Archive for February, 2008

Nader Empowers Left

Monday, February 25th, 2008

Ralph Nader amplified my voice yesterday when he declared his candidacy for chief exec. Up till now, Obama and Clinton were answerable only to John McCain and the tiny minority he represents. Today they are answerable to me and the minority I belong to, people who reject war and insist on social justice, and who vote on that basis.

Neither Clinton nor McCain could ever get my vote, but Obama can claim it from Nader with just a few commitments. He has to commit to end the wars. All of them. He has to commit to undo the curtailment of civil liberties. He has to commit to national health insurance comparable to what citizens of other countries have. He has to commit to hold Bush and company accountable for the crimes they have committed and for the injury they have done to the country.

Nader gives me all of these commitments and much more. He doesn’t promise to win the election, but he enhances the value of my vote, which has never come cheap. If the accountability crowd unites behind him, he can challenge Obama to reject the anachonistic chauvinism that continues to dominate the right wing of his party, especially as embodied in bought-and-paid-for members of Congress. That probably won’t happen, but it might happen.

Ralph Nader invited the Democrats in the last two elections to make him irrelevant by embracing the goals of the movement for peace and justice. Both candidates declined even to discuss national health insurance, and the last one pretended there was something worthwhile to be salvaged from our military adventures. The two now vying for the support of serious voters have so far come up short on peace and justice, and some of us will demand more.

We should consider the election a mere formality at this point. Obama’s popularity is not going to abate. Nothing ugly is going to come out about him because there isn’t anything ugly to come out. Nader remarked when he announced his candidacy that if the Democrats can’t landslide this election they should close up shop.

Let’s concede that the time between now and the inauguration will be spent preparing to govern and not campaigning for office. Obama will become a magnet for every opportunist in America and every patriot, and that’s where Nader’s candidacy comes in. As an independent candidate, Ralph has a seat at the table, whether Barack wants him there or not.

Obama’s new and he’s clean, and he has an opportunity in Ralph Nader’s candidacy to win over the skeptical wing of the liberated majority. Nader knows that most of his supporters will probably vote for Obama even if he doesn’t come around on the issues, but voting’s not the big event here. The big event is unfolding now, and Nader’s candidacy ensures that our movement will play a part in it.

Bill of Rights Toilet Paper in Army Lawyers’ Latrine?

Thursday, February 21st, 2008

Every so often, a judge is forced to reread the Sixth Amendment to the U. S. Constitution. It’s pretty short and not at all difficult to understand: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

It’s very likely that some federal judges will have occasion to consult that section when the cases now pending before the so-called military commissions at Guantanamo prison reach them. The accused–six Arabs said to have been involved in the events of September 11, 2001–have been denied each and every right enumerated by the Sixth, and they’re on trial for their lives.

The Sixth Amendment guarantee of a speedy trial doesn’t impose an absolute time limit on prosecutions, but it requires the government to act within reason. The government has accused these men of crimes that occurred almost seven years ago. They’ve been in custody for almost five years. Witnesses have disappeared in the interim. The physical evidence was sold for scrap. These men should have been tried years ago, and their trial will be public only in the sense that a few reporters will be allowed to witness select portions of it. The proceedings are being held in Cuba on land leased to the United States as a naval installation and accessible only by boat or airplane. Much of the evidence is thought to consist of state secrets and will not be aired in public. These defendants have a strong claim that their trial is neither speedy nor public.

There will be no jury to weigh the evidence against them, but a panel of military officers. The absence of a jury makes the process very like the proceedings employed by the Catholic Inquisitions of the Dark Ages, just the sort of abuse that the enlightened thinkers who gave us the Bill of Rights meant to prohibit.

The defendants are not to be tried in the district in which their alleged crimes were committed. In fact, they are not to be tried in the United States at all, but in a foreign country that has no connection whatever to the proceedings against them. So remote are these prisoners in time and space from the events at issue in their trial that a meaningful investigation of witnesses, evidence, and other elements of a defense is out of the question.

The accused were only recently apprised of the accusations against them. They were held without charges for years, disabling them from even contemplating a defense. There is no sound precedent for their extra-legal “detention,” and their current plight stands as a stark example of the injury that can result to those imprisoned without due process of law.

These accused will not be presented with the witnesses against them but with second-hand reports, some from interrogators who employed brutal tactics amounting to torture as commonly conceived. They will have no opportunity to test the credibility, reliability, or memory of the witnesses against them, because the witnesses won’t be there. Just words on paper. There may once have been videotapes of the interrogations that yielded the evidence against these accused, but the government destroyed them.

The defendants have no compulsory process to bring witnesses of their own to testify. All of them were kidnapped from foreign countries. If there are alibi witnesses or character witnesses that might aid the fact-finder, they are far beyond the reach of a subpoena.

The six prisoners were systematically denied access to lawyers from the time they were taken into custody until very recently. Their interrogations were conducted outside the presence of counsel. Even now, the defendants’ consultations are monitored by the government, and their lawyers are routinely denied access to critical evidence. They are effectively unrepresented, and their attorneys at trial will be taking orders from the very military officers who will decide their guilt or innocence.

Although the embedded mass media have convicted all six men, they are innocent until proved guilty in proceedings that conform to the Sixth Amendment. This trial doesn’t satisfy that criterion, and an independent judiciary must certainly strike down these proceedings on appeal, notwithstanding Congress’ efforts to deny the defendants’ right to be heard by a judge. Of course, many of us have come to doubt that we have an independent judiciary–and some judges have given us good reason for worry–but the law is a force in itself.

Also at work, alongside the words of the Constitution, is professional responsibility. Colonel Morris Davis, assigned to prosecute prisoners at Guantanamo, resigned his commission and retired from the Air Force last year because of legal deficiencies in the process. Three other officers who were assigned to prosecute asked for transfers to other duty. The attorneys who agree to prosecute these cases will be acting contrary to the lawyers’ code of professional responsibility, and they know it. Will they carry out orders that offend the ethic to which they are bound as constitutional officers? Maybe not.

News-Consumers Starve on Gossip Diet

Sunday, February 10th, 2008

With the presidential election just a few (38) short weeks away, the embedded mass media can’t seem to focus on anything else. Just over the past couple of days, it wasn’t news when the executive branch announced to the legislative branch that torture is legal, notwithstanding laws prohibiting such practices. It wasn’t news that at least five American kids died in the occupation of Iraq. It wasn’t news when a sugar refinery blew up and killed some workers. It wasn’t news that the nation’s nervous allies in the Afghan adventure were expressing misgivings over all their dead boys. It wasn’t news that Russia is beefing up its army. Bleak, even dire economic indicators emerging from a hundred different sources weren’t news, but like the other items, were given only passing mention by the embedded mass media. Extended discussion of Romney’s political liabilities and Huckabee’s political assets left no time for journalism.

People now debate whether the news is censored to keep us from knowing what’s going on or is merely edited to appeal to us as an audience. The truth may be simply that political discussion, like all gossip, is cheap. Talking about real issues requires work, and work is money, and if you can sell blather as news, you make more money. Start talking about why people are getting killed at work, and by the time you get finished paying for research and actual journalism, you’re in the hole.

And who cares about this stuff anyway? People would just as soon hear a roundtable discussion of Hillary’s couture as an account of how five kids got killed for Bush. Reporters used to tell us stuff we didn’t want to hear, and the public just got mad at them. Blamed them for losing this war and that war. Blamed them for bringing down this leader and that leader. Blamed them for demorallzing ordinary folk and for killing God. “Put a stop to all this bad news!” consumers seemed to be shouting, and so the publishers and broadcasters just cut the news off altogether to concentrate exclusively on gossip.

Not all journalists are corrupt, but there’s no way for the news-consumer to tell the good from the bad, the ones who should be believed from the ones who shouldn’t. That’s why this profession needs an ethic. Russert knows he’s scamming the public when he neglects important events to focus on politics, but he thinks it’s OK, because there’s no standard to bind him.

Like all professional standards, a journalistic ethic must be adopted by the consensus of the practitioners and not imposed from without. What might be the consensus of reporters and editors? Would they be willing to refrain from reporting on the personal lives of entertainers? Would they be willing to give up anonymous sources? Would they be willing to forego prognostication, prediction, and speculation? Would they be willing to accord due attention to complicated or unpopular or unexciting events of importance? Would they be willing to abide by an objective standard of what’s newsworthy and what isn’t?

As one of the few occupations that enjoy constitutional protection, journalism owes its public some standard of conduct, but it never has had one. In fact, reporters are notorious for their abuse of the protections they have. They intrude on grief, and they invade privacy. They engage in character assassination, and they often rush to judgment. Sometimes they misinform, and sometimes they disinform. They’ve been doing this since before the revolution, and there’s been no reason to think they will ever change.

Until now. Now we have this medium. In about a dozen years, we’ve circulated more news and more discussion here than we could have imagined possible when men walked on the moon. I get at least five times as much information today as I ever got from a daily newspaper, radio, and TV. It’s not all reliable, and it’s not all easily digestible, and it often contradicts what I get from other sources, but it supplies me with some of the tools of citizenship that I need to do my duty to the republic. As the information that comes over this medium becomes more and more accessible, TV and newspapers, lacking an ethic, will gradually cease to be dispensers of news and will function solely as distractions.

Subprime Adventures

Friday, February 1st, 2008

For the last four years, my law practice has consisted mainly of home mortgage closings for people refinancing their debts. Typically, they’re paying off credit cards and car loans or substituting fixed-rate debt for variable rate debt or financing their kids’ education. Some are in straits, with past due taxes or other delinquencies, and some are already mortgaged to the hilt.

I act as signing agent in most of these transactions and don’t represent either the bank or the borrower, and so I’m free to counsel a borrower who inquires. I offer only legal counsel and not financial guidance. I’ve been exposed to dozens of lenders and hundreds of borrowers, and I’ve seen a lot.

I’ve seen huge disparities between the deals obtained by people with exemplary credit and people with average ratings. The people who are financing a cruise or a swimming pool borrow at rates far below those who are barely making their “nut” every month. The theory is that the bank bears less risk and so can afford to offer better terms. It might easily be mistaken for poor people subsidizing the credit of comfortable people.

I’ve seen borrowers in trouble–they don’t usually tell me why, but death, marital breakdown, unemployment, and illness are often apparent from the documents–pay ten or fifteen thousand dollars in fees out of the proceeds of a loan that yields them nothing but respite from creditors. A few lenders have sent me out with documents showing a bottom line to the borrower that was thousands of dollars short of the amount expected. Some of these people, when I advised them not to sign, felt they had no choice and took the deal anyway.

“I thought this was a fixed-rate loan,” a borrower might complain.

“For three years,” I’d answer, “then variable. Better call the loan broker. ” Who’d not be there, most often. I quit conducting transactions for a couple of lenders, and I’m persona non grata with a couple of others that I caught in predatory practices like these. One lender wanted me to backdate documents. I sent an email to my state attorney-general on that one, but I never heard back.

It never occurred to me that the high-interest/high-risk loans I was handling were a major driver of the U. S. economy, but that seems to have been the case. I did notice that the appraisals were coming in a little high. Three hundred thou for a six-room ranch in West Hartford (four hundred for the same thing in Fairfield) seemed a bit steep. Two working people with two jobs each can’t afford that kind of mortgage and still eat. Either working people’s wages would have to go up by a third, or house prices would have to come down. It looked like something that would pop if it didn’t deflate soon. I called that one.

My practice is pretty dead, and I receive intimations every so often from people in banking and real estate that things are going to get worse before they get better. The home mortgage industry, in which the responsible lenders share the same pool as the racketeers, seems to have closed up shop for now, at least to the average borrower. A little regulation could have gone a long way here, but it’s too late now. And it’s hard to see how doling out a few hundred bucks to voters in an election year will help debtors who are in trouble or make it possible for ordinary people to own a house.