares, it is “hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers.”

However, here things get tricky. The reasoning that the all-comers policy does not single out religious beliefs depends on a distinction between belief and conduct, a distinction Ginsburg several times invokes, first when she says that all student organizations remain able to “express what they wish” as long as they do not “discriminate in membership,” and later when she adds that “C.L.S.’s conduct — not its Christian perspective — is . . . what stands between the group and R.S.O. status.” But the distinction between belief and conduct, the very basis of formal neutrality, is not itself neutral because it favors religions (like the Protestantism John Locke explicates in his Letter Concerning Toleration, 1689) that are centered on the personal relationship between adherents and the God they believe in, and disfavors religions that require, and regard as a non-detachable extension of belief, the performance of specific forms of behavior.

That is to say, the belief/conduct distinction, a close relative of the mind/body distinction and the private/public distinction, itself embodies a very specific viewpoint (one the government is not entitled to have or enforce) concerning just what a religious belief is, and as such it discriminates against religions that do not respect, indeed cannot respect, the belief/conduct distinction. The Statement of Faith C.L.S. members are asked to sign and the canons of conduct they are asked to observe mark it as that kind of religion, one that demands not just assent to a set of doctrines, but conformity to a code of behavior. C.L.S. members must not only believe certain things; they must comport themselves in ways dictated by their belief, and so must the organization itself if it wishes to be true to the beliefs it declares, the beliefs around which it organized in the first place.

So when Ginsburg insists that the all comers policy “aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior,” she treats the act (of requiring members to affirm and adhere to C.L.S.’s doctrinal and behavioral tenets) as if it were just a disagreeable manifestation of prejudice unrelated to the group’s beliefs, as if it were distinct from the “reasons” animating the group’s existence. She appears to think that, were C.L.S.’s membership rules relaxed in deference to Hastings’ all-comers policy, the organization’s beliefs would survive intact; for it’s just an extrinsic procedural change, isn’t it?

The alternative is to view C.L.S. membership policy and the beliefs it declares as inextricable; you can’t have one without the other. And this would mean, as I have already more than suggested, that the so called viewpoint-neutral all-comers policy is not neutral at all, any more than a law that no one can sleep under bridges (a classic example) would be neutral. Only the poor and homeless would want to sleep under bridges; the “neutral” law forbidding it would obviously be directed at them. Only religions that recognize no distinction between belief and conduct would want to restrict membership to persons pledged to the performance of specific behaviors; the “neutral” all-comers requirement is obviously directed at them. The distinction on which Ginsburg relies between disapproving C.L.S.’s beliefs and disapproving its “act” won’t work. If you penalize the group for its membership policies, you are penalizing it for its beliefs.

This is Alito’s point in his dissent: “As written and enforced, the Policy targets solely those group whose beliefs are based on ‘religion’ or that disapprove of a particular kind of sexual behavior.” I would emend slightly: the policy is targeted at those religions that would be in violation of their own beliefs were they to countenance, by membership policy or any other action, particular kinds of sexual behavior. The legal doctrine to be invoked here (and Alito invokes it) is “expressive association,” the idea that certain actions a group might take are so expressive of their reasons for being that those actions are inseparable from those reasons.

Alito cites Justice Sandra Day O’Connor’s observation in Roberts v. United States Jaycees (1984) that an “association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.” It follows that a regulation preventing the association from selecting its members narrowly, or withholding benefits if it does so, would amount to a silencing of the association’s voice, an infringement on its expressive rights.

This is not an argument Justice Ginsburg pays much attention to. She pretty much dismisses it by claiming that C.L.S. “faces only indirect pressure to modify its membership policies” and was not “compelled,” as groups were in other expressive association cases, “to include unwanted members with no choice to opt out.” (I guess she doesn’t think the cost of the so-called opt-out choice is worth bothering about.) Ginsburg is more interested in the limited forum doctrine, which, she asserts (citing an earlier case) gives the state the right “to make distinctions in access on the basis of . . . speaker identity”; and she cites another case to the effect that “the state may not exclude speech where its distinction is not reasonable in the light of the purposes served by the forum.”

This citation raises the question of the relationship between the exclusion of groups (or group; only C.L.S. has been targeted) with selective membership policies and the purposes of the forum. Is the exclusion reasonable? What are those purposes? Or to put the question more precisely, what purposes that an educational institution might have would require it to withhold the benefits of official recognition from a group that limited its members to those who abided by the dictates of its faith?

Ginsburg answers the question by accepting a view of education and its purposes put forward by the amicus brief of the American Civil Liberties Union: “Just as ‘Hastings does not allow its professors to host classes open only to those students with a certain status or belief,’ so the Law School may decide, reasonably in our view, ‘that the educational experience is best promoted when all participants in the forum must provide equal access to all students.’” And just what is the “educational experience” envisioned in this statement? It turns out, in Ginsburg’s view, to be the experience of an environment that encourages the “development of conflict-resolution skills, toleration, and readiness to find a common ground.”

Now that is a “reasonable” list of educational goals, but it is not the only one. Another might be an educational experience that encourages fidelity to correct behavior as defined by some religion or system of morality, an experience devoted less to the finding of common ground than to the finding of, and hewing to, truth.

I am not saying that this latter view of education’s purposes — the view held by the Christian Legal Society — should be the official view of the law school. I am saying that no view of education’s purposes, as long it is contestable (and they all are), should be the official view of the law school. Under cover of “neutrality,” Hastings, with the majority’s approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community. Justice John Paul Stevens may be right on the law when he observes in a concurring opinion that “the university need not remain neutral . . . in determining which goals the [R.S.O.] program will serve and which rules are best suited to facilitate those goals,” but he and his colleagues in the majority cannot at the same time make statements like that one and claim to be speaking in the name of neutrality.

Stanley Fish, New York Times


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Owning the news

Copyrighting facts as well as words

FACTS, ruled America’s Supreme Court in 1918 in the “hot news doctrine”, cannot be copyrighted. But a news agency can retain exclusive use of its product so long as it has a commercial value. Now newspapers, fed up with stories being “scraped” by other websites, want that ruling made into law.

The idea is floated in a discussion document published by the Federal Trade Commission, which is holding hearings on the news industry’s future. Media organisations would have the exclusive right, for a predetermined period, to publish their material online. The draft also considers curtailing fair use, the legal principle that allows search engines to reproduce headlines and links, so long as the use is selective and transformative (as with a list of search results). Jeff Jarvis, who teaches journalism students to become entrepreneurs at New York’s City University, says this sounds like an attempt to protect newspapers more than journalism.

Germany is mulling something similar. A recent paper by two publishers’ associations proposed changing copyright law to protect not only articles but also headlines, sentences and even fragments of text.

Critics say that would extend copyright to facts. It would also be hard to make either regime work in practice. In America, a regulator would presumably need to determine the period of commercial value: perhaps two hours for news of an earthquake, 30 minutes for sports results. In Germany, publishers want a fee on commercial computer use. Germany’s justice minister last week hinted at support for the news industry, but also said that a new law would not stir young people to buy newspapers. New products, she says, would be a better response to flagging demand.


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Conrad Black’s Revenge

The Supreme Court reins in a vague and often abused law.

Vague laws beget injustice, and in a trio of decisions yesterday the Supreme Court dispensed with major parts of a murky statute that has long been used as a catch-all tool to criminalize business. These are the Court’s biggest white-collar crime cases in years and are a long overdue victory for the rule of law.

In a unanimous decision in Skilling v. United States, Justice Ruth Bader Ginsburg wrote that the so-called “honest services” fraud law could not be used to convict former Enron CEO Jeffrey Skilling for his role in the company’s accounting scandal. His case will be sent back to the Fifth Circuit Court of Appeals for further consideration, and the High Court’s pruning of the statute will reduce opportunities for future prosecutorial abuse.

The 1988 law, which made it a crime to “deprive another of the intangible right of honest services,” has become a favorite of prosecutors in white-collar cases precisely because of its ambiguity. Prosecutors use it as the kitchen-sink charge against politicians and executives when they’re worried that they can’t make more specific allegations stick.

As Justice Antonin Scalia wrote last year, the 28-word provision has been “invoked to impose criminal penalties on a staggeringly broad swath of behavior” by those who “engage in any manner of unappealing or ethically questionable conduct.” Different appellate courts have interpreted the law in different ways, leading to wide variation in what “crime” is prosecuted where, and crying out for Supreme Court clarification.

The Court went far to provide that clarification yesterday, with Justice Ginsburg writing that the statute is “properly confined to include only bribery and kickback schemes.” Her opinion specifically rejected the Justice Department’s request to allow a broader interpretation that included “undisclosed self-dealing by a public official or private employee” who claimed “to act in the interests of those to whom he owes a fiduciary duty.” Justice Ginsburg rightly described this as overbroad, and she cited Court precedent that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”

While all nine Justices concurred in the judgment, three Justices said they would have gone further and junked the entire statute. In an opinion joined by Clarence Thomas and in part by Anthony Kennedy, Justice Antonin Scalia wrote that the statute is so vague that it violates due process rights under the Fifth Amendment. And he scored the majority for cooking up the bribery and kickback interpretation of the law “all on its own.”

The implications of Skilling were immediately clear in the Court’s decisions in two other business and political fraud cases yesterday. The Justices vacated the honest services conviction of Alaska state legislator Bruce Weyhrauch, who prosecutors said had failed to disclose he was in job negotiations with an oil company at the same time the legislature was considering an oil bill. And in Black v. U.S., also a 9-0 ruling by Justice Ginsburg, the Court said the honest services conviction of media baron Conrad Black also didn’t meet its Skilling test.

Mr. Black had been convicted of pocketing the money from noncompete agreements related to community newspapers, which the defense said were merely attempts to reduce taxes. A Chicago jury had dismissed nine of the 13 counts against Mr. Black, inviting the question of whether the honest services statute could be applied even if the jury did not find that the defendants “reasonably contemplated economic harm.” Messrs. Black and Weyhrauch will now get rehearings.

The Black reversal is another blot on U.S. Attorney Patrick Fitzgerald, who has previously abused legal process in his extrajudicial public declarations against I. Lewis “Scooter” Libby and former Illinois Governor Rod Blagojevich. In Mr. Libby’s case, Mr. Fitzgerald gave reporters the impression at a news conference that Mr. Libby had obstructed his ability to find out who leaked the name of CIA analyst Valerie Plame when he already knew the leaker was Richard Armitage. This was a deceptive attempt to poison media and public opinion against Mr. Libby.

The Black and Skilling cases are precisely the kind involving high-profile, unsympathetic defendants in which willful prosecutors like Mr. Fitzgerald are inclined to abuse the honest services law. They know the media won’t write about the legal complexities, and they know juries are often inclined to find a rich CEO guilty of something. We regret that in the case of Mr. Black, that failure of media oversight included us.

We agree with Justice Scalia that the Court would have been wiser to toss out the entire honest services statute and force Congress to define precisely the specific behavior it wants to criminalize. But yesterday’s decisions are nonetheless a victory against prosecutors who would use vague laws to turn legal if unpopular behavior into crimes.

Editorial, Wall Street Journal


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Rogues In the Dock

The Gilded Age had its sordid side—and two lawyers ready and eager to defend it.

In late 19th-century New York, the better class of criminals could arrange to have food from Delmonico’s restaurant delivered to their cells in the Tombs, pickpockets had a tacit agreement with the police about the neighborhoods where they could work, and crooks of every stripe knew that, when they got into trouble, the partners of Howe & Hummel were the men to call.

Cait Murphy’s “Scoundrels in Law” paints a colorful portrait of this era, showing us stories of human frailty, hypocrisy and stupidity that, in their essence, are all too familiar from today’s police blotters and court reports but have a raffish charm when seen from our comfortable remove. The book’s focus is the clientele of the bombastic William Howe and his younger, more bookish partner, Abraham Hummel, but in telling the story Ms. Murphy offers a wealth of evocative detail about the underbelly of Gilded Age New York.

Of particular interest to those familiar with Manhattan’s downtown courts is Ms. Murphy’s description of the area known as Five Points, “a name derived from the five-pointed intersection of Worth, Baxter and Mosco streets that was the heart of the neighborhood.” It was so “deliciously dangerous,” Ms. Murphy notes, that “visitors to New York, including Abraham Lincoln, swung by for a look and a shudder.” The perfect spot to build a courthouse.

bkrv.ScoundrelsMs. Murphy calls Howe & Hummel scoundrels: “They bribed judges. They suborned witnesses. They lied and cheated. They slandered victims, maligned the innocent, and helped seriously awful people slither back onto the streets.” But it would appear that the partners fit quite nicely into their times.

Consider, for example, Capt. Thomas Byrnes, the city’s chief of detectives. “Violating all kinds of civil liberties, Byrnes drew a notional boundary across the financial district of lower Manhattan,” Ms. Murphy writes. “Any known thief or pickpocket found south of this ‘dead line’ on Fulton Street who could not prove he had legitimate business could be jailed overnight.” Of course, thieves and pickpockets were free to work other areas of the city, as a matter of professional courtesy—they had to be able to work somewhere. The arrangement, Ms. Murphy says, in effect “regulated the practice of crime.”

Even the humblest newcomer to New York wasn’t safe from the police. Ms. Murphy, cautioning against a nostalgic “wink and indulgent smile” regarding police corruption, relates the story of Caela Urchiteel, a Russian immigrant widow with three children. Urchiteel saved up enough money—$600—to buy a cigar store. On her opening day, the “local bobby” demanded protection money, which she refused. He dragged her off to jail and found a couple of street urchins to testify that she “sold herself to them for 90 cents.” Convicted of prostitution and sent to jail, she later managed to pay her fine—and then learned that her children had been taken to an orphanage, which refused to return them to a “prostitute.” She finally prevailed on a judge to let the family be reunited. Such was the price of turning away a crooked New York cop.

Some of the cases handled by Howe & Hummel resonate across the decades. Abortion, for instance, was very much at issue back then. A doctor named Jacob Rosenzweig got in trouble in 1871 for his heavily advertised sideline as an abortionist named Dr. Ascher. A young woman had died during an abortion, and Rosenzweig, in a trial that captivated the city, was convicted of manslaughter. But then Howe, after winning a retrial, successfully argued that a strict anti-abortion law passed in New York in 1872 obviated the previous, less stringent law cited in Rosenzweig’s first trial. “There was no law under which his act could be prosecuted,” Ms. Murphy observes.

In another case, the firm took on an obscenity defense, going toe to toe with the priggish reformer Anthony Comstock, who gained subsequent fame with the Comstock Act making it illegal to send obscene material through the mails. Howe & Hummel went to bat for Victoria Woodhull in 1872 after she was hauled into court for a particularly outrageous edition of her Woodhull & Claflin’s Weekly newspaper. The paper infuriated the New York establishment with its publication of sensational revelations about a torrid affair between Henry Ward Beecher, the famous Plymouth Church minister, and Elizabeth Tilton, the wife of a close friend. Comstock seized on another story, an even seamier tale about a Wall Streeter’s seduction of a teenage girl, to persuade federal prosecutors to go after Woodhull and her sister, Zulu. “The sisters won on a technicality,” Ms. Murphy writes. “The judge ruled that the act that they were said to have violated did not cover newspapers.”

While William Howe and Abraham Hummel are the thread tying together the book’s vignettes of sordid Gilded Age life, “Scoundrels in Law” is remarkably light on evidence of the lawyers’ scoundrel qualities. Everyone thought that they were scoundrels, and Ms. Murphy clearly believes that they were—to prosper in the New York legal world of that era a certain bent quality appears to have been almost compulsory—but we don’t hear much eye-witness testimony to that effect. The book is also scant on the men’s backgrounds. The two seem to land on the scene as fully formed lawyers, with Howe wearing diamonds and rubies sewn into his vest.

Ms. Murphy is a careful writer and presents her tales of post-Civil War New York with admirable attention to detail and context—readers who savor stories of that era will revel in this book. “Scoundrels in Law” doesn’t quite succeed in demystifying the rascally image of Howe & Hummel or in offering a deeper understanding of the firm’s courtroom success. But there is an undeniable poignancy to the firm’s ignominious end. Howe died in 1902; Hummel was disbarred in 1906 amid accusations that he had paid a witness to commit perjury. Had Hummel been desperate to win another lurid, headline-grabbing case of the sort that had become the firm’s stock in trade? Not at all. As Ms. Murphy notes: “It was all over an uncontested divorce between two nonentities.”

Mr. Greenfield is a New York criminal defense lawyer and blogger at Simple Justice.


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No Price to Pay for Torture

The Supreme Court’s refusal to consider the claims of Maher Arar, an innocent Canadian who was sent to Syria to be tortured in 2002, was a bitterly disappointing abdication of its duty to hold officials accountable for illegal acts. The Bush administration sent Mr. Arar to outsourced torment, but it was the Obama administration that urged this course of inaction.

In the ignoble history of President George W. Bush’s policies of torture and extraordinary rendition, few cases were as egregious as that of Mr. Arar, a software engineer. He was picked up at Kennedy International Airport by officials acting on incorrect information from the Royal Canadian Mounted Police. He was sent to Syria, to which the United States had assigned some of its violent interrogation, and was held for almost a year until everyone agreed he was not a terrorist and he was released.

The Bush White House never expressed regret about this horrific case. There was only then-Secretary of State Condoleezza Rice’s bland acknowledgement to a House committee in 2007 that it was not “handled as it should have been.” Since he took office, President Obama has refused to fully examine the excesses of his predecessor, but surely this case was a chance to show that those who countenanced torture must pay a price.

In Canada, the government conducted an investigation and found that Mr. Arar had been tortured because of its false information. The commissioner of the police resigned. Canada cleared Mr. Arar of all terror connections, formally apologized and paid him nearly $9.8 million. Mr. Arar had hoped to get a similar apology and damages from the United States government but was rebuffed by the court system.

Amazingly, Mr. Obama’s acting solicitor general, Neal Katyal, urged the Supreme Court not to take the case, arguing in part that the court should not investigate the communications between the United States and other countries because it might damage diplomatic relations and affect national security. It might even raise questions, Mr. Katyal wrote, about “the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.”

The government and the courts should indeed raise those questions in hopes of preventing these practices from ever recurring. The Canadian police continue to investigate the matter, even the actions of American officials, though their counterparts here are not even trying.

The Supreme Court’s action was disgraceful, but it had stepped away twice before from cases of torture victims. There is no excuse for the Obama administration’s conduct. It should demonstrate some moral authority by helping Canada’s investigation, apologizing to Mr. Arar and writing him a check.

Editorial, New York Times


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Having a degree in law will open all sorts of doors to you

A law degree is the most versatile of academic qualifications. There is really just one career for a graduate of dental surgery but for law graduates there are multifarious paths to success.

Many law graduates proceed to become solicitors or barristers but, equally, many others use the qualification to become successful in commercial life, academic research, the media, the civil service, corporations, local government, teaching, campaign organisations, and politics – more than 80 MPs, for example, have law degrees. A law degree can prepare someone for work at the highest levels – Barack Obama used to be a legal academic. Having studied law, some people such as Gandhi, Nelson Mandela, John Cleese, Derren Brown, Gaby Logan and Gerard Butler, move on to entirely different careers.

There are 70,500 people studying law in the UK, with about 15,500 graduating each year. A significant number do not go on to become practising lawyers. In England and Wales, about 5,700 training places in firms and organisations are now being offered for prospective solicitors each year and about 500 pupillages for barristers. So, many who take the Legal Practice Course or the new Bar Professional Training Course will not go directly into standard practice but will move into legal work that is not reserved for fully apprenticed lawyers. In addition, many law graduates glide directly into other occupations as the employment rate for law degree holders is exceptionally high. Research conducted at Warwick and Kent showed that law graduates earn more than graduates in other subjects, and research at University College London found that of all university subjects, the one seen by the public as most useful to gain employment was law.

Law governs every facet of human life so there is something in the discipline for everyone, including the law related to science, technology, sport, entertainment, business, politics, finance, criminal justice, the family, employment, property, cars, medicine and international affairs.

Law graduates show prowess in many of the abilities in which employers require accomplishment. A university legal education equips students with a formidable library of knowledge and a magnificent portfolio of skills. Law degrees certify that their holders have high levels of literacy, communication skill, rigorous powers of analysis, numeracy, IT skill, argumentative and evaluative skill, advanced problem-solving capability, research proficiency and presentational expertise.

Most law degrees have Qualifying Law Degree (QLD) status meaning that they are endorsed by the legal professional bodies and cover all the academic law that those intending to practise need to qualify. Superior QLDs offer more than this. As the distinguished legal academic and later Vice-Chancellor of Oxford, W.T.S. Stallybrass, noted in 1948, “a university education should be education in the Law and not only, or possibly not even primarily, education for the Law”. He said that universities should turn out people who were not merely professional lawyers but people of “general ability and acceptance”.

That many law graduates do not enter chambers or law firms is not new. The enlightening value of the law degree has long produced people with illustrious careers outside law. In his inaugural lecture at Cambridge in 1955, Professor C. J. Hamson said that the number of his former students at the Bar was small. He said many of them went on to other kinds of legal service, local, colonial and civil and that, desirably, the law school was not solely concerned with producing lawyers.

In 1947, Professor C.E.S. Wade noted in his inaugural lecture that law should be taught in the universities “not as an exercise in professional technique but in relation to its place in the world in which we live”. A great modern law school is a place where academic theory is informed by those specialising in legal practice, and where legal practice is enhanced by those specialising in the scientific analysis of law and its social contexts. As the American jurist Karl Llewellyn noted in 1945 “Technique without ideals may be a menace, but ideals without technique are a mess.”

If you play chess or cricket, football, or Monopoly it is a great advantage to know the rules well. The law is the rulebook applicable to the entire canvas of life. It is a rulebook rich in history, intrigue, thrills, cunning, comedy, and tragedy. Those who are expert in its contents are indispensable. As a matter of social health, there should be law graduates everywhere to guard against the danger observed by John le Carré: “it’s always wonderful what a lawyer can achieve when nobody knows the law.”

Gary Slapper is Professor of Law at The Open University and a door tenant at 36 Bedford Row


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The Lamest Show on Earth

Senator walks into a bar. Bartender asks, ‘Why the long speech?’

Barring the unexpected, the nomination of Solicitor General Elena Kagan to serve as a justice of the Supreme Court will be confirmed. The tradition, and a good one it is, based on mutual respect, compromise and acknowledgment of philosophical differences, is that conservative presidents get to nominate more or less conservative judges, and liberal presidents liberal ones.

Is Ms. Kagan liberal, or, as liberals now say, progressive? Of course. She worked as an associate counsel in the Clinton White House, just as John Roberts as a young man was an associate counsel in the Reagan White House. She is now an Obama appointee. Along the way she visited the progressive stations of the cross, from Ivy League education (Princeton University and Harvard Law School, with a master’s from Oxford along the way) through a career in academia (University of Chicago Law School professor, dean of Harvard Law) and government.

We can infer a great deal about her politics but do not know a great deal, because she has been throughout her career circumspect to the point of self-censored.

Ms. Kagan needs and deserves a tough and spirited grilling in the Senate Judiciary Committee as to her philosophical assumptions and judicial approach. Unfortunately, senators will likely do what they did in the Roberts, Alito and Sotomayor hearings, and that is make speeches, put forth extremely long-winded questions, and barely let the nominee speak. They should stop that.

Because little is known of the views she holds, much is made of her manner. She seems to respect either conservatives or conservatism, it’s not clear which, seems to have a gift for the managerial side of things and for “forging consensus,” as the administration keeps telling us. She seems to get along with everyone and not to be insane.

“Appears not to be insane” is actually a major plus in all nominees now, as is collegiality. Ruth Bader Ginsburg is one of Antonin Scalia’s closest friends; personal relationships have always helped the court work. Ms. Kagan was well liked by conservatives as she rose. She will don the big black robe, and the nation will continue.

What is interesting about the nomination is that all the criticisms serious people have lobbed about so far are true. Yes, she is an ace Ivy League networker. Yes, career seems to have been all, which speaks of certain limits, at least of experience. She has been embraced by the media elite and all others who know they will be berated within 30 seconds by an irate passenger if they talk on a cellphone in the quiet car of the Washington-bound Acela. (If our media elite do not always seem upstanding, it is in part because every few weeks they can be seen bent over and whispering furtively into a train seat.) Ms. Kagan and her counterparts all started out 30 years ago trying to undo the establishment, and now they are the establishment. If you need any proof of this it is that in their essays and monographs they no longer mention “the establishment.”

Ms. Kagan’s nomination has also highlighted America’s ambivalence about what we have always said we wanted, a meritocracy. Work hard, be smart, rise. The result is an aristocracy of wired brainiacs, of highly focused, well-credentialed careerists. There’s something limited, even creepy, in all this ferocious drive, this well-applied brilliance. There’s a sense that everything is abstract to those who succeed in this world, that what they know of life is not grounded in hard experience but absorbed through screens—computer screens, movie screens, TV screens. Our focus on mere brains is creepy, too. Brains aren’t everything, heart and soul are something too. We do away with all the deadwood, but even dead trees have a place in the forest.

The ones on top now and in the future will be those who start off with the advantage not of great wealth but of the great class marker of the age: two parents who are together and who drive their children toward academic excellence. It isn’t “Mom and Dad had millions” anymore as much as “Mom and Dad made me do my homework, gave me emotional guidance, made sure I got to trombone lessons, and drove me to soccer.”

We know little of the inner workings of Ms. Kagan’s mind, her views and opinions, beliefs and stands. The blank-slate problem is the post-Robert Bork problem. The Senate Judiciary Committee in 1987 took everything Judge Bork had ever said or written, ripped it from context, wove it into a rope, and flung it across his shoulders like a hangman’s noose. Ambitious young lawyers watched and rethought their old assumption that it would help them in their rise to be interesting and quotable. In fact, they’d have to be bland and indecipherable. Court nominees are mysteries now.

Which raises a question: After 30 years of grimly enforced discretion, are you a mystery to yourself? If you spend a lifetime being a leftist or rightist thinker but censoring yourself and acting out, day by day, a bland and judicious pondering of all sides, will you, when you get your heart’s desire and reach the high court, rip off your suit like Superman in the phone booth and fully reveal who you are? Or, having played the part of the bland, vague centrist for so long, will you find that you have actually become a bland, vague centrist? One always wonders this with nominees now.

There should be and needs to be a vigorous, rigorous grilling of Ms. Kagan. But one fears we’ll all listen and come away not knowing where she stands and what she thinks. Instead, you know what we’re going to hear: opaque, convoluted, impossible-to-understand statements. “I appreciate your raising that issue, Senator. The Blewblew v. Blahblah decision was ultimately reflective, as you suggest, of jurisprudential assumptions going back at least far as Dewdew v. Dahdah as interpreted by Justice Jackson, who did not nullify, and reinterpreted by Justice Brandeis, who did, as you note.” Viewers will try to listen, give up, and wind up thinking, “I like her hair.” Everyone in public life says, “I can’t believe they only care about my hair,” but they’re lying. That’s all they want you to think about.

Actually what a nominee is likely to say is something like this: “The question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis, along with the settled expectations, whether a precedent has been eroded.” That was now-Chief Justice John Roberts in his confirmation hearings on Sept. 13, 2005, and his testimony was among the more lucid of recent years.

But mostly in confirmation hearings it is senators who speak, who give long soliloquies and put forth extremely long and circuitous questions. Pose, vanity and camera hogging are the order of the day. In the first, long day of Samuel Alito’s hearings, he was barely allowed to speak. After his opening statement, it was all, “Thank you, senator,” and, “Uh—well, yes.”

The Supreme Court is our great interpreter of law and of the Constitution. It would be nice if Ms. Kagan were given the opportunity and responsibility to answer tough, clear, direct questions. But that would require senators able and willing to ask them.

Peggy Noonan, Wall Street Journal


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The Police and Immigration: New York’s Experience

A spouse may be reluctant to report abuse if she fears that the consequence will be deportation for the father of her children.

Arizona’s new immigration law has been roundly criticized for encroaching on the federal government’s authority to enforce immigration laws. It requires police to demand documentation from an individual when they have a “reasonable suspicion” that a person is here illegally. Arizona’s own police chiefs association opposes this entanglement of state law enforcement with federal immigration policy on the grounds that it will undermine the public’s trust in local officials.

Arizona isn’t alone in involving local officials in federal immigration policy to an unwarranted degree. Federal immigration officials are active in 300 local jails and nearly every state prison in the country as part of the Criminal Alien Program, which is designed to identify potentially deportable inmates.

Although the precise method of operation of the program varies across communities, the basic strategy remains the same: Federal immigration officials are allowed access to information about foreign-born inmates in local jails, either through in-person interviews with inmates or through access to local databases. This allows them to quickly identify inmates eligible for removal. Strikingly, 48% of all deportable immigrants identified by U.S. immigration officials in 2009 were discovered as a result of this program, according to an October 2009 report issued by U.S. Immigration and Customs Enforcement.

Even New York City, which has long had a reputation as a welcoming place for immigrants, works with federal immigration officials, providing them with direct access to the Department of Corrections’ database that contains information on foreign-born arrestees housed in city jails. Federal Immigration and Customs Enforcement (ICE) officials maintain an office of 15 agents at the city’s largest jail, Rikers Island, where they routinely interview newly booked inmates. In 2007, ICE officers interviewed approximately 4,000 Rikers inmates. Once ICE officers identify potentially deportable inmates, they issue an immigration “detainer”—an official request that local officials notify ICE prior to releasing an inmate so that the inmate can be transferred into ICE custody for potential deportation.

Federal immigration agents in Phoenix.

In 2007 alone, ICE initiated deportation proceedings against 3,212 inmates being held at Rikers. Some 13,000 Rikers inmates have been identified by ICE as potentially removable since 2004. This includes not just undocumented immigrants but lawful, permanent residents and those with valid claims to remain here.

The close relationship between ICE and the Department of Corrections drastically alters the normal course of operations at New York City’s jails. Typically arrestees remain in jail until the city relinquishes custody, which can happen for a number of reasons: the inmate is released on his or her own recognizance; the inmate posts bail; the charges against the inmate are dropped; or there has been a finding of guilt or innocence. However, an inmate subject to a detainer is held in jail by the Department of Corrections for 48 hours past this date—even in the case of dismissed charges or an acquittal—to give federal immigration officials an opportunity to assume custody of the individual.

The city bears most of the expense of holding the inmate for the 48 hours. The issuance of immigration detainers also discourages inmates from posting bail, even when they can afford to do so, because inmates subject to detainers who succeed in posting bail are transferred directly into federal immigration custody. Thus the city also bears the expense of housing those inmates who would otherwise be out on bail. This costs the city at least $150 per inmate per day according to the Department of Corrections.

The New York City Bar Association has also argued that the use of immigration detainers lowers the rate of participation in the city’s alternative-to-incarceration programs because judges and prosecutors are quick to assume that immigrants subject to detainers are ineligible for such programs. These alternative programs reduce recidivism and lower costs to the criminal justice system.

But by far the most severe consequence of the city’s cooperation with federal immigration officials is the lack of trust in law enforcement that it creates among the public. A spouse, for example, may be reluctant to report abuse if she fears that the consequence will be deportation of the father of her children. When immigrants perceive the local police force as merely an arm of the federal immigration authority, they become reluctant to report criminal activity for fear of being turned over to federal officials. Given that immigrants (legal and illegal) currently comprise 36% of the city’s population, this unwillingness to cooperate with local law enforcement presents an obstacle to stemming crime in the city as a whole. That’s why during the 35 years I was district attorney in Manhattan, I made it a policy never to turn over names of individuals involved with the criminal justice system to immigration authorities until after they were convicted of a serious crime.

Charges are ultimately dropped against a significant percentage of arrestees in the city’s jails. In 2009, for example, charges were eventually dismissed in 34% of all cases arraigned in criminal court in New York City. Federal law provides that lawful permanent residents with green cards can be deported if they are convicted of certain offenses—including aggravated felonies and the vast majority of controlled substance offenses. But in New York City, ICE officials have access to foreign-born inmates from the moment they are booked into the city’s jails, regardless of whether charges might later be dropped. This early involvement of federal officials is unwarranted and imposes considerable costs monetarily and in terms of public perception.

No one disputes that the names of violent offenders should be turned over to federal immigration officials, but the current approach treats those charged with petty offenses (and those who may not be guilty of any crime) in the same manner as convicted felons.

A more nuanced approach to cooperation between local authorities and federal immigration officials—in which only the names of those convicted of violent crimes were turned over to ICE—would avoid this problem. It would go a long way towards separating the roles of local police and federal immigration authorities in the eyes of the public, and would encourage more inmates to post bail, thus reducing costs to the city. New York authorities should make clear they do not approve of the haphazard and sometimes cruel way that federal immigration policy is enforced.

Mr. Morgenthau, district attorney of Manhattan from 1975 until 2009, is currently of counsel to Wachtell, Lipton, Rosen and Katz.


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To catch a thief

Spotting video piracy

A new way to scan digital videos for copyright infringement

ONLINE video piracy is a big deal. Google’s YouTube, for example, is being sued for more than $1 billion by Viacom, a media company. But it is extremely hard to tell if a video clip is copyrighted, particularly since 24 hours of video are uploaded to YouTube every minute. Now a new industry standard promises to be able to identify pirated material with phenomenal accuracy in a matter of seconds.

The technique, developed by NEC, a Japanese technology company, and later tweaked by Mitsubishi Electric, has been adopted by the International Organisation for Standardisation (ISO) for MPEG-7, the latest standard for describing audio-visual content. The two existing methods do not do a very good job. One is digital “watermarking,” in which a bit of computer code is embedded in a file to identify it. This works only if content owners take the trouble to affix the watermark—and then it only spots duplicates, not other forms of piracy such as recording a movie at a cinema. A second approach is to extract a numeric code or “digital fingerprint” from the content file itself by comparing, say, the colours or texture of regions in a frame. But this may not work if the file is altered, such as by cropping or overlaying text.

NEC’s technology extracts a digital signature that works even if the video is altered. It does this by comparing the brightness in 380 predefined “regions of interest” in a frame of the video. This could be done for all or only some of the frames in a film. The brightness is assigned a value: -1, 0, or +1. These values are encapsulated in a digital signature of 76 bytes per frame.

The beauty of the technique is that it encompasses both granularity and generality. The 380 regions of interest are numerous, so an image can be identified even if it is doctored. At the same time, the array of three values simplifies the complexity in the image, so even if a video is of poor quality or a different hue, the information about its relative luminance is retained. Moreover, the compact signature is computationally easy to extract and use.

NEC says the system could be used to automate what is currently a manual procedure of checking that video uploaded to the internet is not pirated. The technology is said to have an average detection rate of 96% and a low rate of false alarms: a mere five per million, according to tests by the ISO. It can detect if a video is pirated from clips as short as two seconds. And an ordinary PC can be used with the system to scour through 1,000 hours of video in a second. There are other potential uses too, because it provides a way to identify video content. A person could, say, use the signature in a clip to search for a full version of a movie. Piracy will still flourish—but the pirates may have to get smarter.


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A New Standard of Decency

Monday’s welcome Supreme Court decision, banning sentences of life without parole for juvenile criminals who do not commit murder, recognizes that children mature and should not be irrevocably punished for a childhood act short of killing. But it also recognizes that nations mature — that standards of justice and constitutional principles change over the centuries and should be reinterpreted by new generations.

Justice Anthony Kennedy, writing for a five-member majority, acknowledged that permanent life sentences for juveniles might not have been historically recognized as cruel and unusual punishment but should now be considered unconstitutional because of “evolving standards of decency.”

Justice John Paul Stevens stated the case simply and elegantly in a concurring opinion:

“Society changes,” he wrote. “Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”

That, of course, infuriated the strict constructionists on the court, who said the Constitution’s framers meant “cruel and unusual” to refer to torture and nothing more. Justice Clarence Thomas, writing for two other justices, said the court was overstepping its bounds by interpreting the clause to ban disproportionate punishment.

Viewing the case from that 18th-century perspective, however, means ignoring recent scientific evidence showing a fundamental difference between the minds of juveniles and adults. Justice Kennedy, expanding on his landmark 2005 decision that banned the death penalty for juveniles, noted that the brain matures through late adolescence. He said juvenile actions are less likely to be evidence of an “irretrievably depraved character.”

The subject of the case decided on Monday, Terrance Graham, whose parents were crack addicts, participated in a restaurant robbery at age 16 and in a home-invasion robbery at age 17. A Florida judge sentenced him to life in prison without parole in 2005 at a time when the state, overreacting to a rash of juvenile crime, was cracking down on what it considered teenage superpredators.

But the court was hardly ordering his release, or that of the 128 other juveniles like him around the country (mostly in Florida) who are also locked up with no chance of parole. Instead, the court simply gave these prisoners a chance to show that they have matured and been rehabilitated, that years after their crimes, they have, at least, the hope of winning their release. (Chief Justice John Roberts Jr. took a middle position, saying Mr. Graham deserved a shot at parole but declining to endorse a categorical position.)

The majority’s opinion was particularly heartening for its forthright acknowledgment that there are other sources of judicial inspiration beyond the country’s founders. The low number of juvenile criminals sentenced to life without parole for noncapital crimes demonstrates that states, judges, prosecutors and juries have reached a de facto national consensus against the practice, the opinion said.

And, braving the catcalls of nativists, Justice Kennedy also looked to international law to bolster his argument, noting that this form of sentencing had been rejected by countries the world over. Until Monday, the United States was the only country to impose such sentences on its teenagers; thanks to five justices on the court, the world now stands in unanimous agreement.

Editorial, New York Times


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Modernizing Miranda: A new consensus

It’s not often that I agree with Attorney General Eric Holder. But, then again, it’s not often that Holder publicly embraces an anti-terrorism measure I proposed 48 hours earlier.

In last week’s column, I suggested that the 1984 “public safety” exception to issuing Miranda warnings be significantly modified for terrorists such as confessed Times Square bomber Faisal Shahzad. Rather than just allowing pre-Miranda questioning about any immediate danger, the public safety exception should be expanded to allow full interrogation of the outer limits of that attack and any others being plotted.

Two days later, Eric Holder said this on ABC: “If we are going to have a system that is capable of dealing in a public safety context with this new threat [international terrorism], I think we have to give serious consideration to at least modifying that public safety exception.”

“The public safety exception,” he told NBC, “was really based on a robbery that occurred back in the ’80s. . . . We’re now dealing with international terrorists.” Which is why we need to be “perhaps modifying the rules that interrogators have” to be “more consistent with the threat that we now face.”

This shift, added Holder, “is, in fact, big news.”

It is remarkable how base-pleasing civil-libertarian rhetoric, so easily deployed when in opposition, becomes chastened when one is entrusted with the safety of the American people. The fact that the Times Square bomber did talk after he was Mirandized is blind luck. Holder is undoubtedly aware of just how much information about the Pakistani Taliban, which he now tells us funded and directed Shahzad’s attack, would have been lost to us had Shahzad stopped talking — and therefore how important it is to make sure the next guy we nab trying to blow something up is not Mirandized until a full interrogation regarding that plot and others is completed.

The liberals’ problem with such interrogation begins with their insistence that terrorists be treated as ordinary criminals rather than enemy combatants. The administration treated Nigerian Umar Farouk Abdulmutallab, the underwear bomber, that way, and appears to think it was surely required to so treat Shahzad, a naturalized American.

Not at all. As The Post noted in its editorial supporting widening the government’s interrogation prerogatives, the two relevant precedents for designating enemy combatants are the Quirin and Hamdi cases. In both, American citizens were subjected to military jurisdiction.

Quirin (1942) allowed a U.S. citizen engaged in sabotage on U.S. soil to be tried and convicted as an enemy combatant. Hamdi (2004) upheld the designation as enemy combatant of a U.S. citizen picked up on the battlefield in Afghanistan.

It is true that the Supreme Court has not recently ruled whether that applies to a U.S. citizen apprehended committing an act of war on American soil. But why not press the court to decide? After all, had Shahzad’s car bomb gone off, Times Square would indeed have been turned into a battlefield.

Nonetheless, this administration seems intent upon using the civilian legal system rather than designating caught-in-the-act terrorists as enemy combatants. I think it’s a mistake, but they will be in power for almost three more years, possibly seven. In the interim, therefore, we have to think about how to adapt this administration’s preferred domestic-judicial model to the real world.

The way to do it, as Holder has come to understand, is by modifying Miranda.

The usual objection is that the courts will reject such a modification. The 2000 Dickerson case is cited to suggest that the Supreme Court will not countenance congressional intrusion on its jurisdiction over constitutional protections against self-incrimination.

But what Dickerson struck down was a provocative congressional attempt to simply overturn and liquidate Miranda. Expanding the public safety exception would be no such affront. It would be acting on the Supreme Court’s own Miranda adaptation in Quarles (1984) — the public safety exception — and applying its principles to the age of an ongoing campaign of mass attacks upon civilians. Protection from that requires information not just about ticking bombs but also about future bombs.

The ACLU is predictably apoplectic about Holder’s “big news.” But the idea is supported by an impeccably liberal attorney general, progressive think-tank king John Podesta and Republican Sen. Lindsey Graham (who is working to draft such legislation) — and that’s not even counting us troglodytes on the right.

Modernizing Miranda would garner widespread public support as well as bipartisan congressional majorities. Go for it, Mr. Attorney General.

Charles Krauthammer, Washington Post


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Many wives’ tales

A surprisingly prevalent phenomenon

WHEN police stopped a woman driving with a full face-covering Islamic veil, little did they know what they would uncover. It turned out that her husband, a halal butcher, practised polygamy, which is illegal in France—or, rather, he was living with four women, one of whom he was married to. Brice Hortefeux, the interior minister, wildly overreacted, demanding that he be stripped of his French nationality. The affair has exposed both the reality of polygamy and the difficulty of doing anything about it.

France considers polygamy “a grave infringement of the principle of equality between men and women”. The practice was forbidden in 1993, when immigration laws were tightened to stop husbands bringing extra wives into the country. Yet there are an estimated 200,000 people, including children, living in 16,000-20,000 polygamous families in France. Most are of African origin, particularly from Muslim parts of the Maghreb and Sahel, where polygamy is accepted.

Over the years, notes Sonia Imloul in a study for the Institut Montaigne, a think-tank, the authorities have turned a blind eye to what she calls life “like a prison for the wives”, many of them forced into marriage. Polygamy is widely blamed for social ills ranging from school absenteeism to street violence. Politicians say it is exploited to maximise welfare and housing benefits. Such fraud is hard to detect, since polygamists “marry” various wives under Islam, all of them claiming single-parent payments, while officially being married to just one.

In a comic twist, Lies Hebbadj, the husband who came under attack from Mr Hortefeux, tried to turn his case against his accusers by declaring that “if one is stripped of French nationality because one has mistresses, then many Frenchmen could be.” The French official organisation representing Muslims this week denounced Mr Hebbadj’s comments as “offensive and insulting” to Islam, stressing that it recognises only official marriages. Even so Eric Besson, the immigration minister, concedes that there are unlikely to be any grounds for stripping Mr Hebbadj of his French nationality without changing the law.

Women’s-rights lobbies have welcomed this debate. Chantal Brunel, a deputy from Nicolas Sarkozy’s ruling UMP party, and a campaigner against domestic violence, describes wives in polygamous marriages as living in “semi-slavery”, subject to violence, and their daughters to female circumcision. France is keen on classic women’s issues, she observes, such as equal pay and promotion at work, or women on corporate boards, but less interested in the grim reality of polygamy on French soil.


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Elena Kagan and the ‘Hollow Charade’

Progressive views of judging are difficult to defend. That’s why no recent nominee has tried.

Yesterday President Obama nominated Elena Kagan to fill the fourth Supreme Court vacancy in less than six years. This nomination presents an opportunity for a teaching moment about what the court does, how it affects the lives of ordinary citizens, and how individual justices make a difference in this enterprise.

It would certainly be a departure from the unsatisfying confirmation hearings Americans have recently observed. Senators ask important but highly predictable questions, and the nominee is coached to choose from certain stock answers. As we saw in last year’s hearings for Justice Sonia Sotomayor, a nominee must repeatedly allege fidelity to the law. But somehow, despite days of testimony, the process fails to capture what a nominee actually means when he or she describes faithfulness to the law.

Each nominee will have a different conception of fidelity. Anyone paying attention knows that the two most recent appointees to the high court—Justice Samuel Alito and Ms. Sotomayor—will disagree on most of the Court’s difficult 5-4 decisions. Yet their confirmation hearings displayed little evidence of their philosophical differences.

Sticking to the script means that nominees are confirmed based on platitudes, and public discourse suffers as a result.

One can only hope that Ms. Kagan will go off-script. In a 1995 book review published in the University of Chicago Law Review, she lamented that recent confirmation hearings were nothing but “a vapid and hollow charade.” She explained that the Senate should view confirmation hearings “as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”

Ms. Kagan is right. I think Americans can understand that judges draw on a variety of tools in interpreting the law, and that these tools differ for judges based on their constitutional values.

For example, when a statute is unclear, Justice Antonin Scalia might press harder on the language of the law, look at the context of specific words, and generally seek to understand what the written law means. He seeks to limit his own discretion, in part because the Constitution gives Congress, not the courts, the power to enact laws.

By contrast, Justice Stephen Breyer might focus on the purposes of the law and look to sources outside of the Constitution—including foreign law—to come to a decision. He may consider the outcome that makes the most sense to him because he considers judges to be a part of the democratic process. These are fundamentally different ways of dealing with difficult cases and they reflect two distinct attitudes about the proper role of a judge.

If President Obama wants to pick judges that are more like Justice Breyer and less like Justice Scalia, that’s his prerogative. Elections have consequences for the appointment of judges, just as they do for public policy. But it would elevate the debate substantially if Ms. Kagan, former dean of Harvard Law School, could explain her views of the judicial process.

Right now we know little about those views since Ms. Kagan has never been a judge and has not written on the topic. If President Obama is true to his campaign promises, his nominee will differ substantially from his predecessor’s nominees. Will Ms. Kagan articulate this difference in her hearings?

Ms. Kagan and those preparing her face a simple, political problem: “progressive” views of judging are difficult to defend. It may be why no recent nominee has tried. The simple statement that “judges should interpret the law, and not make it” resonates with Americans in a way that “judges should figure out the best answer” does not.

The reality may be more complicated than either of these formulas, but an attitude that emphasizes the rule of law has more appeal not merely because of its simplicity but because it captures the idea that judges are not policy makers. It emphasizes that judges should interpret the language of the law and try, as best they can, not to impose their own personal views of justice or the good when deciding cases.

After Justice Sotomayor’s hearings, some prominent liberals were disappointed that a “sophisticated” understanding of the law as open-ended, and of judging as personal—widely accepted in the legal academy—was not defended publicly by the nominee before a solidly Democratic Senate.

Perhaps this indicates that conservatives have won the debate over the type of judges Americans want. But it is a Pyrrhic victory if nominees with very different philosophies are confirmed based on incantations of the right formulas without an examination of their actual beliefs.

Ms. Rao, an assistant professor at George Mason School of Law, was previously associate White House counsel to President George W. Bush and counsel to the U.S. Senate Committee on the Judiciary.


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Elena Obama

Another reliable liberal who could transform the Supreme Court.

In selecting Elena Kagan to be the country’s next Supreme Court Justice, President Obama has tapped the legal world’s version of himself: a skillful politician whose cautious public persona belies a desire to transform the court and shape a new Constitutional liberalism.

In announcing her appointment yesterday, Mr. Obama praised the Solicitor General as someone who had won kudos from “across the ideological spectrum” and proven that she could work with conservatives, even (gasp) hiring some while dean of Harvard law school. Known for her personal charm and politesse, Ms. Kagan is also a woman of the modern judicial left who is unlikely to break from the High Court’s liberal bloc on any major legal dispute.

The President may be hoping for another William Brennan, the affable Eisenhower nominee who steered several ostensibly conservative Justices to the left. And at age 50, she could serve as long as the Justice she is replacing, John Paul Stevens, who will retire in June after nearly 35 years.

The nomination was greeted warmly by most on the political left, though a few have caterwauled that Ms. Kagan might be a “stealth” moderate because she lacks judicial experience and has a meager paper trail. We doubt it.

One worry on the left is that she might share an expansive view on executive war powers, a la President Bush. But that view is based on a single article in the 2001 Harvard Law Review in which Ms. Kagan draws on the experience of the Reagan and Clinton Administrations to suggest that strong Presidential oversight of agencies can be a “mechanism to achieve progressive goals.” This is not an argument for the “unitary” executive.

Mr. Obama may also see in his nominee a reflection of his philosophy that judging cases should be guided as much by personal experience and “empathy” as by the plain words of the Constitution. Writing in 1993 in the Texas Law Review about Justice Thurgood Marshall, for whom she clerked, Ms. Kagan provided a glimpse into her own jurisprudence.

Justice Marshall, she wrote admiringly, “allowed his personal experiences and the knowledge of suffering and deprivation gained from those experiences, to guide him.” In his view, she explained, Constitutional interpretation demanded that the courts “show a special solicitude for the despised and disadvantaged . . . and however much some recent Justices have sniped at that vision, it remains a thing of glory.”

Across her career, Ms. Kagan has also been a reliable legal partisan. While Harvard dean, she joined three other law school deans in a letter to the Senate Judiciary Committee on detainee policy, arguing that “immunizing the executive branch from review of its treatment [of detainees] strikes at the heart of the idea of the rule of law.” In a 2007 Harvard commencement speech, Ms. Kagan disparaged legal memos written by John Yoo as “expedient and unsupported legal opinions,” that “failed to respect the law.” So much for crossing the intellectual aisle.

Ms. Kagan is nonetheless likely to clear the Senate, barring some new development. The Senate confirmed her as Solicitor General last year 61-31, and at least as many will vote against her again for what is a lifetime appointment. But Republicans lack the votes to defeat her even if they were inclined to filibuster, and we doubt that they are.

Given her lack of a paper trail, they will even have a hard time sparring with her on judicial philosophy. Writing in 1995 for the University of Chicago Law Review, Ms. Kagan noted that the “fundamental lesson” of the confirmation assaults on Judge Robert Bork is “the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.”

However, she also wrote that in their own confirmation processes, Justices Ruth Bader Ginsburg and Stephen Breyer knew to bob and weave because the surest route to confirmation lay in “alternating platitudinous statement and judicious silence.” Expect a lot of silent bobbing and platitudinous weaving before the Senate.

Editorial, Wall Street Journal


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Kagan and the Military: What Really Happened

As dean, she upheld a policy already in place.

With the announcement of Elena Kagan as nominee for the open seat on the Supreme Court, comments both sound and foolish are sure to flood the media. In the prior category is the observation that Ms. Kagan is a brilliant legal scholar with a superb record of service in the federal government and as a law school dean. In the foolish category, we are already hearing a replay of an attack critics used against her when she was being considered for her current position as solicitor general.

That attack goes something like this: During her time as dean of Harvard Law School (2003-2009), Ms. Kagan showed herself to be antimilitary—an extremist bent on harming the military’s efforts to hire some of the best law school graduates in the country.

I write to rebut that argument, and believe that I am in a good position to do so. I served as dean of Harvard Law School from 1989 to 2003, and know the history of military recruiting there. I taught Ms. Kagan in the mid-1980s—she was one of the best students I’ve had—served as dean when we hired her as a tenured professor, and strongly supported her appointment as my successor.

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School’s Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

For years, the U.S. military, because of its “don’t ask, don’t tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university’s operating budget.

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit’s decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don’t ask, don’t tell.”

Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

Mr. Clark is a professor and former dean at Harvard Law School.


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Crooked in Calabria

The Italian mafia

The toughest and nastiest gangs in Italy

Tegano, not a man of peace

WITH a more easily pronounceable name, the ’Ndrangheta, the mafia of Calabria, Italy’s toe, might have achieved greater notoriety. Police and prosecutors began warning as far back as the 1990s that it had become the country’s richest, most dangerous organised-crime syndicate, ahead of Sicily’s Cosa Nostra. Yet although a third group, the Camorra in and around Naples, has become infamous thanks to Roberto Saviano’s best-selling book “Gomorrah”, the ’Ndrangheta remains almost unknown beyond Italy.

Investigators say that the ’Ndrangheta has prospered largely because its links to the Colombian cartels have given it a pre-eminent role in the transatlantic cocaine trade. The man credited with forging those links is Roberto Pannunzi. Last month, it emerged that the Italian authorities had let him slip away—for a second time. He was first arrested in Medellín, Colombia, in 1994, when his captors refused his offer of “a million dollars, right now”. Extradited to Italy, he was let go when his detention order expired. Mr Pannunzi was then rearrested in 2004 and later convicted. But last year, after a heart attack, he was sent from jail to a private clinic near Rome. In March he disappeared. The news was kept quiet for more than three weeks, ostensibly so as not to obstruct his recapture.

On April 26th the state was partly compensated by the arrest of Giovanni Tegano, reputedly the most senior gangster in the regional capital, Reggio Calabria. He was a key participant in Italy’s bloodiest-ever mafia war, which claimed the lives of almost 600 people in the six years to 1991. The interior minister, Roberto Maroni, acclaimed “the heaviest blow that could have been inflicted on the ’Ndrangheta.”

But official rejoicing was tempered when a crowd of 500 formed outside the police station where Mr Tegano had been taken and burst into applause when he emerged. Some shouted that the police had arrested a “man of peace.” Many in the crowd were reportedly related to the 70-year-old mobster, but the incident still shows the grip that the ’Ndrangheta has on Calabria, which is one of Italy’s poorest regions. Reggio’s deputy chief prosecutor, Michele Prestipino, argues that it could yet be prised open. Bugged telephone calls showed mobsters lamenting a “certain intolerance” among those they extorted and terrorised, he said. But there has been nothing like the brave revolt by some Sicilian businessmen.

The day Mr Tegano was seized, police in Rosarno began an operation to dismantle a system of grossly exploitative agricultural work and the clan thought to be behind it. In January Rosarno saw a riot by African crop-pickers and violent reprisals by local people, some allegedly linked to the Pesce clan of the ’Ndrangheta. Of 40 suspected members and associates, seven were women. They have long played a prominent role in the ’Ndrangheta, partly because (unlike Cosa Nostra) the ’Ndrangheta’s “families” are based on actual families. This makes them harder to infiltrate and so less susceptible to pentitismo (mobsters turning state’s evidence), which has proved a crucially important weapon in the fight against Cosa Nostra.

The countervailing drawback has often been disunity. If Cosa Nostra was a pyramid, the ’Ndrangheta was more of an archipelago of similar but separate islands. That may be changing. The newspaper La Repubblica reports that police recently listened in on conversations in which ’Ndrangheta affiliates were heard for the first time speaking of it as a unified structure. One, echoing the language of its Sicilian counterpart, declared: “We are all one thing. We are the ’Ndrangheta.”


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How to modernize Miranda for the Age of Terror

“[Law enforcement] interviewed Mr. Shahzad . . . under the public safety exception to the Miranda rule. . . . He was eventually transported to another location, Mirandized and continued talking.”

— John Pistole,

FBI deputy director, May 4

All well and good. But what if Faisal Shahzad, the confessed Times Square bomber, had stopped talking? When you tell someone he has the right to remain silent, there is a distinct possibility that he will remain silent, is there not? And then what?

The authorities deserve full credit for capturing Shahzad within 54 hours. Credit is also due them for obtaining information from him by invoking the “public safety” exception to the Miranda rule.

But then Shahzad was Mirandized. If he had decided to shut up, it would have denied us valuable information — everything he is presumably telling us now about Pakistani contacts, training, plans for other possible plots beyond the Times Square attack.

The public safety exception is sometimes called the “ticking time bomb” exception. But what about information regarding bombs not yet ticking but being planned and readied to kill later?

Think of the reason we give any suspect Miranda warnings. It is not that you’re prohibited from asking questions before Mirandizing. You can ask a suspect anything you damn well please. You can ask him if he’s ever picked his feet in Poughkeepsie — but without Miranda, the answers are not admissible in court.

In this case, however, Miranda warnings were superfluous. Shahzad had confessed to the car-bombing attempt while being interrogated under the public safety exception. That’s admissible evidence. Plus, he left a treasure trove of physical evidence all over the place — which is how we caught him in two days.

Second, even assuming that by not Mirandizing him we might have jeopardized our chances of getting some convictions — so what? Which is more important: (a) gaining, a year or two hence, the conviction of a pigeon — the last and now least important link in this terror chain — whom we could surely lock up on explosives and weapons charges, or (b) preventing future terror attacks on Americans by learning from Shahzad what he might know about terror plots in Pakistan and sleeper cells in the United States?

Even posing this choice demonstrates why the very use of the civilian judicial system to interrogate terrorists is misconceived, even if they are, like Shahzad, (naturalized) American citizens. America is the target of an ongoing jihadist campaign. The logical and serious way to defend ourselves is to place captured terrorists in military custody as unlawful enemy combatants. As former anti-terror prosecutor Andrew McCarthy notes in National Review, one of the six World War II German saboteurs captured in the United States, tried by military commission and executed was a U.S. citizen. It made no difference.

But let’s assume you’re wedded to the civilian law-enforcement model, as is the Obama administration. At least make an attempt to expand the public safety exception to Miranda in a way that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case.

The public safety exception should be enlarged to allow law enforcement to interrogate, without Mirandizing, those arrested in the commission of terrorist crimes (and make the answers admissible) — until law enforcement is satisfied that vital intelligence related to other possible plots and threats to public safety has been sufficiently acquired.

This could be done by congressional statute. Or the administration could, in an actual case, refrain from Mirandizing until it had explored the outer limits of any plot — and then defend its actions before the courts, resting its argument on the Supreme Court’s own logic in the Quarles case: “We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the [Miranda] rule.”

Otherwise, we will be left — when a terrorist shuts up as did the underwear bomber for five weeks — in the absurd position of capturing enemy combatants and then prohibiting ourselves from obtaining the information they have, and we need, to protect innocent lives.

My view is that we should treat enemy combatants as enemy combatants, whether they are U.S. citizens (Shahzad) or not (the underwear bomber). If, however, they are to be treated as ordinary criminals, then at least agree on this: no Miranda rights until we know everything that public safety demands we need to know.

Charles Krauthammer. Washington Post


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Schreiber Gets Eight Years for Tax Evasion

Karlheinz Schreiber in court on Wednesday.

Karlheinz Schreiber rose to prominence due to a scandal that engulfed the CDU in the 1990s and caused Helmut Kohl’s disgrace. Now the 76-year-old arms dealer has been jailed for eight years for tax evasion.

An arms dealer with close ties to Chancellor Angela Merkel’s Christian Democrats was jailed for tax evasion on Wednesday. Karlheinz Schreiber, who was at the center of a party funding scandal that brought down former Chancellor Helmut Kohl, is to serve eight years in prison.

The 76-year-old German-Canadian had fought extradition for 10 years after being arrested in Toronto in 1999 but eventually he was sent back to Germany last year to face a number of charges.

Schreiber was originally indicted on charges of tax evasion and bribery in connection with weapons deals. He was accused of taking undeclared commissions from a deal in the early 1990s to deliver Fuchs armored vehicles to Saudi Arabia.

In the end, the court in the Bavarian city of Augsburg only considered the tax evasion charges after finding that the statute of limitations had expired on a bribery charge. The court found him guilty of failing to report some 14.6 million deutsche marks, or €7.3 million ($10 million) in income between 1988 and 1993.

Party Financing Scandal

“The accused is the type of person only concerned with his own advantage,” presiding judge Rudolf Weigell said on Wednesday. He told the court that Schreiber would bribe “anyone and anything if things aren’t going to plan.”

Schreiber had also been involved in a party financing scandal that rocked the CDU in the 1990s and forced the then honorary party leader Kohl to step down. The arms dealer was alleged to have given a cash donation to the party treasurer and it subsequently emerged that Kohl had also taken illegal off-the-books donations from supporters.

The scandal almost ruined current Finance Minister Wolfgang Schäuble’s career when he was forced to resign as head of the party in 2000 after admitting to taking bribes from Schreiber. Ultimately the scandal paved the way for Merkel to take over as leader.


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Court Puts Pressure on Germany to Open Adolf Eichmann Files

Guilty — Adolf Eichmann during his trial in Jerusalem in 1961.

Germany’s secret service has lost a court battle to keep secret thousands of potentially embarrassing files on Nazi criminal Adolf Eichmann. Even though it remains unclear when and how many of the files will be opened, the ruling sets a precedent that could force Germany to reveal the full extent of collusion between West German authorities and fugitive Nazis half a century ago.

A German court has ruled against a decision by the country’s foreign intelligence service, the BND, to keep classified thousands of files on Adolf Eichmann, one of the main organizers of the Holocaust.

A German freelance journalist based in Argentina, Gabriele Weber, has been seeking access to the BND’s 3,400 documents on Eichmann, who escaped to Argentina after the war, was abducted by Israeli agents in 1960, put on trial in Israel and hanged. She took legal action after the BND refused to open the Eichmann files on the grounds that disclosure would damage Germany’s national interests.

The BND’s refusal to open the files, which date back to the 1950s and 1960s, has triggered speculation that they contain embarrassing information about possible collusion between West German authorities and former Nazis in the 1950s and 1960s.

The Federal Administrative Court in the city of Leipzig ruled on Friday that the refusal to declassify the files was unlawful. “The reasons given for keeping them classified were only partly justified by the contents of the files and did not permit withholding them completely,” the court said in a statement issued on Friday.

Files Could Show How Nazis Escaped

Historians say the files could show whether West German authorities knew about Eichmann’s whereabouts long before his capture, or even helped him. German law enforcement and intelligence agencies had many former Nazis, including SS and Gestapo officers, working in senior positions after the war.

“I am very curious to know what information was meant to be kept from the public,” Gabriele Weber said in a statement. “There have long been indications that not only the German government, but large German firms as well, had contacts in Argentina with Nazis and war criminals.”

However, it remains unclear when, whether and what proportion of the BND files will be disclosed.

A spokesman for the court said that despite the ruling, the files will remain closed until the BND and its government masters decide how to proceed. The agency has the option to impose a new disclosure ban but it would have to give new reasons for doing so, which would then have to be reviewed again by the court. Or it may decide to disclose part of the files.

The BND could not immediately be reached for comment. [On Tuesday, a BND spokesman told SPIEGEL ONLINE that no decision had been taken on how to respond to the court decision. “We are checking the ruling by the Federal Administrative Court. The court acknowledged some reasons given for the need to protect personal data on informants, and opened up the possibility of issuing a modified ban on opening the files,” the spokesman said. “But it hasn’t yet been decided what concrete action will be taken.” The spokesman said he did not know how long it would take to reach a decision. “The files are not yet declassified,” he said]

Pressure on the agency to release its old files on Nazi fugitives has increased since the CIA declassified many documents relating to Nazi war crimes in 2005 and 2006.

Lawyer Confident of Disclosure

Remo Klinger, a lawyer represting Gabriele Weber in the case, said he had little doubt the BND would declassify the files with various names blacked out, a standard practice in the release of intelligence documents.

“We think the case has shown that one can no longer assume that everything is a state secret just because it has been declared a state secret,” he told SPIEGEL ONLINE. “It sets a legal precedent. There has never been a ruling in which the BND was ordered to disclose documents.”

Uki Goni, an Argentine journalist who has researched the Nazi community in Argentina after the war, said the refusal to release the files so far was embarrassing to Germany.

“The whole episode is disgraceful and a deep stain on current-day Germany,” Goni told SPIEGEL ONLINE. “It is absolutely shocking that the German government continues to hide this information today. The German government should make not only the BND’s Eichmann file public, but all its secret documents related to fugitive Nazis.”

“The real reason the German govenment is withholding the Eichmann file is because it is afraid that if it gives in on Eichmann, then the floodgates will be opened and it will face a deluge of requests for all its secret post-war Nazi-related records, with potentially very embarassing consequences.”

Germany’s files on Eichmann and other Nazi fugitives could shed light on how thousands of committed Nazis and former members of Hitler’s SS, including more than 200 indicted war criminals, lived comfortably in exile in Argentina and other South American countries in the 1950s and 1960s, after escaping there with the help of former comrades, Swiss officials, the Catholic church and the Argentine government, said Goni.

BND Argued Disclosure Would Hurt German Foreign Policy

The BND had argued that the files contained information supplied by a foreign secret service which had not agreed to their disclosure, and that keeping the files closed was necessary for the sake of Germany’s foreign policy, especially in the Middle East.

The agency also said that the files contain private information about people still alive and was therefore subject to German privacy protection laws. Opening the files would entail unwarranted administrative costs because all that personal data would have to be blacked out, the BND argued.

But the court, which reviewed the top secret files in non-public sessions by a panel of judges, said the documents did not contain much information that was hitherto unknown. It said they referred to events so long ago that they were merely of historical interest.

“The files largely deal with the National Socialist tyranny, the persecution and systematic murder of Europe’s Jews, the role of various members of the Nazi regime, namely Adolf Eichmann, as well as events relating to that person in the post-war period,” the court said.

“Disclosing the files in question would only add facets to events already known,” it added. “Against this background, general references to foreign policy implications and Middle East policy do not suffice as reasons to argue that publication would harm the national interest. The same applies to the argument that continued cooperation with foreign intelligence services would be endangered.”

Eichmann, the most notorious of the senior Nazis still at large after World War II, coordinated the deportation of Jews from Germany and Nazi-occupied Europe to the concentration camps. He escaped from an Allied internment camp after the war and lived undercover in Germany until his escape to Argentina in 1950.

“The court even says there is nothing new in the file,” said Goni. “If this is so, Germany will have lots of explaining to do. Why did it kept it hidden for so long if there was nothing there? It would only increase the already prevalent suspicion that the file was cleansed before it was given to the court to review.”


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Cross in the Desert

A badly divided Supreme Court has overturned a good ruling against a cross that sits on federal land. The opinions did not provide much guidance but, over all, are likely to encourage those who want to entangle government and religion.

In 1934, private citizens put a cross on federally owned land in what is now the Mojave National Preserve in California, to honor Americans who died in World War I. A park visitor sued in 2001, and a federal judge ruled that the cross violated the First Amendment’s establishment clause because it conveyed “a message of endorsement of religion.”

When the cross was challenged, Congress passed a law that transferred the land under it to the Veterans of Foreign Wars, who would maintain it. The same park visitor challenged the land transfer. A trial court ruled that it was invalid because it was simply an attempt by the government to keep the cross. The United States Court of Appeals for the Ninth Circuit, in San Francisco, agreed.

The Supreme Court reversed that, 5-to-4, in a splintered set of opinions by six separate justices. Justice Anthony Kennedy, in a plurality opinion for himself and two others, said that the district court had erred when it blocked the land transfer because it had failed to properly weigh the factors Congress had to take into account when it passed the law. He directed the lower court to reconsider the question. Because of the way the other justices lined up in their separate opinions, Justice Kennedy’s opinion has the force of law on this point.

Justice Kennedy wrote that the cross was “not merely a reaffirmation of Christian beliefs.” He said, it “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten.”

A cross is not a generic memorial to Americans who die in battle — something Jewish, Muslim, and atheist soldiers could attest to. Justice John Paul Stevens, in dissent, had it right when he pointed out that it is a uniquely Christian symbol with a “deeply significant meaning for those who adhere to the Christian faith.”

The establishment clause prevents the government from endorsing any particular religion. Congress violated that basic principle in this situation. It should not have been a difficult case.

Editorial, New York Times


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Neighbor Against Neighbor

What right does the state have to reveal your signature on a political petition?

Today the Supreme Court hears arguments in Doe v. Reed. The case is about “mandatory disclosure”—that is, whether the state of Washington may publicly release the names and addresses of citizens who signed a petition to place a referendum on domestic partnership legislation on the ballot.

The case puts at risk core constitutional values such as free speech and privacy. And given the stakes, neither the justices nor the public should be swayed by widely held assumptions about mandatory disclosure that are not in fact true.

In Washington, personal information about citizens who sign a ballot petition previously had been kept confidential and used only to verify the authenticity of signatures. But last year, after the Washington legislature passed a law granting domestic partners the same rights under state law as married couples, opponents gathered more than 122,000 signatures to put the law to a referendum. Two opponents of this referendum—online activist groups and—requested that the petitioners’ names and addresses be made public, saying they planned to post them online to encourage “uncomfortable conversations” with the signers.

Supporters of Yes on Prop. 8, foreground, stand in front of city hall during a Yes on Prop. 8 rally as their opposition No on Prop. 8 supporters stand across the street.

Washington state agreed, prompting signers fearful of reprisal to sue to stop the revelation of their personal information—and for good reason. During California’s Proposition 8 battle in 2008 (the California Marriage Protection Act), personal information about donors to Prop 8 committees was posted on the Internet. This led to death threats, physical violence, vandalism and economic reprisals.

Nevertheless, defenders of such government-forced disclosure—for petition-signers and for those who financially support political causes such as ballot-issue campaigns—believe that it is a “cost free” way to provide voters with what they allege to be important information about ballot issues and causes. Even some skeptics of other kinds of regulations of political speech share this belief.

It is, however, a belief devoid of empirical support.

In 2007, I tested these assumptions about mandatory disclosure in the context of contributions to ballot-issue campaigns. Using a sample of more than 2,000 citizens in six states (California, Colorado, Florida, Massachusetts, Ohio and Washington), I surveyed opinions about disclosure requirements in general as well as who should be forced to comply with those requirements. The results were striking.

Although individuals claim to support mandatory disclosure generally, that support turns to opposition when they consider the personal costs. More than 56% disagreed or strongly disagreed that their identity should be disclosed as a condition of giving to a ballot-issue committee. The opposition grew to more than 71% when disclosure of their personal information included their employer’s name.

Furthermore, three out of five people said they would think twice about their association with a ballot-issue committee if it meant public disclosure of their names and addresses. The reason most often given was a desire to keep their involvement anonymous. Typical responses included, “Because I do not think it is anybody’s business what I donate and who I give it to.” Individuals also expressed concerns over potential repercussions, including fear for personal safety, identity theft, invasion of privacy and loss of employment.

But what about the alleged benefits of disclosure—the value of disclosed information to voters? I examined that, too, and found that few citizens actually make use of information revealed through disclosure laws. This is not surprising, since accessing that information would require the dedication of scarce time and resources to search online databases or spreadsheets to ferret out the desired data.

Even those who supposedly access this information and make it available to the public more readily—the media, think tanks, campaign organizations, etc.—rarely use it. Examining a wide array of sources of campaign information about ballot issues in Colorado, for instance, I discovered that less than 5% of those sources included any information produced by mandatory disclosure of any kind.

This makes sense. Most disclosure data give voters little useful information in deciding how to vote. Who cares that a stranger down the street or across town gave $20, $50 or even $500 to an issue campaign or signed a petition—unless your intent is to intimidate him and others of similar views? Other more sizable backers often make their views public or are easy to figure out. We don’t need disclosure, for example, to tell us that tobacco companies oppose smoking bans and teachers unions oppose school choice. Nor do we need mandatory disclosure to educate voters about the issues; the media and interest groups provide loads of information about the substance of the issues for any voter interested in accessing it.

In short, my research reveals that forcing people to comply with disclosure rules in order to exercise their First Amendment rights means many will stay silent or uninvolved—with little or no benefit to the public. Mandatory disclosure laws don’t inform voters; they squelch speech.

Mr. Carpenter is director of strategic research at the Institute for Justice and author of “Disclosure Costs: Unintended Consequences of Campaign Finance Reform,” available at


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International Law and Order

President Obama flirts with the ‘world court.’

Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint.

Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other “serious” crimes. It has yet to convict anyone. President Clinton signed the Rome treaty but didn’t submit it for Senate ratification and urged his successor not to, citing the absence of protections against prosecutions of America’s servicemen. In 2002, the Bush Administration informed the U.N. that the U.S. felt in no way legally bound by Mr. Clinton’s signature.

The Obama Administration is taking steps to re-engage with the ICC. For the first time, the U.S. showed up last November at a meeting of ICC signatory countries. The American delegation included the State Department’s top lawyer, Harold Koh, a vocal ICC proponent. Next month, U.S. observers will go to a special “review conference” in Uganda that will consider changes to the Rome Statute.

Some U.S. officials, such as Mr. Koh, support what they call “pragmatic cooperation” with the ICC—for example, helping it with investigations and sitting in on court bodies.

Proponents argue that this would give the U.S. a voice on decisions that affect its interests, such as helping the ICC define the “crime of aggression.” U.S. officials were stunned that a recent draft defining aggression was so wide-reaching that NATO would have been criminally liable in the 1999 Kosovo war. The court’s powers aren’t retroactive, but proponents ask why shouldn’t the U.S. be in the room to stop this nonsense in the future?

Color us skeptical. The ICC’s indictments have so far targeted nasty characters in Africa, but the court has always resisted outside oversight, especially from the U.S. What’s more, no amount of reform of the founding treaty will change the ICC’s inherent flaw. The ICC is a child of the doctrine of “universal jurisdiction,” which holds that courts can adjudicate crimes committed anywhere in the world. Politically ambitious prosecutors in Belgium, Britain and Spain have invoked “universality” to go after Ariel Sharon and Donald Rumsfeld, among others, for alleged war crimes.

Eight years ago, Mr. Koh hailed the court’s creation as “an international Marbury versus Madison moment,” referring to the 1803 Supreme Court decision that gave a fledgling court authority over other branches of government. By this logic, the world court should have similar power over America’s democratic decisions and global leadership. No thanks.

From the Balkans to East Timor to the Mideast, these pages have welcomed international action to stop atrocities. In select cases, such as the U.N. war crimes tribunal for the former Yugoslavia, we’ve backed ad hoc courts with a narrow mandate, limited life and proven commitment to fairness. The ICC meets none of those standards.

Moral grand-standing via indictments also isn’t the same as doing something about crimes against humanity. The indictment of Sudan’s butcher of Darfur, President Omar Hassan al-Bashir, made him harder to dislodge, and absent serious intervention, it has probably prolonged the suffering there.

The ICC is spending $125 million on a six-building campus near the Hague. The U.S. may not be able to stop the latest U.N.-style bureaucracy from rising, but that’s no reason to invest American credibility and resources in this project.

Editorial, Wall Street Journal


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Courting Disaster

The most outrageous thing about the Texas judge who slept with the prosecutor in a death-penalty case.

Charles Dean Hood’s mug shot

When the U.S. Supreme Court denied Charles Dean Hood’s appeal last week, it was done in a one-sentence, unsigned order. Hood is a Texas death-row inmate who was convicted of murdering two people in 1990. Long after the conclusion of the trial, it became clear that his trial judge and prosecutor had been secretly involved in a years-long extramarital affair. Because they were both married, they denied the affair—even to Hood’s death-penalty lawyers. After the clandestine relationship finally came to light, the Texas Court of Criminal Appeals rejected Hood’s challenge in two curt sentences last September, finding that his lawyers had waited too long to raise the issue on appeal. How Hood was to have raised the conflict of interest when the existence of the affair was not conclusively established until 2008, when the judge and prosecutor were forced to admit it under oath, is not explained.

Hood has already been granted a new sentencing hearing because the Texas appeals court has acknowledged that the jury instructions were improper, but prosecutors say they will again seek the death penalty. In any event, resentencing Hood doesn’t resolve the fundamental problem with the case. The issue here is whether any reasonable person would believe that a criminal trial at which one’s prosecutor and judge are secretly in love could ever be fair. And that’s the issue the courts keep refusing to address.

Last year, the Supreme Court handed down a blockbuster opinion in Caperton v. Massey, a case testing whether a justice on West Virginia’s highest court should have recused himself from hearing an appeal in which one of the parties—Don Blankenship of A.T. Massey Coal Co.—had just donated $3 million to his judicial election campaign. Writing for a sharply divided 5–4 court, Justice Anthony Kennedy called the appearance of a conflict of interest in this case so “extreme” that the judge’s failure to recuse himself undermined the constitutional right to due process. The Hood appeal to the Supreme Court essentially asked whether a judge might be as compromised by great sex as by big money. In his filings, Hood argued that the trial judge’s “long-term, intimate sexual relationship and later close friendship with [the prosecutor] attuned her to his professional and personal interests and made those interests her own.” Hood said that unlike the Caperton case, in which Blankenship’s financial support of the judge was a matter of public knowledge, the Texas judge was more compromised because she kept her relationship a secret.

If the facts of the Caperton case were sufficiently shocking to become a John Grisham novel, the facts of Hood’s trial would make a sizzling movie for Lifetime. You don’t even have to take a position on Hood’s guilt, innocence, or the efficacy of the death penalty to recognize that when a judge and prosecutor are secret paramours, the integrity of the whole judicial system suffers. Texas law requires a judge’s recusal whenever “his impartiality might reasonably be questioned” or if “he has a personal bias or prejudice concerning the subject matter or a party.” The test here isn’t whether the judge thinks she’s biased (although Hood’s judge later admitted she should have recused herself). It’s a constitutional “ick” test: How bad does the conflict of interest look?

The facts of Hood’s case look very bad. That’s why his appeal to the Supreme Court was supported by 30 top legal ethicists and an array of high-profile judges and prosecutors, including former FBI Director William Sessions and former Texas Governor and Attorney General Mark White, who supports capital punishment.

I n his compelling new book, The Autobiography of an Execution, Texas death-penalty lawyer David Dow condemns a system of capital punishment built on evading responsibility at every stage of litigation: Jurors duck behind other jurors. Judges take refuge behind jury verdicts. The appeals courts wordlessly affirm the trial judge. Then the Supreme Court hangs out a sign that says GONE FISHIN’. Since everyone is fairly certain the accused probably killed someone, the fact that along the line an injustice may have occurred just doesn’t matter. But if you believe that a one-sentence disposition of his case is more justice than a Charles Hood deserves, you’re still asking the wrong question. Hood may be sentenced to die in a justice system where outrageous judicial bias merits only a sentence. The rest of us have to go on living in it.

Dahlia Lithwick, Slate


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Tracking King’s Killer

The murderous journey and final capture of James Earl Ray.

On April 9, 1968, as Martin Luther King Jr.’s cortege rolled through the streets of Atlanta, the procession passed—unbeknownst to anyone at the time—within a few blocks of the dumped getaway car used by his assassin.

James Earl Ray Jr., an escapee from the Missouri State Penitentiary, had fled in the pale yellow Mustang after shooting Dr. King five days earlier in Memphis, Tenn. With Dr. King’s death, J. Edgar Hoover and other officials of the Federal Bureau of Investigation were being forced to transform overnight their years-long campaign to smear Dr. King into a credible search for his killer. Given a description of the killer’s car within minutes of the shooting, FBI agents were fruitlessly scouring the country for the vehicle, still clueless as to Ray’s identity.

Ray had in fact driven from Memphis to Atlanta, where he had stalked Dr. King’s movements in the weeks before the assassination. There he abandoned the vehicle in a housing project not far from the King family home. By the time the mule-driven wagon carrying the martyr’s remains rolled nearby, Ray was hundreds of miles away in Canada, fabricating for himself new identities that would allow him to remain on the lam for 65 days.


A string of books in the past two decades have sought to penetrate the dense thicket of reality and legend surrounding the life of Dr. King. With each, it seems, there has been an ever greater willingness to view the civil-rights leader less as a heroic demigod and more as a flawed man who nonetheless accomplished extraordinary things. In “Hellhound on His Trail,” Hampton Sides goes a step further. He skillfully lifts the obscure details of the assassination out of the realm of historical elegy and translates them into a complex crime mystery that shifts the focus from Dr. King to his killer.

Relying on FBI records, memoirs and past historians’ accounts, Mr. Sides re-creates Ray’s journey from his prison escape in April 1967 to the moment when he fired the single shot that felled Dr. King. As we learn from Mr. Sides’s narrative, Ray spent six fugitive months first in Mexico—popping pills, smoking marijuana and wallowing in beach-town bars and brothels—and then in Los Angeles. He bought a film camera, aspiring to make pornographic movies, and then was swept up in George Wallace’s campaign in the California presidential primaries. Presumably—though it isn’t entirely clear—it was around this time, seeped in the stew of Wallace’s thinly veiled racialist rhetoric, that Ray conceived the idea of murdering Dr. King. He began assembling the tools he would need—most importantly a hunting rifle and high-powered scope bought under a false name on a trip through Birmingham, Ala.

After the shot is fired, Ray takes flight and, like an extended episode of the old television show “Dragnet,” thousands of agents begin their search, interrogating motel clerks and Mustang salesmen, fingerprinting beer cans and distributing mugshots. For weeks agents had no idea who the killer was. They started with a vague description of the shooter and a bundle of items—including the murder weapon—abandoned by Ray in Memphis.

Ray was finally apprehended in London in early June 1968. He quickly confessed, was convicted in a Memphis courtroom and given a 99-year prison sentence. In the years that followed he recanted his confession, claiming that a mysterious—and probably fictitious—figure named “Raoul” actually pulled the trigger. Ray died in prison in 1998 at the age of 70.

Mr. Sides’s reconstruction of the assassination itself is searing—and a reminder of how little we know about it. The Zapruder film of John F. Kennedy’s murder ingrained in our memory the graphic horror of bullets ripping apart the skull of the president. But the shooting of Dr. King is distilled for most of us into a single iconic photograph, of a man dying on the balcony of the Lorraine Motel in Memphis while Andrew Young and other King aides point instinctively in the direction of the shooter.

Mr. Sides assembles the story of that day from interviews, investigative reports and medical records. The extent of the physiological damage alone is horrifying to read. The bullet struck Dr. King’s face, shattering his jaw, exited his body and then re-entered his neck, where it caused catastrophic trauma and severed his spinal cord. Heartbreakingly, King tried to speak to Ralph David Abernathy, his lifelong friend, in the first seconds after the shot and then lived for an additional 30 minutes, unable to communicate as his life slipped away.

As precise as so much of “Hellhound” is, some perspectives are missing. According to Mr. Sides, a woman who says that she was a mistress of Dr. King’s nearly climbed into the ambulance that was about to transport him from the Lorraine to the hospital. Based on an interview with the woman, Mr. Sides describes Andrew Young—later a United Nations ambassador and mayor of Atlanta—stopping her, sensing how devastating it would be for the dying Dr. King to be seen accompanied by his ostensible lover. “I don’t think you want to do that,” Mr. Young is quoted saying. If true, that fact may well be worth our knowing—as part of the gradual humanization of Dr. King’s memory. But when I asked Mr. Young about it recently, he said that he did not remember the incident at all and had never been asked about it.

More broadly, “Hellhound” only fleetingly addresses the belief of surviving King family members and associates that others were involved in the assassination. The book doesn’t quite explain how a bungling redneck stickup artist suddenly shifted from months of whoring and amphetamine binges to the cold calculation and obsessed malevolence that would be necessary to murder so famous a man and very nearly get away with it. Mr. Sides’s treatment of the killing is gripping, and he is persuasive that James Earl Ray pulled the trigger. But without a fuller confrontation of the mysteries that surround the event, doubts will always linger that there is more to the story.

Mr. Blackmon, the author of “Slavery by Another Name: The Re-Enslavement of Black Americans From the Civil War to World War II,” is the Journal’s senior national correspondent, based in Atlanta.


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No brains allowed in court

“My whole brain is in there,” said the Canadian lawyer Sean Robichaud as his MacBook computer was declared by a magistrate to be unsuitable for the courtroom. The magistrate aborted the criminal trial and adjourned it until August so that Mr Robichaud could use a printer or fountain pen to carry out the necessary brain transplant to paper folders.

Computers are used throughout the Canadian court system, and the Supreme Court even provides them for lawyers. Why this particular usage was ruled unlawful is a mystery. The case arose from an event on the roads of Ontario. Piotr Lakomy, Mr Robichaud’s client, had been beginning a session of stunt-driving in his Subaru Impreza when he was arrested by police and charged with criminal offences.

As the Crown prosecutor stood up to launch her case, she noticed Mr Robichaud had just switched on his thin, aluminium MacBook. She objected to its use and the magistrate accepted her point, ruling the laptop to be an “electronic recording device” and therefore something prohibited in court.

Mr Robichaud explained that as all his case notes and preparatory materials were on the computer he would be unable to represent his client to the best of his ability without the laptop. It was at that point that the case was adjourned. Later, Mr Robichaud said “I went through law school using only a laptop. I can’t even write anymore. Sometimes I don’t even have a pen”.

In other courts he uses his computer regularly to access case law, documents, and evidence, and to store witness statements. Banning the computer because it was capable of being used as a recording device was decidedly odd because the lawyer had no intention of using it in that way. Mr Robichaud noted “it’s like saying I have the capability to punch someone in the face, and therefore I have to keep my hands in my pockets.”

Explaining the magistrate’s decision to exclude the laptop, a spokesperson for the Ministry of the Attorney-General said that all magistrates and judges have full power over their courts so decisions on which electronic devices to permit are within the discretion they can exercise.

Most judges are now computer-literate. In 2007 a British judge caused an outcry when he said that he didn’t understand the term “website” but that wasn’t because he was trapped in world of parchment and quill pens. He just needed a technical explanation of how a website, like the one in the criminal case before him, was constructed.

Historically, judges have been more likely to object to lawyers’ accessories than their technologies. No advocate has been sent out for having a computer but, at different times, counsel have been judicially denounced for appearing in court with a beard, a white waistcoat, a ponytail, bracelets, brown suede shoes, earrings, and a priest’s cassock.

Gary Slapper is Professor of Law at The Open University.


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Outfoxing the Counterfeiters

The new $100 bill is the most sophisticated attempt yet to combat forgery. Since colonial times, the U.S. has engaged in a cat-and-mouse game with criminals and foreign governments eager to pass off brilliant fakes.

The redesigned $100 bill, above, has security features like microprinting, color-shifting objects and a 3-D ribbon.

In 1690, the Massachusetts Bay Colony became the first government in the Western world to issue paper money. Some of the first counterfeiters of paper money followed soon after. Within a generation, the authorities were engaged in a running battle against forgers, whom they tried to deter by various punishments: cropping their ears, for example, or hanging them. Many colonial notes soon came with a pointed warning: “To counterfeit is DEATH.”

Last week, in a ceremony attended by Timothy Geithner and Ben Bernanke, government officials showed off a high-tech $100 bill designed to frustrate 21st-century counterfeiters. It features the pleasing pastels already seen on lesser denominations, as well as a ghostly image of a quill pen and a copper inkwell containing a bell that appears and disappears depending on the angle from which it’s viewed. Most startling of all, the front of the bill contains a vertical purple strip that contains shimmering images of the number “100” and the Liberty Bell, all of which miraculously appear to move when the bill is tilted in one direction or another.

With well over a half trillion dollars in “Benjamins” in circulation around the world, the existing $100 bill has attracted the attention of countless counterfeiters. Most have been sophisticated criminal gangs, but there’s also a considerable (if controversial) body of evidence linking the most realistic and dangerous counterfeits—the so-called supernotes—with the North Korean government. These twin threats, more than anything else, have driven this latest eye-popping change to our money supply.

If history is any guide, it won’t be the last. Paper money in this country has followed a familiar trajectory: new designs, new dollars and, eventually, new counterfeits.

It’s perhaps appropriate that Benjamin Franklin appears on the most valuable denomination of dollar in circulation. He designed the country’s first money: the Continental dollars issued during the American Revolution to pay the costs of the war. Franklin didn’t put his own head on the currency; rather, he used a mysterious anticounterfeiting device he had devised several decades earlier.

This was the so-called nature print, which consisted of an image of a leaf or leaves. It was extraordinarily lifelike, and with good reason. Franklin had devised a way of taking a plaster cast of the surface of a leaf. That in turn could be used to cast a lead plate that would be used to print the notes. Because every leaf was unique—with a complex web of veins of varying thickness—the notes were very difficult to counterfeit.

The counterfeiters who attacked the new dollar weren’t in it for the money. They wanted to undermine the revolutionary war effort, and they spared no expense to do so. In 1776, the British occupied New York City and the counterfeiters who had already set up shop began operating under the supervision of the imperial authorities, churning out massive quantities of notes that visitors could buy for pennies and then pawn off on unsuspecting revolutionaries.

The British hadn’t invented the idea of counterfeiting as a weapon of war; counterfeiting enemy currency is a tactic that dates back to antiquity. Still, the patriots viewed these imitations as unsportsmanlike in the extreme. George Washington fumed in his private correspondence that “no Artifices are left untried by the Enemy to injure us.” Thomas Paine was even more outraged, publishing an open letter to the British commander in which he assailed the decision to counterfeit the dollar. “You, sir,” he wrote, “have the honor of adding a new vice to the military catalogue, and the reason, perhaps, why the invention was reserved for you, is, because no general before was mean enough even to think of it.”

The quality of the British counterfeits undercut the credibility of the dollar, but the real blame for the dollar’s decline lay with the revolutionaries, who issued vast quantities of Continentals to pay the costs of the war. Backed by nothing more than a shaky faith in the government, the notes depreciated, eventually becoming nearly worthless. The experience left Americans with serious misgivings about paper currency, both counterfeit and real.

The Constitution was a product of those fears. The monetary clauses of the Constitution forbade the individual states from issuing paper money or coins, though it did permit the federal government to “coin money.” It was silent on the question of whether the federal government could issue paper money, though most assumed it lacked that prerogative.

Yet paper money flourished, thanks to private banks chartered by state legislatures. These banks began issuing their own paper money in denominations and designs of their choice. Thousands of different kinds of “bank notes” floated in circulation, each with their own unique design. Ben Franklin and the other founders appeared on some, but so, too, did everyone (and everything) from portraits of obscure politicians, Greek and Roman gods, scantily clad women, slaves, Indians and scenes of everyday life. Even stranger things—Santa Claus, sea serpents and rampaging polar bears, to name a few—showed up on these private currencies.

It proved next to impossible to remember what genuine notes looked like, never mind counterfeits, and the opening decades of the 19th century marked what one historian has called the “golden age of counterfeiting.” In those decades, millions of dollars in counterfeit notes flooded the economy. The masterminds behind these counterfeits created them with the hope of making money, not sabotaging the country.

Many of these counterfeiters became folk heroes, running national criminal networks for the manufacture, distribution and sale of counterfeit notes. Absent effective police forces, these men and women operated with impunity. The federal government showed little to no interest in prosecuting counterfeiters, and it had few resources to do so anyway. As one newspaper editor bewailed in 1818: “Counterfeiters and false bank notes are so common, that forgery seems to have lost its criminality in the minds of many.”

[CovJump2]The banks fought back, commissioning ever more elaborate notes that contain many of the same anticounterfeiting features that survive today: special inks, watermarks and proprietary paper recipes. Engravers also sought to create ever more elaborate, intricate designs that would defy imitation. Yet counterfeiters still managed to surmount every technological obstacle thrown their way.

Indeed, new technology could cut both ways. Like the digital technologies of the 21st century, the invention of photography opened up new vistas in counterfeiting. Until the 1850s, most bank notes came in one color: black. But a proliferation of photographic counterfeits prompted the creation of new colorful inks, including the invention in 1857 of a new kind of green ink that used chromium trioxide. The delicate green lines printed in this ink could not be replicated with the black-and-white photography of the day; it would appear as a black mass when photographed.

The Civil War began four years later, and the cash-strapped Union quickly got over its constitutional objections to paper money, issuing a new national currency that used this “Patent Green Tint.” The new notes became known as greenbacks. They soon circulated alongside another kind of national currency colored the same shade of green: the “national bank notes,” issued by banks that obtained federal charters and the right to issue money designed and controlled by the federal government.

The Confederacy issued its own paper money. Lacking skilled engravers and the necessary supplies, the “grayback” looked awful and followed the fate of the Continental, losing its value over the course of the war. Ordinary counterfeiters considered them unworthy of imitation, but enterprising and patriotic Unionists churned out millions of dollars’ worth of counterfeits while the federal government looked the other way. Many of these knockoffs had the distinction of being better looking than the originals.

The war marked a serious watershed in the nation’s monetary history—and in the history of counterfeiting. Out went the old system of local, private currencies, and in came a new national paper money. But the counterfeiters remained, and they immediately set to work imitating the federal notes. Government officials were not amused, and in the final years of the Civil War, some of the new notes contained blocks of text spelling out the statutory penalties for counterfeiting (up to 15 years imprisonment and hard labor, a $1,000 fine or both).

But these amounted to empty threats without a concerted campaign to crack down on counterfeits. That job fell to a newly created national police force: the Secret Service. Long before it protected the president, the Secret Service made its mark ruthlessly dismantling the domestic counterfeit economy. This campaign, which began in earnest after the Civil War and was largely complete by the 1890s, stirred journalists to hyperbole. In 1901, one newspaper marveled at what is breathlessly described as a “silent, unsleeping branch of the Government, which never appears in the public eye except in the act of pouncing on a victim and which never forgets a crime or a criminal.”


Making Funny Money

Some famous counterfeiting ploys—by governments and criminals—through history.         

  • Governments have long forged currency as a war tactic. In Renaissance Italy in the 1470s, Duke Galeazzo Sforza of Milan printed counterfeit Venetian ducats, to undermine the economy of the rival city-state.
  • In the 1690s, Isaac Newton took a job as warden of the British mint, where he prosecuted and sent scores of counterfeiters to the gallows. To catch them, he kept a network of spies across London and interviewed informants himself in pubs. His biggest catch was the notorious William Chaloner, who claimed to have reproduced £30,000 (the equivalent of about $7 million today) and was hanged in 1699.
  • One of the largest frauds in history is the Portuguese bank-note crisis of 1925. A con man named Alves Reis convinced a British printer that he represented the Bank of Portugal, and had them print the modern equivalent of about $125 million in bills. His scheme went unnoticed for nearly a year.
  • In 1926, a group of Hungarians (including Budapest’s chief of police) pleaded guilty to printing millions of French francs, partly to fund political activities and avenge territorial losses suffered by their country. However, the quality was poor, and they were soon caught by French detectives.


By the early 20th century, the currency was relatively safe from counterfeiters. It had also become more uniform and simple, particularly after the creation of the Federal Reserve in 1913. Ben Franklin made his debut on the $100 bill, and the nation’s currency became increasingly important, eventually displacing the British pound as the world’s dominant currency. Unfortunately, that rise attracted the attention of foreign governments. In a vivid demonstration of the old adage that imitation is the sincerest form of flattery, Joseph Stalin ordered his fledgling intelligence service to counterfeit the dollar. While he may have done so ostensibly to wage war on a capitalist country, the real reason lay with the Soviet Union’s desperate need for hard currency.

The extraordinarily well-made $100 bills that flowed from Soviet presses initially flummoxed the Secret Service. Yet the quality of the bills was not matched by the professionalism of the principals who orchestrated the scheme, and it collapsed after a series of arrests that began in Berlin. Soon after, the Soviets shut down the operation, fearful of international embarrassment.

The Nazis pulled off a far more successful counterfeiting operation during World War II, setting up a team of engravers and artisans in the Sachsenhausen concentration camp to manufacture stunning imitations of the British pound and the American dollar. While counterfeits of the pound went into limited circulation, they did little damage to Britain, and the project to counterfeit the dollar collapsed in the waning months of the war.

Few successful counterfeits of the dollar gained widespread circulation in the postwar era, and for decades the appearance of the $100 bill remained largely unchanged. In the late 1980s, the so-called supernote made its appearance: highly accurate $100s (and some $50s) that baffled investigators. The remarkable frequency with which North Korean diplomats were caught carrying the notes led many to suspect the secretive regime. During the George W. Bush administration, the U.S. formally charged North Korea with counterfeiting the dollar, a claim the Obama administration has echoed, if faintly.

Regardless of the source of the supernotes, they prompted the first major overhaul of the paper currency in decades. The first big change came with the introduction of the new $100 bill in 1996, which featured the “large head” design that has since become standard, along with watermarks and color-shifting ink. But the latest version of the $100 unveiled this week takes things to a whole different level.

The centerpiece of the redesign is a purple strip that runs from top to bottom of the bill. The strip is coated with hundreds of thousands of microscopic lenses in the shape of the number “100” and what seems to be the Liberty Bell. Thanks to some complex optics, these thousands of lenses combine to create a single, larger image. When the bill is angled one way or another, the strip comes alive, making it seem as if the images can move.

The technology is dubbed “Motion.” Crane, the paper company that owns the rights to the technology, says that it “represents the next generation of counterfeit deterrence.” Unlike some of the first-generation deterrents—color-shifting ink, for example—Motion works its magic even in dimly lit settings like nightclubs.

The new note is a technological marvel. But looking at all the safeguards—not only the Motion strip, but the watermark, a separate security thread, microprinting, a color-shifting “100” and the bell inside the inkwell—the effect is roughly comparable to an apartment door equipped with countless locks and latches. It screams “secure,” but the sheer abundance of security devices suggests that counterfeiters have been all too successful in breaching earlier defenses.

Crane promises that Motion will impose “tremendous barriers against a quality counterfeit.” Perhaps. But it’s a sure bet that somewhere in the world, counterfeiters are studying the new bill, looking to crack the code. And someday they will.

Stephen Mihm is associate professor of history at the University of Georgia and the author of “A Nation of Counterfeiters.”


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Sameness and ‘Diversity’ on Campus

Why a California dean would force a black group to admit white supremacists.

If ever you wonder why those thumping loudest for tolerance and diversity produce so much sameness, look no further than this little exchange on public television about an important case now before the Supreme Court. The dean is Leo Martinez of the University of California Hastings College of the Law. Here he is defending the school policy at issue, which requires the Christian Legal Society (CLS) to admit non-Christians and gays if it wants to be an official student group:

Question: “Would a student chapter of, say, B’nai B’rith, a Jewish Anti-Defamation League, have to admit Muslims?”

Mr. Martinez: “The short answer is ‘yes.'”

Question: “A black group would have to admit white supremacists?”

Mr. Martinez: “It would.”

Question: “Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?”

Mr. Martinez: “Yes.”

Certainly there was some consternation yesterday at the Supreme Court. Justice Antonin Scalia found the idea of forcing a campus Republican club to admit Democrats “weird.” Meanwhile, Justice Sonia Sotomayor worried whether allowing CLS to set its own rules would mean more discrimination against women and minorities.

But let’s give Dean Martinez credit: He does not shy away from the logic of where his school’s policy leads. His remarks help explain two facts. The first is why a Christian student organization has found strong allies among other faith groups. These include everyone from Agudath Israel of America and the American Islamic Congress to the Catholic bishops and the Sikh American Legal Defense and Education Fund.

The larger fact is the way that Hastings-style “tolerance” and “diversity” are actually making our campuses less tolerant and less diverse. Dean Martinez helps us see why. If every college group must admit even those who are hostile to its mission and beliefs, the result is nonsense and conformity.

At first blush, Hastings looks to be another example of the “culture wars,” and where you stand on this case depends on what you believe about Christianity or traditional Christian teaching about homosexuality. Certainly Hastings tells us something about our culture wars. What it shows is how these kind of cultural skirmishes escalate into full-fledged wars when state approval or state money is involved.

Were Hastings a private institution, the same right of association now claimed by the Christian Legal Society would give the law school broader rights to set more narrow rules for students and faculty. When a handful of Orthodox Jews sued Yale in the late 1990s over the university’s insistence that they live in co-ed dormitories, for example, Yale prevailed—largely because Yale is a private university. And there was no larger religious war.

Even those of us who believe a university that prides itself on its tolerance could have shown a little more accommodation toward those Jewish students do not question Yale’s right to set rules that define the Yale experience. When government is involved, however, the stakes become higher and passions more excited. When a public university makes a decision, it’s not simply a policy dispute. It’s a public institution using your tax dollars to put a state imprimatur about who is and who is not fit for the public square.

That’s a much more serious proposition than a simple disagreement with some private organization. That public/private distinction helps explain why CLS has also found allies in the libertarian Cato Institute and Gays & Lesbians for Individual Liberty. In their own brief, this latter group stresses that it was the ability of gay Americans to form gay associations—whose membership rules they defined for themselves—that gave them a collective voice in the face of an often hostile majority.

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez’s logic is taking us.

“[U]nder Hastings’ forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings’ forum,” argues their brief. “That is a patently unreasonable way to ‘promote a diversity of viewpoints.'”

Exactly. Traditionally the American contribution to diversity has been the encouragement of thriving—and competing—private institutions and associations. Unfortunately, on American campuses today we see the opposite: an expanding government role in everything from research to how schools are accredited and how student loans are administered. One unintended consequence is that our culture wars are going to escalate as our courts are forced to take up a great many more cases like Hastings.

It may end up, of course, that Dean Martinez prevails, and we get more of his idea of tolerance and diversity. Let’s not pretend to be surprised, however, when it all comes out looking the same.

William McGurn, Wall Street Journal


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Copyright and wrong

Why the rules on copyright need to return to their roots

WHEN Parliament decided, in 1709, to create a law that would protect books from piracy, the London-based publishers and booksellers who had been pushing for such protection were overjoyed. When Queen Anne gave her assent on April 10th the following year—300 years ago this week—to “An act for the encouragement of learning” they were less enthused. Parliament had given them rights, but it had set a time limit on them: 21 years for books already in print and 14 years for new ones, with an additional 14 years if the author was still alive when the first term ran out. After that, the material would enter the public domain so that anyone could reproduce it. The lawmakers intended thus to balance the incentive to create with the interest that society has in free access to knowledge and art. The Statute of Anne thus helped nurture and channel the spate of inventiveness that Enlightenment society and its successors have since enjoyed.

Over the past 50 years, however, that balance has shifted. Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the “Mickey Mouse Protection Act”. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe. Such arguments should be resisted: it is time to tip the balance back.

Annie get your gun

Lengthy protection, it is argued, increases the incentive to create. Digital technology seems to strengthen the argument: by making copying easier, it seems to demand greater protection in return. The idea of extending copyright also has a moral appeal. Intellectual property can seem very like real property, especially when it is yours, and not some faceless corporation’s. As a result people feel that once they own it—especially if they have made it—they should go on owning it, much as they would a house that they could pass on to their descendants. On this reading, protection should be perpetual. Ratcheting up the time limit on a regular basis becomes a reasonable way of approximating that perpetuity.

The notion that lengthening copyright increases creativity is questionable, however. Authors and artists do not generally consult the statute books before deciding whether or not to pick up pen or paintbrush. And overlong copyrights often limit, rather than encourage, a work’s dissemination, impact and influence. It can be difficult to locate copyright holders to obtain the rights to reuse old material. As a result, much content ends up in legal limbo (and in the case of old movies and sound recordings, is left to deteriorate—copying them in order to preserve them may constitute an act of infringement). The penalties even for inadvertent infringement are so punishing that creators routinely have to self-censor their work. Nor does the advent of digital technology strengthen the case for extending the period of protection. Copyright protection is needed partly to cover the costs of creating and distributing works in physical form. Digital technology slashes such costs, and thus reduces the argument for protection.

The moral case, although easy to sympathise with, is a way of trying to have one’s cake and eat it. Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. From 1710 onwards, it has involved a deal in which the creator or publisher gives up any natural and perpetual claim in order to have the state protect an artificial and limited one. So it remains.

The question is how such a deal can be made equitably. At the moment, the terms of trade favour publishers too much. A return to the 28-year copyrights of the Statute of Anne would be in many ways arbitrary, but not unreasonable. If there is a case for longer terms, they should be on a renewal basis, so that content is not locked up automatically. The value society places on creativity means that fair use needs to be expanded and inadvertent infringement should be minimally penalised. None of this should get in the way of the enforcement of copyright, which remains a vital tool in the encouragement of learning. But tools are not ends in themselves.


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Our Fill-in-the-Blank Constitution

AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.

To see why this is so, we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Should “empathy” enter into this process? In the days before he nominated Sonia Sotomayor to the Supreme Court, President Obama was criticized by conservatives for suggesting that a sense of empathy might make for a better judge.

But the president was correct. If all judges did was umpire, then judicial empathy would be irrelevant. In baseball, we wouldn’t want an umpire to say a ball was a strike just because he felt empathy for the pitcher. But once you understand that the umpire analogy is absurd, it’s evident that a sense of empathy can, in fact, help judges fulfill their responsibilities — in at least two ways.

First, empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities. Second, it helps judges understand the effects of the law on the real world. Think of judicial decisions that have invalidated laws prohibiting interracial marriage, granted hearings to welfare recipients before their benefits could be terminated, forbidden forced sterilization of people accused of crime, protected the rights of political dissenters and members of minority religious faiths, guaranteed a right to counsel for indigent defendants and invalidated laws denying women equal rights under the law. In each of these situations, in order to give full and proper meaning to the Constitution it was necessary and appropriate for the justices to comprehend the effect that the laws under consideration had, or could have, on the lives of real people.

Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.

This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.

Geoffrey R. Stone, a professor of law at the University of Chicago, is an editor of The Supreme Court Review.


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The decline of the Great Writ

The sad history of habeas corpus

Habeas Corpus: From England to Empire. By Paul Halliday. Harvard University Press; 502 pages; $39.95 and £29.95.

WHEN discussing habeas corpus or the “Great Writ of Liberty”, as the most revered legal device of the Anglophone world is often known, jurists and civil libertarians tend to become misty-eyed. In 1777 Charles James Fox, a radical British politician, described habeas corpus during a parliamentary debate on its suspension as “the great palladium of the liberties of the subject” and deplored the “insolence and temerity” of those “who could thus dare to snatch it from the people”.

Nearly 230 years later, in an impassioned attack from the Senate floor on the Bush administration’s bill to suspend habeas corpus for anyone determined to be an “unlawful enemy combatant”, Barack Obama declared: “I do not want to hear that this is a new kind of world in which we face a new kind of enemy.” Another senator, Arlen Specter, roared: “The right of habeas corpus was established in the Magna Carta in 1215…what the bill seeks to do is set back basic rights by some 900 years.” In Britain, Lord Hoffmann, a law lord reviewing government “control orders” to detain terrorist suspects in 2007, thundered: “Such is the revulsion against detention without charge or trial, such is this country’s attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security.”

Sadly, for all their grand harrumphing, in each of the above cases, habeas corpus still ended up suspended or restricted. As president, even the impeccably liberal Mr Obama has taken a markedly different line to the one he championed in 2006. Despite a Supreme Court finding in 2008 (Boumediene v Bush) that prisoners at Guantánamo could not be stripped of their right to habeas corpus, he shocked civil-rights campaigners by rejecting last year the notion that the ruling should be extended to 600 or so detainees at Bagram, a military base in Afghanistan.

In his revisionist history of the Great Writ, Paul Halliday carefully avoids current controversies—though an article by him for the Virginia Law Review (written with Edward White) provided valuable ammunition for that landmark 2008 Supreme Court decision. His contribution to our understanding of habeas corpus is to have studied in forensic detail thousands of cases that show how the writ has worked in practice across the centuries as opposed to romantic theory.

His starting-point is that although widely seen as a device to challenge arbitrary authority, the original power to use the writ in England came from the royal prerogative, that part of legal authority peculiar to the king. The demand by judges of the King’s Bench to bring a prisoner before them (to “have the body”), to determine whether he is held for good legal reasons, springs from the obligation the monarch owes to the subject in return for that subject’s loyalty and obedience.

Paradoxically, it was the Habeas Corpus Act of 1679, an attempt to give statutory force to the common-law writ, which paved the way for its gradual erosion. Mr Halliday describes the act as a “double-edged sword”, because what Parliament gave, Parliament could also take away. As Britain’s empire expanded, the Great Writ went with it, often being used by people in far-off lands whose allegiance to the king was local or temporary rather than natural. Critically, what mattered in the exercise of the writ “was the franchisal authority of the sovereign’s officials, not the territory in which a prisoner was being held or the nationality status of the prisoner” (a key point for the Supreme Court in Boumediene v Bush).

However, with empire came war and rebellions which on an increasingly frequent basis gave Parliament the excuse to suspend or restrict habeas corpus on the familiar grounds of protecting the security of the public. The Suspension Act of 1777 was aimed at the American revolutionaries. The Americans took note, eventually putting habeas corpus into their constitution in the form of the so-called suspension clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”

It would be glib to say that since then it has been downhill for habeas corpus. But for all the powerful sentimental hold the writ still has, as a pillar of liberty it has taken a beating from the populist response of democratically elected politicians to war and crisis. Since September 11th 2001 the trend has been to suspend the writ for certain people deemed to be a risk. In striking an acceptable balance between security and liberty this may be inevitable, but it is not something that should be too easily accepted. As Edmund Burke argued: “Liberty, if I understand it at all, is a general principle, and the clear right of all the subjects within the realm. Partial freedom seems to me a most invidious mode of slavery.”

Mr Halliday’s monumental work, though full of colourful anecdote, may not appeal to the general reader. But for anyone deeply interested in these issues it provides an invigorating blast against received ideas and intellectual complacency. Above all, it challenges us to think again about the foundation stones of personal liberty.


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The Case Against Gene Patents

Genetic sequences are naturally occurring things, not inventions. No company should be allowed to monopolize research on them.

Last month, a federal court in New York handed a major victory to science and medical innovation when it ruled that patents were improperly granted to Myriad Genetics on two human genes associated with hereditary breast and ovarian cancer. We participated in the case supporting the plaintiffs—which included prominent medical associations, geneticists and patients—because we believe the patenting of human genes is wrong as a matter of science and as a matter of economics.

Under the patents granted by the U.S. Patent and Trademark Office, Myriad had total control over the BRCA1 and BRCA2 genes since the 1990s. No other companies have been able to do research on the genes without Myriad’s permission.

The court held that genes and human genetic sequences are naturally occurring things, not inventions. They are a part of all of our bodies and contain the most fundamental information about humanity—information that should be available to everyone. The researchers and private companies that applied for these gene patents did not invent the genes; they only identified what was already there.

Proponents of gene patents argue that private companies will not engage in genetic research unless they have the economic incentives created by the patent system. We believe that a deeper understanding of the economics and science of innovation leads to exactly the opposite conclusion.

Patents such as those in this case not only prevent the use of knowledge in ways that would most benefit society, they may even impede scientific progress. Every scientific advance is built on those that came before it. There is still a great deal to learn about our genes, particularly how they contribute to disease. Gene patents inhibit access to the most basic information.

As we move into an era where the sequencing of all of an individual’s genes is common and necessary for personalized medicine, free sharing of information about genes will be vital to understanding the role of these variations in human disease and other traits. In order to translate this information into medical advancements, the basic data must be freely available to everyone to interpret and develop. Our genetic makeup is far too complicated for a single entity to hold the keys to any given gene and to be able to choose when, if ever, to share.

Patents are also not necessary for ensuring that genetic tests come to market. Currently, Myriad does not allow any other lab in the United States to perform full diagnostic testing on patients in order to tell them whether they are at increased risk of hereditary breast and ovarian cancer. Because of this monopoly, Myriad is able to charge more than $3,000 to perform the test, a prohibitively high amount that keeps some women from being tested and making informed health decisions.

Other labs have said they would be willing to perform the test for a few hundred dollars, if only they were allowed, and could also develop new tests in order to provide women with a second opinion about their results. The information provided by the tests is of enormous importance: The lifetime risk of getting breast cancer is as high as 85% for mutation carriers.

Any marginal social benefits of patenting genes clearly do not measure up to the profound costs of locking down knowledge. If, as a result of the refusal to grant a patent for genes, there is a slight slowdown in private research expenditures, it can and should be made up for by an increase in public expenditures.

Like basic mathematical theorems, genes are an example of “basic knowledge”—the kind of knowledge that typically cannot and should not be patented. Had Alan Turing’s mathematical insights been patented, the development of the modern computer might have been greatly delayed. It’s true that knowledge cannot be produced without cost, but there is a proven alternative: government- and foundation-supported research in universities and research laboratories.

The court’s decision is a critical achievement, particularly for women. But the full benefits of this ruling will only be achieved if the decision is upheld. We see this ruling as a turning point in our thinking about our patent system, and more broadly, scientific research.

Mr. Stiglitz, a professor at Columbia University, won the 2001 Nobel Prize in economics. Mr. Sulston, chair of the Institute for Science, Ethics and Innovation at the University of Manchester, won the 2002 Nobel Prize in medicine.


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Mobile contempt

Judges have occasionally condemned lawyers’ arguments as rubbish. Lord Justice Harman once ruled that “these pleadings ought to go, not to the House of Lords, but to the waste-paper basket”. It’s unusual, though, for a judge to sling visitors’ belongings into the waste-paper basket but that is what Judge Anthony Johnson did recently in Orange County, Florida.

Michelle McRoy, 28, was visiting a court with her young sister. While sitting in the courtroom her phone rang with a clamorous musical jingle and the judge asked why the phone wasn’t turned off. She started to explain but the judge immediately ruled her conduct as contumacious (contemptuous), ordered the phone be surrendered and then threw it directly into the bin near him. He ordered that it be later destroyed by the sheriff’s department.

Ms McRoy said of the judge: “He wouldn’t let me explain to him. He just went off”. She wanted to clarify that she had turned off her phone before entering the court but had then lent it to her young sister who popped out to make a call. Her sister, however, had forgotten to turn it off before returning it.

Ms McRoy, who did not want a contempt of court conviction on her record, appealed. The Fifth District Court of Appeal in Daytona Beach recently ruled in her favour. It decided that the judge wasn’t justified in finding her in contempt. Something might irritate a judge but that isn’t the same thing as contempt of court. 

The trial judge’s order read simply “Michelle McRoy was found guilty of contempt of court. Cell phone is forfeited and to be destroyed by the Orange County Sheriff’s Office”. That was not enough. It should have given a fuller recital of facts that led to the finding, not just the judge’s conclusion. The appeal court ruled that contempt is “an act tending to embarrass, hinder, or obstruct the court in the administration of justice” or something which would “lessen the court’s authority or dignity”. Contempt does not exist “just because a judge feels aggrieved or vexed.”

There are previous instances of judges being irritated by mobile phones ringing in court. In 2008, during a murder trial at Woolwich Crown Court in London, a mobile phone jauntily rang out but as the judge grimly scanned the court to locate and reprimand the thoughtless culprit he realised the ringing was coming from inside his red judicial robes. “I didn’t think I had it with me today” he told his court.

In 2007, Paul Fitton took mobile phone manners into a new territory of indifference. He was convicted of contempt because, while standing in the dock facing a criminal hearing at Blackpool magistrates’ court, he interrupted the district judge to answer his phone and began a conversation with the loud salutation: “Hello there, I’m in court”.

Gary Slapper is Professor of Law at The Open University.


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Politically correct, legally wrong

PICTURE THIS: gay student organizations forced to accept those who believe that homosexuality is an abomination. Student political groups, such as Young Republicans or Young Democrats, compelled to allow members of the other party to vote on policy platforms. A law association for African American students being told that it must let white supremacists run for leadership posts.

Sound absurd? Welcome to the University of California, Hastings College of Law. The school says that student groups that want to enjoy certain benefits must adhere to the school’s nondiscrimination policy. Fair enough, except that the school’s “all comers” policy requires that a group accept as voting members even those who disagree with its core principles. Organizations that comply gain the right to use campus meeting rooms and school e-mail lists and are invited to the annual student organization fair. They also have the right to apply for grants funded by student activity fees and vending machine sales.

The school lists about 60 such “recognized school organizations,” including the Hastings Association of Muslim Law Students, the Hastings Jewish Law Students Association and Hastings Outlaw, a group founded by gay students.

The Christian Law Society (CLS) is not among them. Although it allows all Hastings students to attend meetings, CLS reserves voting membership and leadership posts for those who sign a declaration of faith that includes belief in Jesus Christ. The group asserts that “in the view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” What CLS considers as disqualifying are “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.”

The policy did not go over well in the San Francisco-based law school, which declined to recognize CLS after concluding that its policies discriminate on the basis of religion and sexual orientation. CLS filed suit, and the Supreme Court will hear argument Monday. The law school argues that its actions are reasonable because it applies the nondiscrimination policy fairly to all groups. But the school approved the bylaws of La Raza Law Students Association even though they limited membership to “students of Raza background”; La Raza amended its bylaws after a lawyer for CLS took note.

It is one thing to require that groups that accept school funds and use school facilities give every student the opportunity to attend meetings or explore the virtues of a particular organization. But it is altogether different to require groups to accept as members or leaders even those who disagree with its central beliefs. This cuts at the core of meaningful association; penalizing a group by withholding school benefits only exacerbates the harm.

Editorial, Washington Post


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The Lesson of the Joking ‘Shoe-Bomber’

‘Profiling’ turns out to have widespread public support.

Since 9/11, one of the big open questions has been how willing Americans are for all forms of intelligence to be used to stop potential terrorists. In particular, profiling by suspicious behavior has been largely off-limits as overly subjective, giving authorities too much discretion to target people. Judging by the reaction last week to what looked like a second shoe-bomber incident, the new consensus is “better safe than sorry.”

Last Wednesday, news reports had a terrorist trying to blow up a United Airlines flight to Denver from Washington. Fighter jets were scrambled and some 5,000 flights in progress were alerted to another potential 9/11. It turned out to be a false alarm—but an educational one.

A flight attendant had noticed the smell of tobacco smoke after a first-class passenger left the forward lavatory. Another passenger found a bag of tobacco he had left behind. An air marshal on the flight confronted the suspected smoker, who denied it and said, “I’m trying to light my shoes on fire.”

This turned out to be a sarcastic reference to the failed attempt by shoe-bomber Richard Reid in 2001. The latest episode came just a few months after the Christmas Day attempt by another al Qaeda-trained terrorist, a young Nigerian, who failed to set off explosives hidden in his underwear. The marshal on the Denver flight was not amused.

The joker and smoker was later identified as the third secretary in the Qatari Embassy in Washington, 27-year-old Mohammed al Madadi. The reaction to the incident could have been to ask whether the infractions were so minor that everyone overreacted, perhaps because the man was from an Arab country. Instead, the overwhelming reaction was support for the airline staff, air marshals and Air Force.

This matters because government agencies may finally be planning to profile by behavior. The Obama administration recently announced it will no longer scrutinize all travelers from 14 mostly Muslim countries, a procedure put in place after the Christmas Day would-be explosives incident. Instead, agencies will combine behavioral information with other intelligence. The administration has not given details, perhaps partly out of squeamishness about profiling.

The administration’s nominee to run the Transportation Security Administration last month testified in support of the Israeli model for airport security. The nominee later dropped out for unrelated reasons, but this approach combines data mining with close assessment of each traveler.

Israeli security personnel have great discretion in singling people out for questioning. They take many behavioral factors into account, from how people travel to body language and eye contact. The U.S. has some “behavior detection officers” to help keep air travel safe, but it needs many more, with better training.

The case of the Qatari diplomat at least establishes the principle that egregious behavior justifies authorities being able to use their judgment to deter potential terrorists.

It was hard to find anyone crying foul or seeking recrimination. The New York Times ran a page-one story headlined, “Few Worry About Overreaction on Jet.” Under the heading, “Diplo Immunity Ain’t Kryptonite, Buddy,” Josh Marshall wrote in the liberal Talking Points Memo blog, “I mean, are we really to believe that this guy took his diplomatic immunity as free rein to crack a joke about the need to light his shoe bomb.”

A New York magazine item asked, “Why do we even have diplomatic immunity?” And from the Daily Beast, “Let’s hope he remembers his nicotine gum” as the Qatar government, which invoked diplomatic immunity, ships him back home.

It didn’t help the diplomat that the reason he was flying to Denver was to make his monthly visit to Ali Saleh Kahlah al Marri, a Qatari citizen serving an eight-year term at the federal “Supermax” prison in Florence, Colo. Marri confessed to being part of an al Qaeda sleeper cell sent by Khalid Sheikh Mohammed to “enter the U.S. no later than Sept. 10, 2001,” and await instructions.

Marri studied cyanide compounds in Peoria, Ill., until his arrest in December 2001. He was held as an enemy combatant in a Navy brig until President Obama last year decided to give him a civilian trial. He pleaded guilty to giving material support to al Qaeda and was sentenced to 15 years, with credit for time already served. (Of course, if Marri were still being held in the military system, there would have been no right to consular visits and thus no Denver flight incident.)

The broader lesson of this incident is that Americans will support reasonable antiterror procedures, even ones that depend on an intelligent use of judgment, even when suspicious behavior turns out not to be terrorism. If the antics of the diplomat from Qatar now help give U.S. authorities courage to assess behavior along with other information when targeting terrorists, he will at least have served some community service.

Gordon Crovitz, Wall Street Journal


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When Criminals Clam Up

Black marketeers invade the shellfish racket, and officials try to stop them.

It would seem to be a familiar tale of tough-guy law enforcement, with a plotline somewhere between “Kojak” and “CSI.” Lawmen track down leads, sift through evidence, set up stakeouts, work informers, cut deals with low-lifes and work their way up the food chain to bust the big guys or expose a conspiracy. They do everything that cops do except shoot somebody—and you get the sense that a little bloodshed is within the range of possibility since the people they are out to bust are not all that fastidious about violence themselves, hiring muscle to beat up rivals and setting fire to the operations of competitors.

But it is all about clams.

To be precise, it is all about geoduck (pronounced “gooey duck”) clams—large, ugly creatures that can grow to more than 10 pounds and yet, to certain palates, possess a delicate, appealing taste. In “Shell Games,” Craig Welch tells the oddly riveting story of the black marketeers who trade in geoduck clams and of the law-enforcement officials who go to extraordinary lengths to thwart them.

Geoducks are found, Mr. Welch tells us, principally in the waters of Puget Sound, in Washington state’s northwest corner. They have not always been a staple of fine tables, he notes, but by the late 19th century they had come to be considered a delicacy. Among the most bountiful of their collecting grounds were the beaches of the Pacific Northwest. By the mid-20th century, geoducks had been overharvested, and even an industrious beachcomber had trouble finding one. The government eventually made it illegal to sell geoduck clams in markets and restaurants, killing the supply side of the market.

Then, in the 1970s, divers discovered geoducks in the deeper waters of the Puget Sound, and something of a clam rush followed. To protect the geoduck population from another case of overharvesting, the government stepped in again, imposing stiff harvest limits. They were soon ignored, especially when global markets opened up. The Chinese and the Japanese are exceedingly fond of geoducks and pay handsomely for them. The Japanese carve the clams into small portions for sashimi, and the Chinese slice them up “for a type of fondue known as hot pot.” An illegal trade in geoducks, complete with smugglers and criminal cartels, was inevitable.

How to stop it? “On the surface,” Mr. Welch admits, “it looks like a simple job. How tough can it be to outwit clam rustlers? Measured against cops who infiltrate drug gangs or mob snitches strung with body wire, undercover wildlife work can appear almost cushy . . . more like slapstick than crime fighting.”

Shell Games

By Craig Welch
William Morrow, 274 pages, $25.99

Of course, a smuggled item need not be glamorous. (Heroin, after all, is essentially a vegetable material.) The key is the money that people will pay for it. In the early 20th century, bird feathers were so coveted—for women’s hats—that plumage hunters nearly wiped out certain bird species in the Everglades. The Audubon Society hired wardens to protect the birds, and two of the wardens were killed, leading to laws outlawing the bird-feather trade. These days, there is big money to be made in wildlife—according to the State Department, Mr. Welch says, wildlife is “the world’s third-largest black market behind the illegal trade in drugs and guns.” People will pay a lot to a black marketeer for baby leopard sharks, he observes, to add a little something to their aquariums. The gallbladders from black bears are prized as a cure for various ailments—though it is illegal to sell them. In 1991, a Korean immigrant was found murdered in Brooklyn, N.Y., his killers having made off with “several dozen black bear gallbladders.”

Geoducks are part of this sometimes violent black market, as Mr. Welch relates. A few years ago they attracted the attention of a small-time Las Vegas operator who liked to think of himself as a kind of John Gotti figure in the shellfish racket and who, at one point, hired some out-of-town muscle to handle “a problem.” The arm-breaker never actually hurts anyone, in Mr. Welch’s telling, and he seems less than menacing when it turns out that he carries a teddy bear with him when he travels because he is afraid of flying.

Still, there is always an element of the serious in Mr. Welch’s story. In the late 1980s, prosecutors spent nearly two years building a case against a geoduck-clam smuggling operation that resulted, Mr. Welch says, in “the largest white-collar fraud case in Northwest history.” Authorities brought charges against nine smugglers and three businesses. The ringleader was sentenced to two years in prison.

Mr. Welch’s narrative covers a lot of ground (and water), but he continually circles back to an investigator named Ed Volz and an informer, smuggler and convict named Doug Tobin. They are perfect antagonists. Mr. Volz is an outdoorsman with “the look of a shorter, friendlier Charles Bronson.” He studied fish biology in college and is serious about the conservation aspect of his work. But he is also a natural cop who is a little insubordinate with his superiors and loves the chase.

Mr. Tobin is a Native American, big in body and expansive in manner, who gets into the seafood business on the legal side, as a diver. He is hard-working and good at his job. But he is not inclined, by nature, to play it straight, and he has a violent streak. In the mid-1980s he did time for manslaughter. At first he works undercover for Mr. Volz—and then he goes over to the dark side.

For two years Mr. Tobin is the target of undercover operations and surveillance. Mr. Volz knows that Mr. Tobin is using his boat, the Typhoon, for poaching. When the lawmen finally take him down, the evidence indicates that he has illegally harvested 200,000 pounds of geoduck clams. The haul (combined with some harvest-limited crabs) is valued at $1.5 million.

Mr. Tobin has been sentenced to 14 years and is still in prison. When last we see Mr. Volz, he is assisting Mexican authorities. It seems that geoducks have been found, to the astonishment of biologists, in Mexican waters. “It never ends,” Mr. Volz says.

Mr. Norman is a writer in Vermont.


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Judge Not

Spain’s most famous magistrate faces trial—and possibly the end of his investigative career

Franco’s last victim?

GENERALISIMO Francisco Franco, dictator of Spain for 36 years, may be laughing in his grave. An attempt by Baltasar Garzón, a magistrate renowned for his crusades against human-rights abusers, to investigate atrocities committed by Franco and his henchmen is set to produce a trial—but of Mr Garzón himself.

On April 7th a magistrate ruled that Spain’s best-known judge should answer allegations that his investigation had overstepped judicial powers. Mr Garzón can appeal against the decision, but few now expect him to avoid trial, possibly within the next few months. Within weeks, perhaps days, Mr Garzón’s fellow judges are expected to suspend him from his job at Madrid’s National Court for the period of the trial. A further suspension, of up to 20 years, may come if they find him guilty of overextending his powers during his attempt, in 2008, to investigate the disappearance of 113,000 of Franco’s victims. Mr Garzón will defend himself. “We judges are like any other citizen and must comply with the rules,” he said last month. But his 23-year career as an investigating magistrate may be over.

If so, the death blow will have come from an unlikely source. The case against Mr Garzón was brought by supporters of Franco, a figure who Spaniards often claim to have put behind them. The judge’s accusers include a far-right union, Clean Hands, and Falange Española, the modern version of a political party many Spaniards blame for running death squads during and after the civil war.

The case is further proof of Mr Garzón’s tendency to act as a lightning rod for the issues that most trouble his country. Corruption, terrorism, organised crime and, now, the ghosts of Spain’s violent past have all come under the scrutiny of the 54-year-old judge. His decision to probe Francoist atrocities came several years after victims’ families began their own investigations, digging up the mass graves left by death squads and exposing the injustices of a painful period that the rest of the country had cloaked in silence.

Mr Garzón’s critics say he is more interested in promoting himself than the cause of justice. Jesús Zarzalejos, a law professor, recently argued in the conservative newspaper ABC that Mr Garzón sees himself as “exceptional”; not bound by Spanish laws and the constitution as other judges are.

But admirers see a brave investigator who deserves the global acclaim heaped upon him for his use of international criminal law to pursue human-rights abusers across the world. Most notorious among these was a military dictator in the Franco mould, Chile’s General Augusto Pinochet, who was arrested and detained in London in 1998 after Mr Garzón issued an international warrant for his arrest. Pinochet avoided extradition to and trial in Spain only after Britain’s home secretary sent him home on health grounds. More successful was Mr Garzón’s attempt to bring Adolfo Scilingo, a self-confessed participant in Argentinian military repression, to book—five years ago, in Spain, he was sentenced to 640 years in prison.

In the Pinochet case, Mr Garzón admitted to having acted out of principle with little hope of success. Now he is being accused of putting principle before probity. His investigation into Francoist crimes, say his accusers, violated a 1977 amnesty law and a 2007 historical memory law, both of which attempted to deal with Spain’s troubled past. The former ensured no one could be tried for political crimes committed during the Franco era. The latter, according to Luciano Varela, the magistrate responsible for sending Mr Garzón to trial, prevented the judge from taking control of the process of locating and digging up the mass graves that still dot the Spanish countryside. To get around these restrictions, argues Mr Valera, Mr Garzón constructed artificial arguments, effectively trying to create law rather than administer it.

For his part, Mr Garzón argued that the consensus on international law was that amnesties were themselves illegal. He also borrowed a precedent from Chile, where an amnesty law was eventually circumvented with the argument that a continuing crime of kidnapping occurs where the bodies of those taken by death squads have not been found. He later closed his investigation, however, arguing that it was a matter for lower, provincial courts.

Human-rights campaigners have declared themselves outraged at the case against Mr Garzón. Emilio Silva, head of the Association for the Recovery of Historical Memory, which represents the families of Franco’s victims, says some of those who committed atrocities in the caudillo’s name are still alive. It is a terrible irony, he says, that the only person being pursued through the courts today because of Francoism is Mr Garzón.


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The Failed Papacy of Benedict XVI

The pope’s reluctance to take a firm stance on sexual abuse by priests is expanding into a crisis for the Catholic Church and fueling outrage over his papacy. Some Catholics are now even calling on Benedict, who has committed a series of gaffes since becoming pope in 2005, to resign.

Pope Benedict XVI celebrates mass in memory of John Paul II on the 5th anniversary of his death in Saint Peter’s Basilica at the Vatican on March 29, 2010. The pope’s hesitant treatment of priest sex abuse scandals is expanding into a crisis for the Catholic Church and fueling outrage over his papacy.

“Lord!” the man begins. It is night, and the torches cast flickering shadows on the ancient walls. “Your Church often seems like a boat about to sink, a boat taking in water on every side.” It is a somber statement, particularly coming from a senior member of the Catholic Church. 

The priest continues, speaking of weeds in the fields of the Lord, and of how much “filth there is in the Church,” the result of priests’ betrayal of God. “The soiled garments and face of your Church throw us into confusion. Yet it is we ourselves who have soiled them! It is we who betray you time and time again.” He beseeches God, saying: “Have mercy on your Church; even within her, Adam continues to fall again and again.” 

These were prophetic words. They reflected a bitterness and lack of illusions that could only have been expressed by an experienced cardinal who had exhaustively studied the files outlining the “filth in the Church.” 

The speaker was Joseph Ratzinger. He was chastising his own church during the Easter holiday five years ago, in 2005. It was a bitter indictment by a veteran of the Church, who apparently had little hope and was on the verge of retirement. It was meant as a legacy and as a warning, but what Ratzinger did not do was to specify the actual misconduct. 

At the Center of the Filth 

Five years later, the situation in the Church has caught up with Ratzinger, who is now Pope Benedict XVI. The filth in the Church has seeped out of the secret dossiers and hidden corners of vestries, seminaries and schools and has been brought to light. As the head of the Church, the captain of this battered ship, Ratzinger now finds himself at the center of the filth. 

The pope is now confronted with accusations from all over the world, accompanied by increasingly urgent appeals to finally render his ship seaworthy again. The sex abuse cases which were initially a problem only for national bishops’ conferences, particularly in the United States, Ireland and Germany, have merged into a crisis for the entire Catholic Church, a crisis that is now descending upon the Vatican with a vengeance and hitting its spiritual leader hard. Meanwhile that leader seems oblivious to what has happened so suddenly. 

In Germany, churchgoers are demanding to know why Benedict has not said a word about the crimes of priests in his native country. Christian Weisner, a senior member of the reform movement “We Are Church,” is deeply disappointed by the pope. Benedict XVI, says Weisner, has “not understood the true scope of the distress.” 

Demands for Repentance 

The Poles are angry with the pope, because they fear that his inaction in the face of the crisis could harm the reputation of “their” pope, John Paul II, whose beatification they expect to take place soon. “A public mea culpa would have given him credibility in the fight over the purity of the Church,” wrote the Polish daily newspaper Gazeta Wyborcza

The Irish, to whom Benedict wrote a pastoral letter in which he assigned the responsibility for the abuse cases to local bishops and, in what was not exactly a sign of remorse, to the “secularization of Irish society,” were disappointed in the pope. Writing in the Sunday Tribune, an Irish Sunday newspaper, columnist Maurice O’Connell demanded: “Why, for example, can Benedict not jump on a plane, come to Ireland, and, on Maundy Thursday (as he will be doing in Rome), wash the feet of 12 victims?” 

Finally, in the United States, where about 12,000 abuse cases have come to light in the last few decades and the media are already accusing the pope himself of having covered up the scandals, the attorney of one abuse victim even wants to force the pontiff to appear in court. Many Catholics who suffered as a result of the sexual urges of their priests 30 years ago have given up hope that the pope will show any remorse at all. David Clohessy, the national director of the Survivors Network of those Abused by Priests (SNAP), accuses the pope of ignoring the suffering of the victims. “Actions, not words, protect innocent kids and heal wounded victims,” says Clohessy. 

Papacy In Jeopardy 

Suddenly, the worldwide chorus of outrage seems to be putting the German pope’s entire papacy in jeopardy. 

Benedict XVI began his papacy by embarking on a project of reconciliation which went beyond the Church itself. The newly elected pope wanted to rule with the word, and with discourse, not prohibitions. That was what he had been doing for 23 years in his previous position, as head of the Congregation for the Doctrine of the Faith (CDF). And now he was suddenly advocating an open, self-confident dialogue on several fronts: with the secular world, with Islam, with the Jews and with the traditionalists within the Church. Perhaps even with the followers of Martin Luther. 

Now, after five years in office, Benedict has seen his project fail and himself become a spiritual shepherd lost in a world that no longer understands him. The secular world now views the pope with, at best, indifference, if not downright hostility. The Church’s dialogue with the Jews suffered a serious setback in the wake of the scandal surrounding Holocaust denier Bishop Richard Williamson. An icy silence still predominates in parts of the rabbinate, and the planned beatification of Pius XII, whose role during the Nazi era is controversial, will hardly change that. 

Many Muslims have never forgiven Benedict for a lecture he gave in Regensburg in 2006, where he examined the issue of violence and Islam in a bold but ineptly executed move. The speech unleashed a torrent of protests in the Muslim world. 

Even radical opponents of reform, such as the Society of St. Pius X (SSPX) and other traditionalists, have not hurried back to Rome, even though the pope has opened all doors for them, declared the Latin mass to be equally valid and reversed the excommunication of SSPX’s bishops. Meanwhile, Benedict’s gesture of reconciliation toward the extreme right fringe has angered more liberal dioceses in Germany and France. 

Calls for Benedict’s Resignation 

Of course, the office of pope does not exist so that its holder can be loved by the whole world. After Pius IX died in 1881, a number of Rome residents tried to seize the coffin so that they could throw it into the Tiber River. Today, a few days after Easter, only the most devoted pilgrims are rallying around their spiritual leader. The rest of the world, shocked by the sheer scope of the abuse cases, looks to Rome with skepticism, and some are already calling upon Benedict to take responsibility for his sinning priests and resign. 

In the Italian magazine MicroMega, Don Paolo Farinella, a Catholic priest, has already written an example of the kind of statement he believes the pope should make to Irish Catholics: “I come to you with empty hands to beg your forgiveness” — for the strictness of the celibacy, for the conditions in seminaries and for the thousands of cases of child abuse. “I will withdraw to a monastery and will spend the rest of my days doing penance for my failure as a priest and pope.” 

It hasn’t come to that yet, not by a long shot. Some 80 percent of Germans still cannot imagine Benedict following the example of an almost forgotten pope, Celestine V, who resigned in the 13th century because he no longer felt able to perform his office. 

Nevertheless, the question remains as to why nothing seems to go right anymore for this once-celebrated pontiff. 

‘A Humble Worker in the Vineyard of the Lord’ 

It is the tragedy of a man who had set out to write books and, only near the end of his life, was summoned to assume the herculean office at the Vatican. At the beginning of his papacy, Benedict XVI described himself, in all modesty, as “a simple humble worker in the vineyard of the Lord.” 

To date, however, Joseph Ratzinger has been more of a hobby gardener in the vineyard, rather than a landscape architect or someone who cuts off fruitless vines. 

He has incurred the suspicions of the secular world and the skepticism of other religions, but he has not found a way to address this opposition. Again and again, after each new scandal, each misunderstanding and each new blunder, his actions seem forced. He lacks his predecessor’s ability to always find the right symbolic gestures. The charismatic John Paul II led the church at the height of the American abuse crisis, but it did not diminish his popularity. Even before his death, as he allowed the world to participate in his process of dying, crowds flooded into St. Peter’s Square in Vatican City to be close to him. 

Of course, what English author G.K. Chesterton wrote in the early 20th century still holds true today. “At least five times,” Chesterton wrote, “the Faith has, to all appearance, gone to the dogs. In each of these five cases, it was the dog that died.” 

Some may find comfort in Chesterton’s remark. 

Derision for Religion 

Nevertheless, many Catholics find their pope’s actions painful to watch, not because they consider him incapable or even unlikeable, but because they cannot look on as this extraordinary man gets in his own way. The members of the “We Are Church” movement, in particular, have turned away from Benedict. 

According to a poll conducted for SPIEGEL by pollster TNS Forschung, 73 percent of Germans believe that the pope’s handling of abuse cases in the Catholic Church is “not adequate.” 

Following the revelations about clerical misconduct, the disenchantment has, in many places, turned into aggression, malice and, in some cases, cheap derision against all things religious. In the last few weeks, a tone of contempt for the Catholic Church has emerged in online forums throughout Germany. 

In one forum, a contributor wrote: “The fact that the Church only admits what it can no longer deny shows that the Vatican only regrets one thing, if anything: the fact that the priests were caught.” 

Another contributor wrote: “The institution of the Church is a morally depraved club of old men. One needs to distance oneself from this organization as clearly as possible.” 

What’s Wrong with the Church 

There is also no lack of recommendations relating to the future of the Church, both from believers and non-believers. Suddenly everyone knows what the Church has done wrong in decades gone by: the celibacy and the exclusion of women from the priesthood; the hierarchy of old men and the persecution of any efforts to liberalize the theology; the blind condemnation of contraception and birth control in the poor regions of the world; the eternal lack of understanding of homosexuality; the mistrust of technology and modern culture; and the constant needling and provocation aimed at the Protestant churches, Judaism and Islam. 

Ratzinger the theologian has defended the doctrines and precepts of his church again and again, often cleverly and with exquisite scholarliness. In doing so, he has cited the teachings of the Church fathers, the councils and the entire Holy Scripture. 

For a time, he enjoyed the undivided goodwill of the German press. Even Hamburg’s arch-Protestant weekly newspaper Die Zeit softened its otherwise skeptical view of Rome. 

Nevertheless, Benedict’s message did not reach its intended audience. The pope lost his close connection to his wards. The master of the word failed to convince the public of the legitimacy of even one of his positions. 

This may have something to do with the public — or the positions. 

In any event, the Germans’ goodwill toward “their pope” was short-lived. In fact, most of his fellow Germans have long immersed themselves in their own personal belief system. Although they clearly retain the desire for a metaphysical source of comfort when life becomes difficult, they prefer to dispense with the institution and its requirements. 

‘Weary of Faith’ 

Christendom has “grown weary of faith (and) has abandoned the Lord,” as Ratzinger concluded in his prayers for the Stations of the Cross at the Roman Coliseum in 2005. He spoke of the “banal existence of those who, no longer believing in anything, simply drift through life.” 

But the pope, this owl-eyed old man with a high voice, simply isn’t as adorable as the Dalai Lama. He lacks the clear message of a Barack Obama. And no one would want to be stuck on a deserted island with one of his German propagandists, let alone be guided through the desert by them. 

The days of Vatican chic are over, it seems. 

Germany’s flirtation with this man lasted all of two summers. For a time, it was hip to have read Ratzinger. Authors suddenly began making pilgrimages and the culture sections of magazines wondered if it was time for a return of the sacred. Berlin’s upper middle class sent its children to the Canisius College Jesuit high school, convinced that they were guaranteeing their children’s future. 

Warning Signs 

Nevertheless, the disenchantment quickly set in. The longer Benedict was in office, the clearer it became that he was not interested in the opening up of the Church to the modern world that the public — which had perhaps been fooling itself — had expected of him. 

His revival of the traditional Latin mass, the return of the idea of the controversial prayer for the Jews in the Good Friday prayers, the departure from critical biblical research in his book “Jesus of Nazareth” — these were all relatively minor and inconspicuous steps in the direction of a more traditional Church. Observant church insiders, however, quickly recognized their significance as a warning sign. 

In Germany, in particular, the mood began shifting beyond the Catholic Church when, in 2007, Benedict offended the country’s 25 million Protestants with a verdict from the Vatican, stating that their denominations could “not be called churches in the real sense.” His message of “dogma instead of dialogue” also offended the Catholic base, which, in many places, had long surpassed Church leaders in their ecumenical efforts. Even the then-leader of German Catholics, Cardinal Karl Lehmann, was clearly against the direction Benedict had taken, and tried to soften it somewhat with his own positions. 

‘He Disappointed the World’ 

Swiss theologian Hans Küng, Ratzinger’s old friend from the days of the Second Vatican Council and later his adversary, soberly concluded that his audience with the pope at the beginning of Benedict’s papacy did not, by a long way, signal a new dawn in the Church. “I had assumed that my invitation was the first in a series of bold acts of which the pope was capable. But he disappointed the world. Since then, he has not issued any further signals of renewal. On the contrary, he has, time and again, taken a step backward from the achievements of the Council.” 

In his position as pope, Ratzinger had the chance to strike out in a different direction than in his previous post as head of the Congregation for the Doctrine of the Faith, where he was the Church’s supreme commissioner of faith for almost a quarter century. As Benedict, however, he quickly gambled away this opportunity and slipped back into his old role. Ratzinger has therefore become a prisoner of his biography — to the detriment of the Catholic Church. 

Ratzinger’s ‘Rational Adventure’ 

Joseph Ratzinger was born on April 16, 1927 in the Bavarian village of Marktl am Inn, the son of a police officer. Although money was tight, Joseph and his older brother, Georg, attended high school. 

When Joseph, their youngest son, was only in second grade, the parents bought him a missal, the Mass book priests use on the altar. For Ratzinger, religion became what he would later call a “rational adventure.” His Catholicism was never merely incense and naïve faith. 

His school registered him for the Hitler Youth, which was unavoidable, but he rarely attended. He was eventually drafted to serve as a child soldier in Munich. He spent the end of the war in a POW camp near the southern German city of Ulm. 

Ratzinger was consecrated as a priest in 1951. He only worked in pastoral care for a short time, however, meaning he had little first-hand experience with the everyday worries of the faithful. 

Traumatic Experiences 

Instead, he quickly embarked on a career as a theologian. In 1958, at the age of 31, he became a professor of dogmatic and fundamental theology. In 1962, he served as a theological consultant to the Second Vatican Council, where Ratzinger championed views that were both liberal and critical of the Vatican, views that advocated the individual freedom of a Christian and opposed the Roman Curia’s claim to omnipotence. At the time, Ratzinger argued that the Church had “reins that are far too tight, too many laws, many of which have helped to leave the century of unbelief in the lurch, instead of helping it to redemption.” 

After the Council, Ratzinger, together with Hans Küng and Karl Rahner, was considered one of the reformers in the Church. In 1966, he brought his friend Küng to the University of Tübingen in southern Germany as a professor of dogmatic theology. In 1968, Ratzinger and 1,360 other theologians worldwide signed a resolution drafted by Küng, titled “For the Freedom of Theology.” 

In the same year, however, Ratzinger had a traumatic experience that explains his thoughts and actions to this day. During the 1968 revolt, he witnessed his students reviling the image of Christ on the cross as a “sadomasochistic glorification of pain” and chanting “Jesus be damned!” during one of his lectures. In a 1983 SPIEGEL interview, he said that it became clear to him in the lecture halls at Tübingen, then under the spell of the great Marxist philosopher Ernst Bloch, that the outcome of the Council had been the “opposite” of what had been intended. 

Guardian of the Truth 

For the 41-year-old cleric, the Tübingen experiences were a deep shock that changed him radically from a cosmopolitan theologian to a timid dogmatist. Since then, the unalterable, God-given truth has meant everything to him. For Ratzinger everything had to be subordinate to this truth. 

Ratzinger also believed that the Catholic Church is the guardian of the absolute moral truth. As archbishop of Munich and Freising, Ratzinger had the motto “Cooperatores veritatis” (“Worker of Truth”) embroidered onto his shoulder shawl. As Ratzinger often points out disdainfully, he believes that the notion that truth only reveals itself in fragments to people, including those who believe in God, and that truth is therefore not a fixed variable but takes on different forms in time and space, depending on culture and tradition, is nothing but condemnable “relativism.” 

In Ratzinger’s world, man is more of an object than an active subject. Critics of this pope have noticed, again and again, that he comes across as distant and cold, even when he turns to people with deliberate affection. He completely lacks the charisma of palpable brotherly love that John Paul II exuded. 

In 1981, John Paul II brought Ratzinger, then an archbishop who had already been elevated to the rank of cardinal, to Rome to head the CDF. At the pope’s request, Ratzinger first turned his attention to Latin America. The Polish pope believed that leftist priests there were trying to lead the faithful astray into Marxist convictions. He pilloried the liberation theologian Leonardo Boff and condemned the movement’s commitment, which was based on theology, to a Church of the poor. 

Staunch Crusader 

For more than two decades, Cardinal Ratzinger, from his office in Rome, kept watch to ensure that the faithful around the world — including, in particular, the Church’s functionaries, its priests and bishops — toed the line. His soft gestures, shyness and high voice can be deceptive. In truth, Ratzinger is also a staunch crusader. 

When Ratzinger became pope, he met with nothing but enthusiasm in the first few months of his papacy. Soon, however, he quickly became the target of criticism. His Regensburg speech in September 2006 provoked Islamists around the world to commit acts of violence against Christians. It was only with difficulty that the Church managed to smooth out the waves of outrage Benedict’s words had triggered. Nevertheless, many still believed that it was all a misunderstanding, and that the learned professor had only expressed himself awkwardly when he said, quoting the Byzantine Emperor Manuel II Palaeologus: “Show me just what Muhammad brought that was new and there you will find things only evil and inhuman.” 

The next scandal came in January 2009, when the pope rehabilitated Holocaust denier Richard Williamson, an excommunicated bishop of the Society of St. Pius X, a reactionary faith group that Benedict XVI was determined to bring back into his church. It was all the more controversial because Benedict is German. For fear of a permanent rift, the pope risked the reputation of Catholicism worldwide. 

When Benedict XVI visited Israel a few months later, a trip that was only made possible after a number of pretexts and explanations, his appearance at the Yad Vashem Holocaust memorial was sharply criticized as being “almost sterile,” “unemotional” and simply “disappointing.” Chief Rabbi Israel Meir Lau had expected to see more human sympathy for the suffering of murdered Jews. Instead, he said, the pope’s speech was “devoid of any compassion, any regret, any pain over the horrible tragedy.” He also criticized the pope for not using the phrase “6 million Jews” in relation to the number of Holocaust victims. 

The False Life of Man 

Ratzinger has always been a shy person. But he came away from his experiences in Tübingen with an insurmountable fear: a fear for the wellbeing of the Church. Ratzinger wrote his dissertation on St. Augustine, the church father who imagined Christ wandering through the world as a stranger, driven by the constant endeavor to work toward a theocracy. 

He also took on Augustine’s repression of sensuality, which the church father made socially acceptable in the church in the 4th century, and his pessimism and rejection of the things of this world. It is a way of thinking that assumes that little good can be expected from the world beyond the walls of the Church and the Vatican. It also holds that if there is a true life within the false life of man, it only exists inside the Church, and that only the walls of the Vatican offer protection. 

Those days are gone. Today, outrage directed at the Church can no longer be kept within the affected dioceses. The public is also demanding an explanation from the spiritual leader in Rome, particularly as the pope himself was confronted with these problems during his spiritual career. During his time as archbishop of Munich, there was the case of the priest Peter H., which has come back to haunt the pontiff in recent weeks. 

The priest had attracted attention in the Diocese of Essen because of child molestation, and the diocese recommended that he undergo therapy under the care of the Archdiocese of Munich. Ratzinger agreed. But after the therapy, his vicar general assigned the man to another parish, allegedly with Ratzinger’s knowledge. Peter H. molested more children in the ensuing years and was only banned from providing pastoral care in 2008. Last week, the Archdiocese of Munich even had to send a priest to the towns of Garching and Bad Tölz to help repair the trail of emotional destruction left by the erring priest. 

‘Too Much Failure’ 

The pope’s most recent pastoral letter on sexual abuse in Ireland was a source of disappointment. “What would it have taken to devote a few sentences to the dramatic developments in Germany?” complained members of the German Catholic youth organization BDKJ. Even the archbishop of Berlin, Cardinal Georg Sterzinsky, made a penitential pilgrimage through the streets of the German capital. “We suffer from the fact that there is too much failure in the church,” Sterzinsky said. 

For Ratzinger the man, the world outside the Church and the Vatican, the world of power and the power of the worldly, has always been something sinister. Even during his time as prefect of the CDF, he did not take the trouble to develop the network of supporters considered normal for a senior member of the Church. He was not interested in intrigues and tactical maneuvers. The theology professor, who accepts no contradiction between reason and faith, was always confident in the power of arguments. 

He knew that it wouldn’t be easy. “Society hates us because we stand in its way,” he once confided in his biographer, Peter Seewald. Given this mindset, he could not have been truly surprised by the uproar of the past few weeks. 

But it has affected him. 

‘The Human Flesh’ 

In particular, it pained Ratzinger that the person who is probably closest to him, his brother Georg, was cast in a bad light. Georg Ratzinger was director of the Regensburger Domspatzen, the cathedral choir in the Bavarian city of Regensburg, from 1964 to 1994. He was strict and sometimes used corporal punishment. Critics allege that Georg Ratzinger must have known about sexual abuse cases in the boarding school associated with the choir. 

On his name day, the feast of St. Joseph of Nazareth, Joseph Ratzinger was sitting with his brother Georg in the ceremonial hall of the Palace of the Vatican, the Sala Clementina. The pastoral letter to Irish Catholics had just been signed. The two brothers looked fragile, their white hair slightly tousled. The Henschel Quartet was playing Haydn’s “The Seven Last Words of Our Savior on the Cross.” 

“It would have been better to preserve the silence,” the younger of the two brothers, the pope, said after the performance. He was referring to the customary moment of silence after the music ends. But he could not remain silent, and instead spent a full eight minutes talking about doubts and forgiveness and committing oneself to a higher purpose. He spoke about beauty and that difficult material, “the human flesh.” It’s a material which is very foreign to him — and yet it will shape the last years of his papacy. 

It was a moving moment, probably one of the few moments in which the pope was not being driven by his official duties. 

Keeping Quiet about Abuse Cases 

As it happens, there are members of the Church who are far more obstinate than Joseph Ratzinger in keeping quiet about cases of sexual abuse. 

For example, the case of Father Lawrence Murphy from Milwaukee, who molested about 200 boys at a school for the deaf, was not reported to Rome until 20 years after the last incidence of abuse. Under a strict interpretation of church law, that meant that the statute of limitations had already expired. 

Nevertheless, Ratzinger’s CDF supported the initiation of proceedings against Murphy. Ratzinger’s deputy, Cardinal Tarcisio Bertone, only recommended that the case be dropped after Murphy, who was already fatally ill, had begged for mercy in a letter to Ratzinger. 

As prefect of the CDF, Ratzinger urged John Paul II, in 2001, to issue the papal letter known as the “Motu Proprio,” which obligated the church to report all abuse cases to Rome and address them there. 

Critics saw this as an attempt to keep the scandals under control and to handle them with the utmost discretion. The Vatican insisted that the requirement of “papal secrecy” was meant solely to protect those involved, and that it never precluded reporting abuse cases to the secular authorities. 

The Vatican’s Worst Nightmare 

Many Catholics questioned whether this was true. After the issuance of the Motu Proprio, however, all dossiers relating to pedophile priests passed across Ratzinger’s desk. No one in the global Church had a better idea of what was really going on in the seminaries and Catholic institutions. And this is precisely why the Catholic Church could very well face proceedings that could expand into Vatican lawyers’ worst nightmare, and could end in the pope having to answer for the charges of abuse in a secular court. 

“I want to know what the Vatican knew and when they knew it,” attorney William McMurry, who is representing three alleged victims of priest sexual abuse in Kentucky, told the Washington Post. Their case has now come before the US District Court in Louisville, and could eventually make it all the way through the courts to the Supreme Court in Washington. The plaintiffs argue that the Vatican can be held responsible for the damage inflicted by its employees. With the suit, the Americans hope to embark on a legal path that seemed off-limits for years: They are determined to assert a direct claim by abuse victims against the Vatican. 

Jeff Anderson, an attorney from Minnesota who has represented hundreds of abuse victims since 1983 and has won millions of dollars in compensatory damages for his clients, has been waiting for such an opportunity to come along. In recent weeks, Anderson made headlines worldwide when he turned over documents about the Father Murphy case to the New York Times. Now he is hoping for the biggest conceivable prize: to subpoena the Holy Father himself. “This is a tipping point,” Anderson told the Associated Press. “I came to the stark realization that the problems were really endemic to the clerical culture, and all the problems we are having in the US led back to Rome. And I realized nothing was going to fundamentally change until they did.” 

Elaborate Defense Strategy 

Although legal experts agree that summoning Benedict XVI to testify before a US court is extremely unlikely, the lengthy legal battle this would entail would be embarrassing enough. 

Ratzinger’s church lawyers have already assembled an elaborate defense strategy. They argue that the pope, as the Vatican’s head of state, enjoys immunity against lawsuits in US courts. They also point out that the American bishops who covered up abuse cases are not employees subject to directives from Vatican City. 

Ironically, Ratzinger has always advocated that his Church take a tough approach toward sinners in cassocks. For him, the ordination of priests is a central sacrament, an office that entails constant self-examination and strict discipline. 

For example, Ratzinger enforced his hard line against the Mexican priest Marcial Maciel Degollado, the founder of the Legion of Christ, a powerful congregation of priests. Maciel Degollado, who died in 2008, allegedly fathered and abused several children. 

Despite the many rumors, John Paul II, who deeply respected Maciel Degollado as a servant of God, dedicated a festive mass on St. Peter’s Square to the Mexican priest in 2001. One of Ratzinger’s first actions in his new office as pope, however, was to banish Maciel Degollado to a monastery. 

‘Targeted Campaign’ 

But like the vast majority of bishops in the past (and many today), Ratzinger is also convinced that too much openness only benefits one’s adversaries. 

At the height of the abuse crisis in the United States, on Nov. 30, 2002, Ratzinger answered questions at the Catholic University of San Antonio de Murcia in southeastern Spain. There are, of course, sinners in the church, he explained, “but personally I am convinced that a targeted campaign is behind the constant media reports on the sins of Catholic priests, particularly in the United States.” The goal of this campaign, he said, was to “discredit the Church.” 

The American church paid dearly for its attempted cover-ups. To date, US dioceses have been forced to pay well over $2 billion (€1.5 billion) in compensation for the misdeeds of about 5,000 priests. Some dioceses have had to declare bankruptcy as a result. 

The law of silence regarding abuse cases was still considered unbroken at the time. Cardinals Bernard Law of Boston and Roger Mahoney of Los Angeles were members of opposing camps within the Church, Law being conservative and Mahoney liberal. But the two men agreed that the Church’s good reputation was more important than the truth. 

Protecting Believers from Doubt 

This conviction may have been rooted in the widely held belief in the treatability of sexual offenders. The emphasis was placed on the notion that “it was God’s duty to protect ordinary believers from all doubt,” says Jesuit priest Eberhard von Gemmingen. 

The archbishop of Vienna, Cardinal Christoph Schönborn, recently offered a deep look into the inner life of the Vatican. When the serious abuse of boarding-school students by Cardinal Hans Hermann Groër came to light in 1995, the officials close to then-Pope John Paul II blocked an investigative commission. The “diplomatic faction” among the pope’s courtiers, Schönborn said, tried to blame everything on the media — against the will of the current pope. “At the time, Ratzinger said to me, sadly: The other party has prevailed.” 

In his pastoral letter to Irish congregations, Benedict XVI went further than any pope before him. “In her (the Church’s) name, I openly express the shame and remorse that we all feel,” he wrote. But it was not the admission of personal failure many had hoped for. Benedict criticized some bishops, but not the entire, authoritarian, fossilized “system of bishops.” He also failed to take the opportunity to go on the offensive, to speak in the first person and to write about his time as archbishop in Munich. 

“Critics will ask: Can Benedict XVI credibly demand greater accountability from bishops, if his own record as a diocesan leader reflects the same pattern of neglect?” writes Benedict biographer John Allen. 

Going on the Offensive 

Meanwhile, the Vatican seems to have emerged from its state of shock. After the days of awkward silence on a constant stream of new revelations, the Vatican is now going on the offensive, and the pope’s defenders are becoming as aggressive as his critics. 

Benedict’s helpers, old, often retired bishops, armed with microphones and contacts to editors-in-chief and television producers, are stepping up to defend the pontiff. According to a Vatican expert at La Repubblica, the wall they are building around the head of the church is as thick as the wall surrounding the Kremlin. 

They are embarking on a defensive war of sorts, a term Antonio Riboldi, the former bishop of Acerra, used when he said that a “war is underway between the Church and the world, between Satan and God.” Anyone who attacks the pope has been instructed to do so by the Devil, claims Father Gabriele Amorth, who has been the Vatican’s chief exorcist for 25 years. 

Shortly before the Easter festivities, Church officials complained about the “stubbornness” of the “anti-Christian hate campaign” in the media, the sole purpose of which, as they argued, is to discredit the pope. 

Praying for the Pope 

The French bishops, who are in a significantly better position in the abuse affair than their German or Irish counterparts, because they took steps early on to ensure that the relevant offenses would be handed over to civil courts, are sending expressions of solidarity to Rome, and bishops are asking Catholics the world over to pray for the Holy Father “in these difficult times, so that God’s grace will sustain him.” 

German Cardinal Walter Kasper, who has always had a somewhat distant relationship to Ratzinger, conceded, in an interview with the Milan-based newspaper Corriere della Sera, that the church had been silent on instances of abuse in the past, at least in some cases.” Calling upon the Vatican to put its house in order, he said that the path to renewal is “irreversible, and that’s a good thing.” But he too is convinced that the attacks on Benedict “exceed the limits of fairness and decency.” 

When the pope spoke on Palm Sunday, it sounded as if he were expressing defiant words of comfort for himself. The Christian faith gives us “courage not to be disturbed by the chatter of prevailing opinions,” he said to a crowd of 50,000 supporters on St. Peter’s Square. Was he saying that the cover-up charges are nothing but the gossip of disbelievers? 

‘We Have Betrayed the Name of God’ 

Before giving the sermon, Benedict XVI did something he had avoided on Palm Sundays in previous years. He had himself driven across St. Peter’s Square in his popemobile while the faithful cheered and waved their palm fronds. It was no different a little over 2,000 years ago, when Christianity’s founder entered Jerusalem. But papal spokesman Lombardi was quick to prevent any improper comparisons from being made. The pope, said Lombardi, had no intention of entrenching himself, but wanted to make himself visible, even to the faithful at the back of the crowd. 

One of his closest confidants, on the other hand, has distanced himself from such defiant gestures. On Wednesday, Vienna Archbishop Christoph Schönborn, in a penance service in the city’s St. Stephen’s Cathedral, offered a confession of guilt: “We confess that we have obscured and betrayed the name of God which means love.” 

It was, at last, the confession the whole world had been hoping to hear from the German-born pope.


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The Pope and the New York Times

Cardinal Ratzinger did more than anyone to hold abusers accountable.

Unlike the Roman papacy, in certain circles the New York Times still enjoys the presumption of authority. So when the front page carries a story headlined “Vatican Declined to Defrock U.S. Priest Who Abused Deaf Boys,” people notice.

Written by Laurie Goodstein and published March 25, the thrust is twofold. First, that the Rev. Lawrence Murphy, a priest who abused children at St. John’s School for the Deaf in Milwaukee from the 1950s to the 1970s, went unpunished. Father Murphy, she wrote categorically, “was never tried or disciplined by the church’s own justice system.”

This all feeds the kicker: “the effort to dismiss Father Murphy came to a sudden halt after the priest appealed to Cardinal Ratzinger for leniency.” In other words, Murphy got off scot-free, and the cardinal looked the other way.

Ms. Goodstein cites internal church documents, which the Times posted online. The documents were provided by Jeff Anderson and Mike Finnegan. They are described as “lawyers for five men who have brought four lawsuits against the Archdiocese of Milwaukee.”

What she did not tell readers is that Mr. Anderson isn’t just any old lawyer. When it comes to suing the church, he is America’s leading plaintiffs attorney. Back in 2002, he told the Associated Press that he’d won more than $60 million in settlements from the church, and he once boasted to a Twin Cities weekly that he’s “suing the s–t out of them everywhere.” Nor did the Times report another salient fact about Mr. Anderson: He’s now trying to sue the Vatican in U.S. federal court.

None of this makes Mr. Anderson wrong or unworthy of quoting. It does make him a much bigger player than the story disclosed. In fact, it’s hard to think of anyone with a greater financial interest in promoting the public narrative of a church that takes zero action against abuser priests, with Pope Benedict XVI personally culpable.

Asked about the omissions in an email, Ms. Goodstein replied as follows: “Given the complexity of the Murphy case, and the relative brevity of my story, I don’t think it is realistic for you to expect this story to get into treating other cases that these attorneys have handled.”

Martin Nussbaum, a lawyer who is not involved in the Murphy case but who has defended other dioceses and churches in sexual abuse suits, emailed me four interesting letters sent to Murphy from three Wisconsin bishops. These documents are not among those posted online by the Times. They are relevant, however, because they refute the idea that Murphy went unpunished.

In fact, the letters from these bishops—three in 1993 and one in 1995, after fresh allegations of Murphy’s misconduct—variously informed the priest that he was not to celebrate the sacraments in public, not to have any unsupervised contact with minors, and not to work in any parish religious education program.

It’s accurate to say Murphy was never convicted by a church tribunal. It’s also reasonable to argue (as I would) that Murphy should have been disciplined more. It is untrue, however, to suggest he was “never” disciplined. When asked if she knew of these letters, Ms. Goodstein did not directly answer, saying her focus was on what was “new,” i.e., “the attempts by those same bishops to have Father Murphy laicized.”

As for Rome, it did not get the case until 1996, when the archdiocese of Milwaukee informed the Congregation for the Doctrine of the Faith, then headed by Joseph Cardinal Ratzinger. Back then, the CDF handled abuse cases when they involved a breach of confession (Murphy was accused of using the confessional to solicit boys). At that time, too, the only real option for reducing Murphy to the lay state was a church trial. And the bishops in Wisconsin did begin a trial.

Ms. Goodstein’s original article said simply that Cardinal Ratzinger’s deputy halted Murphy’s trial after the priest sent the cardinal a letter saying he was dying and asking for clemency. A follow-up Times article last Thursday clarified that Rome came down the way it did because Murphy had shown “apparent good conduct” for the last 24 years, and “it would be difficult to try him” because “so much time [had] passed between the crimes and the trial.”

Plus, his bishops had already stripped Murphy of his priestly faculties, the equivalent of taking a doctor’s medical license. Does all this really suggest people callously looking the other way?

A few years later, when the CDF assumed authority over all abuse cases, Cardinal Ratzinger implemented changes that allowed for direct administrative action instead of trials that often took years. Roughly 60% of priests accused of sexual abuse were handled this way. The man who is now pope reopened cases that had been closed; did more than anyone to process cases and hold abusers accountable; and became the first pope to meet with victims. Isn’t the more reasonable interpretation of all these events that Cardinal Ratzinger’s experience with cases like Murphy’s helped lead him to promote reforms that gave the church more effective tools for handling priestly abuse?

That’s not to say that the press should be shy, even about Pope Benedict XVI’s decisions as archbishop and cardinal. The Murphy case raises hard questions: why it took the archbishops of Milwaukee nearly two decades to suspend Murphy from his ministry; why innocent people whose lives had been shattered by men they are supposed to view as icons of Christ found so little justice; how bishops should deal with an accused clergyman when criminal investigations are inconclusive; how to balance the demands of justice with the Catholic imperative that sins can be forgiven. Oh, yes, maybe some context, and a bit of journalistic skepticism about the narrative of a plaintiffs attorney making millions off these cases.

That’s still a story worth pursuing.

William McGurn, Wall Street Journal


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When a Lawyer Is Wrong

Immigration laws have changed over the years to make it easier to deport noncitizens convicted of crimes, even nonviolent crimes. But that does not mean they should be treated unfairly in court — a point the Supreme Court drove home last week by ruling that lawyers for noncitizens must advise their clients if a guilty plea would put them at risk of being deported.

Jose Padilla, a commercial truck driver, Vietnam veteran and native of Honduras, has lived legally in the United States for 40 years. He was arrested in Kentucky after he was found with a large amount of marijuana in his tractor-trailer. He was charged with drug offenses that would make his deportation virtually mandatory.

When Mr. Padilla asked his lawyer about the consequences of pleading guilty, he said he was told that he did not need to worry about his immigration status since he had been in the country so long. When he faced deportation, Mr. Padilla argued that he pleaded guilty only because of that erroneous advice. The Supreme Court of Kentucky rejected his claim. It said his right to effective assistance of counsel did not apply because deportation was merely a “collateral” consequence of his conviction.

The Supreme Court voted 7-to-2 to reverse. Justice John Paul Stevens, writing for a 5-member majority, said judges used to have considerable discretion about whether a noncitizen should be deported after being convicted of a crime. Because much of that discretion has been taken away, correct legal advice is more important than before for immigrants. Justice Stevens said it was wrong to dismiss deportation as a “collateral” issue because deportation is nearly automatic in many cases.

The court went on to rule that if Mr. Padilla’s account was correct, his lawyer had not met the constitutional standard. The court noted that the ability to remain in the country can be more important to a client than the possibility of a jail sentence. And it would not have been difficult for Mr. Padilla’s lawyer to ascertain that a guilty plea would put him at considerable risk of deportation.

To get relief, Mr. Padilla still needs to show that he was actually prejudiced by the bad advice. No matter how this case is resolved, it has already established a constitutional principle that will help ensure that the Sixth Amendment rights of immigrants are protected.

Editorial, New York Times


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Catholic Abuse Hotline Overrun Amid New Allegations

Images of abuse victims displayed on Wednesday in Berlin by the victims’ group SNAP.

A hotline set up by the Catholic Church in Germany to counsel victims of sexual abuse was overrun on its first day, with almost 4,500 calls. Further allegations have continued to emerge even as Chancellor Angela Merkel says the church is taking “necessary measures.”

It was a much criticized idea. Earlier this month, Germany’s Catholic Church announced that it was planning a hotline for sexual abuse victims to call should they be in need of counselling or advice. Given the ever-increasing wave of abuse allegations being levelled at clerics in Germany this spring, however, many critics doubted whether victims would phone up the organization that was responsible for their suffering in the first place.

The critics were wrong. On Wednesday, the first full day of the hotline’s operation, fully 4,459 people phoned up — far more than the therapists hired to man the phones could handle. Indeed, they were only able to conduct 162 counselling sessions, ranging from five minutes to an hour in length. Andreas Zimmer, head of the project in the Bishopric of Trier, admitted that he wasn’t prepared for “that kind of an onslaught.” Zimmer insisted, however, that those who leave a message will be called back.

The hotline (0800-120-1000, free from within Germany) launched on Tuesday, is just one of many ways that the Catholic Church in Germany is attempting to win back trust even as the flood of abuse allegations shows no signs of receding. Bishops have insisted on full disclosure and have begun the process of reviewing church guidelines on reporting abuse allegations.

‘Necessary Measures’

German Chancellor Angela Merkel on Wednesday evening praised the church’s efforts in an interview with RTL television. She said the hotline was a “very good” development and said she appreciated that German bishops have committed themselves to finding the truth. “There is no alternative to truth and clarity,” she said, adding that the church has taken “the necessary measures.”

This week, however, has been another difficult one for the Catholic Church in both Germany and elsewhere in continental Europe. Germany’s national Süddeutsche Zeitung newspaper reported allegations on Wednesday and Thursday that Augsburg Bishop Walter Mixa beat youth who lived at a children’s home in the Bavarian town of Schrobenhausen when he was priest there in the 1970s. The paper has six declarations under oath of incidents of physical abuse, including slaps and punches to the head. “He punched me in the face with full force,” the paper quotes a former resident, Jutta Stadler, now 47, as saying.

Earlier this week, the bishopric of Trier reported that 20 priests are suspected of having sexually abused children between the 1950s and 1990s. Bishop Stephan Ackermann, who was appointed last year, said on Monday that three of the cases had been passed on to public prosecutors, with two more soon to follow. He has asked potential further victims to come forward. “We want to investigate all leads,” he said, calling the scandal “horrifying.”

‘Person of Faith’

Since initial reports of sexual abuse in Catholic schools emerged in Germany in late January, hundreds of victims have come forward in countries across Europe, including Austria, Switzerland, the Netherlands, Denmark and elsewhere. Swiss bishops on Wednesday said that they had underestimated the problem and were now encouraging victims to contact the authorities. In a public admission of guilt, Cardinal Christoph Schönborn said in a service at St. Stephan’s Cathedral in Vienna that “some of us talked about God, but did terrible things to our charges. Some of us perpetrated sexual violence. For some of us, the appearance of an infallible church was more important than anything else.”

The new allegations come on the heels of a New York Times report last week which indicated that Pope Benedict XVI had known about one particularly egregious case in the United States. The Rev. Lawrence Murphy spent years molesting children at a school for the deaf in Wisconsin, but when the case came to the attention of the Vatican many years later, the Congregation for the Doctrine of the Faith, then led by Cardinal Ratzinger before he became pope, declined to take action, citing Murphy’s advanced age at the time.

The pope made no mention of the scandal during his pre-Easter mass at the Vatican on Thursday. But in reference to the Times article, Vatican spokesman Federico Lombardi told the Associated Press that “the pope is a person of faith. He sees this as a test for him and the church.” The pope was set to wash the feet of 12 priests on Thursday evening in a gesture of humility.

Even as much of the focus of the growing abuse scandal has been on the Catholic Church, cases from secular boarding schools have also been made public in recent weeks in Germany. In addition, more than 25 former residents of former East German children’s homes have reported having been sexually abused during their time in the homes. Manfred Kolbe, a Christian Democratic parliamentarian whose constituency includes a memorial to a former East German youth re-education facility, told the Berlin daily Tagesspiegel that sexual abuse in children’s homes “seems to have been widespread.”


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ObamaCare and the Constitution

If Congress can force you to buy insurance, Article I limits on federal power are a dead letter.

The constitutional challenges to ObamaCare have come quickly, and the media are portraying them mostly as hopeless gestures—the political equivalent of Civil War re-enactors. Discussion over: You lost, deal with it.

The press corps never dismissed the legal challenges to the war on terror so easily, but then liberals have long treated property rights and any limits on federal power to regulate commerce as 18th-century anachronisms. In fact, the legal challenges to ObamaCare are serious and carry enormous implications for the future of American liberty.


The most important legal challenge turns on the “individual mandate”—the new requirement that almost every U.S. citizen must buy government-approved health insurance. Failure to comply will be punished by an annual tax penalty that by 2016 will rise to $750 or 2% of income, whichever is higher. President Obama opposed this kind of coercion as a candidate but has become a convert. He even argued in a September interview that “I absolutely reject that notion” that this tax is a tax, because it is supposedly for your own good.

Florida Attorney General Bill McCollum and 13 other state AGs—including Louisiana Democrat Buddy Caldwell—claim this is an unprecedented exercise of state power. Never before has Congress required people to buy a private product to qualify as a law-abiding citizen.

As the Congressional Budget Office noted in 1994, “Federal mandates typically apply to people as parties to economic transactions, rather than as members of society.” The only law in the same league is conscription, though in that case the Constitution gives Congress the explicit power to raise a standing army.

Democrats claim the mandate is justified under the Commerce Clause, because health care and health insurance are a form of interstate commerce. They also claim the mandate is constitutional because it is structured as a tax, which is legal under the 16th Amendment. And it is true that the Supreme Court has ruled as recently as 2005, in the homegrown marijuana case Gonzales v. Raich, that Congress can regulate essentially economic activities that “taken in the aggregate, substantially affect interstate commerce.”

But even in Raich the High Court did not say that the Commerce Clause can justify any federal regulation, and in other modern cases the Court has rebuked Congress for overreaching. In U.S. v. Lopez(1995), the High Court ruled that carrying a gun near a school zone was not economically significant enough to qualify as interstate commerce, while in Morrison (2000) it overturned a law about violence against women on the same grounds.

All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida’s constitution also has a privacy clause that underscores the strong state interest in opposing Congress’s health-care intrusion.

As for the assertion that the mandate is really a tax, this is an attempt at legal finesse. The mandate is the legal requirement to buy a certain product, while the tax is the means of enforcement. This is not a true income or even excise tax. Congress cannot, merely by invoking a tax, blow up the Framers’ attempt to restrain government under Article I.

The states also have a strong case with their claim that ObamaCare upsets the Constitution’s federalist framework by converting the states into arms of the federal government. The bill requires states to spend billions of dollars to rearrange their health-care markets and vastly expands who can enroll in Medicaid, whether or not states can afford it.

Florida already spends a little over a quarter of its budget on Medicaid, and under ObamaCare that will expand by at least 50% as some 1.3 million new people enroll. Those benefits, and the burden of setting up the new exchanges, will cost Florida $149 million in 2014 and $1.05 billion annually by 2018. The state will either have to cut other priorities or raise taxes. In legal essence, ObamaCare infringes on state sovereignty and unconstitutionally conscripts state officials.

Less potent, at least to our reading, is the challenge on behalf of state laws that bar or exempt their citizens from the mandate. Virginia passed such a law earlier this year, and Attorney General Ken Cuccinelli is suing on those grounds. But while such efforts serve as healthy political protest, federal laws that are constitutional are supreme under the 10th Amendment, and states can’t “nullify” a Congressional action.


Judicial and media liberals are trying to dismiss these challenges as a revanchist attempt to repeal the New Deal, or, worse, as a way to restore the states’s rights of Jim Crow. Modern liberals genuinely believe the federal government can order the states and individuals to do anything as long as it is in pursuit of their larger social agenda. They also want to deter more state Attorneys General from joining these lawsuits.

The AGs should not be deterred, because the truth is that ObamaCare breaks new constitutional ground. Neither the House nor Senate Judiciary Committees held hearings on the law’s constitutionality, and we are not aware of any Justice Department opinion on the matter. Judges have an obligation not to be so cavalier in dismissing claims on behalf of political liberty. Under the Constitution, American courts don’t give advisory opinions. They rule on specific cases, and the states have a good one to make.

Democrats may have been able to trample the rules of the Senate to pass their unpopular bill on a narrow partisan vote, but they shouldn’t be able to trample the Constitution as well.

Editorial, Wall Street Journal


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When Israel and France Broke Up

IN the face of rising tensions between the United States and Israel over housing construction in East Jerusalem, the Obama administration has rushed to reassert what Secretary of State Hillary Clinton recently called the “unshakable bond” between the two countries.

No doubt, that relationship rests on enduring foundations, including broad American public sympathy for a besieged democracy, a mutual strategic interest in resisting Arab extremism and a sense of moral duty to preserve the Jewish people after the Holocaust.

But if Israeli Prime Minister Benjamin Netanyahu tries to push his luck on settlements or the peace process, he would do well to remember an unnerving precedent: Israel’s loss, in 1967, of what had been a robust alliance with France.

The French-Israeli relationship began in the mid-1950s, when Israel became a major customer for the French arms industry. But the bond was not merely commercial: at the time France was trying to quash a rebellion in Algeria, and it shared with Israel a strategic interest in combating radical Arab nationalism. In 1956, France and Israel even fought together against Egypt in the Suez crisis.

The tacit alliance, championed by Israel’s deputy defense minister, Shimon Peres, deepened during the late ’50s and early ’60s through military cooperation and cultural exchanges. French technical assistance helped Israel get nuclear weapons, and France supplied the advanced military aircraft that became the backbone of the Israeli Air Force.

The relationship only grew warmer when Charles de Gaulle, the World War II hero, took over as French president in 1959. He recognized the historic justice of a Jewish “national home,” which he saw “as some compensation for suffering endured through long ages,” and he heaped praise on David Ben-Gurion, Israel’s founding prime minister, as one of the “greatest leaders in the West.”

The bilateral bonds ran outside the government, too, with strongly pro-Israel public opinion, both among French Jews and non-Jews. But with the end of the Algerian war in 1962, de Gaulle began mending France’s ties to the Arab world and the relationship came under strain. For a while, France tried to balance its relationships: Israeli officials were heartily welcomed in Paris, and de Gaulle continued to speak of Israel as “the ally and friend” of France.

This double game, however, ended when the Six-Day War in 1967 forced France to pick a side. In a shock to its Israeli allies, it chose the Arab states: despite aggressive moves by Egypt, France imposed a temporary arms embargo on the region — which mostly hurt Israel — and warned senior Israeli officials to avoid hostilities.

When Israel launched a pre-emptive strike on June 5, France condemned it — even as Israel’s nearly immediate aerial victory was won largely with French-made aircraft.

A few months later de Gaulle bluntly told reporters that France had “freed itself … from the very special and very close ties” with Israel, nastily adding that Jews were “an elite people, sure of itself, and dominating.”

This was not a sentimental stance: de Gaulle had made a strategic decision to bolster France’s stature in the vast Arab world, which in 1967 meant largely abandoning Israel. France proceeded to make the arms embargo on Israel permanent, sought oil deals with the Arab states and adopted increasingly anti-Israel rhetoric.

Of course, American public support for Israel is even more deeply ingrained than it was in France, and it is hard to imagine that anyone in President Obama’s staunchly pro-Israel White House is contemplating anything like de Gaulle’s sudden reversal.

Still, there are potentially disquieting similarities. Like de Gaulle after Algeria, President Obama understands the strategic importance of improving relations with the Arab and Muslim worlds after years of bloodshed in Iraq and Afghanistan. And so long as the Israeli-Palestinian peace process remains stalled, Washington’s relationships with Israel and the Arab states may look to some in the administration like a zero-sum game.

In the same way that many French officials tried to balance France’s relationships in the Middle East after the end of the Algerian war, Mr. Obama undoubtedly hopes that he can reach out to the Arab world without damaging ties with Israel. But this history suggests that Mr. Netanyahu would be wise to ease the strain on the alliance before any words are uttered that cannot be unsaid.

Gary J. Bass is a professor of politics and international affairs at Princeton and the author of “Freedom’s Battle: The Origins of Humanitarian Intervention.”


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Wishing Doesn’t Make It Law

When noncitizens are convicted of aggravated felonies, federal law makes it relatively easy to remove them from the country — and it should. But the law is not a weapon for overzealous immigration officials who want to deny immigrants fair deportation hearings.

The Supreme Court hears arguments on Wednesday about the removal of one such immigrant, who committed a couple of minor drug offenses but was treated as if he had committed an aggravated drug felony. The court should use the case of Carachuri-Rosendo v. Holder to put an end to this unfair practice.

Jose Angel Carachuri-Rosendo, a native of Mexico, was a lawful permanent resident of the United States living in Texas. He was engaged to an American citizen, and had four children who are American citizens. In 2004, he pleaded guilty to misdemeanor marijuana possession and was sentenced to 20 days in jail. A year later, he pleaded no contest to misdemeanor possession of a single Xanax anti-anxiety pill without a prescription, and was sentenced to 10 days in prison.

The government notified Mr. Carachuri-Rosendo in 2006 that he was removable from the United States because of his Xanax plea. The Immigration and Nationality Act allows a noncitizen facing removal to seek discretionary cancellation, which lets an immigration judge consider all of the circumstances of the applicant’s life, but this option is not available to noncitizens who have been convicted of an “aggravated felony.”

In Mr. Carachuri-Rosendo’s case, the judge decided that his two misdemeanors taken together constituted an aggravated felony — because he could have been prosecuted for recidivist possession, which is a felony. That made it possible to deny Mr. Carachuri-Rosendo a hearing, even though he was never charged with recidivism or any other felony.

Immigration officials across the country have used this twisted logic to fast-track the deportation of many noncitizens who should be given a shot at discretionary cancellation. Most appeals courts that have considered the question ruled that immigration officials cannot do this, but Mr. Carachuri-Rosendo’s appeal was heard by the United States Court of Appeals for the Fifth Circuit, in New Orleans, one of two federal appeals courts that approve of the practice.

This should not be a hard case. Federal law makes noncitizens eligible to seek discretionary cancellation of their removal as long as they have not been convicted of an aggravated felony. Mr. Carachuri-Rosendo was not convicted of a felony, and no amount of conjecture about what might have happened changes that.

If the government believes noncitizens should lose their right to seek discretionary cancellation after being convicted of multiple misdemeanors, it should try to persuade Congress to change the law. The justice system is diminished when the government tries to enforce the law it wishes for, instead of the law that exists.

Editorial, New York Times

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Genetic shock

A surprising court ruling in America may loosen the drug industry’s grip on important genes

PERSONALISED medicine has proved an elusive dream. Since the decoding of the human genome, biotechnology companies have claimed that by matching a person’s genetic make-up with specialised treatments, they can tailor drugs to maximise benefits and minimise side effects. Alas, researchers have discovered that the link between a given person’s genetic make-up and specific diseases is much more complex than they had hoped. The tantalising vision remains out of reach.

A rare exception has been the success that Myriad Genetics, an American firm, has had with two genes called BRCA1 and BRCA2. Certain versions of these genes, it has been shown, are associated with a high risk of breast and ovarian cancer. The University of Utah has patented the genes and licenses them to Myriad. The firm uses that exclusivity to create expensive genetic tests for cancer risk which only it offers for sale (the patents and licensing conditions are different outside the United States).

The BRCA patents have long frustrated medical researchers, cancer lobbyists and legal activists. They claim that the firm’s grip on the two genes unlawfully stifles both innovation and basic science. Given the history of patent rulings in America, that has been a fringe argument—until now.

On March 29th a federal district court in New York made a ruling that, taken at face value, turns America’s approach to the patent protection of genes on its head. A coalition led by the American Civil Liberties Union (ACLU) had challenged the very basis of Myriad’s patents. The nub of the case was this question: “Are isolated human genes and the comparison of their sequences patentable things?”

Until now, the answer had been “Yes”. But Robert Sweet, the presiding judge, disagreed, at least as far as the BRCA genes are concerned. After weighing up Myriad’s arguments, he ruled: “It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issues directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.” Mr Sweet reasoned that DNA represents the physical embodiment of biological information, and that such biological information is a natural phenomenon.

As a rule, patents are not granted for rules of nature or naturally occurring phenomena, but the American patent office has allowed genes to be patented if they are isolated and “purified.” Perhaps no longer, if this decision is upheld. The ACLU gleefully declared that this ruling “marks the first time a court has found patents on genes unlawful and calls into question the validity of patents now held on approximately 2,000 human genes.”

It is clear that the judge has the history books in mind

So is this really such a landmark ruling? It is clear that the judge has the history books in mind. His ruling cites Stephen Breyer, a member of America’s Supreme Court, who argued in a dissenting opinion in 2006 that “sometimes too much patent protection can impede rather than ‘promote the Progress of Science and useful Arts,’ the constitutional objective of patent and copyright protection.”

However, the majority of the Supreme Court did not agree with Justice Breyer. Dianne Nicol, a professor of law at the University of Tasmania, observes that “this case turns on whether an isolated gene sequence has markedly different characteristics from a gene that occurs in the human body. The judge in this case has said it does not have different characteristics but it will be interesting to see if the higher courts agree with that.”

This week’s ruling, though ground-breaking in some ways, is not binding on other federal courts or on other kinds of genetic patents. What is more, Myriad will appeal to the higher courts, and the case may even end up at the Supreme Court. The odds probably remain in favour of the existing regime, but it is just possible that Judge Sweet has put an irreparable chink in Big Biotech’s armour.


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Board Members of Top German School Resign

Abuse Scandal Widens

Germany’s idyllic Odenwaldschule: Thirty-three pupils were allegedly abused by eight teachers between 1966 and 1991.

Most of the governors of the German Odenwaldschule boarding school, which is no religious affiliation, resigned over the weekend following allegations that teachers sexually abused pupils between 1966 and 1991. The principal has promised a full investigation.

Most of the members of the governing body of the Odenwald School in Germany resigned over the weekend following revelations that at least 33 pupils were abused by eight teachers at the elite boarding school between 1966 and 1991.

The school near the town of Heppenheim in the western state of Hesse is not run by a Catholic organization. The allegations first became public three weeks ago at the same time as sexual abuse cases came to light at several Catholic high schools around the country.

Five of seven members of Odenwald’s governing board stepped down on Saturday, leaving only the principal, Margarita Kaufmann, and the school’s manager, Meto Salijevic, to run the school’s affairs until a new board is elected on May 29. “The public pressure was too great,” said , Sabine Richter-Ellermannthe chairwoman of the board.

The school has said 33 pupils were subjected to abuse and that eight former teachers have been accused, including Gerold Becker, who was principal at the school from 1972 until 1985. It has so far declined to confirm information gathered by SPIEGEL that 40 pupils were abused by 10 teachers. “We are still in the process of investigation,” said Salijevic.

School Promises Full Probe

Kaufmann, the principal, said there will be “a comprehensive and transparent investigation” of the abuse cases and also promised to improve procedures for selecting teachers, enhance teacher training and reorganize its management. However, Thorsten Kahl, the lawyer of several abuse victims who were at the school, said Salijevic too should have resigned.

Salijevic was a member of the school’s board in 1999, when the first suspected abuse cases emerged. “The fact that he didn’t resign is a slap in the face for the victims,” said Kahl.

Odenwald turns 100 next month and has a long list of famous former pupils, including Greens politician Daniel Cohn-Bendit and the author Klaus Mann. Andreas von Weizsäcker, the son of former German president Richard von Weizsäcker, also went to the school. Andreas died of cancer in 2008. His widow, Sabrina von Weizsäcker, told SPIEGEL: “Andreas knew about the incidents but did not count himself among the victims.”

Former Principal Admits Abusing Pupils 

The abuse was first reported in 1998 when two former pupils sent the board a letter in which they accused Gerold Becker. The former principal did not deny the accusations and resigned from posts he still held in societies linked to the school.

The school admits today that it did not investigate the accusations rigorously enough. “Unfortunately we assumed these were isolated cases, appalling isolated cases,” Sabine Richter-Ellermann, the board chairwoman who has just resigned, said in a statement. The board had neglected to stay in touch with the victims “and did not look for further victims.” She added: “We are aware today that that was a mistake.”

Victims have accused Gerold Becker, who joined the school as a teacher in 1969, of waking them up in the morning by grabbing their penises and of making them masturbate him. He admits today that he “sexually pestered or hurt” pupils “through advances or activities.” A music teacher at the school also abused many pupils, witnesses say. He has since died.


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The Rules in China

After a Chinese court sentenced four executives of Australian mining company Rio Tinto to lengthy prison terms for bribery and stealing commercial secrets yesterday, Canberra was quick to respond. Foreign Minister Stephen Smith pointedly stated, “As China emerges into the global economy, the international business community needs to understand with certainty what the rules are in China.”

In the eight months since Australian citizen Stern Hu and his Chinese colleagues Wang Yong, Ge Minqiang and Liu Caikui were arrested, we’ve learned a great deal about the lack of certainty and rules not only in China, but also in the global commodities trade. Some of that is China’s fault, but hardly all of it. The Australian government and Rio Tinto must share the blame for lack of transparency and failing to play by the rules.

Foreign media coverage of the arrests and trial has focused on whether the Chinese authorities pursued this case for political reasons. Remember that early last year, cash-starved Rio Tinto angered China by inviting Aluminum Corp. of China, or Chinalco, to take a $19.5 billion equity stake and then backing out of the deal under a combination of shareholder, government and public pressure. Rio was also driving a tough bargain in iron-ore price negotiations with Chinese buyers. Many observers speculated that the four executives were pawns in a high stakes game of tit-for-tat orchestrated from Beijing.

Certainly the timing of the case makes such suspicions inevitable. But the reality is probably more complicated. The Chinese justice system may be manifestly unfair, and once it gains momentum a guilty verdict is a foregone conclusion. Yet Rio itself put forces in motion that led to four men losing their freedom.

It all started with the boom in the global iron-ore market in the early 2000s. That’s when China’s steel industry embarked on a massive expansion of capacity, turning the trade in ore from a buyer’s market to a seller’s market. China’s large state-owned steelmakers bought at the benchmark price negotiated by Japanese and Korean mills, while smaller firms had to pay the higher spot price. This created an incentive for arbitrage and corruption, but unfortunately both the Chinese government and the mining companies were slow to take account of this in their internal controls.

As demand soared, the benchmark and market prices for iron ore diverged and the system came under increasing stress. In 2008, the Brazilian mining giant Vale negotiated a new benchmark price, only to see its two Australian rivals, BHP Billiton and Rio Tinto, refuse to follow it. Vale reacted by tearing up its agreed benchmark price and renegotiating with producers who were over a barrel.

Then Rio Tinto also began to back out of its contracts, for instance by invoking clauses in contracts to hold back 10% of deliveries, which could then be resold at the spot price. Since Rio was facing a hostile takeover bid from BHP, the company’s managers pushed especially hard for every last dollar at the expense of their trading partners to show that they could deliver higher returns for shareholders.

Rio’s Mr. Hu himself acknowledged the problem. In 2008, after Rio negotiated a 87% price increase, Australian reporter John Garnaut interviewed him: “He said he had no qualms with driving as hard a bargain as he could on price. But he had misgivings about whether Rio Tinto should risk its integrity in China by claiming ‘force majeure’ to wriggle out of long-term contracts to chase higher prices elsewhere. ‘We acted in accordance with the letter of the contracts, but not the spirit,’ he said.”

This weakening of the bonds of contract naturally infuriated Chinese steelmakers. So when the economic crisis hit at the end of 2008 and demand for iron ore evaporated, it was payback time. Enjoying a buyer’s market again, the Chinese firms simply walked away from contracts.

The turnabout didn’t last long. Beijing’s massive fiscal stimulus program quickly revived demand for steel by the middle of 2009, and the Australians were able to start raising prices again. Negotiations over new iron-ore benchmark prices were particularly acrimonious, given the bad blood created over the past couple years. And that was the state of play when Mr. Hu and his colleagues were arrested on July 5, 2009.

One past participant in the iron-ore business, who insists on anonymity because of the sensitivities on both sides, believes that the investigation into the Rio Tinto executives was ongoing for many months before the arrests, meaning they were not directly related to the Chinalco fiasco or the ongoing price negotiations. The authorities likely started sniffing around as a result of a tip-off from someone on the Chinese side of the industry. The ill will created by the whipsawing prices and huge losses suffered by some firms supplied plenty of motivation for someone to drop the dime on Rio.

And some dirt was found. Rio Tinto has severed its relationship with the executives, saying they engaged in “deplorable behavior,” effectively accepting the verdict that they were taking kickbacks from steelmakers to arrange preferential access to iron ore. The charges of stealing commercial secrets are much more murky, as evidenced by the fact that they were heard in a totally sealed courtroom, but these too probably originated from lower down the ladder of officialdom, rather than a Beijing-led witch-hunt against Rio Tinto.

The bosses in Australia made the mistake of leaving their Chinese executives in place for too long with too little supervision. But the bigger mistake was destroying the trust of the handshake deals made with Chinese partners in the quest for a little extra margin. That is bad practice anywhere, but especially in China.

Chinalco has not held a grudge against Rio for the failed equity deal. The two companies continue to negotiate joint projects in countries like Mongolia and Guinea. The State Council’s own post-mortem report on the affair is relatively kind to Rio and admits that the Chinese side could have handled the deal better.

However, the government of Prime Minister Kevin Rudd does not come off so well. Treasurer Wayne Swan ran scared from public perceptions of being too soft on China and politicized the approval process for Chinese investments, making it clear that the Chinalco deal would not go through and future acquisitions in the natural resources industry would face strict limitations. The lack of transparency and hostility toward China came as a complete surprise to Beijing and has created lasting tension between the two countries.

It was bad luck that around the same time, Xinjiang dissident Rebiya Kadeer was invited to Australia and Canberra issued a defense white paper that singled out China as a potential threat around which to base future strategy. From Beijing’s perspective these all suggested that Australia was turning hostile and there was no certainty about the rules for Chinese companies doing business there. Had this not happened, it’s possible that greater leniency would have been shown to the four Rio Tinto executives.

Everyone doing business in China should be clear by now on the rules—there is no rule of law. Deals can be done on the basis of mutual trust, which creates some level of certainty. The four Rio Tinto executives may be guilty of corruption, but the real reason they are in prison is because that trust broke down.

Mr. Restall is a member of the editorial board of The Wall Street Journal.


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The awkward scream

In The Importance of Being Earnest, Lady Bracknell says indignantly that “strange coincidences are not supposed to occur”. Mindy Lynn Neugebauer, from Mangum, Oklahoma, might have thought the same thing recently when she was caught by police in possession of drugs.

Ms Neugebauer had texted an acquaintance with a message that said “if you want a hit of this stuff before it’s all gone you better get over here”. What Ms Neugebauer didn’t realise was that when she sent the message she had not keyed in the number she’d intended so it did not go to her acquaintance but to another man altogether. The random recipient happened to be Chris Counts – an agent at District III Drug Task Force. You can imagine his reaction when he opened the text.

Agent Counts texted back immediately to ask her for the address and she replied with the information. He then checked the sender’s phone registration and identified Ms Neugebauer. Officers turned up at her home and asked her about the text. She said it was just a reference to some marijuana she had wrapped up in a cigar paper.

However, she allowed the officers to search her home and under her mattress they found a plastic bag containing suspected cocaine. She was issued with a felony warrant on charges of possession of a controlled substance and unlawful possession of a controlled drug with intent to distribute. Her case will be heard later this year.

Instances of people accidentally bringing the police to their door and paying a high price for it have triggered some unusual cases. Ranking high in the league of such odd convictions is the case of Brian McGacken in Farmingdale, New Jersey. A neighbour who heard a woman screaming loudly inside McGacken’s house called the police. Officers arrived and McGacken opened the front door dressed only in a bathrobe. Asked about the loud screaming he said it was his girlfriend expressing rapture during “loud sex”. The officers asked to see the girlfriend and she came downstairs wearing only a towel and confirmed that she had indeed been enjoying the company of Mr McGracken.

Then, when McGracken went upstairs to get his ID as requested, one of the officers followed him up and “smelled the odour of raw marijuana”. They found 15 marijuana plants, several bagged quantities of the drug, and distribution paraphernalia. The case, which went all the way to the appeal court, turned on whether the officers were allowed to enter the house under an “emergency aid” exception to the general rule which requires a search warrant. The state argued the officers acted lawfully when, responding to the 911 call about the loud scream, they entered the house to check there was no one else apart from the towelled girlfriend who might have been in distress. The appeal court upheld McGracken’s conviction. The loud sex led to a long sentence: McGracken was given ten years.

Gary Slapper is Professor of Law at The Open University.


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Germany Resists EU Plans to Block Child Porn Sites

Combating Child Abuse on the Web

 The European Union wants to block child pornography Web sites. Germany would like to take them down altogether.

Germany’s justice minister is fighting EU plans to block access to child pornography sites because she doesn’t think the measures would work. She wants such sites shut down instead. The opposition Greens and SPD party agree with her.

German Justice Minister Sabine Leutheusser-Schnarrenberger wants to stop a European Union plan to block Web sites containing child pornography because she doesn’t think such a measure would be effective enough. Instead, she is lobbying for the EU to remove such sites from the Internet altogether.

“I expect a broad debate in the upcoming discussions in which I shall be representing the principle ‘removing instead of blocking’ and lobbying for as broad support as possible in the Council and in the European Parliament,” the minister told the Hamburger Abendblatt newspaper in an interview published on Tuesday.

The European Commission wants member states to agree to block access to child pornography sites as part of a proposed package of measures presented by EU Home Affairs Commissioner Cecilia Malmstrom on Monday. Malmstrom also proposed tougher punishments for child abusers and human trafficking gangs. “Child pornography is not about freedom of expression. It is a horrendous crime. It is not about circulating an opinion,” Malmstrom said.

“Child pornography means images of children suffering sex abuse. Downloading or viewing child pornography on the Internet leads to more children being raped to produce those images,” she told a news conference.

Chancellor Angela Merkel’s center-right government has decided not to apply a law passed under her previous government of conservatives and center-left Social Democrats which allows sites to be blocked. It now wants to draft a new law to take child pornography sites offline.

“Circumventing Internet Blocks is Easy”

Leutheusser-Schnarrenberger criticized the Commission’s plan. “The German government opposes blocking sites. It doesn’t represent an effective measure in the fight against child pornography and at the same time does great damage to confidence among Internet users,” she said. The minister is a member of the pro-business Free Democrat Party (FDP), which traditionally campaigns against government restrictions.

Germany’s opposition Greens and Social Democrats (SPD) are also opposed to the EU plans. Konstantin von Notz, the Internet affairs spokesman for the Greens, told Hamburger Abendblatt: “I don’t see how we’d make any progress by hanging up stop signs in the Internet. Circumventing the stop signs is easy. We don’t need a new law because it’s long been legally possible to remove criminal sites from the Internet.”

Olaf Scholz, deputy leader of the SPD, said experience in Germany had already shown that Internet blocks didn’t work.

Members of the Merkel’s conservative Christian Democrats (CDU) and of child protection groups support Malmstrom’s plans, however. Wolfgang Bosbach of the CDU, the chairman of the German parliament’s domestic affairs committee, said the EU measures would create common standards for tackling an international problem. Internet blocks could warn users that they faced prosecution if they make one more click. He said he didn’t think such a measure represented censorship. “Things that are forbidden offline should also be prevented online,” Bosbach told the Frankfurter Rundschau newspaper.

The Commission said the number of Web sites devoted to child pornography is growing and that 200 new images containing child pornography are posted on the Web every day. Malmstrom said the proposals would also combat ‘grooming’ children — luring them into intimate relationships — through the Internet and viewing child pornography without downloading files.


Full article and photo:,1518,686405,00.html

The War on Drugs Is Doomed

Strong demand and the high profits that are the result of prohibition make illegal trafficking unstoppable.

They say that the first step in dealing with a problem is acknowledging that you have one. It is therefore good news that Secretary of State Hillary Clinton will lead a delegation to Mexico tomorrow to talk with officials there about efforts to fight the mob violence that is being generated in Mexico by the war on drugs. U.S. recognition of this shared problem is healthy.

But that’s where the good news is likely to end.

Violence along the border has skyrocketed ever since Mexican President Felipe Calderón decided to confront the illegal drug cartels that operate there. Some 7,000 troops now patrol Juárez, a city of roughly one million. Yet even militarization has not delivered the peace. The reason is simple enough: The source of the problem is not Mexican supply. It is American demand coupled with prohibition.

It is doubtful that this will be acknowledged at tomorrow’s meeting. The drug-warrior industry, which includes both the private-sector and a massive government bureaucracy devoted to “enforcement,” has an enormous economic incentive to keep the war raging. In Washington politics both groups have substantial influence. So it is likely that we are going to get further plans to turn Juárez into a police state with the promise that more guns, tanks, helicopters and informants can stop Mexican gangsters from shoving drugs up American noses.

Last week’s gangland-style slaying of an unborn baby and three adults who had ties to the U.S. Consulate in Juárez has drawn attention to Mrs. Clinton’s trip. The incident stunned Americans. Yet tragic as they were, statistically those four deaths don’t create even a blip on the body-count chart. The running tally of drug-trafficking linked deaths in Juárez since December 2006 is more than 5,350. There has also been a high cost to the city’s economy as investors and tourists have turned away.

Even with low odds of a productive outcome, though, Mexico can’t afford to write off tomorrow’s meeting. It is an opportunity that, handled correctly, could provide for a teachable moment. I suggest that one or two of Mexico’s very fine economists trained at the University of Chicago by Milton Friedman sit down with President Obama’s team to explain a few things about how markets work. They could begin by outlining the path that a worthless weed travels to become the funding for the cartel’s firepower. In this Econ 101 lesson, students will learn how the lion’s share of the profit is in getting the stuff over the U.S. border to the American consumer. In football terms, Juárez is first and goal.

Mexico hasn’t always been an important playing field for drug cartels. For many years cocaine traffickers used the Caribbean to get their product to their customers in the largest and richest market in the hemisphere. But when the U.S. redoubled its efforts to block shipments traveling by sea, the entrepreneurs shifted to land routes through Central America and Mexico.

Mexican traffickers now handle cocaine but traditional marijuana smuggling is their cash cow, despite competition from stateside growers. In a February 2009 interview, then-Mexican Attorney General Eduardo Medina Mora told me that half of the cartel’s annual income was derived from marijuana.

This is especially troubling for Mexican law enforcement because marijuana use, through medical marijuana outlets and general social acceptance, has become de facto legal in the U.S., and demand is robust. The upshot is that consumption is cool while production, trafficking and distribution are organized-crime activities. This is what I called in a previous column, “a stimulus plan for Mexican gangsters.”

In much of the world, where institutions are weak and folks are poor, the high value that prohibition puts into drugs means that the thugs rule. Mr. Medina Mora told me in the same 2009 interview that Mexico estimated the annual cash flow from U.S. drug consumers to Mexico at around $10 billion, which of course explains why the cartels are so well armed and also able to grease the system. It also explains why Juárez is today a killing field.

Supply warriors might have a better argument if the billions of dollars spent defoliating the Colombian jungle, chasing fast boats and shooting down airplanes for the past four decades had reduced drug use. Yet despite passing victories like taking out 1980s kingpin Pablo Escobar and countless other drug lords since then, narcotics are still widely available in the U.S. and some segment of American society remains enthusiastic about using them. In some places terrorist organizations like Colombia’s FARC rebels and al Qaeda have replaced traditional cartels.

There is one ray of hope for innocent victims of the war on drugs. Last week the Journal reported that Drug Enforcement Administration agents were questioning members of an El Paso gang about their possible involvement in the recent killings in Juárez. If the escalation is now spilling over into the U.S., Americans may finally have to face their role in the mess. Mrs. Clinton’s mission will only add value if it reflects awareness of that reality.

Mary O’Grady Anastasia, Wall Street Journal


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The Trouble With the Insanity Defense

Our legal system still does a terrible job of handling the mentally ill.

Earlier this month, 24-year-old Mark Becker was found guilty of killing Satan. Of course, it wasn’t really Satan Mr. Becker killed. It was his beloved high school football coach, Ed Thomas. But Mr. Becker, being severely mentally ill and off his medication, didn’t know the difference.

Apparently, that didn’t matter to the Iowa criminal justice system. Prior to issuing their verdict, the jury asked the judge what would happen if they found Mr. Becker “not guilty by reason of insanity” (NGBRI). The judge wouldn’t answer, so the jury took the safe approach: “Guilty as charged.” A psychotic young man obviously in need of mandatory lifetime violence-preventing medications for his mental illness is instead getting mandatory lifetime incarceration.

Not guilty by reason of insanity is an inadequate remedy to violence by individuals with mental illness. It is only attempted in 1% of all murder charges, and it is rarely successful.

Andrea Yates and John Hinckley were two famous exceptions. Andrea Yates, 37, was found NGBRI in Texas, after postpartum psychosis caused her to drown her five children in a bathtub. Twenty-six-year-old Colorado resident John Hinckley was found NGBRI in Washington after he shot Ronald Reagan in a schizophrenia-fueled attempt to secure a date with Jodie Foster. As a result of their successful pleas, both were sent to locked psychiatric hospitals and put on medications to help them regain their sanity. They’re getting treatment and the public is being kept safe. At least for now.

But, theoretically, when their sanity is restored, Mr. Hinckley and Ms. Yates can both be released, to go off medications and start drowning kids or shooting presidents again. As a practical matter, few judges are willing to risk that on their watch, so even when sanity is restored—as it allegedly has been in the case of both Mr. Hinckley and Ms. Yates—NGBRI acquitees are routinely kept committed. Ms. Yates has been in a locked hospital eight years and Mr. Hinckley, 29 years. But what kind of society keeps sane individuals involuntarily committed? Russia circa 1955 comes to mind.

To protect against the possibility of NGBRI acquitees going free, some states either eliminated not guilty by reason of insanity or replaced it with “guilty because of mental illness.” Individuals found guilty because of mental illness go to a hospital until their sanity is restored and then to jail to finish out their sentence. This forces individuals who had no culpability for their actions to go to jail at the exact time it’s not needed—when they’ve regained their sanity. For these individuals being mentally ill is the same as being guilty: either way, they go to jail. Sadly, our prisons and jails have become our de facto mental institutions: More than 230,000 people with severe mental illness are currently incarcerated in America.

If the cause of the crime was lack of treatment for mental illness, then the solution is to reform laws so we can sentence these individuals to mandatory long-term mental illness treatment—including medications—so they never become violent again. The sentence to treatment could be as long, or longer, than the maximum sentence that would be imposed had the person been found guilty. If this change were adopted, incarcerating the mentally ill would rarely be needed.

Their treatment could take place in an inpatient setting on a locked ward if that is what is needed to keep society safe. But, if the sentenced patient progresses—and the crime not too serious—their treatment could be continued on an outpatient basis. Over time, it would most likely be both. Under this form of not guilty by reason of insanity, the sentenced patient could be moved from inpatient care to outpatient care when doing well and instantly back to inpatient with no further court hearings needed if they started to deteriorate. In either case, the individual would be closely monitored by a case manager to see that they stay on their violence preventing medications. That’s the solution that keeps the public safe, avoids wasting resources, and eliminates the dilemma of incarcerating those we should be treating.

Methods for monitoring patients to ensure they take their medications exist and have proven successful. New York’s Kendra’s Law, for example, allows courts to order treatment and monitoring of dangerous mentally ill individuals. According to a 2005 New York State Office of Mental Health Study, patients under court-ordered treatment had an 83% reduction in arrest and 87% reduction in incarceration compared to the three years prior to participation. A Columbia University study published earlier this year found that “individuals given mandatory outpatient treatment—who were more violent to begin with—were nevertheless four times less likely than members of the control group to perpetrate serious violence after undergoing treatment.”

Our current system incarcerates people like Iowa’s Mr. Becker who had no culpability for their actions. It keeps sane people involuntarily committed, and gives potentially violent mentally ill individuals the right to go off violence-preventing medications. That’s not justice, it’s mayhem.

Mr. Jaffe is a co-founder of the Treatment Advocacy Center.


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Pope’s Letter ‘Will Not Dispel Dark Clouds’ Over Church

Over the weekend, Pope Benedict XVI finally issued his letter of apology relating to the sexual abuse scandal in Ireland. German commentators welcome the move, but argue it is not enough. The pope, after all, still hasn’t commented on the abuse scandal in his homeland.

On Sunday, the waiting for Ireland’s Catholics came to an end. In a letter read aloud at weekend masses across the country, and handed out to churchgoers in printed form, Pope Benedict XVI expressed “shame and remorse” for the “sinful and criminal” sexual abuse perpetrated by members of the Catholic clergy in Ireland for decades.

Though highly anticipated, the apology was not well received. Many slammed the letter for not including a requirement that Cardinal Sean Brady, head of the Irish church, step down. Requirements that other church leaders be punished were likewise missed by victims groups. “It is one scandal on top of another,” Hugh Keogh in Dublin told the New York Times. “I do not think we have seen the last of this.”

In Germany, however, expectations that the pope might finally break his silence on the church abuse scandal that has shaken the country in recent weeks remain unfulfilled. Hundreds of people have come forward since the end of January with stories of sexual maltreatment perpetrated by priests and by teachers at Catholic boarding schools.

Of particular concern are allegations that the pope, back when he was the Bishop of Munich in the 1980s, knew of one particular abusive priest from Essen, who had forced a young boy to perform oral sex before being transferred to Munich. According to SPIEGEL information, the pope, then called Joseph Ratzinger, was aware of the church’s decision not to turn the priest over to the police. Just weeks later, the abusive priest was once again working with children, a fact which Ratzinger may also have known about.

German commentators on Monday take a look at the pope’s weekend letter and at the ongoing abuse scandal in Germany.

Conservative Frankfurter Allgemeine Zeitung writes:

The pope “has done little to indicate the way forward for churches in Ireland or Germany, so that they may atone for past wrongs as well as avoid doing harm in the future. Nonetheless, the experiences of churches in North America and England provide a clear blueprint. It includes lessons regarding the standards for the training of priests; the necessity of breaking with the widespread past practice of showing more concern for the perpetrators than for the victims; and establishment of reporting centers that are institutionally independent of the church.”

“It is high time that investigation into these issues no longer depends solely on the willingness of victims to come forward or the reporting abilities of the press. Rather than a ’round table’ organized by the church itself, the inevitable task of victim compensation would best be done by a commission that brought together scientific expertise, integrity and social authority. In this way the pope’s suggested triad — ‘healing, renewal and compensation’ — could also become an initiative for church reform on all levels.”

Left-leaning Die Tageszeitung writes:

“The central issues of the scandal will remain. Now, as before, and despite all his warm words for the victims, the pope shies away from any debate about sexual morality in the church. And one can only hope that his public silence about the abuse cases in Germany, is not because the pope himself was unhappily involved in such a case when he was the archbishop of Munich.”

“To put it delicately, what the pope writes in his pastoral letter also applied back then — in the gospel according to John (John 8:31-32): “the truth will set you free.” Even though, in his letter, he only seeks to apply the principle to others.”

The center-left Süddeutsche Zeitung writes:

“All of this is not just the result of the pressure of new incidents of clerical abuse. For years Joseph Ratzinger has said that the church should come out, clearly and definitely, against sexual abuse. In the Vatican he has not spared powerful church leaders like the founder of the reactionary Legion of Christ, when accusations of the abuse of minors against him emerged. In the face of this history, the letter to the Irish Catholic church is completely respectable. Never before has a pope made it so clear that such sexual abuse of those entrusted to the care of the church, strikes at the heart of all spiritual belief. Despite all this though, the letter is not going to rescue the church from the crisis it is currently enmeshed in. The letter will not do this because it is addressed to the Irish church only. The letter localizes a problem that actually affects the church throughout the world.”

“And the pope’s letter is also problematic when it tries to come to grips with the reasons for the abuse. Benedict XVI suggests that these problems arose because of a moral laxness in the clergy and church that arose after the reforms of the Second Vatican Council (eds note: the 1960s reforms that the church brought about in acknowledge of the changing modern world). The pope says these were mistakenly interpreted as a softening of moral standards. With respect, this is nonsense. Many of the cases from the more distant past, which are currently coming to light, demonstrate this.”

“Pope Benedict XVI is merely viewing the abuses from his own belief system. And this is the real and far-reaching weakness of his well-intentioned words. According to this view, the abuse of children and youths is a result of a relativism of values, which has also crept into the church. This is, however, at odds with the real world.”

The conservative daily Die Welt writes:

“Had the pope actually said anything about the occurrences in his homeland, the letter’s impact on the church worldwide would doubtless have been greater. Even without that, the text is explosive.”

“That bishops protected perpetrators, that camouflage and concealment were not exceptions: The head of the Catholic church has never been as clear about any of this before. His call for the church to be subject to the law of the land is an unmistakable instruction to all who abide by the church’s rules. But his pastoral letter will not dispel all of the dark clouds hovering over the Catholic church. Nor will it put to rest the debate over celibacy, that so many in the church find so troubling.”

“The church has a long road ahead of it, during which it must explain a lot as well as renew itself spiritually. And that counts for Ireland, Germany and the rest of the world. The church must travel this road with courage, so that doubts about men of the cloth and any negative impressions of a religious elite are dispelled. Traveling this path timidly will help as little as blaming the media of a plot against the church.”


Full article:,1518,685003,00.html

The whiff of justice

Cleopatra’s sails were so exquisitely perfumed that “the winds were lovesick with them”. Exquisite perfumery, though, isn’t necessarily a good thing in law. Following a recent legal action, public office workers in Detroit will have to avoid the use of fragrances. Michigan winds will have to love the natural odour of the workforce.

After the case, in which a woman upset by a colleague’s scent sued her employer and was given a large payout, public office workers have been warned not to wear “scented products including …colognes, after shave lotions, perfumes, deodorants, [and] body/face lotions”. They will also be prevented from using scented candles or solid air fresheners. Perhaps, after a month, another Detroit office employee will be able to sue for having to work in an office with the ambient aroma of a nineteenth-century jail.

Susan McBride, a city planner, sued her employer under the Americans with Disabilities Act after suffering from breathing difficulties caused by a co-worker’s perfume. The employer defended the action on the basis that there was no relevant medical diagnosis and that McBride was not disabled.

In the action, Ms McBride presented a note from her allergist stating that she “has a cough and vasomotor [sic] rhinitis primarily triggerred [sic] by irritants” so that “exposure to these smells should be eliminated”. She argued that she is disabled because she is limited in her everyday activities including (a) avoiding the detergent aisle in grocery stores, (b) speaking, and (c) sitting next to people wearing perfume. In an initial hearing, the US District Court in the Eastern District of Michigan was cautious about some of that reasoning and noted that Ms McBride had spoken for what turned out to be 139 pages of evidence “without incident”.

Despite several reservations, the court concluded that Ms McBride had enough of a breathing disability case for the action to proceed to a trial. It indicated that a compromise might be to outlaw only “strong or offensive scents” in the workplace. How the workplace perfume police would do their job was not specified by the court. In the end, Ms McBride won a $100,000 settlement.

Judicial attitudes to the fragrance of their own workplaces have varied. In the 19th century judges used to urinate in a porcelain vase in court. One lawyer’s account describes how, when Lord Chief Justice Ellenborough went for a comfort break in the corner of the courtroom, the court would always hear “the large seals dangling from his watch-chain rattle against the vase”. The scent of justice wasn’t blossom in a bowl. Some modern judges have taken an equally controversial stance on courtroom bouquet. In the 1960s, a female barrister, who went on to become a distinguished member of the judiciary, was interrupted by a judge whom she was addressing. Narrowing his eyes, and flaring his nostrils, he asked her “are you wearing perfume?” When she replied that she was, he instantly sent her out of court to wash off the fragrance. He took the view that, unlike his 17th century horsehair wig, her perfume wouldn’t help achieve legal justice.

Gary Slapper is Professor of Law at The Open University.


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The Health Vote and the Constitution—II

The House can’t approve the Senate bill in the same legislation by which it approves changes to the Senate bill.

In just a few days the House of Representatives is expected to act on two different pieces of legislation: the Senate version of the health-care bill (the one that contains the special deals, “Cadillac” insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. The House will likely adopt a “self-executing” rule that “deems” passage of the amendatory bill as enactment of the Senate bill, without an actual vote on the latter.

This enables the House to enact the Senate bill while appearing only to approve changes to it. The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).

This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School’s Jack Balkin asserting that a “rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House’s powers under Article I, Section 5, Clause 2.”

But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

Whether the courts would entertain such a challenge is a harder question. The “enrolled bill doctrine,” announced by the Supreme Court in Marshall Field v. Clark (1892), holds that the courts will not question whether a bill certified as having passed both houses of Congress was properly enacted. More recently, in United States v. Munoz-Flores (1990), in a footnote, the Supreme Court stated that Field concerned only the “evidence” the courts would consider in such a challenge and that when “a constitutional provision is implicated,” the enrolled bill doctrine would not apply. These holdings are not easy to reconcile. The D.C. Circuit, in a 1995 case, essentially said that it did not understand the Munoz-Flores footnote and thus would not follow it.

The Supreme Court might well hold that Field governs only questions of historical fact, while Munoz-Flores governs questions of constitutional interpretation. In Field, the question was what text passed the two houses of Congress; there was no doubt that only what the two houses passed could be treated as law. Here, by contrast, there will be no dispute about what occurred in the House; the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, “The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . .”

One thing is sure: To proceed in this way creates an unnecessary risk that the legislation will be invalidated for violation of Article I, Section 7. Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Mr. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center.


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Crimes and sins

The pope should say plainly and loudly that sexual abuse of children is not just sinful. It is criminal

IT COULD hardly get worse. Sex scandals are breaking over the Catholic church with such fury that the Vatican has felt bound to defend Pope Benedict XVI himself. Children at some Catholic schools in Germany have been systematically abused; paedophiles were transferred to other jobs, rather than dismissed or prosecuted. Abuse has surfaced in Austria and the Netherlands. In Ireland Cardinal Sean Brady, the primate, has admitted that he was present in 1975 when two teenage boys were persuaded to sign oaths of silence about their abuse by Father Brendan Smyth. The church defrocked Smyth, but nobody, including Cardinal Brady, told the police about his crimes and he remained free to abuse boys for two decades.

Yet denial still reigns. Bishop Christopher Jones, head of the Irish episcopate’s committee on family affairs, has complained that the church is being singled out, when most abuse happens inside families and other organisations. “Why this huge isolation of the church and this huge focus on cover-up in the church when it has been going on for centuries?” he asked.

He is right that other secretive outfits (orphanages in authoritarian countries, say) are home to shameful abuse, but that misses the point. No church can expect to be judged merely against the most depraved parts of the secular world. If you preach absolute moral values, you will be held to absolute moral standards. Hence, for Catholics and outsiders alike, the church hierarchy’s inability to deal with the issue is baffling. The church now has exemplary child-protection rules—so strict, in fact, that they sometimes stifle healthily affectionate behaviour. It is the scandals from the past that are so toxic.

Applying modern standards to conduct long ago is tricky. The hierarchy in the past often saw paedophilia not as a crime with victims but as a sin that endangered the perpetrator’s soul: along the lines of alcoholism, or pilfering church funds. A priest who “erred” deserved a rebuke, pastoral attention (perhaps) and a fresh start. The dreadful damage done to the victims of the abuse was not appreciated, or was ignored.

A second delusion—still lingering in some church circles—was the conflation of paedophilia and homosexuality. A sexual relationship between a priest and a teenage boy was regarded as wrong, just as a liaison between two priests would be. But it did not count as a revolting abuse of trust.

Some add celibacy to the charge list. Those cut off from family life may not appreciate the horror parents feel about abuse. In a sex-obsessed age abstinence sounds unnatural and thus a cause of sexual deviancy. Yet a moment’s reflection shows how unfair that is. The childless care about children too. Parents are some of the worst child-abusers. And nobody has shown a statistical link between celibacy and paedophilia.

As in so many scandals, the cover-up compounds the original sin. The guilty secrets of the past must be flushed out. And bishops must admit their part in them. It is odd that an institution founded on honesty and penitence should struggle so. Today’s Catholic leaders might also recall that clerical abuses of power, defended by legalistic quibbling, greatly angered an itinerant preacher in Palestine two millennia ago.


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Merkel Calls Church Abuse ‘Abhorrent’

German Chancellor Angela Merkel on Wednesday called the sexual abuse of children “abhorrent.”

After weeks of keeping silent on the issue, Chancellor Angela Merkel on Wednesday spoke out on the mounting allegations of sexual abuse within the German Catholic Church. Also on Wednesday, a Church representative admitted that some cases of abuse had been suppressed.

The complaints keep coming. By the end of last week, some 200 people claiming to be victims in Germany had approached a Berlin attorney engaged by the Jesuits to look into cases of sexual abuse by members of the Catholic clergy. A further 150 went public with stories of mistreatment at the monastery school in Ettal. And 15 former choirboys came forward with grievances relating to their time as members of the famous Regensburg choir called the Domspatzen.

On Wednesday, German Chancellor Angela Merkel commented on the abuse scandal for the first time. Speaking to the German parliament, the Bundestag, during a debate on the country’s 2010 budget, Merkel said that “sexual abuse of children … is an abhorrent crime.” She went on to say that “there is only one possibility for our society to come to grips with these cases: truth and clarity about all that has happened.”

Prior to Wednesday’s comments, Merkel had been criticized for not having spoken up about the cases, which have been generating headlines in Germany ever since the first revelations, about abuse at a Jesuit school in Berlin, were revealed at the end of January. Since then, former students of predominantly Catholic boarding schools — but also from Protestant and non-denominational institutions — have come forward complaining of having been victims of sexual and physical abuse.

Many of the cases stem from decades ago, meaning that the statute of limitations precludes the prosecution of those responsible. There have been calls to revisit Germany’s statute of limitations laws, an appeal that Merkel supported on Wednesday. “We have to talk about the statute of limitations, restitution can also be discussed,” Merkel said.

Church Cover Up

The chancellor’s comments came on the same day that Bishop Stephan Ackermann, appointed by the Catholic Church to look into the abuse allegations, admitted that the Church had known about some of the abuse cases, but had covered them up.

“According to what we now know, there were instances of suppression. That is something that we have to painfully acknowledge,” Ackermann told the Rhein Zeitung in an interview published on Wednesday. “I have learned in recent days that we were too focused on protecting the perpetrators…. We showed improper deference to the reputation of the Church….”

Germany’s Justice Ministry is establishing a round table to look into the abuse cases, a move that Merkel threw her support behind on Wednesday.

Pope Benedict XVI has so far remained silent on the string of abuse allegations in Germany. He met last Friday with the Chairman of the German Bishops’ Conference, Robert Zollitsch and Catholic leaders in Germany expect the pope to comment this week. The pope’s brother, Georg Ratzinger, has been implicated by some former choirboys from the Domspatzen, who have accused the pope’s older brother of having thrown chairs at the children in fits of rage. Once, former chorister Thomas Mayer told SPIEGEL, he became so angry “that even his false teeth fell out.”

Did the Pope Know?

There has been speculation that the pope himself may have known about cases of sexual abuse during his tenure as archbishop of Munich from 1977 to 1982. A priest named Peter H. was transferred to Munich from Essen after having forced an 11-year-old boy to perform oral sex. In 1980, as a member of the Diocese Council, Joseph Ratzinger was involved in a decision to grant Peter H. accommodation in a parsonage.

Shortly thereafter, the man was again involved in pastoral duties, with no restrictions whatsoever. In 1986, a court in Ebersberg gave H. an 18-month suspended prison sentence because he had once again sexually abused a minor, this time in the Bavarian town of Grafing. It has been alleged that the pope knew nothing about the case.


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Assets on the other side

Mexico’s drugs gangs are getting ever more clever

Smells funny

ONE case that sticks out, says Jay Abbott, is that of Margarita Crispin. Mr Abbott is the assistant special agent in charge of the FBI’s El Paso bureau, and Ms Crispin was a customs agent working at the busy port of entry between El Paso, Texas, and Ciudad Juárez, in Mexico. The FBI had been tipped off in 2004 that Ms Crispin was crooked, so they started to watch her. Once, in 2006, a van ran out of petrol in her lane, and the driver ran away. It turned out that there was almost 6,000 pounds (2.7 tonnes) of marijuana inside. The next year the FBI had enough evidence for an indictment. The strange thing, says Mr Abbott, was that Ms Crispin had no interest whatsoever in a plea bargain. He reckons the Mexican drug-traffickers had made it clear to her that giving evidence against them would not be a wise move.

Was the Crispin case an aberration, or a sign of things to come? Most of America’s foreign-grown marijuana comes from Mexico, and most of the cartels’ profits come from the American market. In a speech last March the Mexican president, Felipe Calderón, argued that here was evidence of vexing hypocrisy: “How can you account for such a large drug market in the US, the biggest in the world, without corruption of American authorities? I’d like to know which high-ranking officials, like the ones I’ve put in jail, have even been investigated there.”

The most recent statistics from the Drug Enforcement Administration show that seizures of marijuana have soared in recent years, from some 357 tonnes in 2007 to 661 in 2008. This presumably reflects improved border security, particularly along the more isolated stretches of the border. And it suggests why a corrupt American agent is an increasingly valuable asset. As it becomes harder to smuggle through the desert, the legitimate ports of entry become a more attractive avenue.

Corruption does not have to be widespread to matter. Individual officers have enormous discretion at the ports of entry. They make the call about whether a truck should be waved through the lane or diverted for secondary inspection, often in a matter of seconds and based on nothing more than a quick look and their practised intuition.

Corruption is often blamed on plata o plomo—meaning silver or lead, bribes or threats. This seems to have applied in the Crispin case. But for the most part, American agents are less vulnerable to physical threats. The drug gangs are anxious to avoid creating spillover violence, which would invite more attention from the American side. Some experts say that the American formulation is more like plata o sexo, or both. Scott Stewart of STRATFOR, a global intelligence company, recalls a case in which an agent was taking bribes from the drugs people to buy gifts for his girlfriend, who was herself a honey trap.

Few investigators will venture an estimate about the prevalence of corruption in the various law-enforcement agencies, though most agree that it is increasing. For one thing, the agencies keep their own lists of investigations, which do not completely dovetail. And the lists include some investigations of misconduct other than corruption. A good chunk of the increase may be attributed to the sharp rise in law-enforcement numbers on the border. The Border Patrol, for example, has grown from 9,000 agents in 2001 to nearly 20,000.

All that said, customs spokesmen admit that the rise is worrying. Many of the agents are new, and the cartels are eyeing them up. The drug-traffickers used to focus on agents who were already in uniform, particularly those with financial difficulties. Now they are becoming more ambitious, and recruiting future agents before they even apply for the job.


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Pope Remains Silent as Abuse Allegations Hit Close to Home

Pope Benedict XVI attending a concert by the Regensburg Domspatzen with his brother Georg Ratzinger at the Vatican. Ratzinger claims never to have known about sexual abuse that took place at the choir school just prior to the time when he took over the school’s leadership.

Allegations of sexual abuse in the German Catholic Church continue to surface. Questions have been raised about what Pope Benedict XVI may have known about specific incidents of abuse and his brother, Georg Ratzinger, is also under fire. The pope, however, has so far remained silent.

Georg Ratzinger came clean about his transgressions. Indeed, it seemed to be the end of the matter — one which placed him squarely in the center of Germany’s ever expanding Church abuse scandal.

“In the beginning, I slapped (the boys) in the face on a number of occasions,” said Ratzinger, who, for decades, was the director of the Regensburger Domspatzen, one of the most renowned boys’ choirs in Germany. But he stopped the practice back in 1980, he says, because the state had banned corporal punishment. He says that he “strictly” observed the new law.

Former choirboys tell a different story. They still shudder when they recall the reverend’s severity — and his tendency toward violence, even in later years.

“Ratzinger was extremely choleric and quick-tempered during choir practice,” says Thomas Mayer, who was a student at the choir boarding school from 1988 to 1992. “On a number of occasions, I saw him get so angry that he threw a chair into our group of singers.” Once Ratzinger flew into such a rage during choir practice “that even his false teeth fell out,” says Mayer.

Ratzinger, 86, now lives in a monastery and has declined to comment further. Clarification of the matter has now been left to his younger brother: Pope Benedict XVI.

Last Friday, Benedict XVI met in the Vatican with the Chairman of the German Bishops’ Conference, Robert Zollitsch, to talk about violence and sexual abuse carried out by Catholic priests in his native Germany. Just like his older brother, the pope would like the world to believe that the Church has changed its ways. Benedict XVI and Zollitsch vowed to shed light on cases of abuse and assist the victims.

How Sincere?

But shortly after Zollitsch left for Germany, the pope found himself haunted by his own past as the Archbishop of Munich and Freising. His former archdiocese admitted to the center-left German daily Süddeutsche Zeitung that a pedophile priest had been reinstated to a Catholic parish in Munich during Ratzinger’s tenure.

What does the pope know from personal experience about the abuse problem? And how sincere is his promise to finally clear up the allegations of abuse?

Hardly anyone in the inner circle of the Vatican is better informed on Catholic sex scandals than His Holiness the Pope. Joseph Ratzinger was head of the Congregation for the Doctrine of the Faith, formally known as the Inquisition. Reported cases of abuse automatically landed on his desk. Since 2001, as the Church’s most powerful cardinal, and subsequently as the pope, Ratzinger has spearheaded the Vatican’s ongoing efforts to shed light on this troublesome issue.

Nevertheless, sexual abuse in the Catholic Church has continued to regularly generate headlines. First, there were the waves of scandals in the US and Ireland. Now, hardly a day goes by in Germany without a new story on further allegations of abuse.

By the end of last week, some 200 presumed victims had contacted Ursula Raue, a Berlin attorney engaged by the Jesuits to handle abuse cases — and complaints are pouring in from all areas of the Church. Some 150 people have come forward with stories of abuse at the monastery school in Ettal, and roughly 15 former choirboys have grievances relating to the Regensburger Domspatzen.

Complex Nature of the Problem

On top of this, there have been reports from other areas of society. Cases have surfaced virtually everywhere: in the Protestant Church, in secular boarding schools like Odenwaldschule and in children’s homes in the former East Germany. The numbers are still a far cry from those linked to the Catholic Church, but they do reveal the complex nature of the problem.

It is a scandal the likes of which German society has not seen for years, and it will likely be months before it fades. Nonetheless, it is being inadequately addressed — often to a shocking degree.

This is true of the Catholic Church, which continues to damage itself as it hesitates between calls to clear up cases of abuse and the urge to hush things up. But it is also true of the state, as members of the government either let things take their course or drone on about the latest toothless initiative.

Should there be roundtable talks reserved only for members of the Catholic Church, or should they be open to a wide range of social groups? This question alone kept German ministers Kristina Schröder (family affairs), Annette Schavan (education and research) and Sabine Leutheusser-Schnarrenberger (justice) squabbling for days — while Chancellor Angela Merkel stayed clear of the fray. A “broad and intensive debate” is required as a preliminary step, said Merkel’s spokesman.

At the same time, the German school system has been severely shaken. Former students at the secular Odenwaldschule in Hesse describe systematic abuse that continued until at least the 1990s. Eight former teachers, one of whom taught there until 2003, are the subject of serious allegations made by nearly three dozen former students.

Laid Him on the Bed

One former student says that he was only allowed to call his parents twice a week — and to do this, he had to use the phone in Gerold Becker’s bedroom. Becker was the school principal from 1971 to 1985. When the student was sad about the end of his telephone call, he says that Becker laid him on the bed, undressed him, touched the boy’s crotch, and then masturbated.

Another former student told of his fear of being the last one in the shower room with Becker after gym class. Yet another said that he was forced to engage in oral sex. “There was no way of avoiding them,” says Gerhard Roese, 48, who now lives in the German city of Darmstadt. He says that he was repeatedly forced to stimulate his music teacher’s genitalia with his hand. Distraught over the incidents, the boy confided in the school principal, but he only “smirked, hemmed and hawed, and said something about the Greeks,” says Roese.

Becker refuses to comment on the allegations. But questions have also been aimed at Hartmut von Hentig, 84, the doyen of Germany’s progressive education movement — and Becker’s long-time companion. Von Hentig has been pursued by journalists for days, he says. SPIEGEL was only able to submit questions to him in written form — and he faxed back his answers.

In his response, von Hentig warned against false allegations and underscored that so far, “statements have only been collected, they have not yet been verified.” He himself visited the boarding school on a number of occasions. Did he not find cause for suspicion?

“No,” he replied. When he stayed overnight at Odenwaldschule, he “usually” slept in the official guest room. “The only time I actually saw Gerold Becker interact with the boys and girls at the school was when we all took our meals together in the dining hall or when we walked across the school grounds, and they jumped up to him and he fended them off in a friendly manner: ‘You can see that I have a guest.'”

Did the Pope Really Not Know?

Von Hentig doesn’t blame himself for not having noticed anything. “I of course observed constantly and very carefully: filled with envy of this man who managed to relate so well to children, to explain things to them, to divert their attention or patiently coax them in order to keep them from getting into some kind of mischief. Filled with envy of ‘his’ wonderful school.”

Why do those in positions of authority, including supervisors and witnesses, tend to have such difficulty getting to the bottom of these allegations, as is the case with von Hentig? Why are the state and the Church so helpless when it comes to the abuse of minors?

The Irish have demonstrated that it is possible to break through the wall of silence. For years, Yvonne Murphy, a judge acting at the behest of the government, headed an independent commission investigating how the Irish Roman Catholic Church handled complaints of clerical child sexual abuse.

Her report, released last November, concluded that “the vast majority (of priests) simply chose to turn a blind eye” to abuse.

‘No Concern for the Abused Child’

The commission also found that the Church failed to act internally and ignored its own rules relating to priests suspected of abusing children. “For many years offenders were neither persecuted nor made accountable within the Church,” the report says, citing an “obsessive concern with secrecy” and concluding that “there was little or no concern for the welfare of the abused child.”

In Germany, federal and state governments would still rather leave it up to the bishops to clear up the allegations, despite the fact that these patriarchs of the Church have not indicated that they are genuinely capable of tackling the issue. Many Catholic leaders see incidents of abuse as unfortunate isolated episodes — and not as a systemic problem.

Such an attitude disregards the fact that this has been a problem for the clergy right from the start — and throughout 2,000 years of church history. “But if anyone causes one of these little ones who believe in me to sin, it would be better for him to have a large millstone hung around his neck and to be drowned in the depths of the sea,” it is written in the Gospel of Matthew. In his Epistles to the Corinthians, even Paul inveighed against “boy prostitutes” and “pederasts.”

Throughout the centuries, popes have threatened priests with punishment should they sexually abuse children. Such members of the clergy “shall be released from the priesthood or locked away to do penance in monasteries,” wrote Pope Alexander III (1159 to 1181). They should be “punished according to Church or state laws,” threatened Pope Leo X (1513 to 1521).

Despite these condemnations, Germany’s bishops today still tend to turn a blind eye to “pederasts” in the clergy.

A Number of Hurdles

To the German Catholic Church’s credit, however, Archbishop Zollitsch recently appointed the Bishop of Trier, Stephan Ackermann, to look into abuse cases. Ackermann promptly received a flood of phone calls, letters and e-mails from alleged victims. Still, he faces hurdles before he can begin his work. The German Bishops’ Conference first has to decide where his office will be — in Trier or Bonn? How many staff members is he allowed to have? What kind of equipment? How large will his budget be?

Fundamentalist bishops like Gerhard Ludwig Müller from Regensburg would rather adopt a more confrontational approach. Müller accuses SPIEGEL of “abusing the freedom of the press” in its reports on the Church, and he says that the magazine “is guilty of violating the human dignity of all Catholic priests and members of the order.” He compares today’s “anti-Catholic media campaigns against celibacy and Catholic sexual morals” to the “infamous speech by the master of sedition held in Berlin’s Deutschlandhalle in 1937” — a reference to Nazi Propaganda Minister Joseph Goebbels’ attack on the Church. For Müller, in other words, critical reporting on the issue is far worse than the beating, rape and humiliation of children.

Meanwhile, new reports of horrendous abuse continue to pour in from his diocese — primarily from the Regensburger Domspatzen.

From 1953 to 1992, Monsignor Hans Meier ruled with an iron fist over generations of choirboys who were under his tutelage in the Etterzhausen boarding school, a preparatory school for younger pupils from which the choir draws its recruits.

Religious services were held three times a day. Afterwards, in rows of two, the young boys would march from the church to the dining hall. When mail was distributed, the boys were forced to stand lined up in rank and file, and they often received severe beatings.

‘Nothing that Merited My Attention’

Christian Wilbrand began attending the school at the age of nine in 1966. He recalls:

The idea was to shatter the personalities of us children. Brutality and our own fear were pervasive. Tortures included beatings with willow branches on the fingertips or the backside, punches to the head, pulling pupils up by their hair and hitting them with books. It didn’t take long to beat the childhood right out of us; I often felt like I was on the verge of dying. Once my homeroom teacher hurled me with such force against the blackboard that I lost consciousness. Etterzhausen was a planet of horrors.

Is it conceivable that Georg Ratzinger knew nothing about this? As director of the cathedral choir, he took in the children from the fifth grade up, who then lived in his boarding school in Regensburg. He says: “When we were on concert tours, pupils would tell me about what life had been like for them at Etterzhausen. But their stories didn’t strike me as anything that merited my official attention.”

In 1971, when Ratzinger had already been the choir director for seven years, a local priest was sentenced to 11 months in prison for sexual abuse. The man in question was both the institution’s music prefect and the head of the boarding school. Georg Ratzinger had an apartment in the building that housed the Domspatzen, and his brother Joseph often visited him there. Did they never hear anything about this case?

Former choirboy Mayer, who accompanied a large number of concert tours, says that he also witnessed widespread sexual and physical violence until he left the boarding school in 1992. He says that he himself was raped by older fellow students. Mayer also claims that anal sex took place between students on a number of occasions in a prefect’s apartment, right next to the rooms used by the senior classes. “They simply passed on the pressure of a totalitarian system,” he says.

Allegedly Knew Nothing

The Regensburg Diocese has refused to comment on any of the allegations — and Georg Ratzinger is now remaining silent as well.

And what of Benedict XVI? Publicly he has not uttered a single word about the allegations against his brother.

Indeed, he has still refrained from commenting on the cases dating back to his tenure as Archbishop of Munich. The priest Peter H. first came to the attention of the diocese in Essen after he forced an 11-year-old boy to engage in oral sex. He was sent to Munich for therapy. In 1980, as a member of the Diocese Council, Joseph Ratzinger was involved in a decision to grant Peter H. accommodations in a parsonage.

Shortly thereafter, the man was again involved in pastoral duties, with no restrictions whatsoever. In 1986, a court in Ebersberg gave H. an 18-month suspended prison sentence because he had once again sexually abused a minor, this time in the Bavarian town of Grafing.

H. was nevertheless reinstated and he held holiday services with children from the Heart of Jesus Daycare Center in Garching, and had numerous contacts with minors.

Just last Friday, he was scheduled to attend the ITB Berlin tourism trade show and take part in a panel discussion on “pilgrims’ paths, village churches and monastery vacations.” H. canceled at the last minute.

“Reassigning H. to pastoral ministry was a serious mistake. I take full responsibility,” says former Munich Vicar-General Gerhard Gruber.

The pope allegedly knew nothing about the entire case.


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Walking the dog

There are now over 3,000 different motoring offences that a motorist can commit under English law. Someone in that rule-making department needs to get out more. One of the rules is Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986. It makes it an offence for anyone to drive in circumstances that mean they “cannot have proper control of the vehicle.” Paul Railton and his pet dog have just given a new dimension to that rule. Railton was recently convicted of driving a vehicle while “walking his dog” by holding on to its leash through the car window as it padded briskly along the road.

When the police caught Railton he was driving in a 4×4 Nissan along a road in County Durham, approaching a blind summit, with his pet lurcher on the end of lead that went through the driver’s open window. After the case, at Consett magistrates’ court, he said “a lot of people exercise their dog like that”. If that is the attitude of dog owners, perhaps the dogs taken on ‘car walks’ should get equally lazy and opt to be pulled along on skate boards. Railton was convicted, fined £66, ordered to pay £43 costs, and banned from driving for six months as he already had nine penalty points on his licence.

The offence of driving while unable to have proper control of the vehicle has attracted some other unusual prosecutions. In 2005, Sarah McCaffery, a nursery nurse from Northumberland, was convicted of the offence, and fined £60 after she drove slowly round a bend with both hands on the wheel but with an apple in one hand. During ten court hearings held over 13 months, prosecutors used photographic evidence from a spotter plane, film from a police helicopter and video from a patrol car. It cost over £10,000 to secure the apple conviction.

The judicial duty to dispense justice punctually is an important one but there are limits. In 1996, a judge was given a written caution for not being in proper control of his vehicle while he was driving with urgency to hear a case at Newcastle Crown Court. A police officer had pulled him over when he saw the judge driving while using an electric razor to shave. More reckless, however, was the conduct of Lady Teresa Manners, daughter of the Duke of Rutland. In 1983 she was convicted of driving while not being in proper control of her car after she was caught racing down the fast lane of the M6 while having only one hand on the wheel because she was energetically and amorously involved in a “passionate embrace” with a man in her passenger seat.

Gary Slapper is Professor of Law at The Open University.


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Who are the war criminals?

From 1971: Our report on the military court proceedings that followed the My Lai massacre

Unlike most tribunals, a military court does not explain its judgments. The long full trial proceedings in the case of Lieutenant William Calley left no room for doubt that he did in fact kill many unresisting Vietnamese villagers at My Lai 4, or Son My, or whatever the place is rightly called, when he was an infantry platoon commander three years ago. The number of victims could be, and was, disputed. The charge sheet had at least 102 men, women and children; the jury amended the figure to not less than 22. Mr Calley’s defence never denied the killing, but maintained that it had been done under orders and in the belief that it was what his military duty required of him.

Either the jury made a conclusion of fact, that Mr Calley did not receive the orders he claimed, or it made a conclusion of law, that the orders were wrongful and should have been disobeyed. However, it did not have to say which of the two paths it took to arrive at the verdict, guilty of pre-meditated murder, pronounced on Monday, and at the sentence, life imprisonment. At some point, perhaps, the series of appeals which are promised by Mr Calley’s defence lawyer will escape from the reticence of the military process into the relative light of the civilian courts. Certainly the rising legal and academic clamour about the rules of war as they have been applied in Vietnam will not leave the case alone.

There was a time when eminent lawyers like the late Thurman Arnold defended President Johnson’s intervention in Vietnam as “the enforcement of the principle that Nuremberg announced to the world.” That principle was the criminality of aggressive war. But the Nuremberg and Tokyo tribunals of a quarter of a century ago also stated other principles—for instance, that responsibility for the manner in which war was conducted rested most heavily upon the commanders at the top. As the American prosecutor said in United States versus Von Leeb, “mitigation should be reserved for those upon whom superior orders are pressed down.” General Yamashita was hanged, after due process, for his failure to prevent the cruelties committed by his far-flung army. The Nuremberg prosecutor, General (now Professor) Telford Taylor, brooded on these memories in a recent scholarly book, “Nuremberg and Vietnam.” He concluded that the series of courts martial arising out of the Son My or My Lai massacre “cannot be fairly determined without full inquiry into the higher responsibilities” and that the moral health of the American Army

will not be recovered until its leaders are willing to scrutinise their behaviour by the same standards that their revered predecessors applied to Yamashita 25 years ago.

It was the late General MacArthur who confirmed the death sentence on Yamashita. The scale of the uproar that has built up around these and related questions is illustrated by the bibliography of 33 book titles published last weekend by the New York Times Book Review, together with a vast review by a former war correspondent in Vietnam, Mr Neil Sheehan, demanding a general congressional inquiry into war crimes.

This does not stop Mr Calley getting a lot of sympathy in his misfortune. The inevitable stream of telegrams protesting against the verdict is pouring into the White House, the Defence Department and Congress. Two themes mark the protests: one that a dim junior officer is being made to bear guilt that belongs much higher up; the other, that what he did was in the nature of war and that the soldier’s life is made impossible if his actions in the stress of battle are to be picked over and dissected afterwards by lawyers and officials.

In some ways the wave of sympathy distorts the facts. Since nearly six years and millions of words of news reporting have failed to disclose any other massacre by American troops on anything like the scale of Son My, the probability that Son My was in fact an extraordinary occurrence looks overwhelming. Whether Mr Calley understood that anything extraordinary had been done or not, the behaviour of many of the other people concerned—those who refused to join in, those who hushed it up and those who eventually talked—suggests that they knew it.

But Son My was also out of the ordinary in another way, as Professor Taylor says,

in the candour with which the operation was carried on, with army photographers on the scene and commanders in helicopters circling overhead.

Considering all this, the performance of the Department of the Army in finding out what happened and deciding what judicial steps to take was unbelievably sluggish. A first investigation in 1968 was defeated by the bland denials of the brigade and divisional authorities. After the story had all come out in the press a senior general investigated the reason for the collapse of the first investigation.

He did his job thoroughly and as a result 14 officers were accused of various degrees of lying, concealment and failure to follow staff regulations. But the charges have been dropped or dismissed against all but one, the brigade commander. General Westmoreland, the Army’s Chief of Staff, has recommended that the divisional general at the time be demoted to brigadier-general and that his assistant commander should be demoted from brigadier-general to colonel. The demotions, if they go through, are punishments. As the New York Times commented this week, “if the two officers are innocent, obviously they should not be punished.” Nobody has tried to explain how, if their part in the concealment of the massacre deserves to be punished at all, it can be adequately punished by demotion to brigadier-general and colonel.

One thing that is totally impossible is that Mr Calley alone is guilty. But, leaving aside the brigade commander who is charged with failing to tell what happened, only two men besides Mr Calley are at present faced with charges of having had a part in the massacre. Mr Calley’s company commander, Captain Medina, who denied having given him orders to kill off the population, is charged with murder. Another officer of the task force, Captain Kotouc, is charged with maiming and assault. A warrant officer and a sergeant were accused of murder and acquitted. Charges against six other soldiers in Captain Medina’s company have been dropped. Others had left the service by the time the fact of the massacre became public and the legal problem of bringing any of them to justice has not been solved.

Granted that Son My was not a usual event, it would still seem that the war has calloused a lot of consciences. The trial proceedings themselves, with their emphasis on the preponderance of women, children and infirm old men among the victims, gave evidence of how standards have slipped; nor is there anything in the accepted rules of war to justify the unnecessary killing of unarmed, unresisting men, however able-bodied. But the Vietcong do not exactly observe the provision of the Geneva Convention which says that a combatant must wear “a fixed distinctive sign recognisable at a distance.” Thus it has become commonplace in Vietnam for people to be treated as enemies even if they are not carrying arms and are not dressed, and are not seen to behave, like soldiers. Even women and children can, and sometimes do, plant booby-traps.

In the words of an American Air Force major, “in the mountains, just about anything that moves is considered to be Vietcong.” Son My is not in the mountains but it is in an old communist area and Lieutenant Calley’s platoon, men of limited intellectual equipment in a state of nervous tension, entered it believing that every living thing was hostile. This does not justify what they did. They were, however, familiar with the practice by which villages and hamlets are routinely threatened with destruction with bombs or gunfire, as a penalty for having harboured the Vietcong, and with the doctrine of free fire or free strike zones, which orders the removal of the rural population from an area so that any persons remaining in it may, if sighted, be killed. Success in operations of this kind tends to be measured by the “body count,” a standard of military effectiveness which would be laughable if it were not sad.

Last year the trial of Lieutenant Duffy brought out the importance of the body count. Mr Duffy, it is not disputed, had a prisoner tied securely to a stake and when morning came had one of his sergeants shoot the man dead. At his trial Mr Duffy explained that his superiors expected, indeed insisted upon, a good body count and soldiers who turned in live prisoners were apt to encounter official disapproval. The curious thing about Mr Duffy’s trial was that the military court revised its first verdict of murder, between judgment and sentencing, substituted a new verdict, of “involuntary manslaughter” and gave him only six months. Whatever else could be said of Mr Duffy’s action, there was manifestly nothing involuntary about it. Court martial watchers concluded, therefore, that the court felt there was something in his contention that he thought he was only conforming to established policy and that it found in this a mitigating circumstance.

Aberrations like this in the observance of the rules of war may be liable to creep in as a result of some tactical brainwave or quirk of military bureaucracy but, once they are examined and brought to light, it is impossible for the American Army and the American Administration to do anything but disavow them and try to put them down. That the Vietcong and the North Vietnamese do worse things, and on a bigger scale, may be true but, as an argument, it is no help at all. Thus, while President Nixon exposed himself to censure for an indiscretion when he condemned the “massacre” at Son My at a time when judicial proceedings were pending, he could never have contemplated doing other than condemn it.

Similarly the Army as an institution cannot defend or explain or condone: if a side-effect of the callousing process that is inflicted upon American servicemen in Vietnam comes to its attention, it has to express its condemnation in the obvious way, by prosecuting the transgressors. In pressing for criminal convictions against Mr Duffy and Mr Calley, the army authorities were seeking to rebut the charge that inhuman actions are a consequence inherent in their strategic or tactical doctrines or in the use of military force itself as a political instrument. This they have to do in defence of not only the propriety of their policies, but also the legitimacy of the Army itself.


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Justices Will Prevail

IN his State of the Union address, when President Obama criticized the Supreme Court, Justice Samuel Alito shook his head, scowled and mouthed a two-word dissent: “Not true.” Chief Justice John Roberts, meanwhile, smiled serenely, apparently untroubled by the president’s attack.

Now we know what Chief Justice Roberts really thinks.

Last week, he fired back, describing the scene as “very troubling.” The chief justice painted a harrowing picture of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless.”

The White House, for its part, seems eager to resume hostilities. Robert Gibbs, the press secretary, retorted that what was really “troubling” was Citizens United v. Federal Election Commission, the 5-to-4 ruling that President Obama criticized in his speech. Mr. Gibbs and his colleagues may feel emboldened by a recent poll showing that 80 percent of the public opposes that decision, which swept away restrictions on spending by corporations in political campaigns. Following the White House’s lead, Democratic strategists are portraying conservative justices as beholden to business interests. It has become the opening salvo in the battle over the next Supreme Court nomination — even before a vacancy occurs.

This sort of presidential push-and-shove with the judiciary is unlike any since the 1930s, when Franklin Roosevelt waged a very public battle with the court’s conservative majority over the fate of the New Deal — a fight that culminated in Roosevelt’s plan to enlarge and pack the court. The White House tends to welcome comparisons between Presidents Obama and Roosevelt. But in this case, it is an analogy to avoid. Roosevelt’s court fight makes clear just how much Mr. Obama stands to lose in any such protracted struggle.

Beginning in 1935, in one decision after another, the conservative justices on the Supreme Court struck down New Deal programs, rejecting the underlying notion that governmental power should be used to remedy society’s ills. Roosevelt, in response, accused the court of dragging America back to the “horse and buggy” era and creating a “no man’s land where no government — state or federal — can function.”

In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.

Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.

The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk. Arguments with the Supreme Court are, as one magazine put it in 1936, “packed with the most deadly dynamite,” for at least three reasons.

First, the Supreme Court is highly resilient. While Americans are often unhappy with it — and can be quick to complain that its members are politically or ideologically driven — the institution is consistently held in higher regard than either of the “political” branches of government. The judicial robe confers a kind of exaltation on nearly everyone who wears it. Judicial sanctity may be a myth, but it is a powerful one; it reinforces our hope that this really is a government of laws, not merely of fallible human beings.

Second, justices are not easily intimidated. Granted life tenure by the Constitution, they are untouchable except by impeachment. In the 1950s and ’60s, as the Supreme Court greatly expanded civil rights and strengthened civil liberties, billboards appeared across the South that said, “Impeach Earl Warren.” But the chief justice and his brethren were unbowed. They knew that only one justice had ever been impeached — Samuel Chase, in 1804 — and he returned to the bench after the Senate acquitted him.

Of course, the Supreme Court does not operate in a vacuum. Justices are human, and are open to influence by public events and political pressure. Roosevelt was convinced that in his fight with the Supreme Court he “lost the battle but won the war,” because one justice finally yielded, swinging the court with him. Similarly, intense criticism of Bush v. Gore, the decision that awarded the 2000 Florida vote to George W. Bush, seems to have had a moderating effect on two members of that majority, Sandra Day O’Connor and Anthony Kennedy, at least for a time.

If the Roberts court, like the court led by Charles Evans Hughes in the 1930s, continues to defy popular opinion as flagrantly as it did in Citizens United, Americans might well turn against it. There is a very real chance that the court, as now composed, would strike down key elements of the Obama agenda — health care mandates, for example, or financial reform, or new environmental regulations — if they find their way onto the docket in the coming years. In that event, progressives might well erupt in protest; Congress might be tempted to curb the court.

Even so, it would not behoove President Obama to lead the charge. Roosevelt’s experience suggests that to personalize the conflict is to allow it to define, and possibly consume, a presidency.

And the argument will not be one-sided, as Chief Justice Roberts’s comments make clear. Although justices have historically been loath to comment on political controversies, Chief Justice Roberts appears less reticent than most of his predecessors — with the exception of Chief Justice Hughes. As Congress debated Roosevelt’s court plan, Hughes swiped at it in speeches and demolished it, point by point, in an open letter to the Senate. The president is not the only one with a bully pulpit.

THE third danger for President Obama in picking a fight with the court is that it will allow his critics to portray him as unconcerned with the independence of the judiciary and eager to consolidate power in his own hands. The White House may be tempted to shrug off these concerns. But President Obama, like Roosevelt before him, is finding out just how real such fears are for some Americans — and how easily his opponents can exploit them. What Roosevelt really wanted, according to a leading Republican at the time, was a court that listened to its “master’s voice.” Many progressives and moderates, despite their allegiance to Roosevelt, came to share that suspicion.

Roosevelt might have avoided his spectacular mistake if he’d listened to his wisest advisers. As he prepared his plan to pack the court, they counseled patience, telling him that the only sure way to change the court’s direction was to change its members when vacancies occurred. Roosevelt didn’t listen — but President Obama should.

The court’s change in direction in 1937 endured because Roosevelt was ultimately able to replace nearly all the justices with his own appointees. If Justice John Paul Stevens retires at the end of this term, as many analysts expect, Mr. Obama will have the chance to make his second appointment. But even then, he will have to wait for an opportunity to shift the court’s balance of power. Patience, in the face of pressing national challenges, is hard. But change, as is now amply clear, does not come quickly.

Jeff Shesol is the author of the forthcoming “Supreme Power: Franklin Roosevelt vs. the Supreme Court.”


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The Case for Unpopular Clients

The demands to name the ‘al Qaeda seven’ weaken the country’s democratic ideals. Stephen Jones on why lawyers must take on controversial cases

In 1995, Timothy McVeigh was charged with committing the largest act of terrorism on American soil: the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. This tragic act resulted in 168 deaths, including those of 19 children under the age of 6 and eight federal law-enforcement agents. More than 500 people were seriously injured, 200 buildings had to be leveled because of structural damage, the skyline of Oklahoma City was instantly changed and the uninsured economic losses were estimated at $800 million.

Federal judges in Oklahoma City asked me to accept the appointment as Mr. McVeigh’s lead defense counsel in his federal trial. I agreed. I was a draftee, not a volunteer, but I keenly felt the ethical responsibility of lawyers to accept such appointments. To me, it was important in a period of growing domestic unrest and violence to demonstrate that Mr. McVeigh could receive a fair trial and zealous advocacy within the framework of a civilian trial under the Federal Rules of Evidence, the Federal Rules of Criminal Procedure and the United States Constitution.

For this representation, I was demonized, ostracized and exposed to physical and economic risks. The FBI investigated threats against my life, and I had no less than half a dozen serious security incidents at my home. I placed a loaded revolver in my office desk drawer and a loaded shotgun in my closet at home. Because of threats, another lawyer on the defense team was authorized to carry a concealed weapon. My family had armed guards on our property for 2½ years, motion detectors, electronic eyes, unlisted telephone numbers and emergency-response numbers. A law practice of 25 years was destroyed. It took me seven years to build it back to pre-1995 levels.

More recently, Liz Cheney, William Kristol and Keep America Safe pressed their demands to the Department of Justice for the public identification of lawyers who, while in private practice and prior to their appointments at the department, either represented Guantanamo detainees or argued for changes in the legal policy concerning detainees. Their demands escalated to demagoguery, with the lawyers branded as the “al Qaeda Seven,” as though attorneys who represent detainees are members of al Qaeda.

On one level, it is easy to see what these attacks are: partisan politics at the outer limits of generally accepted political discourse. At a more fundamental level, Ms. Cheney and others are making fearless lawyers an endangered species in this country.

There are already too many timid lawyers now, and some lawyers willing to take up controversial cases do it because of an angle to the case which furthers a political cause, whether on the right or the left.

Implicit in the opportunistic demand for the release of the lawyers’ identities is the assumption that they cannot now fairly represent the Department of Justice and their country, and that somehow they are unpatriotic allies of terrorists.

To carry that argument to its logical extension, President John Adams should not have signed the Declaration of Independence, or even become president, because he defended British Redcoats who were charged with the murder of colonists in the Boston Massacre. One of the most distinguished federal judges in the country’s history, Harold Medina, would have been disqualified from appointment because during World War II he accepted an appointment to represent Anthony Cramer, a naturalized American citizen and alleged co-conspirator with German saboteurs, on a charge of treason. Kenneth C. Royall also could not have served as secretary of war and later as the first secretary of the Army because he, too, represented alleged Nazi saboteurs charged before a military commission with espionage. U.S. Sen. Reverdy Johnson would have been expelled for defending Mary Surratt, charged as a conspirator in the assassination of President Abraham Lincoln.

Neither logic nor experience nor history demonstrates that the points being made by Ms. Cheney and her allies have any merit. They represent forensic vigilantism, a political lynch-mob mentality.

Lawyers are required by their code of ethics to accept judicial appointments to represent defendants even when the defendant is charged with mass murder, or may be a member—or even a ringleader—of a terrorist organization. Equally, lawyers have an ethical obligation to represent individuals who represent unpopular or controversial positions.

When I took on Mr. McVeigh’s case, in addition to my ethical commitments, I thought it was important that Mr. McVeigh be represented by an Oklahoma trial lawyer. As I viewed my oath of obligation as a lawyer, I had a duty to accept, and once I accepted, it was my duty to see that the legal system established by our Constitution worked, that nothing was taken from Mr. McVeigh, neither his life nor his liberty, except by due process of law. I had to say and do for him zealously, without reservation, that which he could not do or say for himself.

There were restless nights in which I had recurring dreams of either someone parking a Ryder truck outside my home and blowing it up or my being assassinated in the hallway outside my office.

My position as Mr. McVeigh’s defense counsel was a nearly impossible one, in which I could not possibly satisfy everyone. Ultimately, I decided I could satisfy only my professional conscience. I sought to accomplish this in the face of an overwhelming public condemnation, a demonization of Mr. McVeigh in which the presumption of innocence had been replaced by the assumption of guilt, and accomplish it in a community where literally thousands, if not tens of thousands, of lives had been adversely affected, indeed ruined, by the act with which he was charged.

No matter how severe the public criticism or ostracism might be, I sought to be blind to all considerations and tried to subordinate my self-interests to that which was best for Mr. McVeigh, applying the skill and professionalism expected of me. I could not do it with one arm tied behind my back.

Because we have rejected in this country a private system of vengeance for an institutionalized judicial process, courts must rely upon the experience and integrity of defense counsel. These lawyers have to be willing to accept the challenge. That necessary reliance is damaged by the short-sighted and ill-advised attacks now being made on the Justice Department lawyers.

Many lawyers in private practice represent clients, interests and points of view that are not their own personal views, or the views of later clients, including governments they may work for. Three principles protect the public interests, the lawyer and the rule of law.

Those principles are: the principle of partisanship—the adversarial system in which each side presents its best evidence to an impartial tribunal; the principle of neutrality; and the principle of nonaccountability. The principle of neutrality purports to exempt lawyers from the normal moral practice of judging someone to have acted immorally if they have knowingly and deliberately helped another to act immorally. According to the principle, a lawyer is not to be judged by the moral status of their clients. The principle of nonaccountability follows: We cannot properly assume these lawyers identify or sympathize with their clients’ goals. Lawyers must remain professionally neutral with respect to the moral merits of their clients or their clients’ objectives. The lawyers must not allow their own views to affect the diligence or zealousness with which they pursue their clients’ lawful objectives.

The criticism and shrill demagoguery of Keep America Safe would denigrate not only these principles but fundamentally undermine due process of law. These partisan attacks are misplaced, gratuitous and weaken our democratic ideals. The identities of the lawyers are sought to embarrass and demonize them personally and professionally, to try to dishonor them. It is an effort to intimidate other lawyers from honoring their professional responsibility.

The day when scare mongers can intimidate lawyers into not doing their jobs is a day in which liberty is threatened. The justice of a society is measured not by how it treats its best, but how it treats its worst.

All lawyers should stand firm and reject the unwarranted insinuation that the Department of Justice lawyers are unpatriotic allies of terrorists, or that their past cases will shade their responsibilities in their current positions. The same goes for Republicans such as myself who value the traditions of our party and who remember that the first elected Republican president himself, Abraham Lincoln, defended unpopular causes and clients, even those accused of murder.

Stephen Jones, Wall Street Journal


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Posted in Law

The ‘al Qaeda Seven’

The anti-antiterror left and legal standards.

When partisans of the left and right trade charges of “McCarthyism” and “assisting the enemy,” it’s a good bet that both sides are wrong—which means that each side also has a point. That’s the way it looks to us in the dispute over the Justice Department’s employment of lawyers who represented terrorist detainees while in private practice.

At a November oversight hearing, Senator Charles Grassley asked Attorney General Eric Holder to provide a list of such lawyers and information about possible conflicts of interest. Last month Mr. Holder replied to the Iowa Republican, assuring him that the lawyers were complying with the Department’s ethics rules. Mr. Holder wrote that nine of his employees represented detainees while in private practice, but he named only two: Deputy Solicitor General Neal Katyal, who successfully argued the 2006 Supreme Court case Hamdan v. Rumsfeld, and Jennifer Daskal, who formerly worked for Human Rights Watch.

Mr. Grassley wasn’t satisfied. Neither was Liz Cheney, daughter of the former Vice President, who now heads an organization called Keep America Safe. Ms. Cheney’s group produced an online advertisement demanding to know “Who Are the al Qaeda Seven?” and “Whose values do they share?” The names of the seven were soon provided by Fox News.

It isn’t merely the usual liberal suspects who have since objected to the Keep America Safe ad. Ted Olson, who was George W. Bush’s Solicitor General when his wife, Barbara, was killed in the 9/11 attack on the Pentagon, said that lawyers who represented Guantanamo detainees acted “consistent with the finest traditions of the legal profession.” Charles “Cully” Stimpson, who was in charge of detainee affairs at the Pentagon and once urged a boycott of law firms representing detainees, said the ad left him “disgusted.”

Mr. Stimpson is one of more than 20 lawyers, including many veterans of Republican administrations, who signed a letter that declared: “To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.”

One might add that some detainee lawyers, including Mr. Katyal, were successful in arguing their cases before the Supreme Court. We think the holding in Hamdan damaged both executive power and U.S. security, but it’s strange to suggest that a successful pleading before the High Court raises questions about a lawyer’s loyalty to America.

Yet while the tone of Ms. Cheney’s ad is unfortunate, the call for transparency is entirely reasonable. The public has a right to know the identities and records of the lawyers Mr. Holder has hired to serve it. Ms. Daskal, for example, argued that detainees who have not been charged with a crime should be set free, even though “some of these men may cross the border and join the battlefield to fight U.S. soldiers and our allies.”

She made this case in a 2008 Human Rights Watch report—which is to say that she was representing not a client but her own opinion. The Administration is entitled to employ people who hold such views, but it has no right to do so in secret.

Other Americans also have a right to criticize their views on the legal war on terror, and to hold those views up as an illustration of the kind of Justice Department that Mr. Holder is running. Given Mr. Holder’s misguided decisions to try Khalid Sheikh Mohammed in a Manhattan civilian court, and to limit interrogation of the Detroit Christmas bomber to 50 minutes, the quality of his counsel is a major concern.

Ms. Cheney’s critics on the left are also guilty of more than a little duplicity. Many of them called for the disbarment of John Yoo and Jay Bybee, and for Judge Bybee’s impeachment, because of legal advice they gave when they worked for the Justice Department. Many liberals seem to believe that while it was a war crime to agree with Dick Cheney’s antiterror methods, it is somehow a lawyer’s patriotic duty to defend terrorists. This is the mindset that these columns describe as that of the anti-antiterror left.

Some of these moralists also cheered President Obama’s political attacks on the Supreme Court over its expansive interpretation of the First Amendment in Citizens United v. Federal Election Commission—including pointed criticism when the Justices were a captive audience during the State of the Union.

We’ve come to expect such boorish behavior from the political and media left, and it should serve as an example for the right of how not to behave in opposition.

Editorial, Wall Street Journal


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In the wrong place…at the wrong time

When Tracy Kelsey bombed down the A1 in his car very drunk one evening recently, he startled many drivers. He then chose one vehicle in particular to victimise. He “undertook” it by speeding past it on the inside lane, then, when that vehicle hooted him for not having his lights on, he stuck up two fingers at the driver, swerved in front of him and braked sharply to cause a heart-jolting shock.

Other drivers on the road probably thought “where are the police when you need them?” But help was nearer than they realised. The driver whom Kelsey had cut up and told to F-off was the Chief Constable of Durham.

In a prosecution arising from this incident, Consett magistrates’ court was told that Kelsey was four times over the alcohol limit when he drove at 70mph on the road from Darlington. Chief Constable Jon Stoddart said: “I noticed a car coming up behind me very fast without any lights”. He said that when the driver passed him, “I attracted his attention by sounding my horn and he stuck two fingers up at me”. The Chief Constable said that after Kelsey cut in front of him and braked suddenly, “I put on my blues and twos [flashing lights and two-tone siren] and basically pursued him for a small while and pulled him over.”

Just when things looked like they couldn’t get worse for Kelsey he was asked to get into the Chief Constable’s car to await the traffic police. He slumped down on the seat and crushed the Chief’s expensive sunglasses – a special present from his wife.

Kelsey was convicted for drink driving, banned from driving for five years, and given a twelve-week suspended jail sentence.

The precise time and place of some crimes have produced extravagant failures for other offenders. In 2004, a shoplifter landed himself in trouble after he stole some food and drink from a motorway service station in Germany. Unknown to the thief, standing outside taking a break on their journey from southern Germany to Hamburg for a major assignment was a 100-man police unit.

Looking in through the glass wall of the building the policemen saw the 20-year-old man burst past the cashier, so when he ran out of the building holding some sandwiches and bottles he found himself encircled by a legion of armed officers three-deep.

The award, though, for best “wrong time, wrong place” crime goes to Mr J Egan from London. In 1972 he stole a barge on the River Thames. He was caught very quickly, though, because there was a dock strike on that day and the barge on which he was gleefully steaming away was the only one moving.

Gary Slapper is Professor of Law at The Open University.


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Justice and the ‘al Qaeda 7’

Lawyers shouldn’t be “demonized with impunity,” says the New York Times. So why did the Times do just that?

“Demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within,” thumps the New York Times in an editorial:

These voices–often heard on Fox News–are going after Justice Department lawyers who represented Guantánamo detainees when they were in private practice. It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.

The controversy began when Sen. Charles Grassley, an Iowa Republican, asked Attorney General Eric Holder for information about Justice Department lawyers who previously represented terrorist detainees. Holder responded that the department employed nine such attorneys, but as Newsweek notes, he named only two: Deputy Solicitor General Neal Katyal, who successfully argued the 2006 Supreme Court case Hamdan v. Rumsfeld, and Jennifer Daskal, who formerly worked for Human Rights Watch.

A group called Keep America Safe, led by Liz Cheney, daughter of the former vice president, produced what another Newsweek story described as “an unusually ferocious Web ad” demanding to know “Who are the al Qaeda Seven?” (You can view it at either Newsweek link, or here.) Soon enough, the question was answered. As the Times notes, the Justice Department confirmed the names of the remaining lawyers when Fox News committed journalism–or, as the Times puts it, when the network “figured out who they were.”

The Times likens criticism of the erstwhile detainee lawyers to McCarthyism; its editorial carries the headline “Are You or Have You Ever Been a Lawyer?” But the Keep America Safe ad has also drawn criticism, albeit of a more measured nature, from several lawyers who worked in the Bush administration or supported its antiterror policies. Newsweek reports that Ted Olson, who was Bush’s solicitor general when his wife, Barbara, was killed in the 9/11 attack on the Pentagon, “says he has the ‘greatest respect’ for lawyers who represented Gitmo clients; they were acting ‘consistent with the finest traditions of the legal profession.’ ”

Yesterday the Brookings Institution released a letter signed by what Newsweek calls “a virtual ‘who’s who’ of officials who worked on counterterrorism policies under President Bush.” They include Charles “Cully” Stimson, formerly deputy assistant secretary of defense for detainee affairs, who in 2006 urged a boycott of law firms that represented terrorists. Although Stimson describes himself as “disgusted” by the Keep America Safe ad, the Times hasn’t forgiven him, taking a swipe at him in its editorial.

To quote the letter:

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths.

The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

There are reasonable arguments on both sides of this question. Marc Thiessen, a former Bush speechwriter who is now a columnist for the Washington Post, puts the case for scrutinizing the Obama administration lawyers this way:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would–and rightly so.

Thiessen notes that Daskal “has written that any terrorist not charged with a crime ‘should be released from Guantanamo’s system of indefinite detention’ even though ‘at least some of these men may . . . join the battlefield to fight U.S. soldiers and our allies another day.’ . . . Do other lawyers in question hold similarly radical and dangerous views? Without the information Holder is withholding, we cannot know if such lawyers are affecting detainee policy.”

Each side has a point. Having represented detainees while in private practice should not disqualify a lawyer from working for the Justice Department, any more than a criminal defense lawyer should be barred from working as a prosecutor. But although we don’t care for the tone of the Keep America Safe ad, its call for transparency is entirely defensible. Surely the public has a right to know the records of the lawyers who are supposed to be its servants.

The Times argues that lawyers who “take on controversial cases” should not be “demonized with impunity.” No one can reasonably disagree. But the Times is guilty of rank hypocrisy, for it has a record of engaging in just such demonization. In an editorial last May, the paper endorsed a politically motivated witch hunt against three former Bush administration lawyers who wrote memos setting forth limits on the interrogation of terrorists–limits that, in the Times’s opinion, were insufficiently gentle:

Their acts were a grotesque abrogation of duty and breach of faith: as government officials sworn to protect the Constitution; as lawyers bound to render competent and honest legal opinions; and as citizens who played a major role in events that disgraced this country.

Not only did the Times demonize John Yoo, Jay Bybee and Steven Bradbury; it called for their disbarment and for Bybee’s impeachment (he is now a judge on the Ninth U.S. Circuit Court of Appeals). And these lawyers were employed to defend America, not its enemies.

We reported in January on a public event where Yoo was beset by Code Pink wackos who repeatedly interrupted his talk to shout hateful slogans. Our understanding is that this is a common occurrence. That is “ugly bullying” of a much more obtrusive sort than a congressional query, a journalistic investigation or even a harsh advertisement.

James Taranto, Wall Street Journal


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Why You Shouldn’t Judge A Lawyer by His Clients

It’s wrong to criticize attorneys who represent alleged terrorists.

Over the past several years lots of boiling ink and flaming breath have been expended attacking lawyers who took legal positions or represented clients that were or became unpopular. The attorney who represented Bernard Madoff, for instance, was subjected to, among other threats and condemnations, messages expressing regret that his family had not been killed in the Holocaust.

More recently, we’ve witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.

Most recently, lawyers now employed at the Justice Department who, while in private practice, volunteered to represent suspected terrorist detainees, or argued legal positions supporting various rights of such detainees, have been portrayed as in-house counsel to al Qaeda.

This is all of a piece, and what it is a piece of is something both shoddy and dangerous. A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe. And a lawyer who undertakes to represent someone whom his neighbors—perhaps rightly—revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil’s Island for little more than being Jewish.

Political disagreements with the Bush administration fueled and still fuel much of the intensity underlying attacks on Messrs. Yoo and Bybee. Similarly, I believe the results achieved by lawyers representing Guantanamo detainees have had a good deal to do with the criticism of them.

I think the Supreme Court decided wrongly in several key cases regarding the war on terror and our national security. They include Boumediene v. Bush (2008), in which the Court found insufficient protection for Guantanamo detainees that had not yet been put to the test, and Hamdan v. Rumsfeld (2006), in which the Court applied to detainees a provision of the Geneva Conventions that was intended to apply only in civil wars on the territory of a signatory to those Conventions. While I disagree with the Court’s decision in these cases, I stop well short of blaming the outcome on lawyers who argued successfully.

I agree that lawyers who, like the head of one self-described public interest organization, threaten to achieve their desired outcomes by overwhelming the courts with thousands of lawsuits in behalf of detainees, or those who adopt publicly the agendas of their clients, deserve every bit of condemnation they get.

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility—whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client’s views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.

Mr. Mukasey was attorney general of the United States from 2007 to 2009.


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Shadowing a Swindler

Early on, he figured out what Bernard Madoff was up to.

A crusading legislator who had made a considerable reputation following up on whistleblower charges once told me that nearly all the whistleblowers she had met shared two qualities. First, they were onto something—that is, there was at least some truth to what they were saying. Second, they were “a little bit nuts.” The jacket of “No One Would Listen” identifies Harry Markopolos as “the Madoff Whistleblower.” He would seem to fit the pattern.

First, the truth part. As early as 1999, Mr. Markopolos, a derivatives analyst in Boston, suspected that Bernard Madoff’s investment business—revealed to be a multibillion-dollar Ponzi scheme in December 2008—was a fraud. Through common sense at first, but ultimately through brilliant analytical detective work, Mr. Markopolos figured out precisely what Mr. Madoff was up to—and showed why Mr. Madoff could not be earning the amazingly consistent returns that he claimed for his investors. Mr. Markopolos reported his discoveries several times to the Securities and Exchange Commission.

The response of the SEC’s enforcement staff was nothing less than appalling—a complete dereliction of duty. Mr. Markopolos made detailed submissions to the SEC in 2000, 2001 and 2005, each time showing why Mr. Madoff’s investment “system” was fraudulent. A range of SEC staffers in Boston and New York ignored the documents that Mr. Markopolos submitted or studied them only briefly, eventually letting the whole matter drop.

The crook simply outmatched the watchdog. As Mr. Markopolos observes: “The quants who create these financial products understand differential equations and nonnormal statistics; they program in languages the SEC doesn’t speak; they run statistical packages the SEC doesn’t even know exist. The quants are busy data mining with supercomputers while the SEC is still panning by hand.”

The press also did not cover itself in glory. Forbes magazine ignored a tip in 2001. Barron’s ran a skeptical story a few months later, but no one seemed to be listening, and no one followed up. From late 2005 to early 2007, a reporter for this newspaper actively engaged in a dialogue with Mr. Markopolos, who had told him that Mr. Madoff’s exposure, as a financial event, would be the equal of the collapse of General Electric. But the reporter—the highly regarded John R. Wilke, who broke many corruption stories before he died of pancreatic cancer last year—repeatedly concluded that other strong stories on which he was working offered greater potential. A New York Times reporter made a similar decision in 2007.

Mr. Markopolos writes: “In my mind, at least, I was convinced that someone high up at the Journal had decided it was too dangerous to go after Bernie Madoff.” No evidence for this charge is offered or even suggested. For the record, The Wall Street Journal’s managing editor in those years, Paul Steiger, was my boss at the Journal in the mid-1990s and is my boss again, at a nonprofit news organization. Of Mr. Markopolos’s claim, he says: “It is a fantasy.”

Now we come to the second quality that whistleblowers often show. The author of “No One Would Listen” is fond of describing himself as “slightly eccentric,” but he is not exactly self-aware. By his account, the fault for his having been ignored throughout eight years of warnings is everyone else’s. But that conclusion requires ignoring much of his story.

Mr. Markopolos’s first Madoff-charging submission to the SEC came at a time when his own firm was competing against Mr. Madoff’s. He was clearly not trying to be selfless: “If there is a reward for uncovering fraud,” he wrote to the SEC staffers, “I certainly deserve to be compensated.” Mr. Markopolos later became a full-time fraud investigator. Thus he always seemed to stand to profit from the collapse of Mr. Madoff’s business. The possibility of self-interest probably heightened the skepticism of those he sought to persuade.

Mr. Markopolos also limited his outreach. He developed an instant disrespect for staff members of the Massachusetts Securities Division, for instance, so he never said a word about Mr. Madoff in a meeting with them. Later he decided that he couldn’t warn the director of risk management at Oppenheimer Funds, who