The Uproar Over Pat-Downs

Americans understand the need for security screenings at airports and are remarkably patient. So there is no excuse for the bumbling, arrogant way the Transportation Security Administration has handled questions and complaints about its new body-scanning machines and more aggressive pat-downs.

The Times reported on Friday that civil liberties groups have collected more than 400 complaints since the new pat-downs began three weeks ago. That is a minuscule number compared with all the people who flew. But there are far too many reports of T.S.A. agents groping passengers, using male agents to search female passengers, mocking passengers and disdaining complaints.

Lawsuits have been filed asserting that new, more powerful body-scanning machines violate the Fourth Amendment’s protections against unreasonable searches. In general, it seems to us that the scanners are not unconstitutional, but the lawsuits are a healthy process that will require the government to prove that the scanners are reliable and more effective than other devices.

The Fourth Amendment would certainly protect Americans from unnecessary, overly intimate security checks. And nothing in the Constitution permits power-happy or just downright creepy people from abusing their uniforms and the real need for security. The government could start by making their screening guidelines clear. And they should respond to the concerns of people like the woman who told The Times that she is patted down every time because of an insulin pump.

Some passenger groups are planning demonstrations during the Thanksgiving rush. That’s their right, although if they interfere with air travel, or with security measures, they have to assume the risk that applies to any civil disobedience: they might be arrested.

The federal authorities need to take customers’ complaints seriously. And while they’re at it, they should be hard at work filling in the really huge hole in the security of air travel: the inadequate screening of cargo.

Editorial, New York Times


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Russia’s Dictatorship of Law

Russia’s newly outrageous legal treatment of Mikhail Khodorkovsky, the former owner of the country’s largest oil company, is a reminder that Russia has yet to grasp the idea of equal justice under law — especially when the Kremlin decides someone is in the way.

Mr. Khodorkovsky was convicted in 2005 on trumped-up charges of fraud and disobeying a court order and lost his company to Kremlin loyalists. Russians call his sort of case “telephone law,” imposed by the politically powerful through a call to the courthouse. With his sentence almost up, he was just tried again on suspect charges of embezzling and money-laundering. The judge is expected to reach a decision in December.

Two decades ago, the United States State Department urged the new Russia to resurrect the jury system, as The Times described this week, to put the law in the hands of the Russian people. Juries had been abolished after the Soviet revolution, along with anything recognizable as courts and lawyers. They were reborn in 1993.

Defendants have a right to a jury trial in a small fraction of crimes like murder and kidnapping. Compared with non-jury trials in the Soviet era, when the acquittal rate was likely less than 1 percent, the rate with juries has climbed to between 15 and 20 percent. Because of this apparent success, it is tempting to look for the growth of a familiar sense of justice. That search ends in disillusionment.

The Soviet system relied on prosecutors to find what passed for the truth in criminal cases, so the foundation for reform is at odds with the new system that juries are part of, with truth supposedly emerging from the competing accounts of the prosecution and the defense.

More to the point, the old system is not dead. Russia, the scholar Jeffrey Kahn said, has “a lot of bad legal habits.” One is the prosecutor’s “case file,” which sealed the guilt of countless Soviet citizens and retains its terrifying force. Of the 791,802 criminal cases disposed of this year through September, only 465 were decided by a jury. Mr. Khodorkovsky wasn’t allowed a jury in either of his trials. Deliberately, the prosecution charged him only with crimes that didn’t give that right. A jury couldn’t be trusted, apparently, to look out for the state’s interests.

When Vladimir Putin heralded the start of the era of law and democracy, he repeatedly described it as “the dictatorship of law.” As the Khodorkovsky case dramatizes, that is a chillingly accurate description.

Editorial, New York Times


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When Rights Get Squeezed

If you want to understand the spontaneous outrage that combusted this week at the introduction of new airport security procedures—an electronic undressing for those who go through the fancy X-ray machines and a groping for those who “opt out”—just look at the pictures of our fellow citizens passing through the scanners. They stand, dishearteningly, with their hands above their heads in the universal pose of defeat and surrender.

A TSA officer at Reagan Airport looks at a scanner image last year.

Yet the Department of Homeland Security and the Transportation Security Administration are, frankly, annoyed at the “traveling public” for making such a fuss.

A senior Homeland Security official (who would not allow his name to be used) told CNN this week that “the mood at DHS and TSA is anger.” The official griped to CNN that the real outrage was how TSA agents were being treated. In San Diego, one such agent “was accosted and verbally abused by a member of the traveling public,” said the official. “The fact that some in the media would hail the traveler as some kind of folk hero is shameful.”

He was talking about John Tyner, the young man from Oceanside, Calif., who surreptitiously recorded his run-in with the TSA and posted it online. Mr. Tyner chose not to subject himself to radiation from the X-ray machine and was taken aside for a “standard pat-down.” The TSA agent explained to him how the “groin check” part of the pat-down would be executed. It was then that Mr. Tyner “accosted” the poor TSA agent by saying the immortal words, “If you touch my junk, I’m gonna have you arrested.” For shame, all of you who cheered. For shame.

Shame on those of you who have bought the “Don’t Touch My Junk” T-shirts that entrepreneurs made available this week. Shame too on the Tea Party types who mocked the inviolable authority of the TSA by replacing the Gadsden Flag’s “Don’t Tread On Me” with Mr. Tyner’s impertinent slogan. And treble shame on the blogger Iowahawk who demeaned not only the TSA but Frank Sinatra by recasting “Come Fly With Me” as “Comply With Me.” (The lyric “Once I get you up there” became “Once I get all up there.”) You should all be aware that the TSA is not amused.

“If you touch my junk…” may have garnered all the attention, but it is not the most important thing on Mr. Tyner’s recording. A TSA supervisor told him that if he was uncomfortable, he could be escorted out “and you don’t have to fly today.” Mr. Tyner asked how “sexual assault can be made a condition of my flying.” After a bit of back and forth, the TSA supervisor played the trump card: “By buying your ticket you gave up a lot of rights.”

Do we really want to make a practice of giving up “a lot of rights” (and without the advice of counsel, at that), especially when the TSA makes it clear it will use its authority to punish those who inconvenience or embarrass it? The agency’s San Diego office chief announced that he is pursuing charges and an $11,000 fine against Mr. Tyner for leaving the airport without allowing his naughty-bits to be inspected. Such blatant payback hardly inspires confidence in the TSA as a steward of our surrendered rights.

But it’s all in keeping with the “love pats” (Sen. Claire McCaskill’s unfortunate euphemism). The Atlantic’s Jeffrey Goldberg has flown several times since the new procedures went into effect Nov. 1. He has refused the X-ray machine every time and found that the TSA agents inspecting his “crotchal area” (as one of them said in a newly coined bit of bureaucratese) admit the procedure is meant to be so unpleasant that fliers will choose the naked-picture machine instead.

I’m gratified that enough Americans are still jealous guardians of their rights to have made this an uncomfortable week for the TSA. And I admire the impulse behind making Wednesday—one of the heaviest travel days of the year—”Opt-Out Day.” The idea is for everyone to gum up the works by refusing the X-ray. If the TSA has to give its lengthy semimolestations to everyone, the thinking goes, they won’t be able to do it to anyone. Alas, security gridlock isn’t likely to discomfit the TSA much. It is Thanksgiving travelers who will bear the brunt of the nightmare—hardly the best way to build popular support for a protest movement.

Instead, perhaps we should make 2011 “Opt-Out of Flying” year. Since buying a ticket means giving up “a lot of rights,” the best way to protect those rights is not to fly unless you absolutely have to. It will help if you let the airlines know why they haven’t had the pleasure of your company.

The old saw is that a conservative is a liberal who got mugged. Tom Wolfe riffed that “a liberal is a conservative who has been arrested.” We might add one more variation: A libertarian is anyone whose wife and children have had their groins groped by the TSA.

Eric Felten, Wall Street Journal


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Posted in Law

Chechen Exile Murder Trial Begins in Vienna

Kadyrov’s Web of Influence

Kadyrov (seen here in 2007) denies all involvement in the murder case.

A trial involving the spectacular murder of a Chechen exile begins Tuesday in Vienna. Austrian investigators believe it was a contract killing which may be linked to Chechen President Ramzan Kadyrov, who is alleged to have a network of ruthless agents across Europe.

The room in the Berlin apartment has a dark wooden table and oil paintings on the wall. Water is being heated in a samovar. Men with serious expressions come in, embrace each other and sit down to drink tea.

The apartment is home to the translator Ekkehard Maass. The 51-year-old was a dissident in the former East Germany and now runs the German-Caucasian Society. It’s a meeting point for Chechen exiles, people who have fled the violence in the Caucasus region and emigrated to the West.

When exiles meet for tea these days, two names are frequently mentioned: Ramzan Kadyrov and Umar Israilov. Israilov, a Chechen exile, was murdered in Vienna on Jan. 13, 2009. Kadyrov, the feared 34-year-old president of Chechnya, a man who likes to pose for photographs with a tiger or holding a gold-plated pistol, was allegedly behind the murder. Both Chechen exiles and Austrian investigators believe that it was a contract killing. Israilov had accused Kadyrov of torture and had brought a case against him before the European Court of Human Rights.

The trial of the suspected killers opens in Vienna on Tuesday. The spectacular murder is likely to be followed by an equally spectacular trial, in which prosecutors will seek to shed light on the exact circumstances of the crime, and on a “military intelligence service” that terrorism experts in Vienna believe Kadyrov developed in Europe. Kadyrov is currently being investigated, although charges have not been brought yet. He denies all involvement in the murder case.

Living in Fear

German investigators are also interested in the Chechen president’s activities. His agents have been spotted in Germany, where about 6,000 Chechens live. Some 500 of them are believed to be tied to extremist groups. German intelligence officials find it difficult to get a clear picture of the milieu. The distinctions among freedom fighters, terrorists and ordinary criminals are complicated. In addition, some Chechens owe their asylum status to their cooperation with German intelligence, and the lines are sometimes blurred between informants and troublemakers.

One thing is clear, however: Chechens in Germany live in fear of Kadyrov, who has unscrupulous bodyguards. Chechen exiles have frequently told German authorities about Kadyrov’s influence in Berlin. The president is apparently determined to convince exiles to return home, if necessary with rough measures. He allegedly has middlemen and agents that he uses specifically for this purpose.

The award-winning Chechen poet Apti Bisultanov was one of the exiles who received an unwanted visit from Kadyrov’s men in Berlin. Apparently two former members of the Chechen government were working as agents for Kadyrov in Berlin: the brothers Umar and Magomed Khanbiyev. A witness told Viennese authorities about a conversation he had had with Umar Khanbiyev in Berlin. The Chechen agent apparently told the witness that a major campaign was underway to bring Chechens home, and that Kadyrov was behind it. According to the agent, Kadyrov had a team of six agents working in Europe. They had been provided with Russian visas and were apparently staying in a Berlin hotel.

Kadyrov’s agents, say Chechens in Berlin, try to entice exiles to return home with promises of jobs. Apparently the agents have also threatened violence against the exiles’ families at home in Chechnya. In the case of Bisultanov, Kadyrov’s men and Russian officials worked hand in hand. Russia had demanded his extradition and was trying to torpedo his application for asylum, but was unsuccessful on both counts.

Car Was Found near Crime Scene

One of the men now on trial in Vienna has also been seen in Berlin: Otto K., who was born Ramzan E. in the Chechen capital Grozny in 1968. Among fellow Chechens living in Austria and Germany, he was considered an amiable father and an opponent of Kadyrov. But, as it turns out, he is the owner of a green Volvo that police found near the scene of the crime after the Israilov murder. That is one reason why he is at the center of the Vienna case. Investigators believe K. is one of Kadyrov’s henchmen, but K., who is in custody, denies the charges. But if K. is really an opponent of Kadyrov, then why did he go to Grozny in 2008 to meet with the Chechen president? The investigators’ files contain photos showing the two men meeting.

And what brought Otto K. to Germany? Officially, the asylum seeker was there in his role as the chairman of a Chechen cultural association in Vienna. Investigators believe, however, that K.’s work on behalf of the association was just a front that was intended to help him gain an insight into the exile community in Germany. In any case, the association’s activities appear to not be entirely cultural. During a raid several years ago, German police found firearms in the trunk of a car from Vienna. The car, a BMW, was registered to the cultural association.

In some ways, the conflict in Chechnya already reached Germany a long time ago. Domestic intelligence officials believe that some Chechen refugees are raising money in Germany, money that couriers later forward to rebels in Chechnya. Apparently there have also been attempts to recruit fighters in Germany and to smuggle them to the restive Russian republic.

‘There Was a Bad Person Among You’

The discussion around the table in Maass’s apartment, however, mainly centers on Kadyrov’s attempts at intimidation. The men talk about the Chechen agents’ attempts to blackmail exiles on the phone. The Viennese investigators are also familiar with the agents. The police have listened in on many telephone conversations in which the name Kadyrov is mentioned again and again, as are thinly concealed threats. The following exchange is an excerpt from the transcript of one of the calls:Agent: “There was a bad person among you, who has already been eliminated.”

Exile: “The one who was already murdered? I didn’t know him.”

Agent: “I know who you are. Do you want a few people to come to see you tomorrow and pick you up? Come to us voluntarily. You don’t want us to come and get you using force.”

Wealthy Suspect

In May 2009, a Chechen living in Vienna who had received similar calls contacted the authorities. The terrorism experts were even able to identify the suspect in the case: a wealthy Russian citizen known in Berlin for his big cars and his villa. Was he planning a murder from his base in Berlin? The files suggest that the telephone surveillance and the subsequent investigation did not lead to any action against the suspect in Berlin, however. A memo from Vienna states matter-of-factly that officials took “no further steps.” Police investigators in Berlin were told nothing about the case.

Kadyrov’s men are also interested in Maass’s apartment, but they’re not the only ones. As paradoxical as it may seem, German authorities are also keeping an eye on Maass, whose name crops up in the files of the Office for the Protection of the Constitution, Germany’s domestic intelligence agency. The files describe him as the representative of a Chechen government-in-exile. Exiled Chechen politician Akhmed Zakayev, who lives in London, named the Berlin-based translator as an honorary consul, prompting the Russian government to lodge a protest with the Foreign Ministry in Berlin. Maass, for his part, has reacted calmly to the Russians’ objections.

Sometimes suspicious-looking cars park near Maass’s home. The drivers and their passengers are not interested in talking to him, however.


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Posted in Law

The Backdating Embarrassment

How did a meaningless violation of accounting rules become the crime the of century?

An array of influential friends urged leniency for Bruce Karatz in his stock-option backdating sentencing last week, including former Los Angeles Mayor Richard Riordan and philanthropist Eli Broad. But these personages weren’t the reason Judge Otis D. Wright II rejected prosecutors’ request for a six-year prison sentence and instead gave Mr. Karatz probation. Judge Wright said he couldn’t see putting the former CEO away for a crime that did no harm to his company, KB Home, or its shareholders.

So endeth another episode in the annals of backdating, in which a fairly meaningless violation of accounting rules (though violation it was) became trumpeted from the media pulpits as the business crime of the century.

We suppose it’s humanly understandable that, finding themselves compelled to bring these cases, federal prosecutors stretched and kneaded the evidence to fulfill the media’s stereotype of backdating as theft and fraud against shareholders. Let this be a lesson to the children in how not to respond constructively to cognitive dissonance.

Such prosecutorial misconduct led to the dismissal of the backdating case last year against Broadcom founder Henry Nicholas. A judge also threw out the guilty plea of his partner, Henry Samueli, saying he didn’t think Mr. Samueli committed any crime. The first conviction of former Brocade Communications CEO Greg Reyes was similarly overturned on grounds of prosecutorial misconduct (though Mr. Reyes was retried and convicted by a new jury, and now is appealing).

A further irony is that backdating was abetted by a nonsensical accounting rule at the time that treated one kind of option as having value and another kind as having no value (though both have value). This split-the-baby rule itself arguably evolved out of the media’s perennial insistence on portraying stock options as emblems of greed rather than as business tools.

By the estimate of the University of Iowa’s Erik Lie, some 2,000 public companies must have engaged in backdating at some point, as testified by otherwise inexplicable patterns of options pricing. Some 150 companies eventually restated their past results to conform to the proper rule for expensing such options. Yet only a few executives were singled out for criminal prosecution, in a manner that left an observer scratching his head as to why the justice roulette wheel chose some but not others.

Further reason for pause: The handful of subsequent convictions seemed to turn less on the act of backdating than on the self-preserving prevarications executives uttered once the posse arrived at their doorstep.

The ultimate statement in this vein, of course, was the decision by Kobi Alexander, former CEO of Comverse Technology, to decamp to Namibia. We can think of two reasons somebody might flee the law—because he fears he will get justice, or fears he won’t. Presumably Mr. Alexander will one day appear in a U.S. court. It will be interesting to see what countenance he puts on his decision to become a fugitive—perhaps he will cite as a precedent the behavior of the legal system in Salem, Mass., circa 1692.

Meanwhile, the larger lessons of the backdating furor were drawn in an epic piece in May in the American Bar Association’s ABA Journal. By freelance reporter Anna Stolley Persky, the piece connected the dots between (among other things) the backdating witch-hunt, the tainted prosecution of Sen. Ted Stevens, and the government’s use of the vague “honest services” statute to criminalize various kinds of behavior post hoc (a practice the Supreme Court finally curbed earlier this year).

One critique can be found in the title of a book by Boston defense attorney Harvey Silverglate: “Three Felonies a Day: How the Feds Target the Innocent.” Mr. Silverglate believes that only a mobilization of “civil society” can stop what he calls rampant abuse of prosecutorial discretion.

In contrast, former federal prosecutor Joseph diGenova puts the onus on DOJ overseers: “If anyone thinks it’s anything other than prosecute at any cost, then they are wrong. . . . The department has been AWOL in supervising the ethics of its prosecutors,” he told ABA Journal.

But it’s also hard not to see the self-interested ethics of the plaintiff’s bar spilling across the entire legal profession. In their official roles, prosecutors invent Kafkaesque new ways to ensnare the unpopular wealthy in legal trouble, then jump to private law firms and make seven-figure livings protecting the wealthy from the monster they themselves unleashed.

Shakespeare had a solution, but, alas, this would also be illegal. Thus it must fall to bloggers, the media and judges like Judge Wright to protect Americans from overzealous prosecutors.

Holman W. Jenkins Jr., Wall Street Journal


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Forget any ‘Right to Be Forgotten’

Don’t count on government to censor information about you online.

The stakes keep rising in the debate over online privacy. Last week, the Obama administration floated the idea of a privacy czar to regulate the Internet, and the European Union even concocted a new “right to be forgotten” online.

The proposed European legislation would give people the right, any time, to have all of their personal information deleted online. Regulators say that in an era of Facebook and Google, “People should have the ‘right to be forgotten’ when their data is no longer needed or they want their data to be deleted.” The proposal, which did not explain how this could be done in practice, includes potential criminal sanctions.

Privacy viewed in isolation looks more like a right than it does when seen in context. Any regulation to keep personal information confidential quickly runs up against other rights, such as free speech, and many privileges, from free Web search to free email.

There are real trade-offs between privacy and speech. Consider the case of German murderer Wolfgang Werle, who does not think his name should be used. In 1990, he and his half brother killed German actor Walter Sedlmayr. They spent 15 years in jail. German law protects criminals who have served their time, including from references to their crimes.

Last year, Werle’s lawyers sent a cease-and-desist letter to Wikipedia, citing German law, demanding the online encyclopedia remove the names of the murderers. They even asked for compensation for emotional harm, saying, “His rehabilitation and his future life outside the prison system is severely impacted by your unwillingness to anonymize any articles dealing with the murder of Mr. Sedlmayr with regard to our client’s involvement.”

Censorship requires government limits on speech, at odds with the open ethos of the Web. It’s also not clear how a right to be forgotten could be enforced. If someone writes facts about himself on Facebook that he later regrets, do we really want the government punishing those who use the information?

UCLA law Prof. Eugene Volokh has explained why speech and privacy are often at odds. “The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you,” he wrote in a law review article in 2000.

Indeed, there’s a good argument that “a ‘right to be forgotten’ is not really a ‘privacy’ right in the first place,” says Adam Thierer, president of the Progress and Freedom Foundation. “A privacy right should only concern information that is actually private. What a ‘right to be forgotten’ does is try to take information that is, by default, public information, and pretend that it’s private.”

There are also concerns about how information is collected for advertising. A Wall Street Journal series, “What They Know,” has shown that many online companies don’t even know how much tracking software they use. Better disclosure would require better monitoring by websites. When used correctly, these systems benignly aggregate information about behavior online so that advertisers can target the right people with the right products.

Many people seem happy to make the trade-off in favor of sharing more about themselves in exchange for services and convenience. On Friday, when news broke of potential new regulations in the U.S., the Journal conducted an online poll asking, “Should the Obama administration appoint a watchdog for online privacy?” Some 85% of respondents said no.

As Brussels and Washington were busily proposing new regulations last week, two of the biggest companies were duking it out over consumer privacy, a new battlefield for competition. Google tried to stop Facebook from letting users automatically import their address and other contact details from their Gmail accounts, arguing that the social-networking site didn’t have a way for users to get the data out again.

When users tried to import their contacts to Facebook, a message from Gmail popped up saying, “Hold on a second. Are you super sure you want to import your contact information for your friends into a service that won’t let you get it out?” The warning adds, “We think this is an important thing for you to know before you import your data there. Although we strongly disagree with this data protectionism, the choice is yours. Because, after all, you should have control over your data.”

One of the virtues of competitive markets is that companies vie for customers over everything from services to privacy protections. Regulators have no reason to dictate one right answer to these balancing acts among interests that consumers are fully capable of making for themselves.

L. Gordon Crovitz, Wall Street Journal


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Acquittal in terror case shows justice system’s strength

THE STUNNING verdict in the first civilian trial of a Guantanamo detainee is an embarrassment for the Obama administration, but it should not deter officials from considering federal court prosecutions for others being held at the U.S. naval base.

Ahmed Khalfan Ghailani was acquitted of 284 of the 285 charges lodged against him for his role in the 1998 bombings of the U.S. embassies in East Africa that killed 224 people, including 12 Americans. Mr. Ghailani, who was indicted in federal court months after the attack and then captured in 2004, was convicted only of conspiracy to destroy U.S. property and buildings. According to the U.S. Attorney’s Office in Manhattan, Mr. Ghailani purchased the truck and the tanks of oxygen and acetylene gas used in the suicide bombing of the embassy in Tanzania. Prosecutors also presented evidence that the day before the bombings, Mr. Ghailani used a fake passport and an assumed name to depart Africa on a flight with two al-Qaeda operatives also implicated in the attacks. The presiding judge prohibited the government from calling a witness who claims he sold Mr. Ghailani TNT because the government learned of the witness only after subjecting Mr. Ghailani to what his lawyers say was torture at an overseas CIA prison.

Administration critics say the multiple acquittals prove that a federal court is the wrong venue for such trials. They are right that a trial by its nature is a risky proposition, notwithstanding Attorney General Eric H. Holder Jr.’s brave assertion in 2009 that “failure is not an option.” Defense lawyers in this case effectively painted Mr. Ghailani as an unwitting accomplice.

But Mr. Ghailani did not escape responsibility. His conviction carries a mandatory minimum sentence of 20 years, and the judge may impose a life sentence. Moreover, there is no guarantee that a military commission, the preferred alternative of many critics, would have produced a tougher result. Such commissions are not apt to admit statements coerced through torture, so the star witness rejected by a federal judge probably would have been excluded by the military court as well. And in 2008, a military jury rejected the Bush administration’s argument that Osama bin Laden’s former driver, Salim Ahmed Hamdan, was a hardened al-Qaeda operative, acquitted him of the most serious charges and sentenced him to a mere five months on top of time served.

The fact that a jury sitting in a terrorism case just blocks from Ground Zero declined to rubber-stamp the government’s assertions shows not the weakness of the federal court system but one of its principal strengths: independence.

Military commissions are a legitimate option to try accused terrorists, and in rare cases – if the administration would have the courage to seek a legal framework, with judicial oversight – indefinite detention is as well. But the Ghailani verdict provides no sound argument to remove federal courts from the mix.

Editorial, Washington Post


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Investigators Zero in on Massive Art Forgery Scandal

The Hippy and the Expressionists

Beltracchi briefly tried to make a go of it as an artist before turning to forgery. This piece is called “Durchdringung, Melatenerstr. Nr. 4” (Penetration, Melatener Street, No. 4). Investigators estimate total damages at more than €15 million.

Over the past 15 years, the art world has been amazed at the number of lost expressionist masterpieces from the early 20th century that have found their way to auction. Investigators now believe that many of them could be forgeries. An ex-hippy, his wife and an art fan from Krefeld may be behind the scandal.

Flickering torches lit the path up to the villa. The guests were led through a modernistic gate, past a glass-covered swimming pool and on to a series of minimalist bungalows, the facades of which were freshly clad in Siberian larch. Champagne was served out of Magnum bottles. A Flamenco band had been brought in from Spain. Wolfgang Beltracchi, the owner of the property, stood in front of his studio welcoming the guests as they arrived, long blond hair hanging down to his shoulders.

Beltracchi’s villa is situated in the hills above Freiburg among the city’s high society: professors, lawyers and managing directors. Beltracchi and his wife Helene paid €1.1 million for their property and are said to have invested another €4 million remodeling it. The Beltracchis appeared in Freiburg seemingly out of nowhere, without a past or a present. But the money had to have come from somewhere — and there was gossip. Some said Beltracchi was an artist who only painted for millionaires who regularly commissioned his services. Some thought he was a successful art dealer or the owner of a valuable collection. Others, like a relatively famous plastic surgeon in Freiburg, insisted Beltracchi toured flea markets, where he had found a number of undiscovered masterpieces.

Such was the mood at the party held at the Beltracchis’ new house on September 22, 2007.

Just three years later, at 7:35 p.m. on Aug. 27, 2010, police officers detained the Beltracchis not far from their villa as the couple was going out to dinner. The officers had been sent by the district attorney’s office in Cologne, which also had a theory about how Wolfgang and Helene Beltracchi had amassed their fortune. It can be found in file number 117 Js 407/10, and if they are confirmed in a court of law, the Beltracchis will officially become the main characters in one of Germany’s greatest ever art-forgery scandals.

Alleged Forgeries of 35 Paintings

Since their arrest, the couple has been held in pre-trial detention. They stand accused of organized professional fraud. Prosecutors are also investigating Jeanette S., the sister of Helene Beltracchi, who is also currently in pre-trial detention, as well as the two women’s mother and an art dealer from Krefeld identified only as Otto. Lawyers representing the defendants are refusing to comment on the allegations.

The case centers on the alleged forgery of at least 35 paintings dating back to the first decades of the 20th century. The defendants are accused of systematically supplying the art market with paintings they claimed were undiscovered works by famous painters, and this over a period of more than 14 years. These pictures were sold not only through auction houses in Germany, but also ended up in the art world via traders in London and Paris. The investigators estimate the total damage at more than €15 million. Gallery owners, auctioneers and art historians alike now worry the case could become what the fake so-called “Hitler diaries” were for Stern magazine: A fiasco.

The market for 20th century classics is booming at the moment. In May a second painting was sold for more than $100 million at auction. An anonymous bidder paid the equivalent of €81 million for a Picasso nude at Christie’s in New York. There’s plenty of money to be earned on art, and the competition to find new goods in a limited market is extremely tough. It could be that auction houses are asking too few questions out of fear the would-be seller will take his business elsewhere. Likewise, experts naturally prefer to attest that a picture is genuine rather than voicing suspicions of forgery and thereby potentially ruining their clients’ business. Added to this, the art market has always been a somewhat shady operation in which money is passed under the table and art-loving rich people often seek to keep their identities hidden. All this plays into the forgers’ hands.

Two Mysterious Art Collections

In the present case, only one of the paintings has been confirmed beyond a doubt by two analyses as being fake. But the investigators are also considering at least 34 others, all of which have a number of similarities: They are all in similar frames and have yellowed stickers from famous galleries on their backs. No photographs exist of any of them. Many had been considered lost. And all allegedly come from two mysterious art collections.

One of these collections is said to have belonged to a businessman from Cologne called Werner Jägers, the grandfather of the two sisters awaiting trial. According to a letter Helene Beltracchi sent to an art historian, Jägers had acquired a number of paintings in the “late 1920s and early 1930s,” particularly works by Rhenish expressionists artists “like Campendonk, Pechstein, Nauen, Mense, Ernst” as well as French painters “like Braque, Derain, Dufy, Marcoussis.” She claimed several “important works in his collection” had been bought from the Jewish art dealer Alfred Flechtheim, “who owned display rooms near one of her grandfather’s business premises” and had been a “good friend” of Werner Jägers. When the Nazis came to power, Jägers was allegedly loath to give up his precious artworks — officially derided as “degenerate” during the Third Reich — so he hid the pictures at a property in the Eiffel region of Germany. “A few years before his death,” Beltracchi claims, he had passed on “a part of his collection” to her and her sister.

One aspect of her story is certainly correct: Her grandfather really existed.

Werner Jägers was born in Belgium in 1912. He married four times and lived mainly in Cologne, where he subsequently died in 1992. But the entrepreneur who made most of his money with industrial construction had relatively little interest in art. Both a close business associate and Jägers’ last wife have confirmed he did no more than paint in his spare time — and only originals like small calendar pictures and fruit baskets.

Hardly a Collection

Neither the man’s widow nor his business partner have any memory of an art collection. Although Jägers purchased a few paintings, these were definitely not valuable and certainly did not constitute a collection. Nor are there any records that suggest Jägers, a member of the German Nazi Party, ever knew the Jewish art dealer Alfred Flechtheim.

There is, however, ample evidence that the key to the mystery of the artworks lies with his granddaughter from his first marriage. When Jägers died, in 1992, Helene Beltracchi was 34 years old and had recently started dealing in antiques. The young, attractive blonde ran an antiques store in Cologne. As the daughter of a Belgian trucker, she and her four sisters grew up in a public housing apartment in Bergisch Gladbach. Helene studied business before diving into the world of junkshop owners, collectors and antique-lovers.

It was probably here that Helene Beltracchi’s world intersected with that of her future husband, Wolfgang. At the time, his surname was still Fischer, and he was trying his hand as an artist. In 1978, the Haus der Kunst museum in Munich exhibited three of his acrylic-on-canvas works. They were entitled “Zu Hause” (At Home), “Durchdringung bei Geilenkirchen” (Penetration Near Geilenkirchen) and “Durchdringung, Melatenerstr. Nr. 4” (Penetration, Melatener Street, No. 4). Perhaps the young artist had already realized how difficult it was to earn his keep with conventional art.

The First Sale

Acquaintances remember him as a hippy who dreamt of the good life in southern climes and claimed to have driven around on his motorbike delivering illegal psychedelic drugs to US soldiers on their military bases in his youth, a show-off who said he’d learned about art from his father, a church muralist and restorer who had taken him up on the scaffolding from an early age. In actual fact, his father appears to have been a normal house painter in Geilenkirchen, a town near Aix-la-Chapelle on the border with Belgium and Holland. At least, that’s how relatives remember him.In the 1980s Wolfgang “disappeared for longer periods,” and spent time living in Morocco and in a commune. After that he is said to have returned to Germany “on foot.” Back home, he was seen as a “luxury hippy.” He organized theme parties, including a baroque fete at a castle in the Dutch town of Renesse, where guests paid a few hundred German marks for the privilege of dressing up in period costume and re-enacting 18th-century life.

Eventually he decided to go into the movies and wrote the screenplay for a road movie set in the Moroccan desert. The working title was “Die Himmelsleiter” (The Ladder to Heaven). Next he wanted to shoot a documentary about pirates in the South China Sea. But after the three-mast ship with built-in video studio had cast off from Majorca and sailed to Gomera, the adventurers fell out and the plan was never realized. In October 1990 Wolfgang and a friend paid 305,000 deutschmarks (€156,400) at a bank auction for an old farm in Viersen in the Lower Rhine region of Germany. By now the drifter was calling himself a “director,” and began renovating the place at great expense. Neighbors remember a “first-floor warehouse converted into an artist’s studio,” where “easels, painting utensils and pictures lay strewn about.”

More Success with Christie’s

In June 1992 a woman moved into the artist’s farm: Helene Beltracchi. She and Wolfgang married a year later. The painter took his wife’s name, and together — as the neighbors recall — they started a thriving art dealership. While Wolfgang constantly walked around in slippers looking “organic,” Helene apparently took on the “serious role” and looked after the business side of things.

In February 1995, the couple owed several hundred thousand marks on their property. Helene contacted the Lempertz art dealership in Cologne and offered the long-established auction house a painting by Hans Purrmann, a friend and student of the great French painter Henri Matisse. She said the work belonged to her maternal grandfather, the aforementioned Werner Jägers. But a Purrmann expert doubted the authenticity of the painting, entitled “Southern Landscape,” whereupon Lempertz declined to put the work up for auction.

Eight months later, Beltracchi had more success with Christie’s, the world’s largest auction house. As part of its “German and Austrian Art” sale in October 1995, Christie’s offered a painting by Heinrich Campendonk entitled “Girl with Swan.” It sold for £67,500.

In the auction catalog, art historian Andrea Firmenich waxed lyrical about the “intense, shining, expressive colorfulness” of the pictures of the Krefeld-born expressionist painter. “Dr. Andrea Firmenich,” Christie’s informed its customers, “has been kind enough to confirm the authenticity of this work.” The origin of the painting was stated by Christie’s as “Alfred Flechtheim, Dusseldorf; Werner Jägers, Cologne.”

A sticker on the back of the picture, which bore the inscription “Flechtheim Collection” and a crude portrait of the legendary art dealer, was also shown in the catalog. Nobody appeared to be too bothered by the fact that the sticker, which looked like a potato print, simply didn’t match the style of the elegant gallerist. Such stickers have only appeared on the paintings that are now suspected of having been forged. Most of these stem from the “Werner Jägers collection.”

Famous for its Light

The Beltracchis soon turned their backs on the provincial Lower Rhine. Acquaintances recount that Wolfgang bought himself an old Winnebago motor home, restored the interior in rosé and turquoise, and sold his farm in Viersen to a firm of realtors for 2.6 million deutschmarks (€1.3 million) in July 1996.

He and Helene rented a vacation home with studio in Marseillan, 50 kilometers (30 miles) from Montpellier in the south of France. The Languedoc region is famous for its light, and it’s quite possible that this inspired Beltracchi’s creativity. Visitors to his studio speak of a “large piece on a mythological theme” onto which he copied faces with the aid of a projector. The fake Purrmann that Lempertz had refused to auction off hung in the Beltracchis’ living room. When he wasn’t painting, Wolfgang and Helene researched the local art scene, visited antique stores, art trade fairs and galleries.

In June 1998 Lempertz in Cologne auctioned off a picture ostensibly from the “Werner Jägers collection”: “Le Havre Beach” by the French painter Raoul Dufy. “For once, it was a real one,” Lempertz Managing Director Henrik Hanstein says today. Hanstein says the couple had been particularly devious by selling a genuine picture in addition to the fakes. A Lempertz spokesman is similarly shocked about the ruse. He says the auction house had been “the victim of an extraordinarily clever and mean gang of forgers.”

More than a Million

If the allegations prove to be true, the modus operandi was indeed remarkably shrewd: The alleged forgers didn’t fabricate Picassos, but Pechsteins, not Beckmanns, but Campendonks. They kept well away from the truly great artists, whose works had been researched in minute detail. Instead they concentrated on second-tier painters, whose paintings can still fetch more than a million euros.

It appears they began by studying old catalogs of exhibitions by artists in whose names they wanted to create pictures, preferably catalogs of the gallery of Alfred Flechtheim, one of the most important art dealers of the Weimar Republic, the period from the end of World War I to the Nazis’ ascent to power. Flechtheim fled the Nazis in 1933, moved first to Paris, and then died in London in 1937. Large parts of his collection have been lost to this day, and documents from his gallery have never been recovered.

The list of pictures from the Flechtheim catalogs was compared to the lists of paintings by the relevant artists. Were any of the paintings listed as missing, ones that had not been photographed?

Such pictures have been traded in increasing numbers since the late 1990s, and it is assumed that some of the profits from the sales landed in the bank account the Beltracchis held with the discrete Credit Andorra in the tax-shelter principality of the same name, where Wolfgang Beltracchi was also registered as having a residence.

The Fraud Is Discovered

Soon the Beltracchis bought the “Domaine des Rivettes” near the port town of Mèze in the Languedoc region of France on the Mediterranean. Built in 1858, the country estate had its own private river and vineyards. The property underwent luxurious restoration, and was furnished with palm trees and a 170-square-meter (1,700 square foot) studio.The reconstruction must have cost millions. An artist and former friend of the Beltracchis remembers the “many paintings” that hung in the house, works he was told were “heirlooms from an uncle of Helene’s.” The Beltracchis said they were the pieces by Campendonk, Pechstein and Max Ernst, and that they would be selling them at auction.

A neighbor said he “never dreamed they could have been forgeries.” Nevertheless, he did suspect that something was awry, although he attributed the wealth of pictures to “a collection amassed during the Third Reich.”

Valuable paintings were now being offered at ever shorter intervals, sometimes by Helene Beltracchi, sometimes by her sister Jeanette, a sophisticated officer’s wife, and sometimes by an old acquaintance from the Lower Rhine: The art-lover Otto from Krefeld.

An artist living near the Baltracchis’ French residence recalls Wolfgang once inquiring about “how valuable pictures could be transported to Germany” and “how the insurance worked.” In the end the painter had allegedly found a shipping company that didn’t ask too many questions and was willing to take the canvasses on one of its trips rolled up and packed into cardboard tubes.

A Minor Sensation

In 2001 Helene Beltracchi’s sister Jeanette presented the Lempertz auction house in Cologne with a new picture from the “Werner Jägers collection.” This oil painting, entitled “Seine Bridge with Freight Barges” and allegedly painted by the expressionist Max Pechstein, was sold to a collector in Montevideo. Two years later, she delivered another supposed Pechstein for auction. “Reclining Nude with Cat” (1909) was sold to the Bern-based art dealer Wolfgang Henze for €498,000. The nude was considered a minor sensation in the art world. After all, hadn’t Pechstein mentioned precisely this motif in his memoirs? And didn’t the find exactly match a small Pechstein aquarelle in the Brücke Museum in Berlin?

Indeed it did — though a little too well. As art historian Aya Soika has since discovered, key details of the aquarelle were copied “almost one-to-one” onto the later auctioned canvas, apparently with the aid of a projector. Soika found other astonishing similarities when comparing the picture of the barges with another of Pechstein’s drawings.

After the two supposed masterpieces had been sold, the Beltracchis expanded their family estate. In mid-October 2005 the couple bought the exclusive villa in Freiburg for €1.1 million. Wolfgang Beltracchi paid part of the purchase price using money from his account in Andorra.

The reconstruction of the villa took 19 months to complete, by which time the builders were furious about the special wishes of the property’s rich owner, whose demands included a countertop in the kitchen shaped like angels’ wings.

During his visits to Freiburg, Beltracchi always stayed at the Colombi, a prime location on the main square, and a “leading hotel of the world.” And while his luxury villa was gradually taking shape, with builders installing olive doors, panorama windows and casements made from zebrano wood, the “Werner Jägers collection” was gradually converted into cash. In February 2006 Christie’s auctioned off the next Campendonk. A few months later the auction house offered a list price of £3.5 million on the supposed Max Ernst painting “La Horde.” It was purchased by a German collector.

Scientific Testing

In late November 2006 Lempertz was sent a painting that would put an end to the suspected massive fraud. The painting was ostensibly “Red Picture with Horses.”

Once again the painting had been brought in by Helene’s sister. The picture graced the front cover of the auction catalog, and eventually changed hands for €2.9 million — more than had ever been paid for a work by a Rhenish expressionist artist. The painting was bought by a company in Malta called Trasteco Ltd.

Because the Maltese didn’t want to take any risks, they sought the advice of a gallery in Geneva, Switzerland. Experts there found it strange that the authenticity of the painting had not been certified before the auction, and they asked Lempertz for the relevant paperwork.

However the auction house in Cologne replied that Campendonk’s son had verbally declared the picture to be authentic. Trasteco also hired art historian Andrea Firmenich, who had written her Ph.D. thesis on Campendonk. This time, however, the art critic recommended the work undergo scientific testing.

In October 2008, Firmenich contacted Flechtheim expert Ralph Jentsch and asked him to assess the strange gallery sticker on the frame of “Red Picture with Horses.” Jentsch said he laughed out loud when he saw Flechtheim’s face on the sticker. The art historian also knew what the gallery’s stickers really looked like — and confirmed that they did not bear the owner’s portrait. More damning still, when Firmenich inquired about the “art collector Werner Jägers,” Jentsch said he had never heard of him.

Trasteco thereupon commissioned Friederike Gräfin von Brühl, a lawyer in Berlin, to sue Lempertz for an annulment of the sale. Extensive research was also initiated. Investigators discovered that “Red Picture with Horses” contained a color that had not been invented yet in 1914, the year in which the picture had allegedly been painted.

An Art Lover from Krefeld

Suddently, after his name had been circulating for more than a decade, people started wondering about the identity of the mysterious Werner Jägers. The man tasked with attesting to the ominous collector’s passion for art in Trasteco’s civil suit against Lempertz was an old acquaintance of Beltracchi: Otto, an art-lover from Krefeld, whom state prosecutors also began investigating after several forged paintings from his “family collection” apparently made their way onto the market.

Otto is actually in advertising, though he once tried to set up an artists’ collective à la Joseph Beuys. The legend he wove around the origins of his paintings is strikingly similar to that which Helene Beltracchi told about Werner Jägers: In a letter to a friend Otto wrote that his “maternal grandfather” had had “Jewish acquaintances” and bought “many pictures through Flechtheim.” Likewise, the collection of tailor Knops — the grandfather’s name — primarily consisted of the works of Rhenish or French expressionists. Otto claims he received “packages containing the pictures” after his parents’ death.

In the civil case, he backed the Beltracchis up. He said his grandfather knew Jägers well, and that the two families had even wanted to exchange two Campendonks in the 1950s. He said he distinctly recalled the pictures, which hung on the wall at the time.

Knops’ collection also contained several paintings supposedly by the surrealist Max Ernst, all of which were authenticated by art historian Werner Spies, a long-standing features writer for the Frankfurter Allgemeine newspaper and Germany’s leading authority on Max Ernst.

‘The Work of a Brilliant Forger’

Otto and Spies exchanged letters about one Max Ernst painting the art-lover was particularly proud to possess. Spies took a look at the piece, entitled “The Forest,” at an art gallery in Berlin. Later it was even exhibited at a major Max Ernst retrospective held at the New York Metropolitan Museum.Werner Spies certified a total of seven alleged Max Ernst pictures from the collections of Knops and Jägers. “From a stylistic point of view I still believe the pictures given to me to authenticate were the works of Max Ernst,” Spies says.

Most of the suspicious paintings weren’t auctioned off, but rather sold to private collectors — in some cases with Spies’ assistance. They apparently fetched up to €4.6 million. “If the pieces are forgeries,” Spies says, “they can only be described as the work of a brilliant forger.”

An old friend of Beltracchi’s says the itinerant artist was “touched by God,” adding: “He is extremely talented, and can paint everything from memory.”

In June, after the lawyer von Brühl had pressed charges, officers at the art crime division of the regional criminal investigation bureau in Berlin began looking into the case. At the same time, private investigators from the Munich-based ADS detective agency started researching Werner Jägers’ life. Within a matter of days, they discovered what the art world had refused to see for 15 years: Werner Jägers may have been a businessman, but he was never an art collector.

‘That Bastard Wolfgang’

On August 25 detectives searched several apartments. The same day, investigators recorded a telephone call Helene Beltracchi’s sister received in France from her son in Cologne, who had nothing to do with the art trading. “I just wanted to say that we had eight police officers in the apartment five minutes ago,” the son explained excitedly. “What?!” his mother asked, perplexed. “Eight cops!” he explained. “And they had a search warrant because of that bastard Wolfgang.”

The son assured her that he hadn’t told the officers anything about her, his mother, taking pictures to Lempertz for auction. When Wolfgang Beltracchi, whose phone was also tapped, called his son and urged him to hide his laptop immediately, the investigators knew the time had come to act.

Work is now underway to determine whether Wolfgang Beltracchi did indeed forge the pictures, who he may have been assisted by, and how many paintings really are fakes. It also remains to be seen whether he can still be punished for acts beyond the decade laid down in the statute of limitations. One thing is sure: The case will rob art dealers of any shred of credibility that they still possess. The civil cases brought by the alleged victims of the fraud will probably drag on for years.

The public attorney’s office recently entered two debt-securing mortgages on the renovated villa in Freiburg that Wolfgang Beltracchi had unveiled so lavishly. The total value of the mortgages: €2,545,577.20.


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Accountability for Torture (in Britain)

The contrast could not be more distressing.

The British government has decided to pay former detainees at Guantánamo Bay, Cuba, tens of millions of dollars in compensation and conduct an independent investigation into its role in the mistreatment of prisoners.

The United States still operates the Guantánamo camp, with no end in sight. None of the truly dangerous terrorists there have been brought to justice, while many prisoners are still held who never should have been. The government not only refuses to come clean on this ignoble history, but it is covering up the Bush administration’s abuses by denying victims a day in court.

In July, Prime Minister David Cameron announced that there would be an independent investigation into Britain’s role in the mistreatment of detainees. On Tuesday, the government announced that it was compensating British citizens who were held at Guantánamo, six of whom filed a lawsuit accusing government agencies of complicity in their detention, torture and incarceration.

Three years ago, Canada apologized and paid compensation to Maher Arar, a Canadian torture victim, following an investigation into how the Royal Canadian Mounted Police mistakenly identified him as a terrorist. American authorities acted on that false information to arrest Mr. Arar and “render” him overseas. Even after the mistake was revealed, they continued to hold him.

The United States has neither compensated victims of illegal detention and abuse nor taken steps to hold the architects of the human rights abuses accountable. Indeed, some of the Obama administration’s biggest legal victories have come in shielding Bush-era officials by getting lawsuits brought by victims with credible claims of kidnapping and torture thrown out of court on specious secrecy grounds, without any testimony being heard.

Among the former detainees whom Britain has agreed to compensate is Binyam Mohamed, an Ethiopian-born former detainee with a British right of residency who said that he was tortured after American authorities sent him to Morocco. In September, a federal appeals court dismissed his case on unconvincing security grounds presented by Obama administration lawyers.

It will do no good for this nation’s tarnished human rights reputation that at the same time Britain took responsibility for its comparatively minor role in the ill treatment of terrorism suspects, former President George W. Bush was bragging in a new book that he had personally authorized the repeated use of a form of simulated drowning called waterboarding on Khalid Sheikh Mohammed, the accused mastermind of Sept. 11.

At least someone is owning up to the awful legacy of Mr. Bush’s illegal detention policies.

Editorial, New York Times


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The New Dealers’ Court

We have entered a new season of intense constitutional debate. Today’s Supreme Court will, in the next few years, face serious challenges to the unprecedented constitutional reach of Barack Obama’s health-care program—and likely to other ambitious federal ventures. As if to prepare the ground for a new confrontation, President Obama used his State of the Union address last January to scold the Supreme Court—with the chief justice and several other justices sitting right before him in the House chamber—for a decision giving free-speech protection to corporate political spending.

In this climate, Noah Feldman, Harvard law professor and prolific author, offers an overview of the intertwined careers of Justices Hugo Black, William O. Douglas, Felix Frankfurter and Robert Jackson. They were all appointed by Franklin Roosevelt in the aftermath of the bruising battle, in 1937, when FDR tried and failed to expand the size of the Supreme Court to ensure a pro-New Deal majority. Retirements in the next few years allowed him to appoint new justices who reinterpreted our constitutional doctrines to accommodate ambitious federal agendas.

Seven justices of the Supreme Court visiting the White House in 1939: (from left) Solictor General (and future justice) Robert H. Jackson, Felix Frankfurter, Hugo Black, Harlan F. Stone, Chief Justice Charles Evans Hughes, Owen J. Roberts, Stanley F. Reed, William O. Douglas, and Attorney General Frank Murphy.

So “Scorpions” might seem very timely. Mr. Feldman has certainly shown a knack for placing himself in the middle of great contemporary debates. On the strength of a brief period studying Arabic literature at Oxford, he was recruited in 2003 to advise on Iraq’s interim constitution—when he was, himself, only a few years out of law school. His subsequent book, “What We Owe Iraq” (2004), was a liberal plea for a continuing military effort to stabilize Iraq. As opposition to the war mounted, however, Mr. Feldman distanced himself from other democracy advocates with “The Fall and Rise of the Islamic State” (2008), depicting Sharia law as a historic and still promising check on abusive government.

He is certainly alert to the politics that surrounded (and often threatened to engulf) FDR’s Supreme Court appointees. Mr. Feldman devotes well over a third of the book to tracing the paths by which these “great justices” got to the court. Hugo Black (1886-1971) used his affiliation with the Ku Klux Klan in the 1920s to get himself elected to the Senate. Then, as a Supreme Court nominee, he reassured fellow senators with carefully worded (and misleading) disavowals of Klan connections. Roosevelt, grateful that Black had supported his court-packing plan, looked the other way.

Felix Frankfurter (1882-1965), a Harvard professor and Roosevelt confidant since the latter’s days as New York’s governor, was not consulted about the court-packing plan in advance. But he withheld public criticism—offending his long-time patron, Justice Louis Brandeis, an open opponent of FDR’s scheme. William O. Douglas (1898- 1980) had charmed Roosevelt with his bullying of Wall Street as SEC chairman in the mid-1930s. Robert Jackson (1892-1954) caught FDR’s eye arguing the administration’s dubious and partisan tax claims against former Treasury Secretary Andrew Mellon. Even after taking their seats on the court, both continued to attend intimate White House poker games. While a justice, Frankfurter was not invited to play cards, but he continued to offer private advice on all manner of subjects to the Roosevelt White House and the Justice Department.

The book offers a wealth of anecdotes but no revelations. Almost all the material in “Scorpions” is drawn from previously published accounts. Mr. Feldman tells these stories in a graceful narrative, cutting back and forth between different characters, situating personal doings in the great events of the era. It’s effective popular history.

For a scholar who holds a chair at Harvard Law School, though, Mr. Feldman is remarkably uninterested in legal analysis. The core of the book takes readers through a dozen or so landmark legal disputes of the 1940s and 1950s, but even here he keeps his focus on the interplay of personalities on the Supreme Court. He makes little effort to evaluate the weight of these cases as precedents and offers no discussion at all of the cases in the early 1940s, when the Roosevelt appointees repudiated all past limits on federal regulatory power. It is not much compensation to get two chapters on Justice Jackson’s dramatic moments as Nuremberg prosecutor—with no explanation of the actual charges in these cases and the simple assurance that “most historians consider the Nuremberg tribunal to have been a highly consequential historical event.”

The biggest problem with Mr. Feldman’s account is that, while all the Roosevelt appointees agreed that there should be broad constitutional scope for New Deal programs, they emphasized different reasons and followed the arguments to different results as they encountered new issues. Frankfurter, for example, consistently urged judicial deference to legislative judgments, while Black insisted that the courts must uphold the words of the Constitution—which in his reading allowed almost limitless scope for economic regulation but set sharp limits on government in other areas.

Over the years, their divisions became increasingly personal and acrimonious (so much so that Black and Douglas threatened to resign if Jackson were appointed chief justice after the war). Mr. Feldman acknowledges these differences—starting with his title (drawn from a Frankfurter law clerk’s characterization of the Supreme Court as “nine scorpions in a bottle”)—but tries to celebrate all four “great justices” equally, as if their negative estimations of each other were mere personal foibles. He acknowledges, for example, that some legal scholars view Douglas’s opinions as “arbitrary and outrageous”; others view him as “the most advanced exponent of liberal principle ever to sit on the Court.” Mr. Feldman is content to acknowledge that “there is truth in both propositions”; he is not interested in defining any possible boundary between “liberal principle” and “arbitrary” constitutional decisions.

At the end, Mr. Feldman assures us, whether “by principle, by pragmatism or by policy, the justices at their best make the Constitution their own.” And so, he thinks, do we all: “To interpret the Constitution by one’s own best lights is to be an American.” What if your best lights are dim or distorting? Do we have millions of constitutions or only nine?

If this was intended as a defense of liberal jurisprudence, it suggests that, even at Harvard, what liberals are mainly selling is nostalgia. There was a time when simply supporting the New Deal could earn a judge a great reputation. Those happy days don’t seem to be here again, now.

Mr. Rabkin is professor of law at George Mason University.


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Posted in Law

Going postal

A history of parcel bombs

Sending explosives through the post has a long and murky history

Rogue mail in the Raj

PRINTER cartridges and air freight may be new, but lethal missives are not. The Bandbox Plot of November 4th 1712, foiled by Jonathan Swift (author of “Gulliver’s Travels”), was an attempt to kill Robert Harley, Earl of Oxford and Lord Treasurer. A hatbox left at his door was configured to fire cocked pistols when the lid was lifted.

On January 19th 1764 a Danish diarist, Bolle Willum Luxdorph, described perhaps the first successful parcel bomb. A Colonel Poulsen received a box by post. “When he opens it, therein is to be found gunpowder and a firelock which sets fire unto it, so he became very injured.”

Politicians have long been targets of such attacks. One was aimed at Senator Thomas Hardwick and exploded (unsuccessfully) on April 29th 1919. It was the first of nearly 30 devices sent by anarchist groups to politicians, judges and businessmen, all intended to explode on May Day. A campaign in June involved eight larger bombs that killed several people, including one of the anarchists.

In June 1939 50 letter-bombs exploded in postboxes and post offices in London, Birmingham and Manchester. The Irish Republican Army claimed responsibility, as part of their S-Plan campaign, encouraged by Nazi Germany, to disrupt Britain.

Governments have used parcel bombs too. In 1961 Israel’s secret service, Mossad, sent one to Alois Brunner, a fugitive Nazi; it cost him an eye. Another attack in July 1980 took four fingers.

On February 21st 1970 Swissair Flight 330 to Tel Aviv crashed after a parcel bomb exploded in its cargo hold; 38 passengers and nine crew died. This was a rare case of a parcel bomb (as opposed to a baggage bomb) crashing an airliner. The blame fell on Palestinian terrorists.

On September 19th 1972 a letter-bomb in London killed Ami Shachori, an Israeli diplomat. Almost all the 51 similar bombs posted to Israeli embassy employees around the world were intercepted. Following the Munich Olympics massacre in 1972, Israel launched the Wrath of God operation, which dispatched many parcel bombs to its foes.

In December 1977 Donald Woods, a journalist and anti-apartheid activist, received a package containing children’s T-shirts laced with acid: his young daughter was badly burned. He blamed the South African authorities, which were also probably behind explosive parcels that killed anti-apartheid figures, including Ruth First (in Mozambique in 1982) and Jeannette and Katryn Schoon, wife and daughter of the activist Marius Schoon (in Angola in 1984).

America’s best-known postal terrorist was the “Unabomber”, Ted Kaczynski, who sent 16 bombs, claiming three lives. One of his devices ignited, but failed to explode, in the cargo hold of an American Airlines passenger plane.

Letters containing anthrax spores were sent to American senators and news outfits in autumn 2001, killing five and infecting seventeen. The main suspect, Bruce Ivins, died in an apparent suicide in 2008, his motive unknown.


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Posted in Law

Not as Easy as A,B,C

Fighting crime in one of Manhattan’s rougher neighborhoods.

The New York City of today is so far from the 1980s version of the city depicted in “Alphaville,” a real-life account of crime fighting in what was then one of Manhattan’s rougher neighborhoods, that many readers may find the stories of criminality and chaos improbable. Hollywood’s version of New York before the mid-1990s ascent of Rudolph Giuliani is a good reminder of how bad things once were. Think only of “Midnight Cowboy” (1969), “Taxi Driver” (1976) or, for that matter, “Alphabet City” (1984), a film about drugs wars on the Lower East Side. Perhaps appropriately, Michael Codella, a former detective with the New York City Police Department, and Bruce Bennett, a freelance writer, tell the story of Mr. Codella’s policing days in an almost film-like fashion.

“Alphaville” opens in the early summer of 1988, when Mr. Codella and his partner, Gio, patrol Avenue D while “sticky black bubbles on a new piece of macadam silently pop and drool.” In those bad old days, locals claimed that among Manhattan’s alphabetized street names—in a warren of east-side tenement blocks stretching down from 14th Street to Houston Street—”D” stood for “Death” and “A” for “Assault.”

The area—a neighborhood of immigrants and poor people for most of its history—became, after World War II the site of public-housing projects, concentrating poverty in government- financed towers. During the 1960s and early 1970s, it became as well the home of counterculture dropouts and, eventually, of a ragtag anarchist community centered near Tomkins Square Park. The neighborhood’s easy access to the FDR expressway and the city’s bridges and tunnels, the authors note, helped to make Alphabet City the heroin crossroads of the world.

Mr. Codella and his partner believed in solid, traditional police work. They guarded their territory like panthers, watching, waiting, ready to pounce. “We size up everybody,” he recalls (deploying a you-are-there present tense), “the steerers calling brands, the dealers making hand-to-hands, and the junkies crawling in feeling bad, hoping to walk out feeling nothing. We audition every face, every swinging arm, every sweating neck, every open eye that we pass.”

Equally important, the pair understood instinctively—maybe every good cop does—the principle that William Bratton, Mayor Giuliani’s first police commissioner, applied to the NYPD’s efforts to clean up New York a decade later. Drug dealing is a business and, like any business, it can be harassed to death. When the 1990s crackdown began, many police officers, not to mention pundits, protested that arresting small-time dealers would serve no purpose. Prosecutors, it was argued, would refuse to prosecute, the courts would order the dealers released, and the dealers would stroll out of their cells at Rikers Island the next day to resume their business. Commissioner Bratton didn’t care: Arrest them, he ordered: Disrupt their sales, cost them money, keep doing it. The strategy worked. Long- standing drug markets—for instance, certain blocks of Manhattan’s Upper West Side where yuppies in BMW’s bought dope from corner dealers—dried up.

Commissioner Bratton would have loved what Mr. Codella and his partner were doing: “We make every possible collar we can. We terrorize customers, hassle the dealing crews, even stake out a store on St. Mark’s Place that sells the glassine dope bags these guys use—anything to make business hard to conduct.” Back in the 1980s, though, such tactics didn’t sit well with the brass or even the detectives’ fellow cops. The partners were rate-busting—bringing in too many arrests. They were also functioning in a post- Serpico, post-Knapp Commission NYPD that was intent on staving off scandal, to the point of policing less than aggressively.

According to “Alphaville,” an edict came down to uniformed police: Do not make street drug-sale arrests. If some beat cops, the authors say, happened to see “a guy with a needle sticking out of his arm selling a quart-size Ziplock of heroin to Mickey Mouse on the corner of Second Street and Avenue D,” they were to do nothing more than write down the pertinent information and forward it to the precinct’s Organized Crime Control Bureau. The act of making a narcotics arrest became “its own trial by bureaucracy.” The laborious process of vouchering evidence and processing drug collars, they say, was a major contributor to the city’s street-heroin nightmare.

“Alphaville” makes another crucial point about drug dealing: As in any business, there has to be a top guy. “Somebody somewhere is enforcing the peace, keeping supplies going, sanctioning necessary killings and earning themselves a generous cut of the profits for doing it.” The search for the top guy on Mr. Codella’s beat—a man named Davey Blue Eyes, renowned for his ruthlessness and cool—becomes a major story line of “Alphaville,” unifying its otherwise scattered vignettes of brutal contract killings and after-hours partying.

The detectives’ most useful device, it turns out, is their network of informants and the federal anticrime money that pays the talkers. Mr. Codella says that because he grew up in Brooklyn’s Canarsie neighborhood, where the mafia’s code of omertà and the police department’s blue wall of silence pervaded the neighborhood’s ethos, he initially had an exaggerated idea of how far people would go to keep secrets. What he learned is that everyone on the wrong side of the law has a price.

The cocky and often triumphant confrontations with bad guys make “Alphaville” a strangely entertaining read. But the book is also a reminder of how far into danger and degradation New York fell in the late 20th century. Today New York is the safest major city in America. Yet the homicide rate so far this year is 15% higher than last, and the numbers for rape and robbery are rising, too. The watchword for urban safety, as for so much else, is eternal vigilance. We never want to return to the bad old days—which aren’t all that old.

Ms. Vitullo-Martin is director of the New York-based Center for Urban Innovation at the Regional Plan Association.


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Crime and Punishment

Recidivism doesn’t prove that prison doesn’t work.

New figures published by the U.K. Ministry of Justice last week show that three quarters of prisoners are convicted of another crime within nine years of their release. Since most crimes result in no conviction, it seems reasonable to assume every ex-prisoner remains a criminal.

Many take this unsurprising fact to be both surprising and an indictment of the prison system. Even the new Justice Secretary, Ken Clarke, has concluded that his former colleague, Michael Howard, was wrong when he claimed that “prison works.”

This is a peculiar objection to imprisonment—rather like complaining that your TV is not working because it does not defrost chickens. Reducing repeat offending is not the purpose of prison. Its purpose is to reduce offending. It does this in two ways: by deterring people from committing crimes and by positively preventing them from doing so while they are inside.

But doesn’t the high recidivism rate show that prison is not an effective deterrent after all? It does not. Testing the deterrence effect of prison by observing the proportion of ex-prisoners who commit crimes is a bad case of the statistical error of “sample bias.” Prisoners are, by hypothesis, people for whom the threat of prison is an insufficient deterrent to crime. That prison does not deter ex-prisoners tells us nothing about how much it deters the rest of the population, nor therefore by how much it reduces crime.

Once you think of criminal punishments as deterrents, 100% recidivism is unsurprising, because the first conviction is the most expensive for a criminal. This is when he incurs the one-off, irrecoverable costs of becoming a known criminal, such as diminished career and social prospects. If the chance of incurring these costs (in addition to the penal costs) did not deter him from committing a crime, then the inevitably lesser costs of subsequent convictions are unlikely to deter him. This is true whatever the legal penalty for crime—be it torture, prison or “community service”—and however effectively it deters first crimes. Recidivism is a red-herring.

Alas, those who complain about recidivism do not think of imprisonment as a deterrent. They think of it as being more like a medical treatment, aimed at “rehabilitating” people who have succumbed to a behavioral disease that they caught from our unhealthy society or, perhaps, from their genetic inheritance. Crimes are not the actions of people weighing costs and benefits; they are the symptoms of a condition, like the suppurating blisters of an impetigo sufferer. Criminals need to be cured, not punished.

To understand the mistake here, consider my misspent youth. I often achieved mediocre grades for my schoolwork. This would prompt my teachers to speak rudely to me, usually accusing me of being unacceptably lazy. Yet I noticed that when one of my notoriously stupid classmates achieved the same mediocre grades, praise was heaped upon him. This struck me as unfair because, as I pointed out to my teachers, I could no more help being lazy than he could help being stupid. And then they spoke rudely to me again.

Whatever the justice of it, my teachers’ unequal treatment was justified. For, although we may all have dispositions that we did not choose, some of these dispositions still respond to incentives. Because I was lazy, I required more badgering than most pupils did. Nevertheless, enough badgering would make me work. We lazy people are not immune to incentives. No amount of badgering or other punishment, however, would have improved the mental powers of my stupid classmate. Because stupidity does not respond to incentives, scolding him for it would have been pointlessly cruel.

Many criminals may well have unchosen dispositions that incline them toward violence or disobedience, or that make it harder for them to find paid employment and hence incline them toward illegal sources of income. Discovering such causes of crime makes many people move into the anti-punishment camp. But it should not. Punishment would be misguided only if, like stupidity, such criminal dispositions did not respond to incentives.

Yet they obviously do. Imagine that some technological advance meant that every theft resulted in a correct arrest, and that the convicted thieves were brutally tortured. Can anyone doubt that thievery would go into sharp decline? Or, if you prefer real world examples, compare the amount of drug-related crime in the U.K., where convicted drug dealers are imprisoned, with the amount in Singapore, where they are executed.

The new British government plans to replace punishment with attempted rehabilitation. Since this will reduce the cost of committing crimes, it will increase the number of people who become criminals. In other words, the policy will encourage criminality for the sake of then curing it. This would be absurd even if a cure for criminality existed, even if attempts at rehabilitation were generally successful. Given that rehabilitation remains no more than a fantasy of penal reformers, however, the policy is not merely absurd but positively wicked.

Mr. Whyte is a management consultant and author of “Crimes Against Logic” (McGraw Hill, 2004).


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The case against evidence

From fingerprints to high-tech CSI, forensic science plays a much smaller role than you would think

At criminal trials, there is always talk about doubt, reasonable doubt. But in recent years, with the rise of DNA technology and other forensic evidence techniques, many Americans have a growing sense of confidence, if not certainty, that we’re locking up the guilty and freeing the innocent. The backbone of modern justice, it seems, is not a judge in a long, black robe, presiding over a courtroom, but a forensic analyst in a crisp, white coat, laboring over a microscope. In science we trust.

A 2006 survey of more than 1,000 Michigan jurors found that nearly half of the jurors expected to see some sort of scientific evidence in every criminal trial. Nearly 75 percent expected to see scientific evidence presented in murder trials. And still another study, published just this year, found that people trusted such evidence almost blindly. In this study, a random sample of 1,201 potential jurors in California said they considered scientific evidence, like DNA and fingerprints, to be far more reliable than the testimony of police officers, eyewitnesses, or even the victims themselves.

Prosecutors call it the CSI effect, suggesting that fictional television shows, like the long-running “CSI,” helped convince science-wary Americans to believe in the power of forensics. But the facts haven’t hurt, either. At trial, when possible, prosecutors are always keen on

calling forensic experts to testify — even when no forensic evidence has been found. Failure to do so, prosecutors say, would almost surely sink their chances of winning a conviction.

But does forensic evidence really matter as much as we believe? New research suggests no, arguing that we have overrated the role that it plays in the arrest and prosecution of American criminals.

A study, reviewing 400 murder cases in five jurisdictions, found that the presence of forensic evidence had very little impact on whether an arrest would be made, charges would be filed, or a conviction would be handed down in court.

A mere 13.5 percent of the murder cases reviewed actually had physical evidence that linked the suspect to the crime scene or victim. The conviction rate in those cases was only slightly higher than the rate among all other cases in the sample. And for the most part, the hard, scientific evidence celebrated by crime dramas simply did not surface. According to the research, investigators found some kind of biological evidence 38 percent of the time, latent fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides.

“Forensics had no bearing on the outcome at all,” said Ira Sommers, professor of criminal justice at California State University, Los Angeles, who coauthored the research with colleague and fellow professor Deborah Baskin. “It was not a significant predictor of the district attorney charging the case and had no relation to actually getting a conviction. That’s a pretty stunning finding considering all the hype around forensic evidence.”

And according to Baskin and Sommers, there’s reason to believe that the findings aren’t limited to murder cases alone. In research yet to be published, the California professors say they have made similar conclusions regarding the small role that forensic evidence plays in solving other crimes as well. In assault, robbery, and burglary cases, investigators collect forensic evidence less than a third of the time, the researchers have found, and only a small fraction of that evidence ever gets submitted to a lab for study, making it essentially “a nonfactor,” Sommers said, “a rare phenomenon.”

The new research, to be published in the Journal of Criminal Justice, comes at a time when forensic science is already under siege, with some questioning whether certain forensic practices are even that scientific. The National Academy of Sciences authored a report last year questioning the reliability of many forensic methods, deploring the lack of standardization and certification within the trade, and calling for sweeping reforms. The report, which gave voice to concerns that many forensic scientists had been whispering for years, reached the White House, where President Obama directed a subcommittee on forensic science to study the suddenly prickly matter.

That committee is expected to report its findings and make policy suggestions in the coming weeks. Meanwhile, twice in the last 18 months, the Senate Judiciary Committee has held hearings generally bemoaning the state of American forensic science — and perhaps with good reason.

Hundreds of crime labs across the country are unaccredited; laws in most states don’t require them to be. And even those with accreditation have had problems. In 2008, the city of Detroit shuttered its crime lab after an audit found a 10 percent error rate in ballistic evidence. Last year, New York’s inspector general chastised the state police there for overlooking evidence that a crime lab analyst was fabricating data. Just last spring, San Francisco was forced to shutter its drug analysis unit after allegations that an analyst was skimming seized drugs for personal use. And Massachusetts hasn’t been immune to problems. In 2007, the state Executive Office of Public Safety commissioned a report that documented a backlog of untested DNA from 16,000 cases, including homicides and sexual assaults — a discovery that the report labeled “a crisis.”

Meanwhile, across the country, a backlog of DNA evidence continues to fester and grow despite the $330 million dedicated since 2004 to attack the mountain of untested evidence. The problem, according to a special report published in June by the National Institute of Justice, is that crime labs’ capacity for the work has not kept pace with increased demand for testing. The scientific samples just keep coming in, queuing up to be analyzed.

“I think the district attorney is just like us, just like everybody,” said Sergeant Paul McLaughlin, supervisor of one of the homicide squads at the Boston Police Department. “The more the better. The more of this stuff you can get, the more they like it.”

Police investigators first began using forensics — specifically, fingerprint identification — near the turn of the 20th century. And as late as the 1960s, such information — as valuable as it was — was stored on rudimentary cards, recalled Frank Jordan, San Francisco’s former chief of police, forcing police officers seeking an identification to wade into a sea of paper.

“You had reams and reams of files — file cards with fingerprints — and you had to check them, by hand, in our crime lab,” recalled Jordan, a 33-year veteran of the force before his retirement in 1990. “It could easily take a couple of weeks to do that. And if you were going further, and sending it on to the national lab, it would take another three to four weeks again.”

Computerization began altering that in the 1980s, Jordan said. And soon thereafter, DNA changed the entire ballgame. In 1990, a federal report determined that DNA evidence was “both reliable and valid.” Police and prosecutors quickly began seeking out such evidence, given its power to link a suspect to a crime scene — or exclude a suspect from a crime scene — through a genetic footprint.

Since 1989, according to the Innocence Project, a legal clinic dedicated to exonerating the wrongfully convicted, 261 people have been exonerated and freed from prison due to DNA evidence. And every day, in courtrooms across the country, prosecutors use such evidence to lock up the guilty.

“I can name, off the top of my head, a dozen cases that were practically solved exclusively through forensic evidence,” said Patrick Haggan, chief trial counsel for the Suffolk County district attorney’s office. “It was the main — if not the only — evidence presented to the jury.”

Undeniably, Haggan is right. Across the country, there are many examples where the discovery of DNA, or other scientific evidence, cracked a case that had long gone cold. Just last month in Suffolk Superior Court, prosecutors won a murder conviction in a case that had gone unsolved for 26 years, thanks to DNA that finally linked a career criminal to the rape and murder of an 18-year-old woman.

But Baskin and Sommers say that forensic evidence, while compelling, isn’t nearly as important to a murder case as other factors. Analyzing 400 murder cases committed in 2003 in California’s Los Angeles County, Indianapolis, and three smaller Indiana cities, the researchers found that cases were more likely to end up in court if witnesses came forward or if the victim and the suspect knew each other. Such factors made cases easier to solve and, apparently, easier to prosecute, according to the research, while, on the other hand, forensic evidence was “not a significant factor.”

“I think it’s pretty clear that forensic evidence has at best a limited impact on criminal case outcomes — at best,” Baskin said. “Really, it’s not determinant in the vast majority of cases. It does not significantly impact the conviction of cases. And I think the other point is, few cases actually have forensic evidence.”

Perhaps not surprisingly, these findings have not been met with universal applause among investigators, prosecutors, and the people actually doing the work: forensic analysts.

“You’re telling me that it doesn’t have anything to do with the prosecution?” said Pete M. Marone, who oversees Virginia’s four state crime labs and who served on the National Academy of Sciences panel that authored last year’s report on the state of American forensics. “If it’s insignificant or inconsequential, then why do my people always have to go testify why they didn’t find DNA?”

Haggan went a step further, saying the new research seemed “completely inaccurate.” He suggested that a broad overview of cases misses the subtleties within a trial and cannot account for how the mere presence of forensic evidence forces the defense to change its tactics. Take, for example, he said, the 2005 murder of cab driver Heureur Previlon in Brighton, in which police linked two suspects to the crime scene through blood found on their clothes. “By placing them at the scene,” Haggan said, “they could no longer claim they didn’t do it. They had to go with self-defense.”

However, both police and prosecutors acknowledge that there is some truth in the new findings. DNA evidence in homicide cases can be hard to come by, they acknowledge, especially in gang-related incidents, drive-by shootings, and cases where victims were randomly targeted. In Fresno, Calif., this year, police have investigated 38 murders, but found DNA in just four, according to Captain Dennis Bridges, commander of the Fresno Police Department’s violent crime bureau. And even if they had DNA evidence in more cases, Bridges added, detectives wouldn’t know that for days, maybe weeks, after the crime. What matters in the immediate aftermath of a murder, he said, is finding eyewitnesses — just as the new research concludes.

Eyewitness testimony has its own flaws; recent studies have documented deficiencies in our ability to accurately identify our attackers. But police and prosecutors agree that jurors want to hear from real people just like them, who happened to see something horrifying.

“Every case is different. But in the vast majority of extremely serious cases, you need a mix of percipient witnesses and corroboration through forensic evidence,” said Middlesex District Attorney Gerard T. Leone. “If all you have is forensic evidence — even if it’s ultra-definitive on its face; DNA matching the defendant and it’s in a critical place — jurors still want to hear from people.”

Given that reality — and the new findings — Baskin and Sommers say the lesson is clear: Police should spend more time out in the community before a homicide happens, making connections with everyday people, especially in high-crime neighborhoods, so that when a dead body turns up on a street corner, investigators have a better chance of getting witnesses to come forward.

But there’s also a secondary lesson, they say, about American society at large and the paradoxical nature of what we say we expect and what we really want. Potential jurors may say in surveys that they want scientific evidence in a criminal trial or that they find DNA evidence more reliable than the testimony of others. “But when push comes to shove,” Baskin said, “they’re still convinced by someone else testifying that they saw it.”

In this way, perhaps very little has changed about criminal trials. Perhaps modern justice isn’t so modern after all. Despite all our scientific know-how, jurors weighing life and death decisions still crave what Leone calls the “human element:” the act of watching another person testify and deciding if they’re telling the truth.

As these witnesses enter the courtroom, a hush often falls on the gallery. Jurors — bored by days of dry testimony given by well-rehearsed experts — lean forward in their seats, pens at the ready to take notes about what the eyewitness has to say. They have seen this moment on television, too, and it’s usually really, really interesting.

Freelance writer Keith O’Brien, winner of the Casey Medal for Meritorious Journalism, is a former staff writer for the Globe.


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Serving Two Masters: Shariah Law and the Secular State

A few weeks ago, the Cardozo School of Law mounted a conference marking the 20th anniversary of Employment Division v. Smith (1990), a case in which the Supreme Court asked what happens when a form of behavior demanded by one’s religion runs up against a generally applicable law — a law not targeted at any particular agenda or point of view — that makes the behavior illegal. (The behavior at issue was the ingestion of peyote at a Native American religious ceremony.) The answer the court gave, with Justice Antonin Scalia writing for the majority, was that the religious believer must yield to the law of the state so long as that law was not passed with the intention of curtailing or regulating his or anyone else’s religious practice. (This is exactly John Locke’s view in his “Letter Concerning Toleration.”)

“To make the individual’s obligation to obey . . . a law contingent upon the law’s coincidence with his religious beliefs” would have the effect, Scalia explains, of “permitting him, by virtue of his beliefs, ‘to become a law unto himself.’” And if that were allowed, there would no longer be a single law — universally conceived and applied — but multiple laws each of which was tailored to the doctrines and commands of a particular faith. In order to have law in the strong sense, Scalia is saying, you can have only one. (“No man can serve two masters.”)

The conflict between religious imperatives and the legal obligations one has as a citizen of a secular state — a state that does not take into account the religious affiliations of its citizens when crafting laws — is an old one (Scalia is quoting Reynolds v. United States, 1878); but in recent years it has been felt with increased force as Muslim immigrants to Western secular states evidence a desire to order their affairs, especially domestic affairs, by Shariah law rather than by the supposedly neutral law of a godless liberalism. I say “supposedly” because of the obvious contradiction: how can a law that refuses, on principle, to recognize religious claims be said to be neutral with respect to those claims? Must a devout Muslim (or orthodox Jew or fundamentalist Christian) choose between his or her faith and the letter of the law of the land?

In February 2008, the Right Reverend Rowan Williams, Archbishop of Canterbury, tried in a now-famous lecture to give a nuanced answer to these questions by making what he considered a modest proposal. After asking “what degree of accommodation the laws of the land can and should give to minority communities with their strongly entrenched legal and moral codes,” Williams suggested (and it is a suggestion others had made before him) that in some areas of the law a “supplementary jurisdiction,” deriving from religious law, be recognized by the liberal state, which, rather than either giving up its sovereignty or invoking it peremptorily to still all other voices, agrees to share it in limited areas where “more latitude [would be] given in law to rights and scruples rooted in religious identities.”

Williams proceeded immediately to surround his proposal with cautionary safeguards — “no ‘supplementary’ jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights” — but no safeguards would have satisfied his many critics, including Prime Minister Gordon Brown, who declared roundly that there is only one common law for all of Britain and it is based squarely on “British values.”

Prompted by Williams’s lecture and the responses it provoked, law professors Rex Ahdar and Nicholas Aroney have now put together a volume, to be published in 2011, under the title “Shari’a in the West,” a collection of learned and thoughtful essays by some of the world’s leading scholars of religion and the law. The volume’s central question is stated concisely by Erich Kolig, an anthropologist from New Zealand: “How far can liberal democracy go, both in accommodating minority groups in public policy, and, more profoundly, in granting official legal recognition to their beliefs, customs, practices and worldviews, especially when minority religious conduct and values are not congenial to the majority,” that is, to liberal democracy itself?

This is exactly the question posed by John Rawls in a preface to the second edition of “Political Liberalism,” his magisterial account and defense of liberal political principles: “How is it possible for those affirming a religious doctrine that is based on religious authority . . . also to hold a reasonable political conception that supports a just democratic regime?” The words to stumble on are “reasonable” and “just,” which at once introduce the requirement and indicate how hard, if not impossible, it will be to meet it: “reasonable” means confirming to rational, not religious, principles; “just” means respecting the equality of all, not just male or faithful, individuals.

With these concepts as the baseline of “accommodation,” accommodation is going to fall far short of anything that will satisfy the adherents of a religion that “encompasses all aspects of public and private law, hygiene, and even courtesy and good manners” (A. A. An-Na’im). In liberal thought these areas are the ones in which the individual reigns supreme and the value of individual choice is presupposed; but, as Ann Black explains, “Muslims do not conceptualize Islam in terms of the Westernized sociological categorization of religion which places the individual at the centre of all analyses.”

And so, perhaps predictably, the essays in Shariah in the West tack back and forth between the uneasy alternatives Williams names in his lecture — “an assumption on the religious side that membership of the community . . . is the only significant category,” and on the other side secular government’s assumption of a “monopoly in terms of defining public and political identity.” These assumptions seem to be standing obstacles to the ability of secular Western states to think through the problem presented by growing Muslim populations that are sometimes militant in their demand to be ruled by their own faiths and traditions.

On the one hand, there is the liberal desire to accord one’s fellow human beings the dignity of respecting their deepest beliefs. On the other hand, there is the fear that if those beliefs are allowed their full scope, individual rights and the rule of law may be eroded beyond repair. It would seem, at least on the evidence of most of these essays, that there is simply no way of “finding a viable path that accommodates diversity with equality” (Ayelet Shachar), that is, accommodates tolerance of diverse religious views with an insistence that, in the last analysis, the rights of individuals cannot be trumped by a theological imperative. No one in this volume quite finds the path.

Except perhaps theologian and religious philosopher John Milbank who puts forward, the editors tell us, “the striking argument that only a distinctly Christian polity — not a secular postmodern one — can actually accord Islam the respect it seeks as a religion.” The italicized phrase is key: the respect liberalism can accord Islam (or any other strong religion) is the respect one extends to curiosities, eccentrics, the backward, the unenlightened and the unfortunately deluded. Liberal respect stops short — and this is not a failing of liberalism, but its very essence — of taking religious claims seriously, of considering them as possible alternative ways of ordering not only private but public life.

Christianity, says Milbank, will be more capable of deeply respecting Islam because the two faiths share a commitment to the sacred and to a teleological view of history notably lacking in liberalism (again, this is not a criticism but a definition of liberalism): A “Christian polity can go further in acknowledging the integral worth of a religious group as a group than a secular polity can.” Christianity can acknowledge the worth of Islam not merely in an act of tolerance but in an act of solidarity in the same way that Christian sects can acknowledge each other. If you are a Catholic, Milbank explains, “and you do not agree with the Baptists you can nevertheless acknowledge that, relatively speaking, they are pursuing social goals that are comparable with, and promote a shared sense of human dignity” as defined by a corporate religious identity. Liberalism can acknowledge individual Muslims or individual Baptists or individual Catholics, but the liberal acknowledgment detaches these religious believers from their community of belief and turns them into citizens who are in the things that count (to liberalism) just like everyone else.

“Liberal principles,” declares Milbank, “will always ensure that the rights of the individual override those of the group.” For this reason, he concludes, “liberalism cannot defend corporate religious freedom.” The neutrality liberalism proclaims “is itself entirely secular” (it brackets belief; that’s what it means by neutrality) and is therefore “unable to accord the religious perspective [the] equal protection” it rhetorically promises. Religious rights “can only be effectively defended pursuant to a specific and distinctly religious framework.” Liberal universalism, with its superficial respect for everyone (as long as everyone is superficial) and its deep respect for no one, can’t do it.

If that is so, then the other contributors to this volume are whistling “Dixie,” at least with respect to the hope declared by Rawls that liberalism in some political form might be able to do justice to the strongly religious citizens of a liberal state. Milbank’s fellow essayists cannot negotiate or remove the impasse he delineates, but what they can do, and do do with considerable ingenuity and admirable tact, is find ways of blunting and perhaps muffling the conflict between secular and religious imperatives, a conflict that cannot (if Milbank is right, and I think he is) be resolved on the level of theory, but which can perhaps be kept at bay by the ad-hoc, opportunistic, local and stop-gap strategies that are at the heart of politics.

Stanley Fish, New York Times


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In the mid-1980s, Meredith Maran, a thirtysomething wife and mother of two young boys, came to believe that, when she was a little girl, her father had molested her. She wasn’t absolutely certain. She didn’t remember any such heinous act, nor did she have any evidence, outside of vague nightmares, strange “flashbacks” and intensely complicated feelings about her father. But she did have a Greek chorus of women thinking similar thoughts, including feminist psychologists, activists and therapy patients, a number of whom she knew personally in the San Francisco Bay-area lesbian community that is her home.

Ms. Maran, who recanted her accusation a decade later, does not go easy on herself in “My Lie,” a memoir of her journey through what she calls “Incest Nation.” As a journalist for the San Jose Mercury News and the editor of a book on the subject, she admits that she “helped to spread the panic” as incest accusations raged in the 1980s and early 1990s. Ms. Maran gullibly embraced all the gothic charges that occupied that hysterical time: Satanic rituals at day-care centers, multiple personalities caused by long-forgotten traumas, the claim that one in three girls was a victim of sexual abuse.

She also doesn’t shy from describing the poison she injected into her own family. Her growing obsessions helped to break up her marriage as she began to think of her sympathetic husband as another “predatory male.” She deprived her boys of their beloved grandfather. Terrified by paternal perfidy so close to home, her young niece began to fear her own father. That father, Ms. Maran’s brother, fretted that he, too, had been victim of the abuse.

The most aggrieved victim of the story, the self-involved but harmless patriarch, Stan Maran, spent his last decade before descending into Alzheimer’s knowing that his daughter believed the worst thing a daughter can believe about a father and knowing that his once happy, now traumatized, third wife was considering divorce.

“I’d found the perpetrator and it was me,” Ms. Maran concedes. Still, for all the soul-searching, “My Lie” is as much a defense as a mea culpa. She interviews neuroscientists about the chemical roots of groupthink but fails to ask why, before she had any inkling of her putative abuse, when she was married to the likable father of her two sons, she was drawn to a group of radical feminists, “wommin” whose lives were defined by therapy sessions, self-defense classes and the incest-survivor’s bible, “The Courage to Heal.”

After her marriage ended, Ms. Maran had a long, live-in relationship with a clearly disturbed woman who was convinced that she had been molested by her father (who had died when she was 5) and who was haunted by fantasies of dark-robed people chanting at forest campfires when she was a child. Neuroscience can’t explain Ms. Maran’s decision to pick this woman, belatedly, as the stepmother of her sons.

Ms. Maran, who wrote about her involvement with leftist politics in a previous memoir, concludes here that her lie about her own personal experience was no different from the belief of some people that President Barack Obama is a Muslim or that Saddam Hussein possessed weapons of mass destruction. History is “rife with examples of the damage done when millions of people become convinced of the same lie at the same time.” This is political posturing substituting for self-knowledge, a distinction you’d hope the author of a book called “My Lie” would have learned.

Kay Hymowitz, Wall Street Journal


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We the People

It seems that they are on the news programs every night: Americans dressed as 18th-century Founders, waving placards saying “Don’t Tread On Me” and complaining that members of Congress pass legislation without regard for the Constitution. Perhaps never before have so many citizens invested so much of their political energy in the proposition that we should return to the first principles of the Founding.

Critics of the tea-party movement have been quick to question its members’ constitutional bona fides. Washington Post columnist E.J. Dionne, for instance, sniffed that tea-party supporters more closely resemble Anti-Federalists—opponents of the Constitution in 1788—than they do the Founders.

In a sense the critics are right. To a remarkable extent, the tea-party movement is raising the same questions of constitutional governance that Anti-Federalists (and not a few Federalists) raised in the debates over whether to adopt a new Plan of Union in 1788. Just a few days ago, a poll by Rasmussen Reports showed that fully 61% of American adults believe that the federal government has too much power; 66% think Americans are overtaxed; and 70% believe the government does not spend taxpayers’ money wisely or fairly.

Too bad Rasmussen wasn’t around in the 1780s—the results might have been strikingly similar. Even while ratifying the Constitution, at least seven of the state conventions—representing the vast majority of Americans—expressed the view that the new government had been given too much power. The conventions demanded amendments to curb the government’s potential for oppression. And the most popular of the amendments—the only one agreed on by all the states proposing the changes—limited the federal government’s broad power of taxation.

Yet it’s doubtful that many Americans today, even tea-party enthusiasts, are aware that those debates took place.

The arrival of Pauline Maier’s “Ratification,” then, could not be more timely. It is the first comprehensive account of the debates in the 13 states over adoption of the Constitution. Others have written about specific aspects of the ratification struggle—about the arguments of one side or the other, or about the debate in a particular state—but remarkably, until now, no historian had written a full-length account of the politics, personalities, arguments, and outcomes between Sept. 17, 1787, when the Constitutional Convention completed its work, and May 29, 1790, when the last of the original states, Rhode Island, ratified the document.

“Ratification,” for all its scope and technical detail, is a gripping and eye-opening read. Ms. Maier is a member of that rare breed of historians who write vividly and with a flair for depicting dramatic events. She has benefited from an ongoing project led by John Kaminski and Gaspare Saladino called The Documentary History of the Ratification of the Constitution, an effort to collect and publish all extant records, newspaper articles, letters and notes bearing on the subject of ratification. Much of this material, Ms. Maier writes, “I suspect no historian has ever used before.” She mined the papers to produce a description of the ratification process that is rich in detail, bringing to light episodes and arguments previously unknown even to constitutional historians.

For example, the supporters of the Constitution in Pennsylvania were so determined to make it appear that the state overwhelmingly supported ratification that they suppressed publication of the proceedings. Despite weeks of spirited debate, in which opponents raised numerous issues of substance, only two speeches, both by supporters, made it into the official reports. The Federalist majority even voted to expunge any mention of defeated motions for amendments from the journal of the proceedings. Most prior accounts of the Pennsylvania events thus missed most of this fight.

Drawing on freshly uncovered archival sources, Ms. Maier tells the story of a Pennsylvania backwoods opponent of the Constitution, William Findley, who denounced the absence of a provision for civil jury trials in the Constitution—an omission later rectified by the Seventh Amendment. He commented that when Sweden had abandoned jury trials, “the commons of that nation lost their freedom.” Immediately, two lions of the Pennsylvania legal establishment pounced. James Wilson (later associate justice of the United States Supreme Court) and Thomas McKean (who had served 10 years as chief justice of Pennsylvania) declared that trial by jury never existed anywhere but in England and mocked Findley’s supposed ignorance.

The next day, however, Findley produced the third volume of William Blackstone’s “Commentaries on the Laws of England,” which attributed the invention of the jury to Scandinavia and recounted that when the jury ceased to be used in Sweden, that nation “degenerated into a mere aristocracy.” Wilson, who should have been more embarrassed than he was, conceded that Findley was correct—but added, superciliously, that he had forgotten more law than Findley had ever learned. No wonder Wilson was burned in effigy by Pennsylvanians who thought he was high-handed, and no wonder the opponents of the Constitution felt abused by the arrogance of the Federalists.

In Pennsylvania and elsewhere, as Ms. Maier reports, debates sometimes broke into violence. The Pennsylvania legislature gained the quorum necessary to call a ratifying convention only when a mob broke into the homes of two recalcitrant legislators and dragged them forcibly to the statehouse. When the New York convention, dominated by delegates from upstate counties, appeared adamantly opposed to ratification, metropolitan New Yorkers threatened to secede from the state, even at the risk of possible civil war. Later, Rhode Island was coerced into ratification by an act of Congress cutting off all trade. Any merchant caught trading with Rhode Islanders would face confiscation of his ship, a substantial fine and up to six months’ imprisonment.

A particularly notorious incident occurred in Albany, N.Y., on the Fourth of July, 1788. After hearing news of Virginia’s ratification, supporters of the Constitution staged a noisy celebration. Infuriated opponents counter-marched, publicly burned a copy of the Constitution, and later assaulted a group of supporters with clubs, stones and bricks. Federalists then trashed the tavern where the Anti contingent met and took several prisoners.

Later that month, in the middle of the night, 500 supporters of the Constitution in Manhattan attacked the premises of the New-York Journal, the one newspaper in the city that had regularly published essays critical of the Constitution. According to Ms. Maier, they smashed the windows and threw printing equipment into the street. The publisher, Thomas Greenleaf, escaped through a back door. The publisher of a rival paper commented: “God save us, if these be the dawnings of the new federal government.”

Religion, too, reared its head in unexpected ways. The Constitutional Convention famously conducted its proceedings without a chaplain or daily prayer, but the Virginia and New York ratifying conventions began each day with a prayer, without controversy or objection. Two of the ratifying conventions met in church buildings. Delegates in several states worried that the Constitution would allow “Jews, deists, and infidels” to hold office. Yet when the New York City supporters of the Constitution scheduled a procession to celebrate ratification by the nine states necessary to form the new government, they postponed it out of respect for a Jewish holiday. When the procession did take place, clergy of various denominations walked hand-in-hand. Among them was a bearded rabbi.

History is written by the winners. Opponents of the Constitution have long been dismissed as being motivated by fear of outsiders, narrow self-interest, and localized concerns. It used to be thought that most of the critics fought against the Constitution because its superior court system and prohibitions on paper money would force them to pay their lawful debts. And of course there was some of that. But Ms. Maier emphasizes that the overriding concern of the Constitution’s opponents was with the defense of liberty against federal overreach and the lack of proper representation of the people.

Still more interesting: Federalists shared these concerns. The vast majority on both sides of the issue wanted a decentralized federal system of limited government, responsive to the people and protective of their rights. The difference was over how to achieve this. As Ms. Maier tells the story, the Constitution’s critics sought more to improve the plan through amendments than to scuttle it, and to a great extent they succeeded. Not only did they obtain amendments, which we call the Bill of Rights, but the critics also won a host of other assurances: states would retain their autonomy; the federal government would be allowed to impose few taxes other than tariffs; and the nation would rely mostly on state militias rather than a large standing army. All of these concessions addressed Anti-Federalist demands or concerns.

Far more than the Constitutional Convention, the ratification debates touched on fundamental questions of liberty and order, and their relation to centralization and practical democracy. The immediate concerns of the young nation were resolved—the Constitution was ratified, with amendments. But those fundamental questions would recur, as fundamental questions always do, at key junctures of history when citizens feel the need for guidance about how to carry forward what Washington called “the experiment entrusted to the hands of the American people.” We seem to live in such a time.

Mr. McConnell, a former federal judge, is the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution.


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The Defense Rests

A longtime champion of the Rosenbergs tries to confront the evidence.

Attending a 1983 debate in New York City on the Rosenberg spy case, a correspondent for the New Republic—as it happens, the distinguished Harvard philosopher Robert Nozick—commented that he had “never before seen anyone exude such absolute self-righteousness, or any adult exhibit such petulance.” He was watching the journalist Walter Schneir defend, in the face of mounting contrary evidence, the atomic spies Julius and Ethel Rosenberg—and denounce a recondite government conspiracy to frame them—30 years after their execution. Presenting the opposite case, for the Rosenbergs’ guilt, were Ronald Radosh and Joyce Milton, who had recently published “The Rosenberg File.” In the atmosphere of the evening—to judge by Mr. Nozick’s account—Mr. Radosh and Ms. Milton were made to play the role of villain, McCarthyites masquerading as historians, to be mau-maued by New York’s beau monde.

Mr. Schneir at the time was known, along with his wife, Miriam, as one of the Rosenbergs’ most dogged defenders. Together they had written “Invitation to an Inquest” (1965), a book positing a massive government conspiracy to frame the Rosenbergs. The only problem with their position was that it proved to be wrong. Starting in the 1990s, with the release of intelligence decrypts and the testimony of ex-KGB employees, historians firmly established that Julius Rosenberg was a Soviet agent and that his wife, Ethel, helped the network to courier documents and recruit pro-Moscow leftists.

Now, almost a half-century after the publication of “Invitation to an Inquest” we have “Final Verdict,” again revisiting the Rosenberg case. Mr. Schneir, who died in 2009, is the author; Mrs. Schneir provides a preface and afterword. The book does grudgingly admit that Julius Rosenberg was a Stalinist agent (Ethel remains, in the Schneirs’ view, an innocent bystander). But “Final Verdict,” a slim volume purporting to tell “what really had happened” in 200 pages and two-dozen footnotes, makes no serious attempt at reaching historical truth, instead offering a selective and ultimately unconvincing attempt at personal vindication.

It is evident that the Schneirs were never unbiased, truth-seeking historians. Upon discovering yet another piece of evidence suggesting that Julius Rosenberg labored on behalf of the Kremlin, Mr. Schneir sighs that the new information is “not what we would have hoped.” The couple “had to admit” that new, contradictory evidence was damaging to the case for innocence. The revelations of the past two decades, he writes, were “painful news for many people, as it is for us.”

It is advisable to discount the judgments of those who, when attempting to solve a historical riddle, declare archival revelations “painful” or contrary to the investigator’s “hopes.” But after decades of impugning the integrity of scholars with whom they disagreed, Mr. Schneir declares grandly that he has “no regrets, no apologies.” (Before her execution, Ethel Rosenberg wrote that she had “no fear and no regrets.”)

Mr. Radosh and Ms. Milton, who were right, barely merit a mention in “Final Verdict,” much less an apology. The work of America’s two most prolific historians of Soviet espionage, Harvey Klehr and John Earl Haynes—whose most recent book, “Spies: The Rise and Fall of the KGB in America,” closes the books on both the Rosenberg and Alger Hiss spy cases—is haughtily dismissed, as are their revelations that Ethel Rosenberg was involved in the recruiting of agents.

Readers are told instead that the Rosenbergs engaged in mere “prevarications,” while prosecutors offered “concocted evidence,” “hyperbole” and “perjurious testimony,” spinning a “monstrous web of lies” that provoked baying “lynch mobs” in the media. “Faced with an impossible predicament,” Mr. Schneir explains, “the Rosenbergs merely denied everything.”

And they lied with good reason, he theorizes, because “disclosing [Soviet espionage networks in the U.S.] would have fuelled the hysteria of the times and perhaps resulted in mass pickups and incarceration in concentration camps of tens of thousands of Communists and other leftists.” Really? American intelligence agencies were aware of many Soviet networks and yet never submitted to the instinct—of which the Stalinist Julius Rosenberg would surely have approved—to construct gulags for political dissidents. Indeed, while Moscow was terrorizing anyone who stood against the glorious Soviet future, the U.S. government was sentencing Alger Hiss, a State Department employee working for Soviet military intelligence, to a mere five years on a perjury charge.

Despite its acknowledgment of Julius’s guilt, “Final Verdict” is still leavened with arguments that espionage on behalf of a contemporaneous ally wasn’t such a big deal. In her afterword, Miriam Schneir writes that the Rosenbergs’ orphaned son Michael works as director of the Rosenberg Fund for Children, an organization assisting those whose parents “suffered some form of injury as a consequence of activities in progressive causes.” Among those causes, apparently, is performing espionage on behalf of a communist government.

Ms. Schneir explains that her late husband was “in the era of 9/11 . . . more certain than ever that the Rosenberg case provided an instructive example of how easily the justice system can be corrupted by fear of dissident ideas.” Julius Rosenberg’s “dissident ideas” aren’t addressed at any length, lest the reader get a glimpse at the grotesque ideology that allowed for defending Soviet totalitarianism.

Ms. Schnier cites the Czech dissident writer Milan Kundera, who described the “men and women who were falsely charged with crimes against the state, convicted in sham trials, and hanged.” But Mr. Kundera was thinking of those in occupied Czechoslovakia accused by communist apparatchiks of phantom crimes, not communist apparatchiks in America convicted of real crimes.

Mr. Moynihan is a senior editor of Reason magazine.

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Posted in Law

How to speak sharia

Islam’s legal lexicon

Telling the fard from the fatwa

Those were the days, m’learned friend

LITERALLY the “path” or “path to water”, sharia is a catch-all term for Islamic codes covering everything from social mores to crime. Based on the Koran and the sayings attributed to Muhammad, as well as the work of ulema (Muslim scholars), it is clear and strict in some matters (such as family law) and fluid and evolutionary in others (such as commerce). It comprises five main schools of interpretation (four Sunni and one Shia). In Muslim lands sharia courts are overseen by a kadi (judge) who will have studied both fiqh (legal interpretation) and how to apply qiyas (analogy).

Fiqh classifies behaviour into one of five categories: fard (mandatory), mustahabb (advisable), mubah (neutral), makruh (inadvisable), and haraam (prohibited). Huddud refers to the corporal and capital punishments that are laid down in traditional Islamic law for certain offences, including death by stoning for adultery. However, fatwa (ruling or opinion), contrary to popular opinion in the West, refers to theological, not legal, pronouncements in which one or more scholars opine on some pressing issue (the subjects of recent fatwas have ranged from questions of personal hygiene to the ethics of suicide-bombing).

Nikah (an Islamic marriage) usually requires an imam to officiate and must involve a mahr (marriage settlement) conferred on the bride. It may end in a Talaq: this usually means a unilateral invocation of divorce by the husband. Khula is a divorce granted by a judge at the wife’s request.

Baffling? Perhaps. In a well-worn English legal anecdote a judge asks a lawyer acting for a thief from Yorkshire: “Is your client familiar with the principle of Nemo dat quod non habet (nobody gives away what he does not possess)?” The apocryphal answer is: “Indeed, m’lud, in Barnsley they speak of little else.” Fewer lawyers know Latin now, but in Yorkshire towns the relationship between, say, mahr and talaq is increasingly well understood.


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Out for Blood

A portrait of the prosecutor charged with investigating the causes of the 1929 crash.

As night follows day, so inquests follow crashes. What followed the 1929 crash were the sensational stock-market hearings of 1933 and 1934. Michael Perino’s “The Hellhound of Wall Street” is the story of the chief inquisitor.

Contrary to the book’s overpromising subtitle, the Senate Banking and Currency Committee investigation did not, in fact, “forever change American finance.” Dramatic it was, and shocking, too. But if Ferdinand Pecora, the committee’s chief counsel, were gazing down on Wall Street today, he might be struck not by how much has changed but how little. Regulations we have in profusion, and regulators, too. Yet fallible human beings persist in buying high and selling low, rather than the other way around.

Mr. Perino roots hard for his protagonist, who had spunk enough for three. Ferdinand Pecora was born in Sicily in 1882 and brought to New York City at age 4. He grew up in a cold-water basement flat that was part residence, part shoe-repair shop. When his father, Luigi, the cobbler, was incapacitated in an industrial accident, 14- year – old Ferdinand became the family’s principal bread winner.

The striving young immigrant had energy left over to attend law school at night. He passed the bar exam and cast his political lot with the city’s Democratic Party machine. In 1918, now 35, he became a deputy assistant district attorney. A decade later he made a run for the DA’s office. Defeated, he left the city payroll for private practice on Dec. 31, 1929. The stock market had already crashed, of course, but the Depression was just beginning.

The inquisition that would make Pecora a household name in Depression-era America was set in motion by President Hoover in 1932. Led by Sen. Peter Norbeck of South Dakota, the Republican chairman of the Senate Banking and Currency Committee, the panel was charged with unmasking the short sellers who, according to urban legend, were undermining share prices. Hoover wasn’t out to regulate American finance, Mr. Perino relates, but rather to finger the scoundrels he suspected of wrecking the market and ruining his presidency.

Norbeck’s investigation went nowhere. The villains he hoped to expose—notably, Richard Whitney, the imperious head of the New York Stock Exchange—walked all over a succession of ineffectual chief counsels. With Franklin Roosevelt’s election, Norbeck would soon lose his committee chairmanship. How to reinvigorate his moribund investigation? The Republican senator hired the eager, obscure, Democratic ex-assistant DA.

What little Pecora knew about banking and finance he had gleaned from prosecuting low-level frauds. He was, however, a master cross-examiner, a quick study and a tireless worker. He wanted blood, too. In a dinner speech to the Elks Club of New York, he assailed the “men of might” on Wall Street who had taken “millions and millions of the hard-earned pennies of the people.” As for what his investigation might achieve, Pecora ventured: “When the nation again comes to days of plenty and prosperity, let us seek to make it impossible for water and hot air to be sold to men and women for gold taken from their life savings.”

For 10 days in March 1933, Pecora’s investigatory target was Charles E. Mitchell, chief executive of National City Bank, later to become Citigroup. “Sunshine Charley,” as Mitchell was mockingly known after his fall from grace, came pre-convicted, but his bank was a pillar of strength. Today, in the wake of the serial bailouts of 2008-09, Mitchell’s managerial achievement seems almost mythical. From the 1929 peak to the 1933 depths, nominal GDP fell by 45.6%—the American economy was virtually sawed in half. By contrast, during our late, Great Recession, nominal GDP dropped by only 3.1%. Yet this comparatively minor perturbation sent Citigroup into the arms of the federal government to the tune of $45 billion in TARP funds and wholesale FDIC guarantees of the bank’s tattered mortgage portfolio.

National City did accept a $50 million federal investment in 1934, after Mitchell resigned. However—and herein lies the difference—the bank’s solvency didn’t hinge on that cash infusion. Many banks did fail in the Depression, of course. But from today’s perspective the wonder is that so many didn’t.

To Pecora, though—and to Mr. Perino, too—the health of the National City balance sheet was not the question. Mitchell was a whipping boy from central casting. If, Pecora reasoned, he could expose Mitchell as a tax evader, ridicule his boom-time predictions and reveal his high-pressure sales tactics, an enraged public would demand that the Roosevelt administration put capitalism in its place. “Pecora gave them proof,” Mr. Perino writes, “proof that the honesty and integrity of the financial establishment were inadequate—proof that laissez-faire didn’t work. If Wall Street could not or would not regulate itself, Washington would have to regulate for them.”

Thanks in good part to Pecora’s work, investors today have prospectuses to read and an SEC to complain to. Bank depositors have federal deposit insurance to protect them. And banks like Citi operate in the certainty that they won’t be allowed to fail, however much they deserve to.

Pecora went on to become an SEC commissioner, a judge on New York state’s Supreme Court and a crusader for progressive political causes. Mitchell, who resigned in disgrace from National City and lost his houses to foreclosure, refused to file for personal bankruptcy. Rather, he honorably worked to pay every last dollar of debt. Later he built Blyth & Co into a thriving investment bank.

Mitchell or Pecora—who’s your hero?

Mr. Grant is the editor of Grant’s Interest Rate Observer and the author, most recently, of “Mr. Market Miscalculates.”


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The Economics of Drug Violence

Competition in the narcotics trade is preferable to monopolistic syndicates.

President Felipe Calderón still has two years left in office. But he is already on track to go down in history as having presided over the bloodiest Mexican sexenio since the revolution of 1910. By December, when Mr. Calderón completes his fourth year as president, the national death toll from his war on the drug cartels could reach 30,000.

Statistically speaking, Mexico is a relatively safe place with 12 murders per 100,000 inhabitants in 2009. The trouble is that the violence is concentrated, and according to one economist I talked with here, that’s because the drug-trafficking business is structured much like Colombia’s was in the 1980s and ’90s.

Marijuana and weapons seized in Tijuana. Monopolistic syndicates control Mexico’s cross-border drug trade and could move north.

Powerful monopoly suppliers need to control key zones so they can guarantee an army of contract employees. These “ants” carry the drugs over the U.S. border at a limited number of strategic points in small shipments. Without mafia-style terror, the cartel’s domination along the route cannot be maintained.

Mexican law enforcement has been courageous in trying to confront these monopolies, but firepower has not done the job. That’s because this is an economic problem. Lower levels of violence in the U.S., despite widespread availability of drugs, and an improved picture in Colombia, where cocaine still flows, are best explained by competition and the smaller scale of the operators. It wasn’t always that way in Colombia. In Mexico it could also change.

To help Mexico deal with this “antitrust” problem, the U.S. has to recognize that competition in the narcotics sector is preferable to the monopolistic syndicates that threaten the state and could move north. But this would require greater flexibility from U.S. drug warriors.

Some progress may be in the making on marijuana, and Mexicans will be watching the California ballot initiative that asks the electorate to approve the legalization of the ubiquitous weed. It is far from clear that Proposition 19, as it is known, will pass. The combination of conservatives who fear that legalization would transform us into a hash-happy heap of hippies, drug warriors who make a living off of the criminalization of pot smoking, and gangsters whose profits are tied up in prohibition could be enough to defeat it by a narrow margin.

Nevertheless, the competitiveness of the “yes” vote on this proposition suggests that attitudes toward “grass” have generally softened, and that many Americans would prefer the business be run legally. For sure, the U.S. market is robust, and “medical marijuana” looks like a way of legalizing without admitting to it. There is also the fact that the stuff seems to move around the country quite easily, demonstrating some tolerance on the part of U.S. law enforcement for the retail sector that distributes it.

More competition in marijuana production and distribution in the U.S. would help beleaguered Mexico. As it stands now, the gangsters have good reason to pull out all the stops to get their marijuana across the border where the market is large, barriers to distribution are low and prohibition adds value. Profit margins are not huge but the sales volume is there.

Mexican officials estimate that the marijuana business makes up more than half of the Mexican cartels’ income. Legalizing grass in the U.S. would mean increased competition for Mexican exporters and lower profit margins, thereby depriving the monopolies of important income.

The bigger problem for Mexico is U.S. cocaine demand. Here there seems to be at least some recognition among drug warriors of what hasn’t worked. Wrote former Drug Enforcement Administrator Robert Bonner in a recent issue of Foreign Affairs magazine: “The goal must be clear. In Colombia, the objective was to destroy the Cali and Medellin cartels—not to prevent drugs from being smuggled into the United States or to end their consumption.”

This is risible. The entire raison d’être of the last 40 years of U.S. drug policy abroad has been to stop supply in order to reduce demand in the U.S. Of course when this plan backfired and Colombian cartels grew more powerful, American and Colombian authorities had to adjust. But their war was predicated on the belief that interdiction of supply could diminish U.S. drug consumption.

If Mr. Bonner is now backing away from that argument, it can only be because he is looking at the numbers. Andean cocaine production in 2008 was down only 8% since 1999, and even that might be explained by a shift in preferences in the U.S.

Analysts and policy makers agree that a crackdown on Caribbean narco-routes has driven the business through Mexico, though it hasn’t reduced U.S. drug use. The economist I talked to argued further that if cocaine moved more easily through the Caribbean as it once did and the Mexican border were more porous, it would be harder for a big cartel to monopolize the traffic, even through violence.

It’s an interesting theory and of course runs totally counter to the direction of U.S. policy. But if that policy is proven wrong, it wouldn’t be the first time in the long history of the drug war.

Mary Anastasia O’Grady, Wall Street Journal


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Lethal Force Under Law

The Obama administration has sharply expanded the shadow war against terrorists, using both the military and the C.I.A. to track down and kill hundreds of them, in a dozen countries, on and off the battlefield.

The drone program has been effective, killing more than 400 Al Qaeda militants this year alone, according to American officials, but fewer than 10 noncombatants. But assassinations are a grave act and subject to abuse — and imitation by other countries. The government needs to do a better job of showing the world that it is acting in strict compliance with international law.

The United States has the right under international law to try to prevent attacks being planned by terrorists connected to Al Qaeda, up to and including killing the plotters. But it is not within the power of a commander in chief to simply declare anyone anywhere a combatant and kill them, without the slightest advance independent oversight. The authorization for military force approved by Congress a week after 9/11 empowers the president to go after only those groups or countries that committed or aided the 9/11 attacks. The Bush administration’s distortion of that mandate led to abuses that harmed the United States around the world.

The issue of who can be targeted applies directly to the case of Anwar al-Awlaki, an American citizen hiding in Yemen, who officials have admitted is on an assassination list. Did he inspire through words the Army psychiatrist who shot up Fort Hood, Tex., last November, and the Nigerian man who tried to blow up an airliner on Christmas? Or did he actively participate in those plots, and others? The difference is crucial. If the United States starts killing every Islamic radical who has called for jihad, there will be no end to the violence.

American officials insist that Mr. Awlaki is involved with actual terror plots. But human rights lawyers working on his behalf say that is not the case, and have filed suit to get him off the target list. The administration wants the case thrown out on state-secrets grounds.

The Obama administration needs to go out of its way to demonstrate that it is keeping its promise to do things differently than the Bush administration did. It must explain how targets are chosen, demonstrate that attacks are limited and are a last resort, and allow independent authorities to oversee the process.

PUBLIC GUIDELINES The administration keeps secret its standards for putting people on terrorist or assassination lists. In March, Harold Koh, legal adviser to the State Department, said the government adheres to international law, attacking only military targets and keeping civilian casualties to an absolute minimum. “Our procedures and practices for identifying lawful targets are extremely robust,” he said in a speech, without describing them.

Privately, government officials say no C.I.A. drone strike takes place without the approval of the United States ambassador to the target country, the chief of the C.I.A. station, a deputy at the agency, and the agency’s director. So far, President Obama’s system of command seems to have prevented any serious abuses, but the approval process is entirely within the administration. After the abuses under President Bush, the world is not going to accept a simple “trust us” from the White House.

There have been too many innocent people rounded up for detention and subjected to torture, too many cases of mistaken identity or trumped-up connections to terror. Unmanned drones eliminate the element of risk to American forces and make it seductively easy to attack.

The government needs to make public its guidelines for determining who is a terrorist and who can be targeted for death. It should clearly describe how it follows international law in these cases and list the internal procedures and checks it uses before a killing is approved. That can be done without formally acknowledging the strikes are taking place in specific countries.

LIMIT TARGETS The administration should state that it is following international law by acting strictly in self-defense, targeting only people who are actively planning or participating in terror, or who are leaders of Al Qaeda or the Taliban — not those who raise funds for terror groups, or who exhort others to acts of terror.

Special measures are taken before an American citizen is added to the terrorist list, officials say, requiring the approval of lawyers from the National Security Council and the Justice Department. But again, those measures have not been made public. Doing so would help ensure that people like Mr. Awlaki are being targeted for terrorist actions, not their beliefs or associations.

A LAST RESORT Assassination should in every case be a last resort. Before a decision is made to kill, particularly in areas away from recognized battlefields, the government needs to consider every other possibility for capturing the target short of lethal force. Terrorists operating on American soil should be captured using police methods, and not subject to assassination.

If practical, the United States should get permission from a foreign government before carrying out an attack on its soil. The government is reluctant to discuss any of these issues publicly, in part to preserve the official fiction that the United States is not waging a formal war in Pakistan and elsewhere, but it would not harm that effort to show the world how seriously it takes international law by making clear its limits.

INDEPENDENT OVERSIGHT Dealing out death requires additional oversight outside the administration. Particularly in the case of American citizens, like Mr. Awlaki, the government needs to employ some due process before depriving someone of life. It would be logistically impossible to conduct a full-blown trial in absentia of every assassination target, as the lawyers for Mr. Awlaki prefer. But judicial review could still be employed.

The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors — along with proof of its compliance with international law — and get the equivalent of a judicial warrant in a timely and efficient way.

Congressional leaders are secretly briefed on each C.I.A. attack, and say they are satisfied with the information they get and with the process. Nonetheless, that process is informal and could be changed at any time by this president or his successors. Formal oversight is a better way of demonstrating confidence in American methods.

Self-defense under international law not only shows the nation’s resolve and power, but sends a powerful message to other countries that the United States couples drastic action with careful judgment.

Editorial, New York Times


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Descent Into Legal Hell

On the afternoon of Sept. 28, 1999, sheriff’s deputies pulled into the driveway of Cynthia Stewart’s Ohio home and arrested her. Her crime: taking pictures of her 8-year-old daughter playing in the bathtub. She had sent the photos to a film-processing lab, and the lab called the police. The police took the pictures to the town prosecutor, who viewed them as harmless and declined to press charges. The police then turned to the county prosecutor, who was all too happy to take the case. He promptly brought child- pornography charges against Ms. Stewart.

“Framing Innocence” is Lynn Powell’s reported account of Ms. Stewart’s descent into legal hell. For two years, the case meandered through the justice system. Child Services filed suit, seeking custody of Ms. Stewart’s daughter on the grounds that the young girl had been abused. Ms. Stewart was threatened with 16 years in jail. Her legal bills ran upwards of $40,000. In the end an intense public campaign on her behalf forced the ambitious prosecutor (who is now a federal judge) to cut a deal in which Ms. Stewart was absolved of wrongdoing.

The case is not unique. By the time Ms. Stewart’s saga ended, another mother in Ohio and a grandmother in New Jersey had also been arrested on similarly absurd charges. The relevant case law, Osborne v. Ohio, gives such a loosely worded standard for child pornography that it allows the state nearly unfettered intrusion into family life. Like the Supreme Court’s eminent-domain decision (Kelo v. City of New London), Osborne has had the effect of unleashing the power of the state on unsuspecting individuals. If you have ever taken a picture of a naked toddler, the only thing standing between you and criminal prosecution is the good judgment of government workers.

The Stewart case is particularly notable in that it took place in Oberlin, Ohio, which is Middle America’s version of Berkeley, Calif. Nearly every character in the cast is liberal to the point of self-parody. Before her court appearance Ms. Stewart had never owned a bra. Her cat was named after a Sandinista spy. Her then-partner worked for the Nation magazine. (They have split up since.) And yet the liberals who rallied to Ms. Stewart’s defense are undiverted from their belief that government should have a great deal to say about how people live their lives.

“Framing Innocence” is thoroughly and fairly reported, without a strong polemical thrust. If there is a point to this morality tale, in Ms. Powell’s telling, it seems to be that in the justice system mistakes can be made—sometimes terrible mistakes. True enough, but more could be said. If a well-meaning law about child pornography can wreak such havoc on families, anyone care to speculate on what a 2,000-page health-care law might do?

Mr. Last is a senior reader at the Weekly Standard


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European Parliament Balks at US Data Deals

‘The Americans Want to Blackmail Us’

Representatives of US security agencies want further concessions from the EU to ensure free access to police computers, bank transfers and airline passenger data in the fight against terror. But members of the European Parliament have said they will resist the moves.

Washington’s army of diplomats in Europe has been taking on one country at a time. Germany stood at the top of the list and, initially, surrendered without even a whimper to the American demands. In 2008, the federal government in Berlin signed an agreement pushed by Washington allowing American officials wide-ranging access to the databases of German security agencies. It was only after leaders in Hamburg raised their objections to the deal that it was, temporarily, stalled in the Bundesrat, Germany’s upper legislative chamber, which represents the interests of the states. The city-state has since withdrawn its objections after securing minor concessions on data protection provisions in the document, and the treaty is now set to be approved.

Step by step, and largely unnoticed by the public, the US has been pushing through similar arrangements in a number of European capitals. Washington reported its latest success in Vienna last week: The Austrian government said it was ready to grant US security agencies with free access to its police computers, complete with DNA and finger print data and a criminal registry.

The proceedings were not entirely peaceful. One Austrian government official reported “massive pressure.” American Ambassador William C. Eacho, III. was apparently “very charming and friendly,” when he appeared in the Austrian Chancellery and offered his “help.” President Barack Obama’s emissary said the administration in Washington was considering discontinuing the visa-waiver program for Austrians traveling to the United States because Austria wasn’t sufficiently cooperating in the fight against terrorism.

In order to hinder the plans of the “boys in Washington,” they would have to “work something out together.” Apparently they were also able to achieve that with the guidance of the friendly ambassador. “Participation in the United States’ ‘Visa Waiver’ program,” Austrian Chancellor Werner Faymann wrote in a letter to the Viennese parliament, has been “linked to additional requirements for the exchange of information,” including “an agreement to exchange data relating to the detection of terrorists.” In other words, no data, no visa waiver. The small Alpine republic buckled.

In Washington’s Sights: Facebook, Blackberry, Money Transers and Trips

But that’s not the only front on which Washington’s anti-terror combatants are active. A few days ago the US government announced further legislation designed to facilitate monitoring of new communication tools such as Twitter and Facebook as well as modern technologies such as Blackberrys and Skype. At almost exactly the same time, the US Treasury presented draft legislation that will allow security agencies free access to the details of all money transfers conducted through banks or credit cards.

And Washington doesn’t just want to tap into and store this data on its own citizens, but on people worldwide, including Europeans.

European interior ministers have, so far at least, shown a good deal of understanding for these demands because they profit from the work of the US authorities, who sometimes share intelligence that European investigators could never hope to otherwise obtain. That’s why matters will most probably be kept on a friendly and cooperative level with European interior ministers meeting on Thursday in Luxembourg with representatives of the US Department of Homeland Security and other agencies to discuss the terrorist threat and counter-terrorism measures.

Last weekend, the US issued a travel warning for Europe on the basis of possible imminent terrorist attacks. Germany Interior Minister Thomas de Maizière, however, has warned against scaremongering. There is apparently no concrete evidence of imminent attacks in Germany. But perhaps, speculates one European Union security expert, it was just a little “background music” for the real questions to be discussed in the trans-Atlantic talks: How deeply can American terrorism investigators peer into European computers, how extensively can they monitor European bank accounts, tap into Blackberrys or listen in on Skype calls?

And however much understanding EU security circles may have for Washington’s requests, they are now having to take on opponents in their own camp, who are further complicating the issue: the members of the European Parliament (MEPs).

EU Parliament Threatens Resistance

Many MEPs concerned with data privacy and domestic security issues are up in arms over the revelations in Vienna and the news from Washington. “The Americans want to blackmail us,” said an agitated Alexander Alvaro, home affairs spokesman of the Germany’s Free Democratic Party (FDP) in the European Parliament. The Americans have become “like a data octopus,” he said, as if their tentacles were reaching out to all the world’s data. He said that Europeans would not go along with it and that they would “defend themselves.” Alvaro’s Dutch colleague Sophie in ‘t Veld is also outraged: “Americans think everything is permitted.” This attitude, she said, is now beginning to rub off on European investigators. Time and again executives come to in ‘t Veld in her role as chair of the European Parliament’s Civil Liberties, Justice and Home Affairs committee to tell her confidentially that they have been illegally forced to hand over “their complete customer data.” 

In a letter to the president of the European Commission, the Liberals (as the FDP and similar parties in other countries are called in the European Parliament) have called on him to “clarify urgently” the details of the US government’s intentions and to immediately inform parliament. Jan Philipp Albrecht, interior affairs expert for the German Green Party, has called for the “European Commission to put the US government in its place.”

Comments such as this would previously have only caused a few smiles — the European Parliament never had much of a say in matters or any real power. However, that changed when the Lisbon Treaty came into force on Dec. 1, 2009, and parliament now has a decisive say on numerous issues. The fact that MEPs take this new role very seriously, especially when it comes to data protection, was made clear when they blocked the so-called “SWIFT” agreement for months in the face of intense pressure from Washington.

“SWIFT”: The First Strike

Secretly and illegally at first, and later even with the consent of EU governments, the US authorities monitored the bank transfers of tens of thousands of European citizens for years as part of its anti-terrorism operation. This was done via access to the mainframe computers of the Society for Worldwide Interbank Financial Telecommunication (SWIFT).

The Belgian company processes money transfers between around 8,000 financial institutions in over 200 countries. Largely unchecked, the Americans were able to simply help themselves to the data. European governments and, especially their interior ministers, didn’t think it was a bad thing. They also would have been keen to simply extend their deal allowing the Americans access to the transfers data. But members of the European Parliament didn’t want to play along. At first a handful, then many and finally almost all the members of parliament joined forces to hinder the process for months.

The Americans finally yielded. And even after parliament’s intervention, things still aren’t totally clean. But it has, at least, forced Washington to agree to accept European data protection standards. For example, US officials must now state concrete grounds for suspicion when requesting to see a European citizen’s financial transfers.

And they even have to tolerate an EU watchdog in their own bank intelligence offices in Washington. That’s why, data protection experts suspect, Washington is now bringing in new laws. They want a return to the good old days of unbridled spying. And that’s exactly what Europe’s brave MEP’s are fighting to prevent — and they’ve already chosen their weapon.

An agreement between the EU and the US on the exchange of airline passenger data — the “Passenger Name Records (PNR)” in US government jargon — is currently due for renewal. The agreement allows the US Department of Homeland Security access to the databases of European airlines and the information they hold on their customers. Under the current terms, Homeland Security officials have been able to collect anything that interested them. If it was up to Europe’s interior ministers, they would continue to be able to do so in the future.

MEPs Warn of a “Data Wild West”

But now, at the end of the process, Europe’s interior ministers must obtain the approval of the European Parliament. And “I can guarantee they won’t get it for an agreement like the old one” said Dutch politician in ‘t Veld. Only in limited cases of well-founded suspicion should an airline be forced to surrender data on its customers, she said. Data storage should also be restricted and the US should be barred from transferring data to third party governments. A “Wild West” approach to data will no longer be accepted, said Axel Voss, an MEP with Germany’s Christian Democratic Union (CDU) who is a member of the interior and justice committee.

Many MEPs also have the feeling that they are being tricked. If the United States first signs an agreement, like SWIFT, and then tries to overturn it in other ways, or if Washington forces through what is not achievable at EU level by blackmailing individual national governments one by one, then how and why should negotiations continue? asks Civil Liberties, Justice and Home Affairs Committee chairwoman in ‘t Veld.”The Americans’ word doesn’t count for much anymore anyway,” she said.

Indeed, long and tricky negotiations are likely to be up next on the agenda between Washington, Europe’s interior ministers and the MEPs.


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The ACLU Is Dismissed

Obama wins one for the Presidency on the state-secrets privilege

Another week, another legal vindication for the Bush, er, the Obama Administration’s war on terror. On Wednesday, the Ninth Circuit Court of Appeals cited the executive branch’s state-secrecy privilege to dismiss an ACLU attempt to challenge the legality of sending terror suspects from the U.S. to other countries. Our friends on the left are now going nuts about “torture flights,” but we’ll take this decision as evidence that this Administration has its grown-up moments.

The case involves flight-logistics company Jeppesen DataPlan Inc., a Boeing subsidiary the ACLU accuses of being involved in arranging flights to move five terrorist suspects to prisons in Morocco, Egypt and elsewhere so they could be held for questioning by the CIA and local authorities. The five suspects—three of whom are now free—all claim they were tortured, while the ACLU claims Jeppesen personnel knew (or should have known) what was in store for them when they arranged the flights.

How much of that is true remains to be seen; the court made no determinations of fact. What is clear is that the ACLU and the rest of the anti-antiterror left have targeted Jeppesen and companies such as AT&T as part of a legal intimidation strategy aimed at preventing them from cooperating with the government in the war on terror. In the contest between considerations of patriotic duty and legal liability, the ACLU reasons that the latter will usually win out.

That may even be true. But the ACLU’s litigation also required the disclosure of secret information, which former CIA Director Michael Hayden described in a public declaration as having the potential “to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States.”

Gen. Hayden also provided the court with a classified declaration, laying out the damage the lawsuit could do to national security. In its ruling, the court noted that it was persuaded that “the government is not invoking the [state secrets] privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”

The court’s decision this week invoked Supreme Court precedents going back to the 1870s, when it ruled in the Totten case that “public policy forbids the maintenance of any suit . . . the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” A larger and more recent body of case law fleshes out the breadth of the state-secrets privilege.

But perhaps the more noteworthy aspect of this case is that it was dismissed—albeit by a 6-5 vote—by the most liberal Circuit Court in the country, with Judge Raymond Fisher, a Bill Clinton appointee, writing for the majority. That gives the ACLU little hope that it can get the decision overturned should the Supreme Court decide to hear it.

Nor will the ACLU find much solace in the Obama Administration, which has largely preserved the antiterror legal regime established by its predecessor even as it has tinkered with some of the language. Ask terror imam Anwar al-Awlaki, the detainees at Bagram air base whose habeas corpus petitions have been denied, or the enemy combatants still in Guantanamo. Their justified predicaments are testimony to Barack Obama’s education as Commander in Chief.

Editorial, Wall Street Journal


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‘The Roma Are EU Citizens — Everywhere in the European Union’

The World from Berlin

Demostrators protest against the French government’s immigration policy in the western city of Nantes on September 4.

France’s expulsion of Roma people could be copied by other governments unless it is vigorously condemned by the European public, warn German media commentators. They argue that Brussels is right to voice its misgivings against a policy that flies in the face of the principles the French nation has stood for since the revolution.

Tens of thousands protested in France on Saturday against the government’s repatriation of Roma people to eastern Europe, chanting “stop repression” and “No to Sarkozy’s inhumane policies.”

The expulsions of Roma people this year is seen as an attempt by President Nicolas Sarkozy to revive his flagging popularity and detract from controversial reforms and spending cuts.

The French government has insisted it will push ahead with the expulsions after almost 1,000 people were sent back to Romania and Bulgaria since a government crackdown on crime and immigration at the end of July. Sarkozy is facing mounting opposition to the expulsions from rights groups, left-wing opponents and even some politicians from his own conservative camp. Under the French crackdown, Roma who agree to leave the country receive €300 euros ($387) and an additional €100 ($129) for each of their children.

Roma in Europe

Saturday’s protests also targeted the revocation of French citizenship for immigrants found guilty of attacking police officers.

According to media reports, the European Commission has doubts whether the dismantling of Roma camps and repatriations are legal, and is requesting clarification of the policy.

German media commentators say the number of demonstrators on Saturday was surprisingly low given how heated the debate has been in recent weeks. But that doesn’t necessarily reflect tacit approval of Sarkozy’s policies. In fact, even many conservative voters object to the expulsions because it runs counter to French national ideals that they still cherish — the notion that France is defined not by blood but by common values, and that the country is a refuge from persecution and a haven for human rights.

Center-left Süddeutsche Zeitung writes:

“French Interior Minister Brice Hortefeux is pleased. Only a few tens of thousands of people turned up to demonstrations against the Roma expulsions. That isn’t very many if one considers how the debate has dominated France in recent weeks. But the modest attendance doesn’t mean the majority of citizens approves of the populist stance the Sarkozy government is taking. Even many conservative voters are turned off by the way the president is attacking weak minorities like the Roma without solving the real problem of social decay and rising crime in the suburbs.”

“France is a nation that defines itself not through blood but through common values. That gave the country tremendous attraction as a home for human rights and a refuge for the persecuted. Many French people cherish this France. They want to preserve it at a time when the integration of countless immigrants is going wrong, Islamists are preaching hate and some of the immigrant Romanis are causing problems for the police.”

“But why did so few citizens take to the streets to protest against a policy that pits the ‘real French’ against immigrants and thereby plays the race card? The answer lies in a growing fatigue with politics. But Sarkozy’s opponents are also saving their energy for Tuesday when they want to demonstrate in force against a rise in the retirement age — even though the president has the better arguments on this issue.”

Left-wing Die Tageszeitung writes:

“Officially it isn’t a crime yet in France to be a Roma from Romania or Bulgaria. But de facto the French government is no longer treating these European Union citizens as individuals with fundamental rights. They are being treated as enemies — as members of an ethnic group that, the government claims, arouses hostile prejudices in society and has thereby brought its problems upon itself.”

“The Roma are an easy target for a policy that is seaking cheap applause from worried citizens. Like the term ‘gypsies’ in the past, the word ‘Roma’ is being used by government propaganda as a synonym for thieves and troublesome beggars whose expulsion doesn’t require any further reason: their ethnic background suffices.”

“Who can seriously claim that these poor families who live on the fringes of society in their country of refuge and their country of origin pose a danger to France’s security?”

“This hunt for publicly branded scapegoats serves as a deterrence. The Roma are being made an example of for a policy that Nicolas Sarkozy was already considering when he was still interior minister talking about ‘selective immigration.'”

“This policy deliberately instrumentalizes existing prejudices. There is a big risk that this policy will spread from France and Italy to the rest of Europe if it isn’t rejected firmly enough by the European public.”

The Berlin daily Der Tagesspiegel writes:

“The Roma are EU citizens — everywhere in the European Union. That means that Roma who come from within the EU can move freely everywhere in the bloc. And it also means that the integration of the Roma, hard though it may be, is a task for all member states: their countries of origin which are mostly in the east, and their new host countries. Those include France, Italy and not least Germany.”

“The Roma have virtually no lobby. That is why Sarkozy until recently had no problem clearing the illegal camps — until church representatives, the opposition and members of his own party started voicing their objections. His brutish policy of expulsion has also prompted the European Commission to get involved. Commissioner Viviane Reding has indicated that she won’t let the president get away so easily with his law-and-order policies. Reding’s caution is understandable given that it is not easy to prove that the French president has broken EU rules. But it is good that Brussels has shown its colors, albeit after some hesitation. After all, most EU member states have a charter of basic rights. And the inhumane treatment of the Roma is hardly compatible with that.

“Sarkozy is by no means the only European leader to be tough with the Roma. Germany’s current repatriation of Roma refugees to Kosovo poses the question: are we really checking every individual case here too?”


Full article and photos:,1518,715900,00.html

Video Game Tort: You Made Me Play You

A federal judge in Hawaii ruled last month that a man claiming to be addicted to a videogame can sue the game’s maker for gross negligence in not warning him he could become a joystick junkie. Craig Smallwood alleges in his lawsuit that, as a result of playing the online game “Lineage II,” he has “suffered extreme and serious emotional distress and depression, and has been unable to function independently in usual daily activities such as getting up, getting dressed, bathing, or communicating with family and friends.”

Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado.

Silly as the suit may be, it isn’t without legal ramifications. Steven Roosa, a lawyer doing research at Princeton’s Center for Information Technology Policy, sounded almost giddy this week at the prospect that a court might chip away at the enforceability of End User License Agreements, or EULAs. These software license agreements often radically limit how, and for how much, customers can sue if they feel harmed by an electronic product.

Mr. Roosa cheered on his blog that the judge in Hawaii has opened an avenue for escaping the tyranny of these one-click, liability-limiting contracts. He called the judge’s refusal to throw the case out in its entirety a “stunning defeat” not only for the maker of Lineage II, but for the whole business of locking customers into contracts that consist of miles of electronic fine print that hardly anyone ever reads.

Alleged culprit: Lineage II

No doubt we do live in a time of kudzu legalese, with weedy contractual tendrils crawling into every electronic transaction. It’s alarming to think about everything we sign off on these days, with endless demands to click “I agree” as the non-negotiable price of entry into our electronic worlds. Alarming, because few of us ever peruse the legal documents to which we so regularly and glibly affix our electronic signatures.

Last April, the British retailer Gamestation set out to prove the point by including in its boilerplate some Mephistophelean contractual language: “By placing an order via this Web site,” read the clause, “you agree to grant us a non-transferable option to claim, for now and for ever more, your immortal soul.” In just one day, some 7,500 customers “agreed” to hand over their souls for a mess of virtual pottage.

Do EULAs threaten to make us into so many Esaus? Mr. Roosa wants courts to rethink treating EULAs as though they were binding contracts. He wrote that “the Smallwood decision, if it stands, may achieve some lasting significance in the software license wars.”

Let’s hope not. Because a new opportunity for parasitic litigation isn’t exactly the way to boost technological progress.

The proliferation of annoying and obnoxious license agreements has been driven, primarily, not by companies’ desire to abuse their customers, but by a need to keep their rather more litigious customers from abusing them (and the legal system). As Jonathan Zittrain, who teaches both law and computer science at Harvard, puts it, “EULAs are, for most companies, a shield not a sword.”

“The reason you don’t see tech companies dragged into court for their buggy software,” Mr. Zittrain says, “is that you need to prove actual physical harm,” to overcome to overcome the liability limits of the standard EULA. Imagine what the state of the computer industry would be if every time someone lost their tax records because of a glitchy hard drive, they sued the manufacturer to recover the costs of making nice with the IRS. Bad software is best punished by the market, not the courts.

Which isn’t to say that it is inconceivable that a software company could cause physical injury. Strobe lights, at certain frequencies, can cause seizures in some people with epilepsy. In 1997, a Pokémon cartoon broadcast in Japan included a strobe effect blamed for causing seizures in hundreds, perhaps thousands of children. The epileptic epidemic proved to be largely a case of media-fed hysteria, but there were indeed some susceptible children who suffered seizures because of the strobe.

Mr. Zittrain says that if a video game included a strobe, and the maker learned it was causing actual seizures but then couldn’t be bothered to remove the effect or even just include a warning, gross negligence might well be proved and a EULA would provide no cover. In such a case, he says, there would be “a clear link between the behavior of the company and a demonstrable physical harm.”

Back in Hawaii, Mr. Smallwood is indeed claiming physical harm, even if it is of a psychological sort. In his ruling, U.S. District Court Judge Alan Kay noted that Hawaii’s supreme court allows emotional trauma to be treated as physical harm if the “plaintiff’s psychological distress is trustworthy and genuine.”

It remains to be seen whether a jury will find that Mr. Smallwood’s claims of psychic injury meet that standard. And there’s plenty of legal maneuvering to go. Judge Kay already threw out the bulk of Mr. Smallwood’s voluminous complaint; what’s left may yet get tossed before ever going to trial

And a good thing that would be, because discovering some newly elastic definition of injury, combined with an expanded concept of “gross negligence” would be just the stuff to spur a new tortious gold rush. Do we want the tech biz focused on innovation or litigation?

Then again, given the time my son spends playing Wii, I might want to rethink my own answer to that question. Maybe there’s a payday to be had for the Feltens.

Eric Felten, Wall Street Journal


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Posted in Law

Opening Statements: What to Wear to Court

Pleas of ‘Not Guilty by Reason of Temporary Fashion Insanity’ Won’t Cut It; Lawyers and Witnesses Are Also Offenders

Sloppy jeans and exposed tattoos are common in court.

There’s a place where first impressions are even more crucial than at a job interview or at dinner with our future in-laws: the courtroom.

Yet court officials are constantly surprised by the imprudence of people’s courtroom-clothing choices.

One doctor in Texas appeared at his own medical-malpractice trial in blue jeans. “In the old days, parents used to teach us to dress up in certain places,” says Richard Waites, a psychologist and trial consultant who was working for the hospital that employed the doctor.

Can clothes tip the scales of justice? We’d like to think not. There are the merits of the case, after all. But as Dr. Waites suggests, “Justice isn’t black and white. It’s gray most of the time.”

One California judge I spoke with says she takes account of both the appearance and the behavior of those who come before her court. Sloppy dress at trial might seem to add to the case against a father accused of neglectful child-rearing, she says. Or a woman who is claiming poverty in a financial hearing might undermine her case if she’s wearing highly expensive clothing.

Juries may be even more judgmental, especially as they sit for hours with little to look at … but you.

“Jurors notice everything,” says Patricia Glaser, a business litigator whose clients have included Kirk Kerkorian and Conan O’Brien. “They notice the wedding ring, they notice if your hair is parted on the right or left, they notice if it’s an Italian-cut suit or a Brooks Brothers, they notice if your shoes are scuffed every day, just like they notice if you’re on time or not.”

Courts have rules of decorum for both behavior and dress. It’s rare for judges to impose sanctions. When it does happen, it sometimes makes headlines: In May, a woman was held in contempt of court and jailed over a T-shirt with a message a judge found offensive, according to news reports. In April, a man wearing black jeans was turned away from an Inkster, Mich., court—missing his traffic-court date.

When going to court, most of us would be advised to look like the embodiment of the Boy Scout creed—trustworthy, loyal and helpful. “It’s like dressing for church,” says divorce lawyer Stacy Phillips, whose clients have included a sweet-looking Britney Spears in polka dots. She has lent her own clothes to ill-prepared clients, and their moms, on the way in to court.

It’s also important to think about the more subtle messages that apparel can send. While a business suit is usually a safe choice, there may be cases in which it’s not. Ms. Phillips says she represented a high-ranking female executive recruiter, who favored severe dark business suits, in a child-custody case. She sent the woman shopping for “pastels and skirts,” she says. “I wanted her to look vulnerable.” Meanwhile, a double-breasted suit, with its air of entitlement, may be too smug.

Even ties—while usually advisable if the choice is conservative and doesn’t attract attention—may not be right in every situation. Ms. Glaser says she recently asked her real estate-developer clients not to wear ties in order to soften their edge. They don’t normally wear ties, she noted, so they don’t look comfortable in them.

For women, conservative slacks are as acceptable as a skirt or dress, according to nearly every court official I interviewed. Yet all of the women (the judge and the attorneys) say they prefer to wear skirts themselves in court.

While there was little consensus on pantyhose, there’s no downside to wearing them (fashion considerations aside). There is, though, a possible downside to going bare-legged: Plenty of people believe fervently that a lady isn’t fully dressed without her hose. If you get one of those judges, a pair of sheer nylons could prove a worthy investment.

Charlie Sheen wears a loose tie and knit cap for his June assault hearing.

I spent a day in Los Angeles Superior Court recently—for research purposes, thankfully—and was surprised at the variety of looks. I saw a tattoo on a lawyer’s neck, for instance, and a lot of tees, untucked shirts, and jeans, both neat and sloppy, on litigants and witnesses. Dr. Waites says tattoos and business casual garb are more common these days, even among lawyers, but he wagers they’re a fad that will quickly disappear.

The judge I spoke with says it isn’t necessary to wear expensive clothes. I observed a middle-aged Latino couple who were tenants testifying in a trial involving housing code violations. The couple looked as though they had dressed up for church, she in a blue floral dress and jacket, and he in a pressed shirt and slacks. The landlord’s representatives looked wrinkled and overly business-casual. They also seemed cocky. Was it the evidence or fashion factors that left my sympathies with the tenants?

“What we wear says so much about you,” says Nina Garcia, a judge on the Lifetime Television show “Project Runway” and author of the recently released book “What To Wear Where.” Before a court appearance, she suggests asking, “How do you want to portray yourself?

Ms. Garcia’s list of courtroom no-nos includes see-through or low-cut clothes, mini dresses, heavy makeup, loud patterns, clashing colors and noisy bangles. She advises looking for conservative clothes from “wholesome brands” like Banana Republic, Ann Taylor or Brooks Brothers.

One parting and practical piece of advice, from Ms. Phillips, the lawyer: Take a jacket or sweater. Courtrooms can get chilly in many ways.

Christina Binkley, Wall Street Journal


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Posted in Law

Investigators Look into Frameups and Iniquity at German Bank

Moral Bankruptcy at HSH Nordbank

HSH Nordbank’s legal advisor Wolfgang Gössmann (left) was allegedly involved in a smear campaign against bank manager Frank Roth as well as an effort to frame a bank employee in the US, Roland K. Gössmann has since been relieved of his duties. Here, he is speaking with lawyer Joachim Erbe, whose Potsdam lawfirm was allegedly also involved in the scandal.

Child pornography planted on a work computer, a house break-in and illegal wiretapping: The leadership of Germany’s HSH Nordbank stands accused of going to great lengths to rid itself of unwanted senior officials. Prosecutors in both New York and Germany have launched investigations.

The memo from top management, issued at 4:18 p.m. on Friday, Aug. 20, was sent to everyone in the company. Reading it today, one has to wonder what is more shocking about the 22 lines in that note addressed to the bank’s “dear employees,” the chutzpah that led HSH Nordbank to take its employees for fools, or the cynicism that prompted it to claim that it loves its employees.

The memo, after all, was coming from a bank that apparently had no scruples about lambasting its employees, both professionally and personally.

The internal memo was HSH management’s way of preparing employees for the story SPIEGEL would publish the following Monday: Before the bank fired Chief Operating Officer Frank Roth in April 2009 without notice or compensation (the same Frank Roth CEO Dirk Jens Nonnenmacher had long been trying to get rid of), Roth’s office was allegedly bugged and his apartment broken into. Moreover, the evidence that led to his immediate dismissal, namely that Roth had revealed bank secrets to the press, was presumably false. Indeed, it appears that he was framed.

According to the HSH internal memo, management had only learned of these charges 14 days earlier, but now it was looking into the allegations. And to ensure that everything would take its proper course “under these circumstances,” the bank’s legal advisor, Wolfgang Gössmann, had been “relieved of his duties.” The “circumstances” in question were that Gössmann, who reported to Nonnenmacher, had supposedly been involved in the smear campaign.

If a half-truth is defined as something that contains at least half of the truth, the memo was closer to a lie than the truth. According to information SPIEGEL has obtained, Gössmann was not relieved of his duties because of the Roth case, or at least it wasn’t the primary reason. In fact, the story is even darker. There is another case in which Gössmann is allegedly involved, which revolves around the suspicion that the bank was also trying to rid itself of another top executive. The methods used in that case were as vile as could be.

Planted Pornography

This follows from a report by the WilmerHale law firm, which the bank itself commissioned. The report states that a New York district attorney has launched a criminal investigation against members of an HSH team, including Gössmann. The group was involved in a raid on HSH’s branch in Manhattan, targeting Roland K., the director of HSH New York, who the bank wanted to get rid of.

The HSH team quickly found what it was looking for during the Sept. 17, 2009 search: child pornography images, which it turned over to the New York police. The photos would not only have deprived Roland K. of millions in severance pay, but could also have ruined him in every other respect. But the investigation quickly took another tack. According to the WilmerHale report, the US investigators concluded that Roland K. was possibly the victim of a conspiracy, and that his employer was behind it all. The WilmerHale attorneys also concluded that there were many signs that the alleged child pornography evidence was planted prior to the raid.

It is a disaster for the bank: The district attorney’s office in New York now lists both Gössmann and CEO Nonnenmacher as possible suspects. Germany’s bank regulator, BaFin, launched a special investigation of the matter on Monday of last week. The Hamburg public prosecutor’s office has received the roughly 100-page “Preliminary Investigation Report” prepared by the US law firm, and prosecutors in Kiel, where HSH has its second headquarters, have also shown an interest in the report.

The decision to dismiss Gössmann was apparently based on the first preliminary results from this report, a connection that Gössmann disputes. Still, nothing about the New York case was to be revealed to the public. There was also word of it in HSH’s memo to its dear employees, which solely addressed the Roth matter (which was already impossible to keep secret).

Fabricating Evidence?

Of course, the American scandal now casts the Roth firing in a new light — and has piqued the interest of investigators. It raises questions as to connections between the Roland K. case and the Roth case — and whether such a dirty intrigue to shed unwanted employees could have involved Nonnenmacher as well.

The public prosecutor’s office in Kiel dropped its case against Roth after concluding that there was insufficient evidence that Roth had in fact leaked secret bank information to the press. Now the investigators are revisiting the case, but from a different perspective: Did HSH fabricate the evidence against Roth?

One clue suggesting it did is that the same names appear in both cases. A lawyer from the law firm of Joachim Erbe in Potsdam outside Berlin provided assistance in the raid of HSH’s New York branch. Roth, as it happens, had already encountered Erbe, who was present and taking the minutes when the bank notified him that he was being fired. Erbe also works closely with a Munich security firm, Prevent AG, which is staffed with former senior police officials and has been awarded contracts worth millions by HSH.

Prevent AG also played a role in both cases. First, it was involved in the New York raid. Second, several witnesses say that one of Prevent AG’s subcontractors, a man named Arndt Umbach, had admitted that he had bugged Roth’s office and broken into his apartment. More than two weeks ago, when Umbach suddenly denied ever having said or done any such thing, it was Prevent AG that released his statement a short time later.

Moral Bankruptcy

This certainly gives one pause. At issue is a German bank that resulted from the merger of two state-owned banks. The German states of Hamburg and Schleswig-Holstein still own 85.5 percent of HSH Nordbank.

Everyone knew that HSH was in serious financial difficulties. The two states had to bail out the bank to the tune of €3 billion ($3.8 billion) and provide it with another €40 billion in loan guarantees, because its managers had made bad investment decisions. But while the government shareholders were filled with panic and barely managed to keep their bank from collapsing, none of them noticed that HSH was also threatened by a different sort of bankruptcy: moral bankruptcy. Or perhaps no one wanted to notice.

HSH was in such serious trouble that its supervisors chose to place their unconditional trust in CEO Nonnenmacher, believing that he had the professional competence and ability to rescue the bank. One man in particular, Supervisory Board Chairman Hilmar Kopper, tied his fate to that of Nonnenmacher. By insisting that if Nonnenmacher went, so would he, Kopper went from being a watchdog to a participant. The bank’s supervisory board accepted as a necessary evil the possibility that Nonnenmacher, the mathematics professor, analyst and numbers man, had a worrisome blind spot when it came to matters of morality. He insisted on his special payment of €2.9 million, with no regard for the crisis it triggered in the governments of Hamburg and Schleswig-Holstein and the deep resentment it generated among bank employees whose bonuses he had cancelled during the crisis.

Nonnenmacher, it would seem, pays little attention to such trivialities; he hardly allows anyone to come very close to him. He is uncomfortable around people and unwilling to open up; he finds photo ops excruciating, perhaps explaining why he looks so awkward in photos. He didn’t even tell members of his staff that he had become a father. He keeps his distance and, most of all, is suspicious of others. “It’s practically pathological,” says one bank executive.

Last spring, the German business publication Manager Magazin reported that he planned to replace everyone on the executive board. A board member who knows him says that he has little appreciation for compromise and has a hard time settling differences in a spirit of goodwill.

A Password Behind a Picture Frame

Still, the question as to whether HSH Nordbank used every means at its disposal, particularly the Munich security firm Prevent AG and its subcontractors, to rid itself of those executives Nonnenmacher wanted gone, remains open. HSH Nordbank and attorney Erbe declined to comment on the case last Friday, while officials at Prevent have only said that the questions were based on “incorrect assumptions” in several respects and that the complexity of the matter meant that it needed more time. Gössmann, the legal advisor who has been relieved of his duties, finally issued a statement claiming that he was not involved in any campaign to tie the New York branch manager to child pornography. And such accusations, he said, are “false and improper.” 

Clearly the bank and its key officials must be considered innocent until proven guilty. But if the operation did in fact take place, it would less surprising that the culprit was HSH Nordbank, with Nonnenmacher in charge, rather than another bank.

Roland K., a US citizen, had been the head of the New York branch since 2002. When two employees were let go in 2007 in an effort to cut costs, they claimed that K. had only decided to dismiss them and not another female employee because he had had an affair with her.

The bank had the case investigated twice by law firms, with both concluding that K. had not discriminated against the fired employees. Although some felt at the time that the investigations had whitewashed the alleged discrimination, a ruling by a US court in one of the two cases has since arrived at the same conclusion as the two law firms.

Painful Defeat

The situation changed for K. when, in May 2009, German media reported on the two former employees’ pending lawsuits in the United States, and on sexual escapades within the bank. K. had become a burden. A new investigation by the accounting firm PriceWaterhouseCoopers focused on expense accounts. The auditors had their suspicions about an inordinately expensive ski trip to Wyoming with customers, but in the end it seemed that nothing would come of it. But that would have been a painful defeat for Nonnenmacher.

According to the strictly confidential WilmerHale report, that was when the bank resorted to cruder methods. In May 2009, when it was becoming clear that PriceWaterhouseCoopers and an additional law firm could not come up with sufficient evidence to fire Roland K., HSH legal advisor Gössmann met with employees of Prevent AG. The meeting marked the beginning of “Project Liberty,” which allegedly cost the bank at least €900,000. As Gössmann apparently later told WilmerHale in blunt terms, the purpose of Project Liberty was to speed things up at Prevent so that the security firm would come up with results more quickly than PriceWaterhouseCoopers. To achieve this, Prevent had completely different options at its disposal, options that Gössmann claimed he preferred not to know about, so as not to lose his good faith.

Gössmann has told SPIEGEL that he never said any of this. He also claims that the investigation was not directed against Roland K., but that it was merely a “neutral and open-ended review of expense account procedures at the New York branch.”

According to the WilmerHale report, Nonnenmacher also met early on with then Prevent board member Thorsten Mehles to be briefed on Project Liberty. Later on, when he became dissatisfied with Prevent’s apparent inability to turn up any solid evidence against Roland K., he pressed the firm for results. The goal of Project Liberty was to enable the bank to get rid of K. It was Nonnenmacher’s project, a secret project that was to be kept from fellow executive board members, including Deputy Chairman Peter Rieck.

An Email Address and a Password

On Sept. 17, 2009, the plan was ready to be put into action. According to the WilmerHale report, Nonnenmacher had scheduled a videoconference with K. for 10 a.m. to make sure that he would be in the office. A 13-member HSH team arrived at the New York branch at the same time. The team, headed by Gössmann and personnel manager Stefan B., included a partner from the Erbe law firm, Prevent AG official Mehles and four of his employees, as well as computer specialists from an IT firm and security personnel.

WilmerHale describes what happened next as follows: Roland K. hadn’t arrived at the office yet, but the team began searching his office as planned. A Prevent AG employee immediately suggested taking a closer look at the picture frames in the office, noting that picture frames were often used to conceal things. And, lo and behold, when the Erbe attorney pushed open a frame containing a photo of K.’s daughter, she found a sticker with an email address on it that included the word “kid.” Next to it was a term that could have been a password: “000ROBI.”

For the IT specialists, who were working on K.’s computer at the time, it was a piece of information that quickly yielded results. They had already found two suspicious-looking emails from a “Jan Nowak,” and one of the emails contained the email address pasted to the back of the photo of K.’s daughter. When they used the password on the sticker to access the email address, they immediately found an email from “Jan Nowak” that contained child pornography images.

According to WilmerHale, the team immediately turned everything over to the New York police, which launched a child pornography investigation. But on April 22, the investigators informed the bank’s attorneys that they believed that Roland K. was the victim of a conspiracy.

Trap Snapping Shut

It isn’t clear yet what prompted the New York police to arrive at such an assessment. There are rumors that a member of the team confided in the US investigators, but there is no mention of this in the WilmerHale report. Nevertheless, the New York district attorneys’ report concludes: “There is no compelling evidence that Mr. K. viewed the child pornography images from the email account on his office computer. However, there is compelling evidence that a trap was set for Mr. K., that the email accounted was created by someone else and that both the sticker on the back of the photo of Mr. K.’s daughter and the emails from Jan Nowack were planted.”

The goal, according to WilmerHale, was to “create the false impression” that K. was the owner of the email mailbox containing the child pornography images. But if it was a trap, it didn’t snap shut. For one thing, an unknown individual sent an email from the email address in question from an Internet café at a time when K. could prove that he was somewhere else. Instead, the trap is now snapping shut on those who presumably set it.

The bank had hardly learned that the New York district attorneys believed that Roland K. was the victim and not the culprit when the team members insisted that they were innocent. They claimed that they had no knowledge of any such smear campaign and were certainly not involved. Erbe had organized the group denial, although one member of the team preferred to remain silent.

In the end, the internal investigators were forced to conclude that there was no clear evidence to convict anyone. Nevertheless, they did notice something else that was unusual about the case. According to WilmerHale, Gössmann found out on April 22 that the New York district attorney’s office was investigating him. But he waited until April 28 to notify Martin van Gemmeren, the executive board member assigned to the case. In the meantime, presumably on April 23, Gössmann had his laptop repaired, which likely resulted in all of the files on the computer being deleted.

Searching for a Mole

Gössmann staunchly denies this account of events and insists that he only found out about the investigation in New York through van Gemmeren. “The insinuation” that he “deliberately deleted or had someone else delete data” is bizarre, says Gössmann. 

The WilmerHale report creates a credibility problem for the team, particularly Prevent AG investigator Mehles, who once worked as a department head in the Hamburg State Office of Criminal Investigation. While Mehles says that he was not involved in the decision to take the pornographic photos to the New York police, an employee wrote in an email that precisely the opposite was the case. And while Mehles claimed that he didn’t find out about the child pornography rumors surrounding Roland K. until August, Nonnenmacher and Gössmann said that Mehles was in fact the one who told them — in June or July.

This would support the assumption in the preliminary report that the team had already secretly agreed, long before the raid, on what exactly it was looking for: evidence of child pornography, not receipts for business expenses. Why else, WilmerHale argues, would the team have taken apart picture frames?

Besides, how would Mehles have heard about child pornography rumors tied to K. in faraway New York in the first place? Nonnenmacher says that Mehles told him that he found out from the FBI. In yet another contradiction, Mehles told WilmerHale that he had received the tip from journalists in Germany.

No Longer Viable

It is clear that the alleged attempt to get rid of Roland K. on the cheap has now turned into the most costly severance of an employee in company history. K. sued the bank for $2.49 million in severance pay and $10 million in damages. HSH has reportedly reached a settlement with K. for $7.5 million, a sum that represents something between a confession of guilt and hush money. The bank is also believed to have paid $1 million to K.’s attorney. An insider estimates that these costs, together with the costs of the internal investigation and the legal fees, bring the total cost to $18.5 million. “And that’s just because Nonnenmacher doesn’t know how to come to reasonable agreements with people,” say bank employees.

Even if Nonnenmacher’s role in the intrigue outlined by WilmerHale remains unclear, now that the attorneys have presented their report, he is no longer viable as the CEO of a bank in crisis. His bank’s survival depends on the confidence of its customers and, even more so, on that of the public sector. But HSH, true to form, is still trying to hang on to Nonnenmacher. Last week, the supervisory board announced that it believes Nonnenmacher is innocent, and that the report shows that he “acted in accordance with his duties at all times.” But anyone who hopes to find such a statement in the WilmerHale report is certain to come up empty-handed.

Gössmann was also spared. Despite being relieved of his duties, he says that he was still given an access card and company mobile phone. Perhaps this was to ensure that Nonnenmacher could still reach him after he had checked into a clinic.

It was only on a Friday, now almost three weeks ago, when there were already signs that the case could be made public, that the executive board issued an internal memo stating that Gössmann was on temporary leave because of the Roth matter. Now the damage-control plan was apparently to keep New York a secret while at the same time doing everything possible to dispel the accusations in the Roth case, particularly the charge that wiretapping specialist Arndt Umbach had spied on Roth for the bank, broken into his apartment and falsified evidence against him.

Bank Out of Control

The bank denies having applied pressure to Umbach. But it hardly seems coincidental that even before SPIEGEL published the story a week ago, Umbach went to a notary public on a Sunday to make the statement that he had never done anything illegal nor had he admitted to wiretapping. It was an about-face that had arrived at the right moment for the bank.

In fact, however, the circumstances in the Umbach case are such that his about-face does not necessarily take the pressure off the bank. There are too many indications that he is not telling the truth, that Roth was given a raw deal, and that he, like K., is apparently the victim of a bank out of control.

According to Gössmann’s testimony in the 2009 preliminary investigation against Roth, Nonnenmacher had complained in late 2008 that secret bank information was being leaked. Gössmann said that the two men had decided, in confidential conversations, to set a trap for the mole in the form of a management document. Each recipient would receive a copy with a slightly different mark on it. If the document were sent to the press and then returned to the bank, it would be clear who was responsible for the leak.

But who was to be the target of the trap? If Gössmann is to be believed (and this is certainly plausible, given Nonnenmacher’s character), the CEO speculated that the mole was trying to harm him and not the bank. The most likely culprit, he believed, was one of his fellow executive board members, chiefly Roth. This, Gössmann said during the hearing, quoting Nonnenmacher, was because “Mr. Roth knows that I want to get rid of him.”

Wim de Jong-Niehoff, a handwriting expert, prepared the documents. On an evening in February, at about 9 p.m., Gössmann and Nonnenmacher placed four slightly altered copies of the memo into envelopes for the remaining board members. Gössmann says that he handed the copies to Nonnenmacher, who then placed them in white envelopes and addressed them to the board members.

The document was apparently not leaked to the press, and more than three weeks later, says Gössmann, he attempted to set another trap, this time with a management document that was emailed to the board members.

Absurd in the Extreme

The plan worked the second time. Nonnenmacher received an anonymous letter from England containing both the first page of the hard copy document from February and a printout of the document that had been sent by email more recently. In a letter accompanying the documents, the individual, apparently a journalist, claimed that the documents had been sent to him so that he would publish them. But because they contained HSH company secrets, he added, he had decided to return them to the CEO.

Gössmann says that the markings on the documents clearly showed that they were the ones that had been sent to Roth. The name Arndt Umbach does not figure in Gössmann’s version.

Although the evidence against Roth may have seemed clear enough, it is in fact so absurd that the public prosecutor’s office in Kiel has long since withdrawn its case against Roth for revealing company secrets. The method Nonnenmacher and Gössmann chose to allegedly uncover an unknown mole seems more likely an attempt to target a specific individual: Roth. The prosecutors argue that it is quite possible that Roth was in fact the victim of planted evidence, partly because of the way in which the list of suspects was selected. A member of the supervisory board or a second-tier manager could just as easily have been responsible for the leaks, but none of these people received any marked documents — only the executive board members.

Did Nonnenmacher or Gössmann seriously expect their document to even reach the press? Or did they have a completely different plan in mind, namely to ensure that a copy of the version intended for Roth would be sent to an individual who they knew would send it back to Nonnenmacher?

The bank and Gössmann deny this, but there are strong indications to support this suspicion, a view that the prosecutors in Kiel also share. They too could hardly imagine that a real journalist would have returned the documents in question. Most of all, if the anonymous person had truly intended to take the honest approach and return the document to HSH, why didn’t he include all the pages? Instead, only the first page of the first document was returned to Nonnenmacher, and that page was the one that included the marked word, “Kernbank” (core bank). It was as if the sender had known that the first page was sufficient evidence.

Credibility Problem

Again, the various statements are fraught with contradictions. For example, Gössmann testified that Wim de Jong-Niehoff also prepared the second decoy, the management document that was sent via email. But in his statement to the police in Kiel, de Jong-Niehoff said: “I can rule out that we were involved in the incident.”

Who was it then?

The board members received the marked email from then Director of Corporate Communications Michaela Fischer-Zernin in early March. Gössmann had already filled her in on their plan to find the leak, and Nonnenmacher had also spoken with her. The document was emailed to her so that she could send it to the targeted board members. Then an unknown individual prepared it in less than an hour. Who could it have been, if it wasn’t de Jong-Niehoff?

About five months later, on July 29, Umbach attended a meeting at a Hamburg law firm with HSH supervisory board members Olaf Behm and Rieka Meetz-Schawaller, as well as the former head of HSH corporate security. If the minutes of the meeting are to be believed, Umbach admitted that he had prepared and sent the email on orders coming from the bank.

On the Friday of the week before last, Umbach was still sticking to his story. But he was also talking about the money he needed to disappear. He changed his story two days later and hasn’t been heard from since.

His new version has a serious credibility problem, because the people at the Hamburg meeting aren’t the only witnesses. Umbach and the former HSH security chief drove to Kiel to meet with prosecutors right after the meeting.

An hour later, three public prosecutors were sitting across the table from Umbach and his attorney. Umbach kept insisting that he be given immunity if he confessed. But there was no interrogation, partly because Kiel had transferred the case to the Hamburg public prosecutor’s office. But why would someone ask for immunity from prosecution if he hadn’t committed a crime? “Umbach’s retraction means nothing to us,” say the Hamburg investigators. Meanwhile, their counterparts in Kiel are weighing whether to bring charges against bank officials for falsely accusing Roth.

Poor Shape

This is an accusation that Hilmar Kopper, the supervisory board chairman, should also be pursuing. But Kopper, seemingly paralyzed by loyalty, is standing where he has always stood: behind Nonnenmacher. “The Supervisory Board has absolute confidence in the determination of the CEO to put a stop to such illegal machinations,” the supervisory board announced on Thursday after a meeting of the general committee, adding that it assumed that Gössmann, too, would be “fully rehabilitated” after all the investigations were complete.

Once again, this raises a number of puzzling questions. For instance, didn’t Kopper and the others read the WilmerHale report? Or do they hope that they’ll be the only ones who will ever be given access to it? And did they feel that the destruction of a person’s personal and professional life with trumped-up child pornography charges was nothing but collateral damage in a banking crisis?

A few days, Kopper stubbornly claimed that he still had no reason to doubt that Roth had leaked bank secrets to the press. He failed to mention that Nonnenmacher is listed as a suspect in the US investigation and that WilmerHale specifically concludes that there were parallels in the handling of both Roland K. and Frank Roth. He also said nothing about the fact that Nonnenmacher may have violated German stock corporation law when he set traps for his fellow board members without informing the supervisory board. Apparently the supervisory board feels that the best way to approach Nonnenmacher’s actions — the fact that he went over their heads and thus eliminated their supervisory role — is to forgive and forget.

But the bank has never been in as poor shape as it is today.


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Posted in Law

The World Trade Center Mosque and the Constitution

The plan to erect a mosque of major proportions in what would have been the shadow of the World Trade Center involves not just the indisputable constitutional rights that sanction it, but, providentially, others that may frustrate it.

Mosques have commemoratively been established upon the ruins or in the shells of the sacred buildings of other religions—most notably but not exclusively in Cordoba, Jerusalem, Istanbul, and India. When sited in this fashion they are monuments to victory, and the chief objection to this one is not to its existence but that it would be near the site of atrocities—not just one—closely associated with mosques because they were planned and at times celebrated in them.

Building close to Ground Zero disregards the passions, grief and preferences not only of most of the families of September 11th but, because we are all the families of September 11th, those of the American people as well, even if not the whole of the American people. If the project is to promote moderate Islam, why have its sponsors so relentlessly, without the slightest compromise, insisted upon such a sensitive and inflammatory setting? That is not moderate. It is aggressively militant.

Disregarding pleas to build it at a sufficient remove so as not to be linked to an abomination committed, widely praised, and throughout the world seldom condemned in the name of Islam, the militant proponents of the World Trade Center mosque are guilty of a poorly concealed provocation. They dare Americans to appear anti-Islamic and intolerant or just to roll over.

But the opposition to what they propose is no more anti-Islamic or intolerant than to protest a Shinto shrine at Pearl Harbor or Nanjing would be anti-Shinto or even anti-Japanese. How about a statue of Wagner at Auschwitz, a Russian war memorial in the Katyn Forest, or a monument to British and American air power at Dresden? The indecency of such things would be neither camouflaged nor burned away by the freedoms of expression and religion. And that is what the controversy is about, decency and indecency, not the freedom to worship, which no one denies.

Although there is of course no question of reciprocity—no question whatever of a church in Mecca or anything even vaguely like it—constitutionally and if local codes applied without bias allow, there is unquestionably a right to build. Reciprocity or not, we have principles that we value highly and will not abandon. The difficulty is that the principles of equal treatment and freedom of religion have, so to speak, been taken hostage by the provocation. As in many hostage situations, the choice seems to be between injuring what we hold dear or accepting defeat. This, anyway, is how it has played out so far.

The proponents of the mosque know that Americans will not and cannot betray our constitutional liberties. Knowing that we would not rip the foundation from the more than 200 years of our history that it underpins, they may imagine that they have achieved a kind of checkmate.

Their knowledge of the Constitution, however, does not penetrate very far, and perhaps they are not as clever as they think. The Constitution is a marvelous document, and a reasonable interpretation of it means as well that no American can be forced to pour concrete. No American can be forced to deliver materials. No American can be forced to bid on a contract, to run conduit, dig a foundation, or join steel.

And a reasonable interpretation of the Constitution means that the firemen’s, police, and restaurant workers’ unions, among others, and the families of the September 11th dead, and anyone who would protect, sympathize with and honor them, are free to assemble, protest and picket at the site of the mosque that under the Constitution is free to be built.

A reasonable interpretation of the Constitution means that no American can be forced to cross a picket line in violation of conscience or even of mere preference. Who, in all decency, would cross a picket line manned by those whose kin were slaughtered—by the thousands—so terribly nearby? And who in all decency would cross such a line manned by the firemen, police and other emergency personnel who know every day that they may be called upon to give their lives in a second act?

Michael Bloomberg, the mayor of New York, says of those who with heartbreaking bravery went into the towers: “We do not honor their lives by denying the very constitutional rights they died protecting.”

Mr. Mayor, the firemen, the police, the EMTs and the paramedics who rushed into those buildings, many of them knowing that they would die there, did not do so to protect constitutional rights. They went often knowingly to their deaths to protect what the Constitution itself protects: people, flesh and blood, men and women, mothers and fathers, sons and daughters, sisters and brothers. Although you yourself may not know this, they did.

The choice is not between abandoning them or abandoning the Constitution, for although the liberties the Constitution guarantees sometimes put us at a disadvantage even of self-preservation, they also make it possible for 300 million Americans to prevail—reasonably, peacefully, and within the limits of the law—against provocations such as this.

They make it possible to prevent the construction of the mosque at this general location—with no objection whatsoever to, but rather warm encouragement of, its construction elsewhere—not by force or decree but by argument, persuasion, and peaceable assembly. These are rights that the Constitution guarantees as well, and clearly it is one’s constitutional right to oppose the mosque, not to participate in the building of it, and to convince others of the same.

This small and symbolic crisis is not a test of constitutional liberties, for in regard to the question at hand the Constitution allows discretion. It is rather a test of how far America can be pushed, and America is not at all as powerless as it has been portrayed.

That is because the street in front of the mosque that the Constitution says can be built can be filled with people who can effectively protest it because the Constitution says that they are free. Those who do not fear to do so need only go there and stand upon their convictions, their beliefs, their reason, their laws, their history, and what is in their hearts.

Mr. Helprin, a senior fellow at the Claremont Institute, is the author of, among other works, “Winter’s Tale” (Harcourt), “A Soldier of the Great War” (Harcourt) and, most recently, “Digital Barbarism” (HarperCollins).


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