January 02, 2009
By Kyle Smeallie & Harvey Silverglate
If you can’t beat ‘em, join ‘em – or at least have them join you.
That appears to be the newly-adopted attitude of the Massachusetts Bay Transportation Authority (MBTA), marking a logical denouement to the celebrated case this past summer in which three MIT students uncovered technological vulnerabilities in the fare collection system. Before the students were able to present their research at a hacker’s conference, the MBTA sued, claiming that “significant damage to the transit system” would result from public disclosure. Federal District Judge Douglas Woodlock, sitting as the emergency duty judge, agreed, slapping the students with a temporary restraining order. (But Judge George O’Toole, to whom the case was assigned, later reversed course and denied the MBTA’s request for a preliminary injunction.)
Aside from the blatant threat to the students’ First Amendment rights, the MBTA’s gag order left fair-minded citizens scratching their heads. Rather than address the obvious security flaws, the MBTA chose to squander its scarce resources – revenue from taxpayers and T riders – in a counterproductive legal battle. In essence, the T chose to shoot the messenger.
Harvey Silverglate, in a Boston Globe letter-to-the-editor, criticized the MBTA’s inherently flawed approach.
“The MBTA would have been better off hiring, rather than suing, the MIT trio to solve the electronic flaw,” Harvey wrote. “The students (and their professor) could doubtless do a better job of patching the security hole than the T's security officials, consultants, and vendors who designed the vulnerable system.”
Apparently (though not immediately), MBTA officials listened. The Electronic Frontier Foundation (EFF), which represented the students pro bono, announced last week that the students have agreed to work with the MBTA – pro bono, as well – to help fix security flaws.
“We’ve always shared the goal of making the subway as safe and secure as can be,” said MIT student Zack Anderson in a December 22 EFF press release. “I am glad that we can work with the MBTA to help the people of Boston, and we are proud to be a part of something that puts public interest first.”
To be sure, this wasn’t the first instance of tech-savvy individuals switching sides, so to speak – rogue mischief makers becoming saviors of the very companies they once annoyed. About the late 1970s, Harvey represented a couple of very smart (aren’t they all?) MIT students who had figured out how to do an end-run around the New England Telephone Company’s security and billing protocols for dialing long distance calls. The students produced a so-called “black box” that imitated dialing tones while by-passing the NET’s billing system (bear in mind, these were the bygone days of touch-tone simplicity). The students managed to make quite a large number of phone calls to their friends all around the world before NET caught-on, set a trap, and busted them.
The judge, not wanting to give the students a criminal record, put them on pre-trial probation and agreed to dismiss the case if the students kept their noses clean. Not only did they keep their noses clean, but they were hired by the phone company to augment its security office. Their task: prevent future MIT geniuses from gaming the system.
The notion that “when you can’t beat ‘em, join ‘em” makes as much sense today as it did then. It makes especially good sense when the seeming enemy can make a valuable friend – and you don’t have a dime to spare.
December 09, 2008
Every time I read something about the debate over whether captured suspected terrorists should be tried in one of President Bush's "military commissions" or in a regular federal court, I have to admit smirking a bit. As a practicing criminal defense and civil liberties lawyer, with considerable experience defending clients in the federal courts, I find that neither tribunal would do justice to, well, justice.
The latest such article to bring a smile and a frown, simultaneously, to my face, is Michael Gerson's December 8th
Boston Herald piece, "
Due process is delicate: No ordinary suspects at Guantanamo". Gerson seems to think that President-elect Obama is going to have to untangle this problem in the aftermath of President Bush's apparent failure to do so. Gerson repeats the oft-heard mantra that "Some detainees will be too dangerous to release but too difficult to convict in a normal court."
Well, has Gerson bothered to learn much about what a "normal" federal criminal trial is like these days, and why so many defendants plead guilty rather than take their chances with the system? There's a saying that a prosecutor can convince a grand jury to indict a ham sandwich. But in federal court, a prosecutor can get not only a grand jury to indict, but even a trial jury to
convict a ham sandwich of just about anything!
Why? Well, a huge variety of seemingly ordinary activities can be squeezed into the definition of some vague or broad federal criminal statute. There's
mail fraud or
wire fraud or
lying to a federal official (not even under oath). And, if all else fails, they can resort to that old stand-by,
conspiracy to violate some federal law. If the feds can't put a suspected terrorist away in a regular federal court because the evidence was procured by torture and hence would be inadmissible, they can simply question the poor bloke and then indict him for lying. No torture there - just a little bit of old-fashioned Department of Justice or FBI trickery.
It's simply beyond the comprehension of this criminal lawyer that the feds, who can indict and convict just about any of us for
something, cannot figure out how to convict a suspected terrorist in a real federal court. If they can jail Martha Stewart for
false statements - even though she did not commit the securities fraud about which she was questioned - they surely can imprison a "terrorist" who has done nothing wrong, or at least against whom evidence of terrorism is too compromised to be admissible in a federal court. And that's because so many real federal trials today do not produce
real justice.
I'll be discussing this recent (since the mid-1980s) diminution of real justice and true due process in the federal courts in my forthcoming book,
Three Felonies a Day: How the Feds Target the Innocent, being published in the third quarter of 2009 by Encounter Books. It's not a happy development. But it does make all of the talk about the difficulties of getting terrorism convictions in the federal courts somewhat irrelevant.
October 23, 2008
New York Times Supreme Court reporter Adam Liptak has thrown
new light on the long-simmering battle over the Second Amendment's true meaning
and import in a fascinating October 21 front-page piece. Liptak, who deftly
took over the Times' Supreme Court coverage from the recently-retired and much
respected Linda Greenhouse, points out that the text is anything but crystal
clear: "A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be infringed."
The meaning of the amendment has become so controversial that even some
prominent conservatives have an issue with the Supreme Court majority that
recently came down, ostensibly, on the conservative side of the gun-control
issue.
Does the Second Amendment protect the right of only state
militias to stock weapons for use, as appropriate, in emergency peace-keeping
operations, or may individual citizens rightfully posses arms as well? A
back-and-forth gun rights shouting match has ensued, from the days of minutemen
to the cold-dead hands of the late Charlton Heston. Yet few have realized the
futility, or at least the lack of necessity, of this debate. An interpretation
of the Amendment as protecting an individual right hardly means that "gun
control" is unconstitutional. It is not the end of the world: Boston,
New York City, and Los
Angeles are not about to replicate the gun-slinging
towns immortalized in John Wayne movies.
Some conservative judges and academics, Liptak reports,
have criticized the Supreme Court's 5-to-4 decision to strike down a D.C.
handgun ban in District of Columbia
v. Heller. The hypocrisy, critics say,
in Justice Antonin Scalia's majority opinion articulating a protection of the
individual's right, is that the high court's right-leaning bloc is taking the
very same subjective approach to constitutional interpretation for which they
attacked the left for decades (in, for example, the abortion arena). This
judicial activism, they claim, substitutes personal views for the meaning
intended by the Founders, and, more importantly in this instance, substitutes
the justices' views for those of state and local governments. By extension,
this method of constitutional interpretation improperly confers powers on
unelected judges rather than on the elected representatives of the citizenry.
In this titanic Second Amendment battle, the thinking has
been that if the Constitution protects the individual's right to bear arms,
then gun control must be unconstitutional. The Heller opinion, obviously aimed
at settling the question once and for all, appears not to have done so -
proving that the culture war between right and left has become so useful to
both sides that any attempt to move forward is promptly rejected - even by some
of the ostensible victors, since they are more desirous of continuing the war
than of winning a long-and-hard-fought battle. However, the dispute, vitriolic
though it has gotten, is truly an artifact of the culture war, and not a
serious academic or constitutional dispute.
Let's assume, for argument's sake, that the Supreme Court
majority is correct, and that the Second Amendment protects the right of the
individual to possess, even to use, firearms. (This happens to be my view of
the meaning of the text, but, as I'll make clear in a moment, it hardly matters
with regard, ultimately, to the issue of the constitutionality of gun control
legislation.) What impact would such an interpretation have on the power of
federal, state, and local governments to enact legislation controlling, even
limiting, the exercise of that right? Answer: very little.
Consider another cherished American liberty unquestionably
protected by the Bill of Rights - freedom of speech: "Congress shall make no
law...abridging the freedom of speech." [emphasis added] On its face, the First
Amendment is absolute - "no law" may interfere with this freedom. (As the late
Justice Hugo Black, a near-absolutist with regard to First Amendment
interpretation, famously asked prosecutors and attorneys general arguing for an
exception in, for example, obscenity cases: "What part of ‘no' can't you
understand?")
Yet there are, and have always been, recognized exceptions
to "no law." Legislatures have long outlawed, prosecutors and police have long
made arrests for, and courts have long punished defendants for purveying
"obscenity." Breaches of classification laws in the national security arena are
deemed criminal, deserving of long prison sentences under the espionage
statute. And speech, regardless of content, may be punished because of the time,
place or manner of its delivery. For example, touting a candidate for public
office by blaring through a bullhorn at three
o'clock in the morning in a residential neighborhood may be core
political speech, but it is also against the law ("disturbing the peace") under
the circumstances. And, of course, you can't shout "fire" in a crowded theater.
The details of how and where a constitutional right is exercised dictate the
difference between protected activity and commission of an offense.
Thus, even if (as has now been held by the high court) the
Second Amendment protects the right of individuals to bear arms, that right may
be restricted and conditioned by reasonable regulation - gun control statutes
and ordinances. So the Supreme Court's majority's resolution of the Second
Amendment's meaning makes perfect sense - there is an individual right to bear
arms, but reasonable regulation is likewise constitutional. Both liberals and
conservatives should stop arguing about this long-running battle in the culture
war and get on to more important and substantive issues. It's time to stop arguing
over how many guns can be balanced on the head of a pin, and by whom. The
constitutional gun control battle is over, and all that remain are the details
that will be ironed out, case by case, by municipalities, states, and the lower
state and federal courts in the years to come.
Now can we please get on to the truly urgent constitutional
and other battles that remain?
October 14, 2008
Jim Morrison and
the Doors were scheduled to play their
number one hit, "
Light My Fire," on a 1967 episode of
The Ed Sullivan Show, but there was one line to which the long-time
host took offense. "Girl, we couldn't get much higher," sparked Sulivan's ire,
and he demanded the line be re-written for the late-night show's performance.
Morrison agreed. But when the cameras were rolling, the enigmatic front man
strayed from script and -
gasp! - sang the original line. Sullivan was furious
- he refused to shake Morrison's hand after the performance and vowed never to
have the L.A.
band on his program again.
This chapter in rock'n'roll lore is now more than four
decades old, but it appears that late-night CBS censorship is not a thing of
the past. Last week, while taping an episode for the October 27th edition of The Late Late Show With Craig Ferguson,
CBS representatives informed a band member that he could not wear a pro-Obama
shirt while performing. Randy Randall, guitarist for the experimental rock
group No Age (also from L.A.), was told that donning the threads would violate
the Equal Time Rule, a 1934 law aimed at giving politicians equal on-air time.
Surely it was a different beast than Morrison faced, but the
effect is strikingly similar - censoring artists' expression, whether
quasi-cultural or expressly political.
Equality under the
law
The Equal Time Rule has gone through several changes and has
been adapted to new media, but the crux remains the same: a station that gives
or sells time to one candidate must make the same offer to all other candidates
for that office. (It should not be confused with the Fairness Doctrine, an FCC
policy - abolished in the 1980s - which required broadcasters to present
contrasting views in matters of public controversy.)
The rule's rationale is rooted in basic notions of evenhandedness
- if a product is available, it must be sold to all qualified customers on an
equal basis. At the time, it was considered progressive policy - bear in mind,
this was the era of "separate but equal." But out of this quite sensible rule
arose a doctrine that has inhibited network's political programming.
Exemptions to the
rule
The rule focuses on giving equal time to candidates, but it's a tough sell to
extend this to the apparel of a fresh-faced punk rocker. (Singer-songwriter
Regina Spektor recently wore an Obama belt while performing on NBC's Late Night with Conan O'Brien - with no
FCC consequences). Apparently,
though, CBS was sufficiently scared.
"Those candidates who are on the ballot in at least 10
states could have asked for equal time from the network. Given that, CBS employees followed guidelines
and asked the band member to remove his T-shirt," according to a CBS statement
made last week to the Los Angeles Times.
This interpretation contrasts current readings of the Rule.
In 1959, with broadcast technology changing, several exemptions were made to
the law. Equal opportunity requirements were null in cases of news interviews,
newscasts, news documentaries, and on-the-spot coverage of
news events. In short, if a candidate appears on a bona fide news program, the
station would not be obligated to afford equal time to his/her opponent.
Equal
time in a modern context
In today's context, where the lines
between news and entertainment are often unclear, the FCC has been reluctant to
apply the equal time provisions. The FCC "has expanded its category of
broadcast programs exempted from political access requirements to include
entertainment shows that provide news or current event coverage as regularly
scheduled segments of the program," according to Dwight Teeter,
author of Law of Mass Communications. A late-night program, which often uses news as fodder for jokes, would
appear to fit this paradigm.
Nonetheless, No
Age was just minutes away from taking the stage when a "talent booker" informed
Randall he couldn't perform with his T-shirt. At first, they considered walking
off the set. Instead, Randall chose to turn the shirt inside out and write
"Free Health Care" in scribbled Sharpie.
"I felt it was important to voice my choice for presidential
candidate, Barack Obama, seeing as the episode would air eight days before Election
Day," Randall wrote in an email to Pitchfork, a music website. When that was
denied, "Dean [No Age's drummer] and I decided that it would be better to take
advantage of the stage we had at our disposal...Access to affordable health
care is an issue very near to my heart for many personal reasons and I am sure
that many of you can relate."
Who's to blame?
As this story gains further coverage, CBS - like it did 40
years ago - will be left looking out-of-touch and all to eager to please
government bureaucrats.
But maybe it isn't entirely CBS's fault. Following the
infamous 2004 Superbowl "Nipplegate" affair, CBS was fined $550,000 by the FCC.
Though the fine was overturned on appeal, you can be sure that the "suits in New York" (Randall's
words) remember the legal headache that ensued.
The broadcast company (along with other major stations) also
has an important Supreme Court appeal in the upcoming term. The case centers on
the ability of the FCC to impose fines for "fleeting expletives" or spontaneous
(as in, not planned by the broadcaster) usage of curse words in live broadcasts.
In these cases, the live programs did not allow CBS the
opportunity to "bleep" the expletives or "blur" the oh-so-horrid nipple. But in
the pre-taped Late Late Show, CBS
foresaw an opportunity to avoid arousing FCC intervention, and it chose the
most conservative reading of an archaic rule - instead of allowing an artist's expression.
It is, unfortunately, the chilling effect that government regulation has on
speech: even in the most crucial moments, when artists feel compelled to speak
out on politics, their speech is stifled. Regardless of the Equal Time Rule's
good intentions, it has now clearly become a tool for dampening political
discourse.
September 24, 2008
The Supreme Court's illegitimate installation of the loser
in the Oval Office following the deeply flawed - the cynics would even say
"rigged" - 2000 presidential election, left more than a bad taste in many
American mouths. For some, it was the straw that broke the camel's (or
Donkey's) back - they were entirely repulsed at the political (and judicial,
such as it was) process. But the aggrieved parties (read: the U.S. populous)
are entitled to utter a small cheer, at least, for the ACLU of Massachusetts'
welcome victory in a similar effort - this time by the left seeking to screw
the right- in the Bay State.
Federal District judge Nathaniel Gorton issued a preliminary
injunction on Monday ordering the Massachusetts Secretary of the Commonwealth,
who supervises elections and implements electoral regulations, to list the
Libertarian candidate, former Republican Senator Robert Barr (now a registered
Libertarian), on the state's ballot for the upcoming presidential election. I
understand, of course, the Democratic Party's consternation when Republican
operatives, and a conservative-dominated Supreme Court, conspired to put George
W. Bush in the White House in 2000 and then keep him there in another flawed
election in 2004. But this does not justify what Massachusetts Democrats are
now doing - relying on sleazy tactics - to keep Barr off the ballot in the Bay
State.
Here's the latest trick, as explained in an ACLUM press release,
in a long line of efforts around the country, and even here in Massachusetts,
to make American elections resemble those in places like Zimbabwe,
Russia or Venezuela.
Massachusetts law qualifies a
"political party" in the Bay State
as one that has a candidate who received three percent of the vote in the most
recent statewide election. Because the Libertarian Party (LP) did not
previously meet this threshold, it was forced to collect at least 10,000 voter
signatures to secure a place on the ballot. With limited resources, the LP began
the signature drive well in advance of election season, and it had already
collected more than 7,000 signatures to list party stalwart George Phillies on
the November ballot. The party, however, nominated Barr, and it sought to
substitute him for Phillies once the additional 3,000 signatures were
collected. The Massachusetts Election Division of the Secretary of the
Commonwealth's office, however, refused to count the 7,000 toward the 10,000
signatures needed to put Barr on the ballot, despite the Division's earlier
assurances that substitution would be allowed, in accordance with prior
practice.
Judge Gorton issued his order on the ground that the
regulations, if indeed they could be interpreted to prevent such a substitution,
were so vague, and so deficient in providing guidance to minority political
parties seeking ballot access, that they violated the constitutional right to
"due process of law." Nor could Judge Gorton find any legitimate interest on
the part of the state in blocking ballot access. "[A] minor political party,
desiring to substitute its presidential nominee on the ballot in Massachusetts
is left to guess how, if at all, to do so in compliance with the law," Judge
Gorton said in his 11-page decision. "Surely there can be no state interest
that would justify such a burden."
Of course, there was an interest in Democratic Party
operatives' choking off, in its infancy, any third-party uprising. They wanted
to keep the commonwealth essentially a one-party state, replete with all of the
corresponding corruption and malfeasance. The consequences of Democratic
legislative misrule in Massachusetts
are obvious every single day, as MBTA riders screech along obsolete tracks and
children learn from dated textbooks and underqualified teachers. The pillage of
public coffers by a variety of public employees and private contractors seems
to be a fixture on the front page of daily newspapers. Often forgotten is the
corollary: the leftover pennies for necessary infrastructure and essential public
services. (Similarly, the consequences of an essentially rigged two-party
system on the national level are visible, and currently quite painful. The
illegitimate seating of George W. Bush in the White House for two terms is the
number-one argument for reform of the federal electoral system, but that's
another story.)
It is not clear that the LP, any more than other minority parties,
has the answers to the state's or the nation's monumental problems. But it is
clear that they are entitled - by constitutional right - to have a fair shot at
convincing the public that the old two-party monopoly has to be broken for the
good of the nation and its people. The
"deprivation of the franchise" (to use ACLUM Legal Director John Reinstein's blunt
phrase) to third parties such as the Libertarians, and the removal of
illegitimate and unfair "barriers to their full participation in the electoral
process" (in the words of ACLUM Executive Director Carol Rose), were beaten
back, at least for the moment, in Massachusetts.
(Kyle Smeallie assisted in the preparation of this piece.)
September 15, 2008
After years of self-imposed exile, former acting Governor of
Massachusetts Jane Swift has reemerged onto the political scene. This time,
rather than spending taxpayer money on babysitters and helicopter rides, she is
heading - in all seriousness - the "Palin Truth Squad." This righteous group of
fact-finding crusaders has come to the defense of Republican Vice Presidential
candidate Sarah Palin, denouncing the nasty, truly despicable sexist slander
cast by Obama and his camp.
Swift and Squad took issue with a recent Obama speech where
he called out the absurdity of electing Republicans to fix the problems created
by...Republicans. "That's not change," the Illinois
senator said at a campaign event in a Lebanon,
Virginia. "That's just calling
something the same thing, something different. But you know you can put
lipstick on a pig, but it's still a pig."
And just hours after the remarks, Jane Swift was on a conference
call with reporters. A new talking point was born. "Senator Obama...uttered
what I can only deem to be disgraceful comments comparing our vice presidential
nominee, Governor Palin, to a pig," Swift said. (The accusation was based on a
joke Palin made during her RNC speech, saying that "the difference between a
hockey mom and a pit bull" is lipstick.)
By now, the faux-outrage has been thoroughly discredited.
Obama has used the phrase countless times before. McCain even used it to
criticize Hillary Clinton's 2007 Healthcare proposal. So like most campaign
blather, this "shock" will quickly dissipate.
But Swift is hoping the opposite - a revival of sorts - will
result for her career.
She is aligning herself with the newly anointed conservative
queen, pointing out the similarities: both Swift and Palin hail from small
towns, both were the first female governors of their respective states, and both
gave birth while holding office.
The analogy falls short in one key aspect, as Boston Globe reporter Stephanie Ebbert
points out. Swift was regarded, by both party and polis, as a failure.
After assuming the governorship (when Gov. Paul Celucci left
to become the Ambassador to Canada)
in 2001, she was embroiled in scandals, including the aforementioned helicopter
rides and babysitting assignments. But while those may have generated
headlines, an even more disturbing saga occurred under her watch, one that
seriously undermines any moral soapbox on which she currently stands and from
which she deigns to criticize.
The case involved the Amiraults, a working-class Malden family that ran the Fells Acre Day School, a childcare facility. In
1986, Violet and Gerald Amirault, and Cheryl LeFave (Gerald's sister) were accused
of heinous and sadistic acts against children. From the beginning, it was clear
that the case had major holes. It was largely based on testimony from the
children, some as young as four years old. And the techniques used to obtain
these stories are now widely discredited: coercive questioning, promises of
reward for "right" answers, and suggestive use of anatomic dolls. The resulting
stories were, by any measure, extreme - one child spoke of being tortured in a
magic room by an evil clown. Others were downright bizarre - one depicted
scenes of rape with butcher knives (though no wounds were found) and another
claimed that 16 children were killed at the center (though no bodies were found).
Though the tales were dubious to say the least, they
certainly made headlines. Even before the trial began, the Amiraults were
guilty in the court of public opinion. And when the gravel pounded, the
Amiraults were convicted of 26 counts of child abuse. Thus they were swept up
in a disastrous hysteria of the 1980s in which sensational (and incredible) allegations, ambitious prosecutions,
and a penchant for moral purity resulted in convictions based, in many cases,
on evidence that had been pounded
into the child-victims' heads and then predictably came out of their mouths. Indeed,
it was a moral debasing of justice.
Fast-forward to 2000. Gerald Amirault, despite his wrongful
conviction, had spent fourteen years as a model prisoner, taking college
courses and staying out of trouble. His alleged co-conspirators, Violet and
Cheryl, served eight years before being released - despite being charged with
the same crimes. (Violet and
Cheryl's release, interestingly, was predicated in part on their agreement to
adhere to a suspicious condition imposed by the district attorney - that
neither, once free, would discuss their case in the electronic media.)
Gerald Amirault's case came before the state parole board, a
stern body known for little sympathy - from 1988 to 1997, the board considered
270 petitions for commutation, and granted only seven. Disturbed by the facts
of the case, however, the panel led a six-month investigation, one of the
longest in its history. In June 2001, the board delivered a unanimous ruling
for the commutation of Gerald's sentence.
At the time, all that stood in the way of Gerald Amirault's
freedom was Gov. Jane Swift.
Six months after the board's ruling, Gov. Swift spoke.
Commutation, an official statement read, was "not warranted." By all accounts,
she failed to give an acceptable justification. She continually cited
Amirault's refusal to admit guilt, as well as his refusal to seek treatment, as
reasons to keep him behind bars. She failed to account for the possibility - a thought that obviously occurred to
the hard-nosed parole board - that he
wasn't guilty.
Swift's repudiation of the parole board's recommendation
that Gerald Amirault be released can be attributed to only two possible
reasons: Either Swift did not understand the case despite the fact that the
"evidence" against Amirault had been effectively and widely discredited, or she
understood that he was innocent but decided to keep him in prison to further
her own sinking political career. With the 2002 gubernatorial election looming,
justice took a backseat to job retention.
But her calculation failed. With approval ratings in the
single digits, she decided to hand over the Republican reigns to Mitt Romney
and fade out of the spotlight.
Now, she has reemerged. As she has said, she is certainly
qualified to defend Palin and lead the charge against Obama. Furthering her
career has clearly come before any quaint notion like "truth" or "justice." Just
ask Gerald Amirault.
September 11, 2008
You need not dig deep into the annals of history to find
examples of religious bloodshed. From the Crusades to the Inquisition to the terrorist
attacks seven years ago today, dogmatic interpretations of religious doctrine -
spanning almost every set of beliefs - have contributed to countless deaths and
persisting cleavages. But does censoring theological texts and statements remove these hatreds?
Administrators at the University of Southern California (USC),
after recently deleting sections from a Muslim student group website, appear to
think so. The material in question is a collection of hadith, or proclamations
passed down in the Muslim faith but not included in the Quran. These particular
hadith - the aggrieved party pointed to five different statements - concerned the killing of Jews.
A surface reading could lead one to believe that the
statements are threats. Upon closer examination, though, these hadith are
evidence of a mode of thought in Islamic tradition, far from a clear
instructional guide for most practicing believers. Censoring these statements,
in the presence of thousands of other nonviolent hadith on the student website,
not only violates key principles of academic freedom, but it is an
unconstitutional form of censorship.
To understand this case, one must first examine the role of
hadith in the Muslim religion. In short, hadith are the words and actions of
the prophet Muhammad that have been passed down through generations, mainly by
oral means. Because of this narrative nature, there are varying degrees of
hadith authenticity. Both the actual words (matn)
and the chain of narration (sanad)
play an important role in determining validity. Indeed, some hadith flatly
contradict others, and scholars carefully examine the origins and paths of each
transmission, a practice known as the science of hadith. And the conclusions
are different for each Muslim sect. Some reject the hadith used by others - for
example, the six major hadith collections that are central to Sunni belief are
not followed by a majority of Shi'a. Thus, the hadith is considered an
important but ultimately supplemental guide to the Quran in Muslim living.
On the website of the Muslim Student Association (MSA),
a now defunct student group whose site is hosted by the Muslim Student Union on
the USC server, is a compendium of
Muslim texts. These include information on the pillars of belief, a section
on misconceptions about Islam, and a searchable database of hadith. At
the search page, there is a preface: "[W]e would like to warn you that this
database is merely a tool, and not a substitute for learning, much
less scholarship in Islam." (The site also makes clear that the views expressed
are not affiliated with those of the
university).
Using this tool, Rabbi Aron Hier of the Simon
Wiesenthal Center,
a Jewish human-rights organization, found five hadith that advocated violence
toward Jews, he said. After bringing it to the attention of a USC trustee, the university took action. Provost C.
L. Max Nikias said "the passage cited is truly despicable...We did some
investigations and have ordered the passage to be removed." The material was
subsequently deleted, the Daily Trojan,
USC's student newspaper, reported.
Was this censorship necessary? Charlotte Korchak, incoming
president of USC's Students for Israel
and a member of the Hillel Jewish Center, thinks not. "I understand the fear of
Jews and why some might have an issue of it being up. I understand the reaction
of trying to get them removed," she told the Trojan. "At the same
time, is that really going to help? I'm Jewish and those are hard to read and
hard to comprehend, but it's their religion and it's a historical thing. To
leave them out would be a lie."
Not only would it arguably be a lie, but it would certainly
be a statutory violation if the
action was challenged in court. Because of a 1992 California
statute known as Leonard's Law, First Amendment protections are applied to
all private colleges and universities
in the state. The Bill of Rights applies only to governmental organizations,
including public universities, but this law extends protection to private
institutions of higher education. Thus, the same standards for censorship apply
to USC (a private university) as
those schools funded by the state, giving administrators far less leeway in
restricting student expression.
To uphold their censorship, administrators would have to
show that the website was likely to produce "imminent lawless action." This
criterion is based on the opinion in Brandenburg
v. Ohio (1969), where a Ku Klux Klan leader made inflammatory statements
at a rally in rural Ohio. At the
rally, references were made to the possibility of "revengeance" against
"niggers" and "Jews," among other instances of hate speech. Brandenburg
was found guilty under a Criminal Syndicalism statute, but the Supreme Court
reversed the conviction, declaring that the government could not punish simply
the advocacy of unlawful action. Because Brandenburg
could not conceivably execute what he claimed in his fiery speeches, much less
do so imminently, the high court
ruled that his speech wasn't worth prior punishment.
It is against this standard that the USC
administrators would have to justify their action, and their case would
undoubtedly be weak. The words were religious doctrine, and though they
certainly expressed intolerance, it is highly unlikely that they would have
spurned a student to actually kill their Jewish peers - much less to do so
imminently.
And the censorship also reeks of viewpoint discrimination.
If Bible passages were posted to a USC
website, would there be the same outcry for suppression? Leviticus 20:13, says, according to the New
International Version, "If a man lies with a man as one lies with a woman, both
of them have done what is detestable. They must be put to death; their blood
will be on their own heads." Indeed, this excerpt could be seen as advocating
violence against homosexuals, but unless it would do so imminently, rather than
over the long term, the passage may not be prohibited or censored.
Debating the violent tendencies of world religions is not
important to this case, though. Preserving academic freedom is.
When one hosts all points of view, there is a very practical
benefit. Those who are offended know who holds what views, and who, if they
deem necessary, to avoid. It is part of the genius of free speech - even hatred
has a useful purpose. Suppression only shoots the messenger, but it does little
to deter the message.
The MSA's site hosts
thousands of hadith. It is, as the site mentions, a tool for scholarly
research, a device for the continuing evaluation of hadith authenticity. Rather
than remove certain texts that are offensive to some, the site should be a
forum through which students and faculty (and anyone else, for that matter) can
glean truth from competing ideas. Rather than trying to change history by
running from doctrine, we should encourage the dialogue that has largely made
these radical viewpoints obsolete.
September 05, 2008
I'm as vicious a critic of cigarettes as there is - my
father, who smoked four packs of Camels a day, befouled our small Brooklyn
apartment (as well as his lungs and heart) and died of a massive heart
attack two months before my college graduation, at the age of 48. But I think
that the current mania for seeking to ban the nasty habit without actually
outlawing the product has finally gone too far. The recent Boston Globe report by Stephen Smith illustrates the point.
Smoking opponents, fresh from their completely appropriate
and salutary victory in banning smoking in
office buildings and, more recently, in restaurants and even bars, are now
on the verge of significantly extending the ban. The new restrictions, given an
initial nod of approval by city health
regulators at a hearing held yesterday, include bans on cigarette sales at Boston
drugstores and college campuses. In addition, regulations would, remarkably,
extend the ban to the outdoor patios
of restaurants where food is served.
It's perfectly understandable that the government would ban
smoking in enclosed spaces where second-hand smoke could easily affect the
health and comfort of non-smokers.
And it's likewise reasonable to ban the sale of cigarettes on university campuses
where some of the residents are underage. But what can be the possible
justification for banning smoking on the outdoor patios of restaurants? And is
it really reasonable to prevent drugstores from selling tobacco products,
merely because, as Barbara Ferrer, the executive director of the Boston Public
Health Commission told the Globe:
"Why, in a place where people go to get healthy and get information about
staying healthy, would you want to sell something that has absolutely no
redeeming value and ends up killing a lot of people?" (It does not take a huge
leap of logic to see the future movement to ban the sale of soda pop, candy,
and anything else without "redeeming value.")
There's an answer to Ms. Ferrer's question, and it goes to
the heart of our nation's founding: Liberty.
The oft-forgotten (and less rosy) corollary to our celebrated
self-determination is the liberty to do harm to oneself, as long as harm isn't
inflicted upon others. If we continue to make it harder for people to smoke, we
will get to the point where reasonable regulations, meant to protect
non-smokers, will become a virtual prohibition against sale and use of a lawful product. If we continue to
tighten the screws, and if we take the further (and inevitable?) step of
actually outlawing cigarettes altogether, we will produce yet another disaster
akin to the catastrophic "war on drugs" that has produced a series of monstrous
legal and social problems, including the exorbitant costs, the massive
violations of civil liberties, the highest rate of imprisonment in the world, and the corruption of many police and
enforcement agencies in this country and around the world. (Has anyone noticed
that the cultivation of the opium poppy in Afghanistan
- sold in the form of heroin largely to the illicit American market - is a
major source of funding for terrorist groups?)
There is yet another aspect of this debate that has received
little attention. When these types of products are removed from the shelves of
pharmacies and grocery stores, they will inevitably end up stuffed in corners
of freight ships and delivery trucks - part of the black market. Rather than
decrease the demand, restrictions are much more likely to distort the supply.
Take, for example, the massive underground operation that has arisen in England
after the government pushed cigarette taxes through the roof. The official rationale was to make the harmful product less available to the public. But it is now widely
known that most London club
bouncers double as bootleg tobacco providers. In just one instance in 2007,
customs officials seized over 50 million illicit cigarettes and over four tons
of hand rolling tobacco. Because of the nature of the black market, it is
impossible to gauge the overall effect, though some groups estimate the annual
revenue loss to be $50 billion worldwide. And it's not just lost money - where
there is no industry or government
oversight, anything can be put into
an already harmful product. In addition to increased chemical levels, the
counterfeit products, often made in Chinese forced labor camps, have been found
to contain "sawdust, tobacco beetles and even rat droppings," according to a BBC
report. So think twice when considering the benefits versus the detriments of
placing cigarettes next to health information and Nicorette patches at your
neighborhood pharmacy.
The Boston Public Health Commission spent less than an hour
before giving the initial nod of approval for extending the ban. The discussion
will soon enter a 60-day public comment phase before taking effect. Let us
prove, once again, we have more intelligence, more perspective, and more faith
in reason than those who represent us. Tell our city officials that there are
better ways to combat smoking - ways that don't require the government to tell
us what to do.
Persuasion, for instance, has proven an effective tool in
reducing the smoking rate in this country from over half the adult population
to well under a third. Additional progress surely can be made until the only
smokers left are the hard-core addicts who will do anything and go anywhere to
obtain the stuff. But to resort to increasingly Draconian bans risks not only a
backlash, but also the destruction of civil liberties that, in a free society,
must count for something.
By Harvey Silverglate & Kyle Smeallie
September 05, 2008
Despite breaching multiple
security classification laws, former Attorney General Alberto Gonzales, who
departed the office on Sept.
17, 2007 in the wake of multiple scandals, will not face criminal
prosecution, the Department of Justice announced on Sept. 2. The documents,
which Gonzales improperly carried to his home and failed to store in a safe,
reportedly discussed aspects of the administration's top-secret wiretapping
program. The DOJ investigation concluded, however, that Gonzales' breach of the
classification regulations was inadvertent. (For one thing, Gonzales forgot the
combination to the safe!)
Naturally,
the matter quickly became a political football. Congressman John Conyers Jr (D -
MI) asked the DOJ to "explain clearly why it declined to pursue charges against
Mr. Gonzales and what actions it intends to take." Conyers, a member of the
House Judiciary Committee, should know better. Those with even the slightest
experience with the federal government's security classification program - and surely this has to include
Conyers - know that these agencies won't hesitate to stamp "Top Secret" on a
ham sandwich. And while it's true
that a few documents containing genuine security secrets would, if
disseminated, cause arguable harm to the nation's security, the extent of overclassification is a national
scandal.
In my
forthcoming book, Three Felonies a Day:
How the Feds Target the Innocent (coming from Encounter Books in the third
quarter of 2009), I write about my experience in defending an East German
physicist, Professor Alfred Zehe, against a charge, growing out of an FBI
sting, that he engaged in a conspiracy with East German officials to commit
espionage. An FBI operative sold
obsolete - but still classified - submarine sonar technology documents to the
Communist East German embassy in the 1980s. East German officials allegedly
consulted with Professor Zehe over
the meaning of the documents, much as American governmental officials often
consult with American academics on a variety of issues, then and now. When
Zehe arrived in this country to attend a physics conference at MIT, he was
arrested and charged.
As my law
partners and I prepared to defend
Zehe at trial, we asked to see the documents in order to review them with an expert. The Department of
Justice objected - we needed to undergo a security clearance procedure before
seeing the documents. I was taken aback. It would be absurd, I told the judge, to require such a procedure, since I
was a native-born American citizen, I was a member of the bar, I had no
criminal record, and there was not a single reason to doubt my loyalty.
Besides, my credentials aside, the
documents were functionally useless and had been selected by the FBI as bait to
make an espionage case against Professor Zehe. The documents, I argued, were
currently in the hands of the East German Stasi, or secret police, in East
Berlin, thanks to the FBI's having sold them! If the Stasi were
sold the documents by the FBI, surely a presumptively loyal citizen could be
allowed to see them.
But my
common sense position got nowhere. The DOJ persisted in its objection -
classification regulations must be
obeyed. The judge, with some apparent embarrassment, agreed. The law, as
Dickens wrote, can be an ass. But surely the classification regulations and
procedures take the cake - part Kafka, part Gilbert & Sullivan.
And then
there's the case of the DOJ obtaining a temporary prior restraint injunction
against publication of a 1979 article in the politically radical magazine The Progressive, which purported to disclose the "secret" of
how to make a hydrogen bomb virtually in one's backyard. The government
actually convinced a federal district court to issue an injunction that lasted
for several months while the litigation proceeded, despite the fact that the
article's "secrets" had been gleaned from government libraries that were open
to the public! The injunction was dissolved only when another magazine
published the article, making the case "moot." (Unfortunately, the specter of
"security" issues clouding jurisprudence has only gained strength since The Progressive case.)
The
absurdities that spring from the government's obsession about keeping too many
secrets can fill volumes. But best of luck to whoever writes those volumes - their de-classifying litigation
against the DOJ and other government agencies tasked with keeping so much of
what our government does (so often incompetently - the real reason for so much
of the secrecy) would likely last a lifetime.
Kyle Smeallie assisted in the preparation of this piece.
August 30, 2008
Sarah Palin came to praise Hillary Clinton and to bury liberal feminism. It’s too bad for the rest of us, but don’t cry for Hillary; she provided the shovel. Relying on pre-ideological appeals to female solidarity, blaming sexism when she got stuck in second place, Clinton played the dangerous game of identity politics. Her loss is Palin’s gain. She gets to play office wife to John McCain.
Mitt Romney must be fuming, being eclipsed by a woman; but he shouldn’t be surprised. When Romney ran for Massachusetts governor in 2002, after swatting aside the Commonwealth’s first female governor, Republican incumbent Jane Swift, (who subsequently endorsed McCain,) he chose a female lieutenant governor, Kerry Healey, to walk ten paces behind him. Then, he rarely looked back: pursuing the presidency, Governor Romney provided little help to Lieutenant Governor Healy when she ran for governor against Deval Patrick in 2006 (and lost by some 20 points.)
McCain may prove more loyal to Sarah Palin, but selecting an attractive, grossly inexperienced, anti-choice, anti-science, (pro-creationist) female as vice-presidential arm candy, he seems no less contemptuous of women. If he’s elected because disgruntled Hillary harpies reward him for patronizing them, his contempt may seem justified.
August 29, 2008
I
came upon an article in Wednesday's Boston Globe about
possible reform measures for the Harvard University Police Department (HUPD)
following recent allegations of racist conduct. I felt a sense of indignation,
not only because I had seen this in the HUPD many times before, but because the
reform mentioned in the article was, in my opinion, a prescription for failure.
I was compelled to write those involved a memorandum detailing why they need to
get tougher with the HUPD if they really want to see things
change.
************************
Memorandum
To: Committee to
Review the Harvard University Police Department
Ralph Martin, Esq.
William Lee, Esq.
Professor Mark Moore
Professor Nancy Rosenblum
Matthew Sundquist, President of
Harvard Undergraduate Council
Professor David Wilkins
Cc: Drew Gilpin
Faust, President of Harvard University
Francis D. Riley, Chief of Police,
HUPD
Professor Charles Ogletree
Professor
J. Lorand Matory
Robert
Iuliano, Esq., Harvard General Counsel
Hon.
Margaret Marshall, Chief Justice, Supreme Judicial Court of Massachusetts
Tracy
Jan, Reporter, The Boston Globe
Renee Loth,
Editorial Page Editor, The Boston Globe
James R.
Houghton, Harvard Corporation/President and Fellows
Roger W.
Ferguson, Jr., Chairman of Harvard Board of Overseers
Mitchell L.
Adams, Member of Harvard Board of Overseers
Malcom A.
Glenn. President, The Harvard Crimson
Andrea Saenz, Editor-in-Chief, The Harvard Law Record
John S. Rosenberg, Editor, Harvard Magazine
John
Reinstein, Legal Director, ACLU of Massachusetts
Carol Rose,
Executive Director, ACLU of Massachusetts
Date: August 28, 2008
Re: Harvard
University Police Department and abuse of students and faculty
This memo
is addressed primarily to the members of the newly-appointed committee, chaired
by Attorney Ralph Martin, designated to look into problems that have arisen
(and been recognized) of late in connection with the Harvard University Police
Department's (HUPD) treatment of students and faculty members in a racially
offensive and problematic fashion. I am, however, copying certain other persons
in and out of Harvard who have expressed, or are likely to have, an interest in
this matter. Further, I am posting this memorandum on my weblog, The Free For
All (www.TheFreeForAll.net),
maintained on the website of The Boston
Phoenix (www.ThePhoenix.com), for
which I am long-time legal and civil liberties "Freedom Watch" columnist.
According
to Tracy Jan's front page story in
the August 27, 2008 Boston Globe, the six of you have been
selected by President Drew Gilpin Faust, in Jan's words, "to review the
diversity training, community outreach, and recruitment efforts of Harvard
police." (A follow-up piece appears in today's Globe) If, in fact, this is your Committee's designated approach to resolving
the problem of how the HUPD treats black members of the Harvard community, then
your work is destined to fail. The long-standing problems that beset the HUPD
are not going to be solved with more of the politically-correct, tendentious,
and ultimately unworthy thought-reform efforts connoted by the terms "diversity
training" and "community outreach." Rather, what is needed is some tough-minded
reform in HUPD governance. I have been a close observer of the HUPD for many
decades - ever since I entered the Harvard Law School Class of 1967. As a
criminal defense and civil liberties lawyer, I noticed an explosion in the
mid-1980s of student complaints about mistreatment by HUPD, with a majority
(but hardly all) of those complaints coming from black students and other
racial minorities. I also took some complaints from black faculty members.
In my 1998
book The Shadow University: The Betrayal
of Liberty on America's Campuses (The Free Press, 1998; paperback from
HarperPerennial, 1999), co-authored with Professor Alan Charles Kors, I tell the
story of Inati Ntshanga, a black South African undergraduate who, in 1993, was
subjected to mistreatment by the HUPD. I am enclosing with this memo a copy of
the relevant pages of my book (pp. 323-325), but I will proceed here to
summarize the incident, including how I tried both to obtain justice for
Ntshanga and effect some reform of, or at least supervision over, the HUPD.
To summarize the case: Ntshanga was
a proud student who had struggled against South African apartheid before coming
to the U.S. to
enroll in Harvard's Class of 1995. To support himself, he worked two campus jobs,
and one was at the HUPD headquarters, dispatching vehicles operated by a campus
shuttle service. One day in the fall of 1992, he claimed he was picked on,
without cause, by Sgt. Kathleen Stanford. An argument ensued, and though no
formal charges were brought, an air of acrimony remained. The following month,
Ntshanga was once again the subject of police inquiry. Four HUPD officers
approached him while he was performing his second job, collecting dirty laundry
from dorms during the Christmas period. The officers demanded that he produce
his student ID. Ntshanga did not have his card, he explained, at which point
one officer asked for "a welfare card." As tensions rose, Sgt. Stanford arrived
on the scene. Ntshanga was sure she would identify him as a student, even if
she didn't particularly like him. But, to his surprise and dismay, she denied
knowing him to be a student. The officers proceeded to arrest Ntshanga for
trespassing, breaking and entering, and possession of burglary tools (the keys
he used to enter the building - part of his job).
A county prosecutor, shocked that
the HUPD had gone to such lengths, dismissed the charges. As Ntshanga's lawyer,
I wrote a complaint to Margaret Marhsall, the then-Vice President and General
Counsel of the University, now the Chief Justice of the Supreme Judicial Court
of Massachusetts. She assigned the investigation to University Attorney Allan
Ryan. Ten months later, he issued a report clearing all officers, saying that
none of them - including Sgt. Stanford - knew Ntshanga was a student. He also
deemed the "welfare card" statement to be "standard procedure when a person
says he has no identification." There were obvious holes in the investigation,
such as Ryan's failure to interview witnesses to the first argument who could
attest to Stanford's knowledge of Ntshanga's status as a student. But, appeals
to both the Harvard president and the secretary to the faculty of arts and
sciences produced no response. Ntshanga returned to his native South
Africa with a bitter taste.
The
Ntshanga case bears a remarkable resemblance to one of the stories recounted in
the aforementioned Globe article.
Working at his summer job on campus, a Boston
high school student was confronted by HUPD officers as he tried to free his
bicycle from a broken lock. It is likewise similar to the experience told by
Professor S. Allen Counter in 2004, when he was mistaken for a black robbery
suspect while walking across Harvard Yard to his office. It is similar as well
to the 2007 incident when an HUPD officer inquired whether those attending a
black student group-sponsored Field Day were Harvard students or had permission
to be on the Radcliffe Quad, despite their having had a permit to do so.
My point,
of course, is that history has repeated itself many, many times. The first
time, as it is said, might be tragedy, but by the second time it begins to
resemble farce. For every case reported, there were obviously many that went
un-reported. Too many have had to simply swallow the insult and proceed with
life.
Indeed, I
have received so many complaints over the years from affected and offended
Harvard students, that I took the extraordinary step of placing a paid
advertisement in the Harvard Crimson
of October 29, 1993.
I specifically appealed to "Harvard students who have tangled with the Harvard
University Police Department." (A photocopy of the actual advertisement is
appended hereto). In the advertisement, I noted that my law firm had "in recent
years been involved representing students in unfortunate incidents with the
Harvard University Police Department" where the students had been abused. I
asked for other victims to communicate with my firm, and I then collected their
incidents. The results confirmed my suspicion - that abuse was more
widespread than one would have thought. I think that repeating such an outreach
effort today would yield helpful information.
In my view,
I've never been able to get adequate remedial action by the university in any
of my cases because the HUPD, simply put, is more police than Harvard. The
HUPD is unionized, and the university is very hesitant to deal forcefully with
the members of the Department. Many of the same reasons that municipal and
state police departments, in Massachusetts
and elsewhere, are hard to reform with regard to mistreatment of civilians
certainly apply to the HUPD. (Indeed, at the very time the Ntshanga case was
pending, then-General Counsel Marshall, who had jurisdiction over the HUPD, was
negotiating a new contract with HUPD. It proved not to be a propitious time to
get strong action from the university against misfeasance by HUPD officers.)
What the
HUPD needs is, assuredly, not some form of diversity or sensitivity
training. Such programs, for one thing, intrude upon the right of private
conscience - they are more appropriately
the tool of totalitarian governments and are unworthy of a liberal arts university.
Besides, such programs clearly do not work; all they do is make administrators
feel morally superior and give universities public relations opportunities to
claim that they are working to bring about equal rights. They are a public
relations fig leaf - a façade. The goal of the university administration should
be to guarantee citizens of the university the right to fair and equal
treatment, not to make anyone "feel good" and not to seek to force anyone to
believe, or to disbelieve, any particular proposition. The HUPD need not have
their minds and attitudes reformed (that's impossible, of course); they need
simply to understand that failure to abide by the rules will result in
dismissal from the department.
Nor will
"community outreach" or enhanced or reformed "recruitment efforts" make a
difference. There is a certain ill culture at HUPD that is more likely to
transform new recruits than the recruits are likely to reform the organization.
What we have learned in the study of municipal police forces is that black and
Hispanic police officers, once recruited, often have the same tendency to abuse
citizens, including black and Hispanic citizens, as do the white members of
those forces. An organization's culture is very powerful and does not readily
change just because different skin colors and tones are added to the mix. Nor
have I seen any convincing evidence that "diversity training" makes much of a
difference. Dismissal of offenders works - not only to rid the department of
offenders, but also, in the long run, to change the culture.
My
suggestion is that you drop the whole idea of doing an in-depth study of HUPD.
In particular, I urge you to refrain, at all costs, from recommending that the university implement "diversity training" or
any similar "feel-good" program. Instead,
your committee should remain a standing committee of university governance, and
it should examine, with the aid of a small staff, each complaint of mistreatment
of anyone in the Harvard community by
a HUPD officer. When an officer, after receiving due process, is found guilty,
he or she should be fired. I can assure you that in a very short time, the
abusive culture of HUPD will change.
*
* * * *
Enclosures/attachments: (2)
August 27, 2008
"I'm a PUMA," the button festooned woman at the local Box Lunch
declared. "Do you know what that is?"
"I know what that is," I
responded. "I think you're all nuts."
She didn't take offense (I give
her credit for a thick skin, although it may make her impervious to political
realities as well as insults,) and we engaged in a brief discussion. She
acknowledged that McCain was no feminist and said she would not vote for him;
but she "hated" and feared Obama and warned that his "horrible" past, including
unspecified prior "crimes," would be revealed as the campaign progressed. She
may not be voting for McCain, but she appears to be listening to attacks on
Obama made on his behalf. And she declared that McCain would have limited power
as president, because "we're going to have 60 Democratic Senators in
November."
Oh. Her idiotic confidence in the prospects for a Democratic
Senate (along with her ignorance of executive power) was interesting: the
rationalizations of thoroughly irrational people are always a surprise and a
reminder that debating them is futile. With luck, they can be neutralized, but
not persuaded.
Maybe Hillary's convention speech succeeded in convincing
some of her more realistic acolytes to follow her in supporting Obama. It's too
soon to tell. But they can be forgiven for assuming that her speech was more
strategic than sincere, and, in any case, the enmity and contempt for Obama that
she aroused during the primary will not be easily defused. Her praise for
McCain's commander in chief credentials and disdain for Obama's will not be
forgotten, as long as there are Republican attack ads, and an army of Hillary's
harpies.
They are not feminists, if feminism entails reason and a
commitment to advancing equality and reproductive choice. They're female
chauvinists (who may or may not be inspired by racism along with crazed
notions of gender solidarity, considering their visceral hatred of Obama and
susceptibility to smear campaigns against him.) They're hysterics, who stand, or
scream, in opposition to feminism and its insistence that women are rational,
realistic, intelligent beings who can be trusted with power. Hillary shouldn't
trust them with her legacy.
August 26, 2008
Life, as a rule, is not all that simple. One should be wary
of
cries for "moral clarity" in a
world that sometimes makes excessive rigidity dangerous to human life and,
ultimately, to humanitarian values as well. The life and career of the late
Wolfgang Vogel, the subject of
New York
Times former diplomatic correspondent (now assistant managing editor) Craig
R. Whitney's superb
biography Spy Trader:
Germany's Devil's Advocate & the Darkest Secrets of the Cold War (Times
Books, 1993), is only lightly touched upon in Whitney's tantalizing
obituary that
appears in this past Saturday's
Times.
I first recognized
Vogel's
complexity, but also his underlying humanitarian values and devotion to
liberty, during my only face-to-face encounter with him in the winter of 1983.
I had just been retained by Vogel to represent East German
university professor Alfred Zehe, a physicist who had just been arrested by the
FBI when he landed at Boston's Logan Airport
to attend a conference of physicists at MIT. The story of Professor Zehe, and
how he came to be inveigled into a clumsy Cold War "sting" engineered by the
feds, is told by Whitney and will be further explicated in my forthcoming book,
Three Felonies a Day, on the
Department of Justice (second quarter 2009). My encounter with Vogel left an
indelible impression.
Vogel and I met over breakfast in the Parker House Hotel. I
was joined by my then-law partner Jeanne Baker, and Vogel by his wife Helga,
whom he said he needed to translate (even though I suspected that the canny
fellow was actually quite adept in English). I spotted a federal prosecutor having
breakfast at a nearby table, and two men in trench coats, who I suspected were
FBI agents, at the table next to that one. I warned Dr. Vogel that we should
not speak about confidential matters, since there was a prosecutor and two
suspected FBI agents sitting nearby. "How do you know they are FBI agents?"
Vogel asked. "Do you know them?" I admitted that while I knew the prosecutor, I
did not know the agents, but they were actually wearing their trench coats indoors,
and this was a sure tip-off that they were agents and were wired for sound.
"Ah ha," Vogel continued, a slight smile racing across his
otherwise stolid face. "And are you sure that the trench coats are FBI, not KGB?" I was startled by the question, which Vogel then went on to
answer himself: "You know, the FBI and the KGB buy their trench coats from the
same supplier." Thus did Vogel make the
point that the security services of all nations pose a potential threat to
liberty if not subject to adequate controls. It was at that moment that I began
to recognize that this was a devotee of liberty, but wily enough, and
sufficiently a survivor, to speak in the kind of code language not likely to be
understood by either FBI or KGB agents.
After the fall of the Berlin wall and the reunification of Germany,
German prosecutors, employing a revisionist view of history, indicted Vogel for
fraud, embezzlement, and related crimes growing out of his activities as a
lawyer adept at dealing with both sides during the Cold War and negotiating the
release of accused spies as well as Eastern bloc citizens seeking to come to
the West. One of the major charges was related to Professor Zehe's legal fees,
which Vogel had transmitted to me from the East German government. These, and
other monies, the prosecutors alleged, were funds embezzled by Zehe from the
state treasury. These charges were dropped after I executed an affidavit
swearing that Vogel in fact paid the
monies to me. Other lawyers paid by Vogel did the same. Still other charges
were reversed on appeal, leaving only a minor charge resulting in Vogel's
disbarment, but not imprisonment.
Wolfgang Vogel had been responsible for an estimated quarter
million human beings' escaping the clutches of totalitarianism, but he was
treated, after the fall of Communism, like a criminal rather than a hero. May
he rest in piece, and may his good reputation outlive his tormenters and
detractors.
August 14, 2008
August 14, 2008