01/16/2013 archive

Justice is not Law, Law is Not Justice

by Ian Welsh

2013 January 16

A law is deserving of respect to the extent, and only to the extent, it is just.  A law which is not just deserves only the level of obedience one gives to any group or individual who says “do this, or I’ll hurt you.”  That is, to the extent that you believe their threat is credible, you may choose to obey to avoid the adverse effects of being caught disobeying.

The recent imbroglio over Aaron Swartz has seen a lot of people using the word “proportionality”. It does not matter if someone is guilty of a crime if the punishment is disproportionate.  In England the penalty for stealing a chicken, at one point, was death or being sent to a penal colony (Australia).  Juries started refusing to convict people even in the face of incontrovertible evidence of the accused’s guilt.  The sentencing had to be changed: stealing was no(t) made legal, rather the penalty was reduced.

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Full trials, and the full protection of the law, such as it remains, now belongs only to those who are very wealthy, and sometimes not even to them.  Defending a trial can take hundreds of thousand or millions of dollars.  An ordinary person cannot afford it.  Public defenders are overworked, underfunded, and generally plead out.  This is on top of the fact that most rich criminals, such as the bankers who committed widespread fraud, are never charged with crimes, and if they are charged are allowed to settle with a token payment which immunizes them from further charges for their criminal acts, acts which demonstrably cost hundreds of thousands of people their houses, lost people their jobs, and even their lives.  Law which is enforced only against some classes of people, and not against others, is unjust.

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A social system only works if there are people willing to carry it out. The USSR collapsed when the people running it were unwilling to call out the army.  That same class of people, in the Prague Spring, did call the army out.  It collapsed because the factory workers weren’t working, the farmers weren’t farming, and so on.

The US legal system (it does not deserve to be called a justice system) works because people carry out its dictates.  The people who run the prisons put up with, or even encourage the rapes.  Private companies make money from prisoners, so need more prisons. The police make huge amounts of money by seizing the assets of “criminals” before they are even convicted.  The judges put up with the 3 strikes laws and mandated sentencing.  They allow trials to be put back and back rather than throwing them out due to lack of a speedy trial.  Everyone get onside with plea bargaining.  The rich are good with this because they either get a real trial, or they don’t get charged at all.  The middle class think that if they’re “good” they’ll be ok, till they find out otherwise, and the poor put up with it because of a boot in the face and much more.

The principles of fixing the system (never use the word reform, it means making things better for the rich and worse for everyone else) are simple enough.  No secret evidence.  No secret laws.  No secret interpretations of law. No tolerance of rape in prison.  Nobody gets plead out if the plead involves doing jail time or becoming a felon.  No criminal record checks for jobs which don’t really really need them, so that prisoners can  reintegrate into society.  End civil forfeiture.  Allow no private defense attorneys, everyone uses a public defender including the rich, and the defenders are drawn by lot (they will be very well funded very quickly, and they will be the best lawyers in the country.)   All this will make enforcing current laws impossible with the current budgets Fine. Give judges back discretion, remove three strike laws and overly harsh sentencing, repeal virtually all prohibition laws for most classes of drugs.  Stop sending people to jail for IP offenses, and create an economy which gives poor people real jobs.

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There is no justice without proportionality, no justice in a land with secret laws, no justice in a country where the rich skate and the poor plead out.  There is only law, the same law the Stasi proclaimed: do what we say or else.

Carmen Ortiz and Stephen Heymann: accountability for prosecutorial abuse

Glenn Greenwald, The Guardian

Wednesday 16 January 2013 06.40 EST

Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.

The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time”. That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.

Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie(d) the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and (a) fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.

Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz’s funeral in Chicago on Tuesday, his father flatly stated that his son “was killed by the government”.

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(A)s CNET’s Declan McCullagh detailed in a comprehensive article this morning, it is Ortiz who “has now found herself in an unusual – and uncomfortable – position: as the target of an investigation instead of the initiator of one.” And that’s exactly as it should be given that, as he documents, there is little question that her office sought to make an example out of Swartz for improper and careerist benefits. Swartz “was enhancing the careers of a group of career prosecutors and a very ambitious – politically-ambitious – U.S. attorney who loves to have her name in lights,” the Cambridge criminal lawyer Harvey Silverglate told McCullagh. Swartz’s lawyer said that Heymann “was going to receive press and he was going to be a tough guy and read his name in the newspaper.”

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Ortiz and Heymann continue to refuse to speak publicly about what they did in this case – at least officially. Yesterday, Ortiz’s husband, IBM Corp executive Thomas J. Dolan, took to Twitter and – without identifying himself as the US Attorney’s husband – defended the prosecutors’ actions in response to prominent critics, and even harshly criticized the Swartz family for assigning blame to prosecutors: “Truly incredible in their own son’s obit they blame others for his death”, Ortiz’s husband wrote. Once Dolan’s identity was discovered, he received assertive criticism and then sheepishly deleted his Twitter account.

Clearly, the politically ambitious Ortiz – who was touted just last month by the Boston Globe as a possible Democratic candidate for governor – is feeling serious heat as a result of rising fury over her office’s wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.

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The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless – or especially, as in Swartz’s case, those who challenge power – are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

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In most of what I’ve written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons – perhaps the only one – that can be effectively harnessed to galvanize movements and challenge the prevailing order. That’s why so much effort is devoted to destroying the ability to use it anonymously – the Surveillance State – and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.

The law and prosecutorial power should not be abused to crush and destroy those who commit the “crime” of engaging in activism and dissent against the acts of elites.

The United States may be withdrawing troops from Afghanistan but what is being ignored by the US traditional MSM is increases US military presence in Africa. The latest action involved the use of drone strikes  assistance to the French against Islamist groups in Northern Mali. While the focus in the news are these armed militant groups, they fail to mention that the area is rich oil and uranium. The Guardian has a a guide to the conflict.

U.S. weighs military support for France’s campaign against Mali militants

by  Anne Gearan, Karen DeYoung and Craig Whitlock, The Washington Post

The Obama administration is considering significant military backing for France’s drive against al-Qaeda-linked militants in Mali, but its support for a major ally could test U.S. legal boundaries and stretch counterterrorism resources in a murky new conflict.

The United States is already providing surveillance and other intelligence help to France and may soon offer military support such as transport or refueling planes, according to U.S. officials, who stressed that any assistance would stop short of sending American combat forces to the volatile West African nation.

At the same time, the administration is navigating a thicket of questions about military support and how far it could go in aiding the French without violating U.S. law or undermining policy objectives.

Direct military aid to Mali is forbidden under U.S. law because the weak rump government there seized power in a coup. U.S. moves are further complicated by uncertainty about which militants would be targeted in an assault.

The loosely affiliated web of Malian militants in the country’s north includes members of al-Qaeda in the Islamic Maghreb (AQIM). But other fighters are longtime foes of the Malian government and pose no direct threat to U.S. interests.

From Democracy Now!: Admin Aids French Bombing of Mali After U.S.-Trained Forces Join Rebels in Uranium-Rich Region

France is in its fifth day of an offensive to oust rebels that have held much of Mali’s northern region since March, an area larger than Afghanistan. The strikes have reportedly killed 11 civilians, including three children fleeing the bombardment of a camp near the central town of Konna. The United Nations estimates as many as 30,000 may have been displaced since fighting began last week. The United States has backed the offensive by helping transport French troops and making plans to send drones or other surveillance aircraft. It is aiding a fight against Malian forces that it once helped train, only to see them defect and join the Islamist rebellion. We discuss the latest in Mali with Al Jazeera correspondent May Ying Welsh, who has reported from Mali’s north, and with freelance journalist Hannah Armstrong, a fellow of the Institute of Current World Affairs, who joins us from the Malian capital of Bamako.

Who said Pres. Barack Obama wasn’t a war hawk?

h/t TPM for the map. Click on image ot enlarge

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Wednesday is Ladies’ Day

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Yves Smith: Surprise! When Banks Oversee Their Own Review ‘No Harm Found’

More whistleblower leaks on Foreclosure Settlement show both suppression of evidence and gross incompetence

No wonder the Fed and the OCC snubbed a request by Darryl Issa and Elijah Cummings to review the foreclosure fraud settlement before it was finalized early last week. What had leaked out while the Potemkin borrower reviews were underway showed them to be a sham, as we detailed at length in an earlier post. But even so, what actually took place was even worse than hardened cynics had imagined.

We are going to be reporting on this story in detail, since we are conducting an in-depth investigation. But this initial report by Huffington Post gives a window on a good deal of the dubious practices that took place during the foreclosure reviews. I strongly suggest you read the piece in full; there is a lot of nasty stuff on view.

There are some issues that are highlighted in the piece, others that are implication that get somewhat lost in the considerable detail. The first, as stressed by Sheila Bair and other observers, is that the reviews were never designed to succeed. This is something we and others pointed out; this was all an exercise in show. The OCC had entered into these consent orders in the first place with the aim of derailing the 50 state attorney general settlement negotiations. [..]

Laura Flanders: How About Gun Control for the Pentagon?

“There has to be a national conversation” about gun control, says Nancy Pelosi. The killing of school children and teachers in Newtown, Connecticut and other shootings since have turned up the heat.

If, after Newtown, it’s all talk and no action, the former House Speaker said this week, “it’ll amount to a dereliction of duty on the part of us in public office.”

Too right. Pelosi wants to see action. The president’s demanding it too. So are state leaders. New York Governor Andrew Cuomo, who has his sights set on the presidency (if you’ll excuse the expression), has proposed not only rewriting the state’s existing assault weapons ban but also more expansive mental health checks and background checks of gun buyers, lower limits on how many bullets a single gun magazine can fire and a new requirement that gun buyers be periodically recertified. [..]

There’s just one piece of the picture missing. Now that lawmakers, DAs, governors and the White House have all agreed that gun violence is wrong, when are we going to start talking about troops and bombs and drones? You think American weapons are a problem in the US? Take a look at what American weapons are dong outside the country.

That’s right. It’s now undeniably pathetic or immoral assuming this is what they want and it probably is. The Trillion Dollar Coin and a 14th amendment challenge have now been rejected. What do we have instead? Insulting fake pseudo macho posturing from the President about what he will or will not negotiate on as if there has ever been anything this POTUS won’t negotiate on. It’s already happening as we speak.

Besides, he just got done with negotiating away his “iron clad” promise to raise income taxes on the rich above $250,000. But this time we are supposed to believe the same fairy tale? Or maybe when I say negotiate when I really mean “negotiate.” Yeah, this is actually what he and John Boehner wanted as in to show us “extremists” who care about people instead of idiotic deficit terrorism on the backs of the poor a thing or two.

Conspiracy of Two

“I’m the President of the United States,” Obama told Boehner [in 2011]. “You’re the Speaker of the House. We’re the two most responsible leaders right now.” And so they began to talk about the truly epic possibility of using the threat, the genuine danger of default, to freeze out their respective extremists and make the kind of historic deal that no one really thought possible anymore – bigger than when Reagan and Tip O’Neill overhauled the tax code in 1986 or when Bill Clinton and Newt Gingrich passed welfare reform a decade later. It would include deeper cuts in spending, the elimination of all kinds of tax loopholes and lower income tax rates for all. “Come on, you and I,” Boehner admitted telling Obama. “Let’s lock arms, and we’ll jump out of the boat together.”

It’s too late to spin tales of the intrepid politician that stands up to Congress. You know, as Stephen Colbert says regarding journalists, fiction. Debt ceilings were never negotiated until this POTUS put his full faith in crediting John Boehner for NOT using the debt ceiling as a hostage as part of the Obama/Bush tax cut deal in 2010. Oops. I predicted this. Others deluded themselves thinking this mess happening right now extended from back then was somehow an abstract form of 11th dimensional chess again and again. When will they learn?  

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 16 is the 16th day of the year in the Gregorian calendar. There are 349 days remaining until the end of the year (350 in leap years).

On this day in 1919, the 18th Amendment to the US Constitution, prohibiting the “manufacture, sale, or transportation of intoxicating liquors for beverage purposes,” is ratified.

The movement for the prohibition of alcohol began in the early 19th century, when Americans concerned about the adverse effects of drinking began forming temperance societies. By the late 19th century, these groups had become a powerful political force, campaigning on the state level and calling for total national abstinence. In December 1917, the 18th Amendment, also known as the Prohibition Amendment, was passed by Congress and sent to the states for ratification.

The amendment and its enabling legislation did not ban the consumption of alcohol, but made it difficult to obtain it legally.

Following significant pressure on lawmakers from the temperance movement, the House of Representatives passed the amendment on December 18, 1917. It was certified as ratified on January 16, 1919, having been approved by 36 states. It went into effect one year after ratification, on January 17, 1920. Many state legislatures had already enacted statewide prohibition prior to the ratification of the Eighteenth Amendment.

When Congress submitted this amendment to the states for ratification, it was the first time a proposed amendment contained a provision setting a deadline for its ratification. The validity of that clause of the amendment was challenged and reached the Supreme Court, which upheld the constitutionality of such a deadline in Dillon v. Gloss (1921).

Because many Americans attempted to evade the restrictions of Prohibition, there was a considerable growth in violent and organized crime in the United States in response to public demand for illegal alcohol. The amendment was repealed by the Twenty-First Amendment on December 5, 1933. It remains the only constitutional amendment to be repealed in its entirety.

To define the language used in the Amendment, Congress enacted enabling legislation called the National Prohibition Act, better known as the Volstead Act, on October 28, 1919. President Woodrow Wilson vetoed that bill, but the House of Representatives immediately voted to override the veto and the Senate voted similarly the next day. The Volstead Act set the starting date for nationwide prohibition for January 17, 1920, which was the earliest date allowed by the 18th Amendment.Volstead Act, on October 28, 1919. President Woodrow Wilson vetoed that bill, but the House of Representatives immediately voted to override the veto and the Senate voted similarly the next day. The Volstead Act set the starting date for nationwide prohibition for January 17, 1920, which was the earliest date allowed by the 18th Amendment.

And, just when you thought the Miss America Pageant had lost all social relevance-

After Pres. Barack Obama’s pick for Treasury Secretary confessed to a lack of financial expertise, you would have thought that the president’s choice for the number two spot would have been someone to fill that gap. Silly you. President Obama’s choice for Deputy Treasury Secretary is rumored to be Ruth Porat, who lobbied for Wall St. against regulation. This is her profile from Business Week:

Ms. Ruth Porat has been Chief Financial Officer and Executive Vice President of Morgan Stanley since January 2010. Ms. Porat served as the Global Head of the Financial Institutions Group at Morgan Stanley from September 2006 to December 2009 and also served as its Vice Chairman of Investment Banking from September 2003 to December 2009 and Chairman of the Financial Sponsors Group from July 2004 to September 2006. Throughout the recent financial crisis, she has been responsible for the Financial Sponsors Group ‘s coverage of financial institutions and governments globally, and she led the team advising the U.S. Treasury with respect to Fannie Mae and Freddie Mac. Ms. Porat began her career with Morgan Stanley in 1987 in the Mergers and Acquisition Department.

According to Forbes, Ms Porat is the most influential woman on Wall St.

The Sunlight Foundation reports that Ms Porat lobbied on behalf of Wall St., meeting with regulators about Dodd-Frank rules nine times:

* 2012-03-27: Met with the Federal Reserve to express concerns on bank capital rules

* 2012-04-30: Met with the Federal Reserve to claim surcharges for Too Big To Fail banks were not necessary. Later also said regulating derivatives would hurt liquidity.

* 2011-12-14: Met with the Federal Reserve to ask for more lenient disclosure requirements for Morgan Stanley

* 2010-10-28: Met with the Federal Reserve to push back on Volker Rule and for more flexibility on Proprietary Trading

* 2010-11-02: Met with Treasury on the CFPB (no disclosures on meeting’s purpose)

*  2011-02-01: Met with Treasury on Capital and Liquidity (no disclosures on meeting’s purpose)

* 2011-05-03: Met with Treasury on the Volker Rule (no disclosures on meeting’s purpose)

* 2011-07-07: Met with Treasury on Derivatives (no disclosures on meeting’s purpose)

* 2011-01-05: Met with FDIC on Volker Rule (no disclosures on meeting’s purpose)

h/t DSWright at FDL News Desk

Ms Porat is not what Obama’s critics meant when they complained about a lack of woman in influential positions in the cabinet. Really, Mr. President, a Wall St. lobbyist? Jamie Dimon must be so pleased.