A Plague On Both Your Houses

The Gavel Blog Archive A Letter from Anonymous Justice Employees

The Gavel Blog Archive A Letter from Anonymous Justice Employees

In 1940, then Attorney General Robert Jackson, who would go on to become a Supreme Court Justice and the chief Prosecutor at the Nuremberg trials of Nazi war criminals, gave a speech to the United State Attorneys under his charge. Jackson is recognized as a man of great integrity and he had this to say about the role of the Prosecutor:

There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.

How prescient. He went on to enumerate one of the primary reasons a prosecutor must remain independent:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

We must be able to trust that politicization is at a minimum discouraged if it can't be eradicated from the Justice department. After all we are talking about meeting out Justice, not doing the President's or a particular party's bidding. Cynics may say that we no longer live in the 1940s. To which I reply, true, but that doesn't mean Jackson was wrong.

Technorati : Attorney General, Gonzales, Robert Jackson, department of justice, ethics, integrity, justice, pelosi, politics, prosecutor
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Al, Give Us A Break - Resign Already

There are some people who can lie, then apologize and its all good. Not the Attorney General of the United States. There are some people who can speak poorly so it looks like they are lying, when they're not. They can apologize and its all good. Not the Attorney General of the United States. How can the USAG have the former chairman of the judiciary committee say his "credibility has been impaired" and stay in office? How can the USAG spend three weeks preparing for testimony where every question and every tactic was predictable and go down in flames? Does the Administration have no shame? Is there so little respect for the office of Attorney General that you can allow it to be treated as just another political sinecure?

I have always tried my best to give the President the benefit of the doubt, even if I think he is wrong or acting foolishly, so that I could respect him and the office. If Gonzales does not go, this Administration is without doubt one of the worst and simultaneously most politically inept and politically corrupt in history.

Technorati : Attorney General, Bush, Bush Administration, Gonzales, Judiciary, President
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Don Imus Fired - Shame on CBS, Shame on Al Sharpton

"The message of the ongoing Imus scandal is simple: Verbal offenses against anyone, other than conservatives or Christians or Jews, will be treated as crimes, and Jesse Jackson and Al Sharpton are the judge and jury."

Before I get to the quote above, let me say that Don Imus' unrepeatable statements were rude, deplorable, outrageous, wrong, stupid, misogynistic, immature, horrific, sickening, moronic, unthinking, insensitive, racist, sexist, mean spirited and practically every other epithet you can throw at them. That he should have apologized is a given. That he should have pleaded for mercy in front of African American and women's groups is unquestioned. That everyone should object, and be outraged and call him out and call the words out and bring attention to the evil that was spewed is the American way. It is the whole point of free speech.

And that is why CBS should not have fired him. People in the media should not be fired for what they say or how they say it. I said elsewhere that is a dark alley down which we are about to descend.

Which brings me to the quote above - the quote is from Tom Delay. He is a man who's politics of extremism I abhor. And CBS and Al Sharpton have put me in his corner. If CBS is firing Don Imus why isn't ABC firing Rosie O'Donnell. She after all called Christian right wingers fascists. I don't like to be called a fascist. But then I'm Jewish so I don't like to be called a big-nosed money lender either. I once slapped somebody around for calling me a kike. But I also think the ACLU was right when they defended the Nazi's right to march in Skokie.

Where are all the free speech people now? Was the ACLU just kidding? Is it really all right to fire people for what they say on radio? On TV? Is the FCC right to censor all those vulgar words? Where's George Carlin? It appears there are more than 7 words you aren't allowed to say on radio, they've just changed. Every person who called for Don Imus to be taken off the air better watch out because Delay is revving up his big guns: "What the Left is doing is not a fluke - it's a concerted strategy. And it works. So if you can't beat 'em, join 'em. That's why I am calling on conservatives to use the available media (radio talk shows, blogs, letters to the editor) to protest and demand that Rosie O'Donnell be kicked off The View." What are people going to say? It only counts if it is insulting? Well, what Rosie says is insulting to Christians. Its not political? So now we are only protecting political speech? Kiss freedom of artistic expression goodbye.

CBS and the people who put pressure on them have gone to that scary dark back alley, and it's already looking like the lurkers are ready to pounce.

Shame on you and damn you. You have done something very wrong and very bad for this country. I believe you have done something that could seriously damage the fabric of the first amendment.

Technorati : ABC, ACLU, CBS, Constitution, Delay, Imus, Rosie O'Donnell, Sharpton, Tom Delay, christian, conservative, extremism, free speech, liberal, political, politics, speech
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What the Duke rape case fiasco and the U.S. attorney scandal have in common

What the Duke rape case fiasco and the U.S. attorney scandal have in common. - By Dahlia Lithwick - Slate Magazine:

Both the Duke case and the U.S. attorney purge confirm that there is no such thing as law without politics or politics without law. But both stories ought to remind us that "prosecutorial independence" isn't just some meaningless ethical jargon or a gauzy law-school ideal. Former Attorney General and Supreme Court Justice Robert H. Jackson gave a speech in 1940 in which he warned that "[t]he prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations." Jackson added that "the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes. ..."

This Article is completely spot on and I highly recommend it. The only thing I would add is the Border Patrol cases of Ramo, Compean and Hernandez. In their cases, unfortunately, not only did politics (if not genuine corruption) drive prosecution, it is driving a lack of investigation on the part of congress and a lack of motivation to attack Bush crony and overzealous US Attorney, Johnny Sutton.

    Technorati : Border Patrol, Border Patrol Agents, Bush, Bush Administration, Corruption, Duke, Johnny Sutton, Justice Department, Mexico, Ramos and Compean, US Attorney, border patrol, corruption, justice, law enforcement, politics
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ABC News: Obama: Fire Imus

ABC News: Obama: Fire Imus:

"I understand MSNBC has suspended Mr. Imus," Obama told ABC News, "but I would also say that there's nobody on my staff who would still be working for me if they made a comment like that about anybody of any ethnic group. And I would hope that NBC ends up having that same attitude." Obama said he appeared once on Imus' show two years ago, and "I have no intention of returning."

Obama is only right about one thing, he would fire Imus and most businesses would fire Imus. The problem is the media is not most businesses. Imus is on the air to sell ad space and get ratings. Not to be nice or uncontroversial. If he were nice and uncontroversial he wouldn't have been hired in the first place. The fact that I would fire Imus or Obama would fire Imus or both of us would fire anybody on our staff who said those things, or in fact much more innocuous, yet insulting, things is totally irrelevant. Imus is on the air. Imus is a "shock jock." It would be completely disingenuous to fire Imus for saying something shocking. You might deplore him, suspend him, make him apologize, so next time he has a second thought, but don't fire him.

Technorati : Imus, Obama, free speech, speech

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Don Imus, Rappers, Hos and Bitches

Hos and Bitches (Kevin Drum):

A slur aimed at specific people is obviously different than a generic slur in a rap song, but it's not that different. If one is offensive, so is the other, and it's hard to argue that the cesspool of misogyny in contemporary rap has no effect on the wider culture. It's not that this excuses what Imus did. It's just the opposite. If we're justifiably outraged by what Imus said, shouldn't we be just as outraged with anybody else who says the same thing, regardless of their skin color?

Doesn't anybody realize that it is not only hard to argue that "the cesspool of misogyny in contemporary rap has no effect on the wider culture," it is virtually impossible. Impossible, that is, if you want in the same breath to say that Rap is culturally relevant and an expression of African American anger etc. How can you say something is culturally relevant, even important, but at the same time argue that it has no effect? It's like saying the verb to google, did not come into common parlance because of Google. It just happened. Linguistic norms don't just happen. Common usage doesn't just change, and slang doesn't arise from whole cloth. It comes from repetitive use by people to whom we listen and whom we ultimately emulate. That usage has influence on the broader culture. If Imus thought for one nano second before he said what he did, he probably wouldn't have said it. He didn't think, it just popped into his head. It popped into his head because he had heard it before and probably repeatedly.

All that said, I don't think Imus should be fired, nor do I believe you need to shut down record labels before you fire him. Imus should lose his job because so many people object that they stop listening and buying advertising. If you want to protest Imus criticize him. Tell everyone who will listen how terrible it is that he said these things. Make him apologize and ultimately turn the dial on your radio and pull your adds. Don't censor him just as we shouldn't censor rap music. Don't fire him because of the content of his speech. As I said elsewhere that is a dark path down which we don't want to descend.

    Technorati : Imus, culture, free speech, racism, rap, speech
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Trolls and Other Nastiness

I posted a comment to the clip on clipmarks.com (great site BTW) on which I wanted to elaborate a little. Here is my comment:

Freedom of speech is a right. Rights in theory come with commensurate responsibilities. Power without responsibility or accountability ultimately corrupts. The risk is not that people will shirk their responsibilities, it is that too many will, without consequence, and there will be a reaction. The reaction will be censorship or worse, and ultimately that right can be taken away or limited. Thus, the advocates of unfettered free speech may be arguing for a just cause, but they are also spelling the doom of their cause. If they do not also argue for judicious use of that right, people will ultimately decide that its not worth it and the right will die.

Ultimately, in my humble view, the press is paradoxically responsible because they take no responsibility for what they put on the air or in the paper. They argue that "the public has a right to know." Well actually that's not technically true. There is no right to know, there is only a right to speak and to publish. The press shirks its responsibility for it's choice to speak or publish, by arguing this right to know. Similarly the folks on the internet who are particularly vitriolic argue that they speak because they have a right. True, but it is their choice and ultimately they are responsible for what they write. Doing something "because you can" is the ultimate expression of corrupt power.

I have revised the above slightly for some grammatical errors and one typo.

One of my favorite sayings I learned from my father. It is applicable to many, many situations, not just driving where I learned it. "The graveyard is full of tombstones that say 'He had the right of way...and took it.'" We do not understand how fragile or unique our freedoms are. Let's remember that the Bill of Rights, that we all take for granted was not passed until four years after the Constitution. That same Bill of Rights is broader and more comprehensive than the rights granted either by statute or common law in any other nation in the world. Yes, even notoriously liberal western European nations do not have the comprehensive protections of the 1st, 2nd, 4th, 6th and other amendments. Yet we take them for granted. So too do we take the 14th amendment for granted, which ensures these rights are not taken from anyone in a discriminatory fashion and without due process of law. If you think free speech is not fragile, check out the controversy regarding YouTube and the Thai government and you can get a flavor. Yet we tend to treat these rights as if no government, or military coup or company or agency can take them away. The truth is, throughout the world they do it all the time. It has happened here and it can again. The kind of fear we live with today is just the kind of fear that has made it happen before (from the alien and sedition acts in 1798 through the House Un-American Activities Committee and beyond) and can make it happen again.

The only protection we have lies in each of us. It is our collective responsibility not only to speak out in the face of injustice, but also to use our rights judiciously and responsibly. Making threats, pandering, shouting people down is the senseless refuge of the ignorant, fearful and immature. We all become frustrated, we are all subject to the desire to spew vitriol at those we believe are unkind or unjust or just plain wrong. Another favorite line of mine comes from Tom Lehrer. I believe it was in his lead-in to a song entitled "National Brotherhood Week." He said "There are people in this world that don't love their fellow human beings, and I hate people like that." We must reign in that frustration and attack the substance with our free speech. If we feel something is untrue or unjust we must bring to light the facts and the truth. We must shine the cold light of reality on those who are hateful, but we can not censor them.

Censorship is a dark and gloomy alley in which unseen dangers lurk in the shadows. Traveling down that alley may mean no exit. The demise of the freedom of speech brought about, as it can so easily be, by fear, frustration, hatred and injustice, is one we must all fight against. One method of fighting against losing such a freedom is by making sure we take responsibility for its protection and nurturing. Protection and nurturing as anyone with kids can tell you involves balancing both the recognition of independence and freedom with limits many of which are voluntary. I applaud Tim O'Reilly and Jimmy Wales for taking a step toward voluntary self regulation. I think it will be good for the discourse and a positive protection for the freedom it, only apparently, limits.

    Technorati : Bill of Rights, Constitution, Jimmy Wales, Tim O'Reilly, Tom Lehrer, free speech, freedom, justice, speech
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The Problem with a Biased Press

Here is the problem with having biased reporting. I am reading a New York Times article discussing the recent problem with three of the top deputies of U.S. Attorney Rachel Paulose in Minneapolis gave up their managerial positions. The first problem with the article is the headline "Deputies to a U.S. Attorney Step Down." That implies that they quit. They did not. They went back to being prosecutors, not managers. They did not resign and apparently were not asked to resign. Next we have Chuck Schumer trying to say that this is another example of the U.S Attorney's office being de-professionalized. It's hard to tell if that is true because there is nothing in the story other than innuendo that says anything about why they stepped down. In fact the only real statement was the following:

"Several of their associates described the action as a protest over what the three deputies regarded as Ms. Paulose's ideologically driven and dictatorial managerial style."

That is contradicted by the statements of Paulose supporters which tellingly say the following:

"Ms. Paulose's defenders at Justice Department headquarters said the criticism of her was unwarranted. They said older lawyers had difficultly dealing with a young, aggressive woman who had tried to put into place policies important to Mr. Gonzales like programs to combat child exploitation."

Of course the first quote was in the first paragraph, the last was in the penultimate paragraph. In between there was what can only be called irrelevant filler calculated to set the stage for the view that this is part of the scandals. What should one believe? I know the NYT is biased. I generally think they are less biased than the conservative press would have one believe. The problem is they are biased and the article is written in such a bald facedly biased way, seemingly to create a story out of whole cloth where virtually none exists without more facts. In fact if you were not biased, or if you decided to lean in a different direction you could easily slant this story as the old guard using the recent scandals to discredit a bright young Asian woman, and isn't that terrible.

The problem with a press that demonstrates bias, and publishes clearly slanted stories is that it is untrustworthy as a news outlet. It becomes merely another propaganda mechanism. Do I trust Fox? Of course not, because I believe they are biased. I don't begrudge them their bias and I don't begrudge the NYT theirs, but where do I turn for a real view of the News. Where do I look for facts? What ever happened to the 5 Ws? I am tired of having to read between the lines at Fox, on CNN or in the NYT.

Don't get me wrong. I am not naive enough to believe that the press was ever not biased. It used to be that they really did try, however. It used to be that a good editor forced them to find more of a smoking gun before they published a lot of innuendo. It used to be they took some responsibility for what they put out there. They didn't just tell you they were fair and balanced. They at least tried to be fair, if not balanced. They at least tried to back up their implications with facts.

Technorati : Fox, New York Times, US Attorney, press, reporters, reporting

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The Power of Appropriations - just ask the guys who know

CQPolitics.com - Stevens on His Way to Setting GOP Legislative Record

Stevens, 83, ranks seventh overall in all-time Senate seniority, and his tenure has overlapped with that of each of the six senators who are ahead of him. Three of the six serve now. First among them is Robert C. Byrd, D-W.Va., the longest-serving senator ever and chairman of the Appropriations Committee, which Stevens once chaired and on which he continues to serve. The other two are also Democrats: Edward M. Kennedy of Massachusetts, who ranks third overall; and fourth-ranking Daniel K. Inouye of Hawaii, who also sits on Appropriations.

Interesting that all the most senior Senators serve on the appropriations committee. Why? Appropriations is the most powerful committee. If you are a bureaucrat and you want funding for your pet program, whether you be a pentagon general or an Energy Department assistant secretary, everything you want to accomplish runs through Appropriations. In Washington real power is about who needs you. If you have a seat on appropriations, everybody needs you.

Technorati : Washington, politics, power, senate

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Bush's Legacy

A colleague and I had a heated discussion today on Bush's legacy. I believe history will view him poorly in the long term. My friend says the opposite and believes I am tainted by the liberal media. Maybe I am, but I try to put myself in the position of an historian 20-30 years hence or longer. Primarily we discussed Iraq. I believe George has provided a poorly executed strategy of engagement of the enemy on foreign soil. Not necessarily a bad strategy, but it's execution has been so ill considered and poorly done, that it has been almost unrecognizable as a decent strategy. He has cloaked that strategy in so many politically "acceptable" guises that it has also become un-recognizable and therefor unpalatable for the rest of the world. He has virtually no allies, he is arrogant about his justifications and, in a paradoxically isolationist manner, he has alienated every potential ally, including the American people, by that arrogance.

Bush started by characterizing the war as a fight against a mad man with weapons of mass destruction. That turned out to be at best a mistake and at worst a pre-fabricated excuse with only marginal plausible support. He then characterized it as a fight for democracy in the Middle East and rushed Iraq to elections. Another arrogant and tactical blunder that has probably cost lives. The truth is a democracy is a hell of a lot harder to control or govern, particularly in the context of an occupying force, than a dictatorship or marshal law state. That tactic has probably cost both lives and time. He has also characterized Iraq as a bastion in the fight against terror, which it may now be, but only because we have made it a playground for terrorists.

My friend says that Bush has "brought the fight to them" and protected the United States by keeping the terrorists fighting overseas. I think that is wishful thinking. First, Iraq was not a fertile ground for terrorism until we invaded. Secondly, the reason we decimated the terrorists was Afghanistan where we were able to win, not Iraq, where we still have not. In fact, because of Iraq, the Taliban and other organizations are re-emerging and causing us problems in Afghanistan. Thirdly, we bungled the occupation by insisting on Rumsfeld's theories of war which were wrong, ill considered, and costly in terms of lives and time. We allowed politics to govern our actions, and Rumsfelds theories to govern the tactics in Iraq, despite the fact that Petraeus's theories actually worked until Rumsfeld stepped in and negated them. Iraq is a mess, and to say that Bush will be remembered for anything but that mess is actually short term wishful thinking not long term reality.

But there is more to Bush than Iraq. There is domestic spying, Guantanamo, and Abu Ghraib. There is Katrina, and FEMA and Brownie. There is a tendency to be loyal to those who toe the line (Rumsfeld, Gonzales) until they become "too much" political baggage, and to be disloyal to those who don't. The Texas Mafia is alive and well and living in Washington. There are corruption scandals. There is the arrogance of too much power, too easily exercised. There is a sense that Karl Rove has more influence than anybody else in the white house other than Dick Cheney. Since when has it been a good thing that the Vice President and a political consultant/deputy chief of staff have more influence on the nations policy than any cabinet member.

Where are the positive achievements of George Bush? Even "No child left behind" has fallen into controversy and disrepute. George does not compromise, he does not act with diplomacy. All of the things that made him a populist candidate and somewhat endearing right after 9/11 are actually negatives in the long term. As we can see from recent weeks, without the support of his own party, he can't get anything done. And, lest we forget the elections, he has won by the slimmest of margins, one of which had to be ruled upon in the courts.

No, I think history will clearly say George W. Bush was a fairly lousy president, and didn't do a very good job when the country needed him the most.

    Technorati : 9/11, Abu Ghraib, Afghanistan, Bush, Bush Administration, Cheney, David Petraeus, FEMA, Guantanimo, Iraq, Katrina, Rumsfeld, Taliban, corruption, domestic spying, elections, history, international terrorism, isolationist, legacy, politics, populist, post-9/11, republicans, strategy, terrorism
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