Tag: law

Keeping focus

Angela Merkel is caught in a political struggle over the German government’s relationship to the NSA. One element of the struggle is the government’s attempt to suggest, without explicitly saying so, that the US was open to negotiating a “No-Spy” treaty, whereas they knew that the Americans had made absolutely clear that no such treaty would be entered into. What I find fascinating in this affair is how blatant the US is willing to be about its contempt for the sovereignty of other nations:

Doch bereits im Juli 2013 hatte die Europa-Strategin im Weißen Haus, Karen Donfried, in E-Mails an Merkels Berater Christoph Heusgen trotz dessen nachdrücklichem Bitten vermieden zuzusichern, dass sich US-Geheimdienste in Deutschland an deutsches Recht halten würden. Die “SZ” zitiert etwa aus einer E-Mail vom 19. Juli 2013:

“Bei uns liegt der Fokus natürlich darauf, ob wir das US-Recht einhalten. Unsere Experten fühlen sich nicht dafür gerüstet, die Einhaltung des deutschen Rechts zu beurteilen.”

[Already in July 2013 the White House European-strategy expert Karen Donfried had refused to give assurances to Merkel’s advisor Christoph Heusgen, despite his explicit request, that US espionage agencies in Germany would follow German laws. Süddeutscher Zeitung quotes from a July 19, 2013 email:

Our focus is naturally on whether we obey US laws. Our experts do not feel qualified [literally, “adequately armed”] to evaluate our conformity with German laws.]

What admirable modesty! It’s only natural that their number one concern is whether they are obeying US law, and given their very limited success in achieving that goal, they have no excess capacity for anything as complicated as trying to simultaneously obey both sets of laws. The expertise budget is really not unlimited. Not to mention that the German laws aren’t even written in English!

I know I find it more than I can manage to decide, on any given day, whether I’m going to obey US or UK law. I imagine finding myself some day in court, having to say, “I’m sorry Judge, but my focus is on whether I obey US laws. I do not feel qualified to evaluate my conformity with UK laws.”

Of course, someone might say that representatives of the US government who feel themselves incapable of keeping within the confines of German law do have the option of staying out of Germany…

Social climber

What is it about rock climbing that makes it such a useful synecdoche for enjoying your life? In an article about an unusual case about a girl whose lawsuit against a sexually abusive teacher foundered when her claims of “loss of enjoyment of life” seemed to be contradicted by a happy Facebook page, I was struck by the comment

Melissa’s account was mostly locked to outsiders, but some pictures were visible: Melissa hanging out with her boyfriend, Melissa working at a veterinary hospital, Melissa rock climbing, Melissa out drinking with friends… Nor did it support her claim of “loss of enjoyment of life,” which one judge has defined as the loss of “watching one’s children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer.” Rock climbing is a recreational activity; drinking with friends is one of life’s pleasures, after all. Last month, the court ordered Melissa to hand over every photograph, video, status update, and wall message ever posted on her Facebook accounts so that the school district may search for more clues that Melissa is secretly thriving.

And that reminded me of an article many years ago in Harper’s about American casualty adjustors, whose job it is to put a price on someone’s life for purposes of wrongful death suits.

I ask them to evaluate my worth, and they tell me that outdoorsy people are worth more than people like me, who stay home and read. “People have no sympathy for somebody who sits alone on his couch, drinks beer, eats food, and is a load,” Ed says.

“That’s why nobody likes me,” says George. “It’s how sympathetic you are. People go, ‘He rock climbed,’ you know. `This guy enjoyed life. He was out there doing things.’ You cherish life more if you are interacting with it.”

Abercrombie cool

I don’t know anything about Abercrombie & Fitch. I know it’s a chain of stores that sell clothes, I’m sure I’ve seen their stores, but I’ve never been inside them. Everything I know about their brand comes from an 80-year-old satire by James Thurber that begins

 I always try to answer Abercrombie & Fitch’s questions (in their advertisements) the way they obviously want them answered, but usually, if I am to be honest with them and with myself, I must answer them in a way that would not please Abercrombie & Fitch. While that company and I have always nodded and smiled pleasantly enough when we met, we have never really been on intimate terms, mainly because we have so little in common. For one thing, I am inclined to be nervous and impatient, whereas Abercrombie & Fitch are at all times composed and tranquil…

Take the one recently printed in an advertisement in this magazine. Under a picture of a man fishing in a stream were these words: “Can’t you picture yourself in the middle of the stream with the certain knowledge that a wise old trout is hiding under a ledge and defying you to tempt him with your skillfully cast fly?” My answer, of course, is “No.” Especially if I am to be equipped the way the gentleman in the illustration is equipped: with rod, reel, line, net, hip boots, felt hat, and pipe. They might just as well add a banjo and a parachute….

I was reminded of this in reading about a case that is currently being considered by the US Supreme Court, in which Equal Employment Opportunity Commission has charged the company with religious discrimination, after it refused to hire a Muslim woman, because her headscarf would conflict with the Abercrombie dress code. (As the law would require reasonable accommodation to be made for religious observance, the legal case turns on the relatively uninteresting question of whether the district manager who made the decision, and who reportedly said  “if we allow this then someone will paint themselves green and call it a religion”, is really the last man left in America so uncontaminated by media representations of Muslims that he is not even aware that Muslim women often wear headscarfs as part of their religious practice.)

According to court documents,

Abercrombie described its brand as “a classic East Coast collegiate style of clothing.” When Elauf applied for a job in 2008, the Look policy included prohibitions on black clothing and “caps”; these and other rules were designed to protect “the health and vitality of its ‘preppy’ and ‘casual’ brand.” As Justice Alito put it during oral arguments, Abercrombie wants job candidates “who [look] just like this mythical preppy or … somebody who came off the beach in California.”

From fly-fishing in an east-coast stream to a beach in California. You’ve come a long way, baby!

On not getting the joke

Last week, in Paris, along with sundry other victims, 8 cartoonists and journalists at Charlie Hebdo were killed for pushing the envelope of free speech and political humour. The French authorities have been expressing their own rollicking sense of political irony by jailing dozens of people for the offense of commenting favourably on that crime against freedom of epression. (There is a spanking new law prohibiting apologie publique d’actes de terrorisme (publicly defending acts of terrorism).)
For example, a man was sentenced to 10 months in prison for saying (to officials who were arresting him for riding a tram without a ticket) “Les frères Kouachi, c’est que le début, j’aurais dû être avec eux pour tuer plus de monde.” (“The Kouachi brothers, that’s just the beginning. I should have been with them to kill even more people.”)
Sounds like the sort of thing Charlie Hebdo would attack mercilessly.

People who wore top hats

In thinking about the response of many Americans to the revelations of torture of prisoners by the CIA (not that it was a huge secret before, but I think most people still found something to be surprised and appalled by in the Senate report, such as the 26 people whom even the CIA acknowledges were held in error, or “rectal feeding”), but also the response of many American and British Jews to atrocities and human rights abuses by Israel, I often find myself coming back to the remarks of Aldous Huxley, in his 1958 Brave New World Revisited. In discussing the distinction between the old-fashioned totalitarianism of 1984 — innovative propaganda and mental manipulation, to be sure, but backed up by hard power and torture — and the purely medical and psychological manipulation of Brave New World, he admits that he was too hasty in consigning the crude atrocities to the ashheap of history:

Fifty years ago, when I was a boy, it seemed completely self-evident that the bad old days were over, that torture and massacre, slavery, and the persecution of heretics, were things of the past. Among people who wore top hats, traveled in trains, and took a bath every morning such horrors were simply out of the question. After all, we were living in the twentieth century. A few years later these people who took daily baths and went to church in top hats were committing atrocities on a scale undreamed of by the benighted Africans and Asi­atics. In the light of recent history it would be foolish to suppose that this sort of thing cannot happen again. It can and, no doubt, it will. But in the immedi­ate future there is some reason to believe that the punitive methods of 1984 will give place to the rein­forcements and manipulations of Brave New World.

This phrasing is perfect. (I’m willing to give Huxley the benefit of the doubt by reading ironic scare quotes into “benighted Africans and Asiatics”.) Compare “people who took daily baths and went to church in top hats” with this excerpt from an interview with torturer-in-chief Dick Cheney:

CHUCK TODD:

Well, let me start with quoting you. You said earlier this week, “Torture was something that was very carefully avoided.” It implies that you have a definition of what torture is. What is it?

DICK CHENEY:

Well, torture, to me, Chuck, is an American citizen on a cell phone making a last call to his four young daughters shortly before he burns to death in the upper levels of the Trade Center in New York City on 9/11. There’s this notion that somehow there’s moral equivalence between what the terrorists and what we do. And that’s absolutely not true. We were very careful to stop short of torture. The Senate has seen fit to label their report torture. But we worked hard to stay short of that definition.

CHUCK TODD:

Well, what is that definition?

DICK CHENEY:

Definitions, and one that was provided by the Office of Legal Counsel, we went specifically to them because we did not want to cross that line into where we violating some international agreement that we’d signed up to. They specifically authorized and okayed, for example, exactly what we did. All of the techniques that were authorized by the president were, in effect, blessed by the Justice Department opinion that we could go forward with those without, in fact, committing torture.

Instead of going to church in top hats to have their crimes blessed by God, they went to the Office of Legal Council in slick suits to have their crimes blessed by the Justice department. But the idea is, people like us don’t commit atrocities, because they’re people like us.

CHUCK TODD:

Let me go through some of those techniques that were used, Majid Khan, was subjected to involuntary rectal feeding and rectal hydration. It included two bottles of Ensure, later in the same day Majid Khan’s lunch tray consisting of hummus, pasta, sauce, nuts and raisins was pureed and rectally infused.[…]  Does that meet the definition of torture in your mind?

DICK CHENEY:

–in my mind, I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11. What was done here apparently certainly was not one of the techniques that was approved. I believe it was done for medical reasons.

Pardons instead of prosecutions

Anthony Romero, director of the American Civil Liberties Union, has published in the NY Times a plea to pardon the officials who approved or conducted torture. This seemed to me ridiculous at first, but on reading his argument I find that it makes a certain kind of perverse sense. Given that the US government has shown itself incapable of prosecuting these atrocities, the only way to assert the principle that these were in fact crimes, and not simply exuberant excesses of patriotic zeal, is to issue pardons. It would also have the salutary effect of making explicit the intention of the US not to prosecute, opening the way for other governments and international courts.

But when you let that sink in, it makes clear how close the corruption of the American state has come to making the US ungovernable. A state that is incapable of punishing officials who conspire to commit some of the most heinous war crimes of recent times is either a tyranny or constitutional anarchy; and the US is definitely not a tyranny. The US constitution has had a good run, but it seems to be coming apart at the seams. Continue reading “Pardons instead of prosecutions”

Frege and sexual abuse

Slate’s Amanda Hess has written about the case of Retaeh Parsons, a Nova Scotia girl who committed suicide last year, four years after being the victim of bullying over a photograph of her being sexually assaulted. She became famous across Canada after the police originally refused to prosecute those who assaulted her. The national, and then international, outcry, inspired some creativity among the reluctant police, who have now successfully prosecuted one of the perpetrators for child pornography.

The main point of the article was to comment on how

the judge in the case has barred Canadian journalists and everyday citizens from repeating the girl’s name in newspapers, on television, over the radio, and on social media. He cited a portion of Canadian criminal code that bans the publication of a child pornography victim’s name in connection to any legal proceeding connected to that alleged crime.

She quotes a Halifax reporter Ryan Van Horne on the perverse effect:

If you say the name “Rehtaeh” in Nova Scotia… you’ll be met with “instant recognition” of the case and all of the issues it represents. But when Van Horne asks locals, “You know that victim in that high-profile child pornography case?” he draws blanks. The famous circumstances surrounding Rehtaeh Parsons’ bullying and death don’t fit the traditional conception of a child pornography case, which makes linking the two difficult if reporters aren’t allowed to use her name and photograph.

This sounds like a horrible version of Frege’s Morning-Star/Evening-Star puzzle: News media (including social media) are allowed to talk about Retaeh Parsons (the famous child victim of sexual abuse and online harassment); and they are allowed to talk about the victim in that high-profile child pornography case. But they are barred from talking about Retaeh Parsons as the victim in that child pornography case. In Fregian terms, it’s as though we banned any reference to the “morning star”, but were still allowed to talk about the evening star.

Of course, there’s nothing terribly unusual here: Often important privacy concerns turn on concealing the identity of what appear to be two different individuals. It only seems so perverse here because the person whose privacy would implicitly be protected is 1) famous for her role in this case; and 2) deceased, which means that the only people whose privacy is being protected are the police officials who screwed up so badly in the first place.

Confessions

Reading Anne Applebaum’s Gulag: A History, I was struck by her formulation of a question that I had wondered about myself, and never seen explicitly stated:

Why the Soviet secret police were so obsessed with confession remains a matter for debate…

What is the motivation to force a prisoner to “confess”? Even if the interrogator believes the charge to be true, why is it important for the prisoner to say it? Surely a confession under duress is not going to convince anyone else. Of course, you may want to use a confession extracted under torture to deceive someone else into thinking this was a confession freely offered, but it is hard to see how that can be relevant to system where torture is standard.

Furthermore, in the pre-video era, it’s hard to see why anyone would go to the trouble of manufacturing a deception by torturing the prisoner to put his own signature on the confession, rather than simply forging the signature. And yet it was important enough for interrogators to spend months attempting to extract the “genuine” confession, and for prisoners to submit themselves to agonies to resist.

The officer investigating Vladimir Tchernavin, a scientist accused of “wrecking” and sabotage, threatened him with death if he refused to confess. At another point, he told him he would get a more “lenient” camp sentence if he confessed. Eventually, he actually begged Tchernavin to give a false confession. “We, the examining officers, are also often forced to lie, we also say things which cannot be entered into the record, and to which we would never sign our names,” his interrogator told him, pleadingly.

In the context of the Inquisition, at least, it is possible to believe in a certain sort of twisted altruism: Being convinced of the truth of the accusation, the inquisitor believes the unrepentant sinner’s soul to be forfeit to Hell. His life is of no account, but the soul can be rescued, if only said sinner can be moved to whole-hearted penitence. In this context, the confession has its own value, and it is clear why it must come from the heretic’s own lips.

Continue reading “Confessions”

Porn suits

One of Roald Dahl’s final and most bitter stories (from the late 1980s) tells of a scam engineered by a rare book seller, who picks names out of the obituaries, and then sends a bill to the grieving family that includes expensive items of exotic erotica. The families inevitably pay the bill and avoid asking any embarrassing questions, assuming that the deceased had kept these proclivities well hidden.

I was reminded of this when I saw this article in The New Yorker, about the web site X-art.com, that has become “the biggest filer of copyright-infringement lawsuits” in the US.

Today, they average more than three suits a day, and defendants have included elderly women, a former lieutenant governor, and countless others. “Please be advised that I am ninety years old and have no idea how to download anything,” one defendant wrote in a letter, filed in a Florida court. Nearly every case settles on confidential terms, according to a review of dozens of court records…

It is hard to see why anyone facing such a suit would choose not to settle: hiring a lawyer costs more than settling, and damages are exponentially higher in the event of a loss at trial. Plus, no one wants to be publicly accused of stealing pornography. To avoid embarrassment, many defendants may choose to settle before Malibu Media names them in a complaint.