Tuesday, August 20, 2013

Some Thoughts About the Law Today

This blog by Jeffrey Toobin of the New Yorker raises interesting questions about the Edward Snowden matter. I share Toobin's concern about Snowden's going rogue and his naivetĂ© about the Russians and Chinese. However, Snowden's actions, however right or however wrong, have caused prompted an important debate. The debate should become more lively and crucial with the recent actions of the Brits in detaining Glen Greenwald's domestic partner for nine hours under their terrorism act. For however we might rightly characterize Snowden and anyone working with him, they are not terrorists. You may argue that they are unwittingly aiding potential terrorists, but that's a different issue. Similarly, Snowden broke the law, but he did not "aid the enemy" because we have no "enemy". To start with, we are not at war with any country. Of course, individuals and groups want to harm us, that's a given. It's a new world in the sense that its not a nation (say like the Soviet Union or Nazi Germany) that threatens us so much as an amorphous, sometimes spontaneous phenomena of individual or small group efforts (for instance, the Boston marathon bombing brothers or the anti-technology guy who mailed bomb packages for several years). So we need to put Snowden's actions in perspective.

The Brits have really sharpened the argument with their actions. Whatever actions Greenwald and his fellows did or plan to do, it isn't terrorism, and yet the Brits detained and took items from Greenwald's partner under this pretext. This was an abuse of power. In a Tweet this I referred to John LeCarre's "paranoia": several of his recent novels have shown the Brits acting as lackeys for the Americans to perform tasks that were often stupid, illegal, and immoral. After this, I feel I owe him an apology: "I'm very sorry, John. My belief, or at least hope, that my government could not act so foolishly, callously, and immorally, let me to doubt your take on events. It's appearing more and more that you had it right". Anyone have his email?  Or, perhaps the Brits can abuse power quite in their own without any prompting by the U.S. government. Perhaps John doubts the initiative of his own government too much.

The Bill of Rights comes at a cost. Like most everything in life, these rights involve trade-offs. Free speech included in the First Amendment, for instance, allows any political fringe group, religious fanatic, or simple liars to say most anything that they want to say about our government and politics. In other words, to protect the good, we must allow the bad and sort it out later. Similarly, the provisions in the Bill of Rights about criminal procedure protect us from abuses of police power by protecting wrongdoers as well. In other words, we have to give the guilty a break (sometimes, not that often) in order to protect us all from abusive actions by the police and government. This was true in the late 18th century and it's still true in the early 21st century. But we must do more than simply point to the lovely words, we have to commit to enforcement of these rights  and take these matters most seriously. The debate should be serious and wide-ranging. The issue isn't that some would harm us: criminals domestically and hostile interests abroad have always been with us. The issue we  now should address concerns the parameters of the powers and protections that we should have under the new technological regime that we live in.

A recent article about civil forfeitures in the New Yorker provides a case in point. Civil forfeitures allow the government to take a person's property with little procedural protection if the property  might have been used or  involved in criminal wrongdoing, regardless of whether the owner of the property was involved. In a small town in Texas (I'm I surprised?) we learn of a police racketeering scheme to enrich the town and the police by bogus traffic stops and coerced forfeitures. So what happened? Nothing, no criminal charges against the police, although a civil suit did bring the practice to an end for now in that locale.

In a recent issue of Vanity Fair, Michael Lewis chronicles a frightening case of the misuse of a criminal prosecution against a former Goldman Sachs computer expert based upon slippery intellectual property laws. Reading the article, you thought it had a happy ending when the Court of Appeals (federal) reversed the conviction, only to learn that the state, apparently a the behest of a vindictive and deterrent-determined  Goldman, filed new charges on the same conduct. The matter, tried before a jury, was a fiasco given the alien nature of the Russian-born and educated computer genius and the forbidding complexity of computer code issues. If Lewis is correct--and he "re-tried" the case with real experts--we learn of a real miscarriage of justice and abuse of the system. Next to the government, how do we protect ourselves from the likes of Goldman Sachs and their ilk with unworldly financial power and clout--1% of the 1%?

I've invested 37 years of my life in our legal system. It can work well. It works imperfectly at best. We need always to challenge and criticize the system and decisions made within in it because we're human and prone to complacency, fear, and power-hunger. Look around the world and you can find beautiful words everywhere and shameful realities behind most of them. For the most part, we've avoided that, but we can lose it all in an instant if we're not vigilant. We all must constantly stand up to fear and power, our twin enemies. In this effort I consider myself not a Democrat, not a Republican, but an Actonian, after Lord Acton, the great British historian who coined the phrase that "power corrupts, and absolute power corrupts absolutely". We must constantly speak truth to power, or we will lose truth, lose democracy, and enslave ourselves to those who will prey upon our fears and weakness.

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