January 27, 2009
Destruction – in both a literal and constitutional sense – has been left in the wake of the eight-year Texas tornado that was the George W. Bush presidency. Citizens are understandably upset, but criminal prosecutions of former (or current, for that matter) government officials, cathartic as they may first appear, are not the answer.
While journalists, politicians, law professors, and other indignant dignitaries have called for investigations of high-ranking Bush administration officials, President Barack Obama has tried to temper their zeal. His assertion that “we need to look forward” is valid, but it perhaps requires further explanation.
As a preface, this subject requires total intellectual honesty and political consistency, rather than the kind of thinking that says that it's okay to burn and pillage your way through the legal system in order to get your enemies. (We all know where that road leads...)
One must bear in mind the challenges of successfully prosecuting and convicting these officials. After all, following legal advice that appears to have been given in good faith is a valid defense to a criminal prosecution. That leads us back to the legal abominations known as the “torture memos,” a cynical lawyers' trick about which I've written in the past.
The lawyers who wrote the memos should be professionally disciplined or perhaps even disbarred, but not indicted. Likewise, the actors who proceeded on the basis of the "legal" advice should not be prosecuted. That includes Bush and Cheney, for whom it is very difficult for me to muster any sympathy whatsoever. Their situations, however, must be analyzed much the same as the situation of any person in our legal system.
In my view, it boils down to jury dynamics. Getting all 12 jurors to agree to vote guilty – or, for that matter, getting all to acquit – would be virtually impossible. Every trial almost certainly would result in a hung jury and would have to be re-tried time and time again, without producing a verdict. Eventually, a judge would have to dismiss each and every prosecution.
A prosecutor has an ethical obligation to indict someone only if he or she believes, in good faith, that he/she can obtain a jury verdict of guilt "beyond a reasonable doubt." There's just no way that any of these cases stands a decent change of producing unanimity among jurors. Some jurors are bound to conclude that in the fog of terrorism, so to speak, it’s understandable that some government officials and agents opted for legally questionable responses. So it would be unethical, in my view, for federal prosecutors to seek to indict and try them. The best we can do is to disbar or otherwise discipline the unethical lawyers who produced the dubious (at best) legal advice that was, or appears to have been, relied upon by government officials and agents who went on to do unspeakable things.
As for the malefactors at the top of the pyramid, the political system has gotten rid of them at long last ("our long national nightmare is over"), and history will have to deal with the rest. And as for the people toward the bottom of the pyramid – the ones who believed or at least arguably believed the "legal" advice in the John Yoo and David Addington "torture memos" – they now have a new commander-in-chief whose quite different bidding they now will do.
This is the best that we, as a free society under the rule of law, can do. "Revenge is mine, sayeth the Lord."
January 22, 2009
The Boston Globe’s metro columnist, Kevin Cullen, has a revealing piece in the January 22nd issue about Harvard’s cozying-up with Libyan dictator Moammar Khadafy, who is holding political prisoner Fathi Eljahmi, while Harvard Business School is hosting and promoting Khadafy’s son, Saif Al-Islam. (And, notes Cullen, the Globe published an op-ed by Khadafy after receiving an entreaty from the Libyan family’s New York-based public relations firm.)
It is a relief to see that someone at the Globe recognizes that there’s something wrong with the picture of Harvard dancing with dictators – especially iron-fisted rulers with substantial petro-wealth and a knack for suppressing dissent. None of this comes as a surprise to The Free For All, however. Loyal readers will perhaps recall my column in this blog’s parent, The Boston Phoenix, noting the trend toward major American universities’ cooperating with, and even building campuses in, oil-rich sheikdoms and dictatorships. And, in a related Minding The Campus blog entry, I talked about the corporatization of American higher education, which accounts in large measure for Harvard’s, and other universities’, close ties to wealthy dictators who have very little in common with western notions of education and academic freedom, but do share a mutual love of lucre.
I am, by way of disclosure, making a run as a petition candidate for Harvard’s Board of Overseers, the university’s second most powerful governing body, and my platform calls for a return to certain time-honored academic values. My Statement of Candidacy is posted on my website.
January 12, 2009
If Harvard Law School dean Elena Kagan is confirmed as the nation’s first female solicitor general – she’s been nominated to supervise all federal government litigation in the Supreme Court by HLS alum and President-elect Barack Obama – she would be addressed as “General Kagan” by the justices (and by others as well), New York Times Supreme Court reporter Adam Liptak noted on January 7th.
Technically, it’s true, but it’s hardly clear that Kagan would in fact want to be addressed by that new title, rather than simply as “Dean Kagan.” There’s an interesting precedent on the subject.
In the early 1970s, I was involved in representing then-Senator Mike Gravel (D – Alaska) and Boston-based Beacon Press in the lesser-known local angle to the infamous “Pentagon Papers” imbroglio. Intelligence reports involving details of the Vietnam War were secretly leaked to Gravel, who then handed them over to Beacon for publication. Wanting to locate and punish the informant, Richard Nixon’s Justice Department henchmen served Gravel’s staff and the publisher with a grand jury subpoena. (As we all know, the leaker turned out to be long-time Cambridge resident Daniel Ellsberg.)
Gravel’s legal team won the argument in the First Circuit Court of Appeals, sitting in Boston, which ruled that “legislative privilege” protected Gravel’s staff and Beacon from having to obey the subpoena. It was a precedent-making interpretation of the Constitutional clause that protects legislators from being questioned, much less harassed, by all the President’s men. Nixon and his Department of Justice were furious and were inclined to appeal to the Supreme Court. Gravel’s legal team arranged a meeting with the then-solicitor general, Erwin N. Griswold, who previously had been the long-time dean of the Harvard Law School. Our aim was to talk Griswold and his team out of pursuing the appeal.
Gravel’s legal team – myself included – walked into the solicitor general’s ornate office at the Department of Justice building in Washington. In the room were Griswold’s main underlings and clerks, most of them Harvard Law grads who had known Griswold since their student days. We were all waiting for the great man to arrive. I asked one of the young staff lawyers whether Griswold – a notoriously stiff and formal fellow – would want to be greeted as “General Griswold” or “Mr. Griswold.”
Without missing a beat, or even breaking into a smile, the young assistant solicitor general responded that it was normal protocol to address such august figures by the highest professional title that they’d attained. That being so, the lawyer advised me, “the solicitor general prefers to be addressed as ‘Dean Griswold.’”
Will it be General Kagan, or Dean Kagan? We’ll find out soon enough.
And, by the way, Dean Griswold decided to appeal to the Supreme Court, which reversed the First Circuit in a closely-divided and still controversial decision.
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.
