State Secrecy Privilege: Abused?

[ndebord]

Secret Guarding
The new secrecy doctrine so secret you don't even know about it.
By Henry Lanman

http://www.slate.com/id/2142155/

The underlying case law is United States vs Reynolds, and this article alleges that it has been used to shield this administration from criminal lawsuits.

[Dan in Saint Louis]

http://www.comics.com/wash/candorville/archive/images/candorville2073282060523.gif

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[Judy G. Russell]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.

[ndebord]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.

Judy,

And it's cumulative and across the board. This from today's Newsday:

"President George W. Bush and those around him have tapped Americans' overseas phone calls and e-mail without warrants or court oversight. They've apparently collected records of millions of innocent Americans' domestic phone calls. They've dumped people into off-the-books prisons around the world, tortured the legal definition of torture to justify abusing detainees, and even delivered prisoners into the hands of jailers in countries known to savagely and routinely torture those in their keeping.

What do all these unsavory actions have in common? They were all done in secret. The public found out about them when they were revealed by journalists. So now the administration wants to prosecute journalists."

[ndebord]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.

Judy,

Appropriately enough from Tom Paine:

"The administration believes that its actions -- like the court of the British King -- are above being scrutinized by some lowly federal court or subjected to principles of law intended only for plebeians."

[ndebord]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.

Judy,

Appropriately enough from Tom Paine:

"The administration believes that its actions -- like the court of the British King -- are above being scrutinized by some lowly federal court or subjected to principles of law intended only for plebeians."

And from This Week on ABC:

On Sunday, Alberto Gonzales told ABC's ``This Week" that he would consider prosecuting reporters who get their hands on classified information and break news about President Bush's terrorist surveillance program. ``There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility, " Gonzales said, adding at one point, ``We have an obligation to enforce those laws."

[ndebord]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.

Judy,

And now no oversight of Administration Busines Cronyies!

"The memo Bush signed on May 5, which was published seven days later in the Federal Register, had the unrevealing title "Assignment of Function Relating to Granting of Authority for Issuance of Certain Directives: Memorandum for the Director of National Intelligence." In the document, Bush addressed Negroponte, saying: "I hereby assign to you the function of the President under section 13(b)(3)(A) of the Securities Exchange Act of 1934, as amended."

A trip to the statute books showed that the amended version of the 1934 act states that "with respect to matters concerning the national security of the United States," the President or the head of an Executive Branch agency may exempt companies from certain critical legal obligations. These obligations include keeping accurate "books, records, and accounts" and maintaining "a system of internal accounting controls sufficient" to ensure the propriety of financial transactions and the preparation of financial statements in compliance with "generally accepted accounting principles."

[Judy G. Russell]

Alberto Gonzales told ABC's ``This Week" that he would consider prosecuting reporters who get their hands on classified information and break news about President Bush's terrorist surveillance program. ``There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility, " Gonzales said, adding at one point, ``We have an obligation to enforce those laws."No. No no no no no. And no again.

The whole notion underlying the criminal law is that it has to give notice, crystal clear, to the people against whom it will be applied that it can be so applied. If it's only possible to conclude that you might be able to prosecute the press "if you read the language carefully," then due process alone says prosecution is NOT appropriate.

[ndebord]

No. No no no no no. And no again.

The whole notion underlying the criminal law is that it has to give notice, crystal clear, to the people against whom it will be applied that it can be so applied. If it's only possible to conclude that you might be able to prosecute the press "if you read the language carefully," then due process alone says prosecution is NOT appropriate.


Judy,

Due Process? What an archaic concept. Clearly you are not in the reality creating universe, but are an odd leftover from that reality-based universe that existed prior to the election of the Great Decider.

[Judy G. Russell]

Due Process? What an archaic concept. Clearly you are not in the reality creating universe, but are an odd leftover from that reality-based universe that existed prior to the election of the Great Decider.Yeah, I realize I'm a throwback... sigh...

[ndebord]

Yeah, I realize I'm a throwback... sigh...


Judy,

Yeah, know the feeling too. Now if only we can get from throwback to throw out or throw in (as in throw the bums in jail).

<sigh>

[Judy G. Russell]

At least we got a couple of them thrown in today... loved that Enron verdict.

[Lindsey]

At least we got a couple of them thrown in today... loved that Enron verdict.
Yes. I can't help but feel a little sorry for Lay and Skilling. Not that I don't think they deserve to spend the rest of their lives in jail for ruining the lives of so many thousands of other people, but it is sad to think that so much creative brilliance came to such a sorry end.

--Lindsey

[earler]

I followed the Enron trial closely. The Houston chronicle was especially informative, and the nytimes and wsj also had interesting articles. The government presented an excellent case, as did the defense, which most probably didn’t countenance the defendants taking the stand. Lay, who everyone thought would be his usual avuncular self, came across as arrogant. He interrupted both the prosecutor and his own lawyer. Skilling got caught out with the photofete business, where he was revealed as a liar. Both he and lay violated the company’s code of ethics in dealing with a company run by an ex-mistress of skilling. And, their claim that enron was brought down by evil cabal of short sellers and the wsj was laughable.

However, I am troubled by this case in two ways. First, the government’s methods in obtaining cooperation from some of their witnesses are a bit redolent of koestler’s darkness at noon. One prosecution witness spent his first 11 days in prison in solitary confinement, then was placed in a cell with 3 hard-bitten, violent types. Then he finally flipped and agreed to testify.

The other problem for me is the long sentences that will be handed down, even then not so heavy as those mandated under the sox law, which doesn’t apply to this case since it was passed after the indictments. The usa, with 5% of the world’s population, has 25% of the prison population, nearly 3 million people. Does this mean the usa has 5 times as many criminals than the average of the rest of the world? I think not.

What point is there in putting an ebbers, a rigas, a lay or a skilling away for 25 years or more? First of all, it costs at least $50,000 a year to the taxpayers, rather more for older prisoners because of medical care. These people aren’t violent; they aren’t menaces to the man in the street. A maximum of 5 years is already a terrible punishment for anyone. Of course, for those like these men, you take away their money and let them become bag boys in their local supermarkets.



-er

[ndebord]

However, I am troubled by this case in two ways. First, the government’s methods in obtaining cooperation from some of their witnesses are a bit redolent of koestler’s darkness at noon. One prosecution witness spent his first 11 days in prison in solitary confinement, then was placed in a cell with 3 hard-bitten, violent types. Then he finally flipped and agreed to testify.

The other problem for me is the long sentences that will be handed down...

What point is there in putting an ebbers, a rigas, a lay or a skilling away for 25 years or more? First of all, it costs at least $50,000 a year to the taxpayers, rather more for older prisoners because of medical care. These people aren’t violent; they aren’t menaces to the man in the street. A maximum of 5 years is already a terrible punishment for anyone. Of course, for those like these men, you take away their money and let them become bag boys in their local supermarkets. -er

Earle,

The balance between prosecution and defense has always been shaky. The popular notion that all a DA need do is empanel a grand jury and a wet sponge would be indicted has always troubled me. Add in the ability to punish in such draconian fashion as you point out and you have, at the very least, the genesis for unbridled power.

I truly believe in the old adage "let the punishment fit the crime." Criminal malfeasance on the scale achieved by Enron can not go unpunished and should serve as an example to others. If that means, that in this particular white collar crime, long sentences are meted out, so be it. If they had stocks in the public square, I'd put both of them on display there.

[earler]

How do you measure such punishment? Isn't 5 years already quite a humiliation, especially when the perp has to get a job to support himself when he is released? Or do you wish to go back to ye olden days? Draw & quarter, cut off the nose, the iron maiden, stoning?

Prisons are something created in modern times to humanize punishment. Alas, it still isn't very human to lock someone in a cage. House arrest after 5 years is quite appropriate. Remember there are far too many people in american prisons. Therefore, virtually no resources are allocated for rehibilitation. The state prison systems are especially awful; the federal ones are better.

-er

[ndebord]

Judy,

Not unexpectedly, the Bush Administration is using this doctrine of state secrecy in the case of AT&T and the secret NSA room it is alleged to have setup.

"Also this week, the Bush administration submitted a 29-page brief that elaborates on its argument that the [AT&T] case should be tossed out of court because of the "state secrets" privilege."

http://news.zdnet.com/2100-9588_22-6077353.html

[ndebord]

How do you measure such punishment? Isn't 5 years already quite a humiliation, especially when the perp has to get a job to support himself when he is released? Or do you wish to go back to ye olden days? Draw & quarter, cut off the nose, the iron maiden, stoning?

Prisons are something created in modern times to humanize punishment. Alas, it still isn't very human to lock someone in a cage. House arrest after 5 years is quite appropriate. Remember there are far too many people in american prisons. Therefore, virtually no resources are allocated for rehibilitation. The state prison systems are especially awful; the federal ones are better.

-er

Earle,

You won't get any arguments from me that the current prison culture is unjust. We've given up on rehabilitation and moved on to cruel and unusual punishment imo.


I'll just say that I think stocks are a perfect form of public humiliation. You get your air (not locked in some stale dark cell for 23 hours a day) and you get to hear up close and personal what your neighbors think about your crimes.

When Glass-Steagall went bye bye I figured we were in for a rough ride in Corporate America.

[earler]

I'm not so sure it is the elimination of glass-steagall but think it is more because of the huge remunerations now current in major companies. We live in a world where actors, tennis players (and other sports figures), and corporate honchos are all over paid. Given the amounts of money involved corruption is bound to occur.

-er

[ndebord]

I'm not so sure it is the elimination of glass-steagall but think it is more because of the huge remunerations now current in major companies. We live in a world where actors, tennis players (and other sports figures), and corporate honchos are all over paid. Given the amounts of money involved corruption is bound to occur.

-er

Earle,

History tells us that when the disparity between the bottom and the top is too large, things fall apart.

<sigh>

[ndebord]

A little off-topic, but as Judy has raised this before, just a small update on what GWB or perhaps Dick Cheney are up to in terms of asserting the power of the Presidency to override the Congress and the Courts whenever their laws or rulings conflict with his/their beliefs.


http://www.rawstory.com/showarticle.php?src=http%3A%2F%2Fwww.boston.com%2F news%2Fnation%2Fwashington%2Farticles%2F2006%2F05% 2F28%2Fcheney_aide_is_screening_legislation%3Fmode %3DPF

[Judy G. Russell]

A little off-topic, but as Judy has raised this before, just a small update on what GWB or perhaps Dick Cheney are up to in terms of asserting the power of the Presidency to override the Congress and the Courts whenever their laws or rulings conflict with his/their beliefs.


http://www.rawstory.com/showarticle.php?src=http%3A%2F%2Fwww.boston.com%2F news%2Fnation%2Fwashington%2Farticles%2F2006%2F05% 2F28%2Fcheney_aide_is_screening_legislation%3Fmode %3DPF
Balance of power. Checks and balances. Right.

[Lindsey]

How do you measure such punishment? Isn't 5 years already quite a humiliation, especially when the perp has to get a job to support himself when he is released?
You can't re-write the law for the millionaires.


Mel Spillman, a former probate clerk in San Antonio who pleaded guilty to bilking nearly $5 million from the estates of at least 122 people, was sentenced to 10 years in prison and ordered to pay a $10,000 fine.
(http://query.nytimes.com/gst/fullpage.html?res=9803E4D8163DF935A35755C0A9649C8B 63)


Examples of Fraud in the Health Care System
Medicaid
Billing for Non-Existent Services

Example One. The Williams' were owners of D&H Christian Case Management, Houston, TX, which was enrolled with the Medicaid program as a Licensed Professional Counseling provider. The two billed the Medicaid program for counseling services that were not rendered. The fraud resulted in a Medicaid overpayment of $632,424 of the $661,576 total paid to the company in one year. On May 24, 2004, Henry Williams was sentenced to 35 years in the state penitentiary. On June 3, 2004, Dranetta Williams was sentenced to 63 years in the state penitentiary. Both husband and wife were found guilty of Theft, a first-degree felony, for defrauding the state's Medicaid system. Both were ordered to make restitution to the state for the total amount of $632,424.
(http://www.governor.state.tx.us/divisions/press/initiatives/fraud_examples/)


By contrast, the Enron collapse resulted in a loss of more than $60 billion. How is 5 years prison a fair punishment when someone else is sentenced to 63 years (but under the state system) for theft of .001% of that amount -- a theft which did not end up wiping out the retirement of thousands of people and the loss of jobs for thousands of others?

Federal sentencing guidelines (which the people Lay and Skilling paid millions of dollars to put into and keep in office have insisted on making more and more rigid) specify 20 years in prison for investor losses tied to their actions of $80 million or more. Even in Lay in Skilling are only responsible for 1% of the total $60 billion, that's far more than $80 million.

I agree; there are far too many people sitting in US prisons. But it's not because there are too many white collar felons there. The people filling the prisons are largely the poor and the black, some of whom end up with decades-long sentences for petty shoplifting offenses as the result of rigid three-strike laws.

And yes, there really ought to be more done in the way of rehabilitation, but conservatives object to things like trying to provide inmates with education and job training as giving criminals favored treatment. They don't want to rehabilitate anyone; they just want to throw them away.

--Lindsey

[Lindsey]

By contrast, the June issue of the Washington Monthly has an article (not available online, unfortunately) relating how advisors and editorialists were clamoring for FDR to assume dictatorial powers when he came to office in 1933 in the wake of a severe banking crisis and the world economy in a state of collapse. There were a lot of people who wanted him to become America's Mussolini. Roosevelt, fortunately, had a wiser head and resisted the call, preferring to deal with problems through persuasion and policy initiatives rather than personal fiat. And thank God.

It's too bad that sort of thing isn't taught in schools when the history of the New Deal is taken up, rather than simply presenting it as a mind-numbing alphabet soup of government programs. It would help to make it clear what a fragile thing democratic government is, and how easily it can be swept away in a period of panic.

--Lindsey

[Judy G. Russell]

conservatives ...don't want to rehabilitate anyone; they just want to throw them away.Only the poor and black. The white and wealthy, well...

[Lindsey]

Only the poor and black. The white and wealthy, well...
Yeah; the Kenny Boys of the world will be awarded consulting contracts.

--Lindsey

[ndebord]

It's not a matter of allegation that the Administration has used the state secrets privilege to shut down oversight of its actions; it's a fact. And it is a frightening development.


Judy,

An ancillary offshoot of the Government's ability to close off inquiry into its activities is the use of "national security letter(s)" by the FBI to do data mining with private corporations. It is labeled as a special kind of supoena issued by the FBI without a judge's signature and it entitles the FBI to all business records except medical records (such as bank, insurance, phone, ISP, credit...etc.). A company that receives a national security letter cannot discuss the fact that it has received one.

No one knows for sure how many were issued although the Washington Post said 30,000 are issued annually, but nobody know if that is an inclusive list as DOJ and its attornies can also issue these things and it says it doesn't keep track the number of subpoenas it issues.

[Judy G. Russell]

That's straight out of the "Patriot" Act, Nick. Investigative agencies have always been able to issue admninistrative subpoenas, without judicial approval, but the "and oh by the way... don't ever tell anybody about this" part is from the statute.

[ndebord]

That's straight out of the "Patriot" Act, Nick. Investigative agencies have always been able to issue admninistrative subpoenas, without judicial approval, but the "and oh by the way... don't ever tell anybody about this" part is from the statute.


Judy,

Didn't read the Patriot Act directly, just exerpts. I certainly hope somebody is keeping track of where we were before, so we can restore our rights IF a Democratic Administration and Congress comes back into power (if they have the stomach for it of course).

[Judy G. Russell]

Didn't read the Patriot Act directly, just exerpts. I certainly hope somebody is keeping track of where we were before, so we can restore our rights IF a Democratic Administration and Congress comes back into power (if they have the stomach for it of course).Not everything will be rolled back. Not everything is bad. But an awful lot of it is and was. And -- lord help us -- it looks like ol' W thinks he can make everybody forget everything if he just scares folks with gay marriage again...

[Lindsey]

I certainly hope somebody is keeping track of where we were before, so we can restore our rights
That's the problem: there's no such thing as a political "undo" button. Rights, once surrendered, are not likely to be regained except at great cost.

--Lindsey

[ndebord]

That's the problem: there's no such thing as a political "undo" button. Rights, once surrendered, are not likely to be regained except at great cost.

--Lindsey

Lindsey,

No so. Excesses after other wars have been redressed.

Usually after the war in question is over though.

[Judy G. Russell]

Excesses after other wars have been redressed. Usually after the war in question is over though.And how do you do that in an unending "war against terror"???

[ndebord]

And how do you do that in an unending "war against terror"???

Judy,

You do that with "regime change" at home! And then emulate the Europeans and fight non-national terror groups with a combination of police (Interpol there) and covert ops. This collection of fanatics are not big enough to force us to maintain a permanent war footing, unless you believe that our war footing is hand and hand with the Military Industrial Complex (MIC) and so, ah, permanent.

As for SOG, well they are designed now to go in, destroy a rogue government and then exit and let them pick up the pieces. (Probably Somalia is on their list right now.)

And then there is Bin Laden: we've seriously screwed the pooch there. I'd rather have a dead martyr than a live one running around planning new attacks.

[Judy G. Russell]

You do that with "regime change" at home!From your lips to the voters' ears...

[ndebord]

From your lips to the voters' ears...

Judy,

Only if the voter's eyes are fixed on the exit polls to see if the voting machines are legal this time around.

[Lindsey]

No so. Excesses after other wars have been redressed.

Usually after the war in question is over though.
I'd like to think you were right, but I am not so optimistic. The excesses committed in previous wars have been used to justify the excesses committed in this one, no matter that those same acts had subsequently been determined to be unjustified at best, and unconstitutional at worst.

Some of the worst provisions of the so-called P.A.T.R.I.O.T. Act were made permanent from the beginning, and subsequent legislation has made even some of those that were originally temporary into permanent provisions. It's going to be difficult to impossible to repeal those provisions now that they have been permanently written into the law, if for no other reason than that legislation to do that would have to have at least 60 votes in the Senate to overcome the threat of a filibuster, and that's something that is not likely to happen at any point in the near future.

In the meantime, Arlen Specter is moving to legalize the NSA's warrantless surveillance program.

--Lindsey