Archive for November, 2012

On a Personal Note… 11/25/12

November 26, 2012 Leave a comment

After almost six months being down, my blog is up and running again. The blog had to be moved off its previous site to a new location. I want to thank my son Josh for all his help with the blog and its changes. Josh has been my webmaster since the start. He originally designed the site and he has helped me in innumerable ways. He has provided many good ideas, suggestions, and has been a great technical resource. He also helped majorly in the move of this site.

I also would like to thank my friend and Wilmot neighbor Elly Philllips who helped this weekend with some issues around transferring previous content to the new site. Elly was very generous with her help.

There are still some articles I have not yet posted as well as some updating of the blog I will get to shortly. I was a little worried that subscribers might be bombarded with multiple posts from me since we transferred many articles to the new site. I hope that did not happen! If it did , sorry.

I do expect to be writing and blogging more regularly now. Upcoming: a book review of “A Lexicon of Terror: Argentina and the Legacies of Torture” by Marguerite Feitlowitz, an article about budget cutting justice in New Hampshire and a piece on the poet Kenneth Patchen.

I would reiterate that this blog solely reflects my views and perspectives. It does not reflect the views of my employer, the Social Security Administration.

Happy Holidays everyone!   Jon


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Book Review: “In the Garden of Beasts” by Erik Larson 5/20/12

November 25, 2012 4 comments

Among the questions I have about the Nazi era are the questions: how and why the German people let the Nazis come to power. Also the question why the international community, including America, failed to see the danger. Erik Larson’s book “In the Garden of Beasts” suggests some answers. It tells the story of the early Nazi Germany years.

The subtitle of the book is “Love, Terror and an American Family in Hitler’s Berlin”. Larson centers the narrative around the experience of the first American ambassador to Germany during the Nazi years, William E. Dodd. FDR appointed Dodd to his post in 1933. Dodd brought his wife, son, and daughter along with him to Germany. The book reads more like a memoir than history.

Larson focuses particularly on Dodd’s daughter, Martha. A free spirit, Martha was 21 when she arrived in Germany. She had a wide social circle that included a number of lovers of very different political persuasions. Initially Martha was smitten with the Nazis. She saw Germany as in the midst of a historic rebirth.

It would appear that cheery view was widely shared inside and outside Germany. In the early 1930’s, many visitors to Germany succumbed to that view. Larson shows how the Nazis were sensitive to public relations and tried to hide their violence. They arrested tens of thousands of people on no specific charges. These people, mostly Social Democrats, Communists, and Jews were held in so-called “protective custody”. According to Larson, in the very early Nazi period, an estimated 500-700 prisoners died in custody after enduring mock drownings and hangings. There was no German ACLU-equivalent nor was there a free press to publicize any of it. Nobody wrote about it on Twitter.

While there was international concern by 1933 about Nazi violence, many political observers did not think the Nazis would survive politically. That perception led to inaction. People like Dodd’s daughter, Martha, thought Nazi opponents were hysterical. They saw a Berlin that looked relatively normal.

I was struck by the acceptance of anti-semitism on all sides. Jews only comprised a tiny percentage of the German population, about 1%, which made them an easier group to scapegoat. As of 1933, Hitler and the Nazis did not lay all their anti-semitic cards out on the table. It got more vicious over time. In the United States, there was disbelief about the reports of Nazi brutality. The Nazis benefited from the mistaken perception that no civilized country would act as the Nazis were accused of acting. Many thought Nazi opponents exaggerated.

Early on the Nazis were organizing boycotts of all Jewish businesses in Germany; they did book burnings, suppressed a free press and caused Jews to be fired from their occupations. Ambassador Dodd was not taken in. He had a visceral dislike of the Nazis. Unlike much of the U.S. diplomatic elite which was like a preppie club, Dodd was a not wealthy academic. Still he too shared in the anti-semitism. Larson quotes Dodd. While Dodd did not approve of the Nazi ruthlessness, he wrote:

“When I have occasion to speak unofficially to eminent Germans I have said very frankly that they had a very serious problem but that they did not seem to know how to solve it. The Jews had held a great many more of the key positions in Germany than their numbers or their talents entitled them to.” (p.39 “In the Garden of Beasts”)

From the perspective of 2012, Dodd’s views are reprehensible but his views were not out of the mainstream then. Larson cites American public opinion polls from the 1930’s. In one poll, 41% of Americans polled believed Jews had too much power in the U.S.. Another found 20% wanted to drive Jews out of the U.S. The Jewish community in the U.S. was divided about how to respond to the Nazis. Rabbi Stephen Wise, among other Jewish leaders, pushed FDR to speak out. Other leaders aligned with the American Jewish Committee counselled a quieter response. Both factions were afraid to push for an increase in Jewish immigration to America. FDR was afraid of the political cost of condemning the Nazis. He worried how allowing an influx of Jewish refugees would play. America remained in economic depression.

Larson shows the deep division within the Roosevelt Administration. While the Secretary of Labor, Frances Perkins (by the way, the first woman in American history to hold a cabinet position), favored helping the Jews so more could emigrate, the State Department decidedly did not favor that position.Larson quotes two State Department officials to give a flavor of the the anti-semitic attitudes common in that department. William Phillips, undersecretary of state, loved visiting Atlantic City. He wrote in his diary:

“The place is infested with Jews. In fact, the whole beach scene on Saturday afternoon and Sunday was an extraordinary sight – very little sand to be seen, the whole beach covered by slightly clothed Jews and Jewesses.” (p. 30 “In the Garden of Beasts”)

He also quotes Wilbur Carr, an assistant secretary of state who had overall charge of the consular service. Carr called Jews “kikes”. In a memorandum, he wrote about Jews as follows:

“They are filthy, unAmerican and often dangerous in their habits. After a trip to Detroit, he described the city as being full of “dust, smoke, dirt, Jews” ” (p. 30 “In the Garden of Beasts”)

Early on Dodd wanted to believe the Nazis would evolve toward moderation. He recognized there was internal struggle inside the Nazi Party. Dodd met with Germany’s Minister of Foreign Affairs, Konstantin Freiherr von Neurath, whom he perceived as a moderate. Neurath believed he could train the Nazis and turn them into moderate nationalists. Larson quoted Dodd as finding Neurath “most agreeable”. Dodd continued to hold false hopes the Nazis would moderate, another unfortunate delusion. Rather than people like Neurath moderating the beasts, the beasts outfoxed him and people like him.

At the same time, Dodd was dealing with cases of Americans being attacked on German streets by storm troopers who were always marching around. The continuing flow of these cases which typically featured gratuitous violence by the Nazis, weighed on Dodd. The Nazis would stomp people who they perceived as looking Jewish or for failing to give Nazi salutes. Dodd also had to deal with the press case of Edgar Mowrer, the Berlin correspondent for the Chicago Daily News. The Nazis wanted Mowrer gone because of his critical reporting. The last thing they wanted was a free press. The Nazis threatened Mowrer. Dodd played a secondary role in persuading Mowrer to leave Germany.

Larson emphasizes the role of a government campaign called Gleichschaltung in bringing more Germans into line with the Nazis. Gleichschaltung means “coordination”. It is very reminiscent of the Eugene Ionesco play “Rhinoceros” and also the movie “Invasion of the Body Snatchers”. To quote Larson:

” “Coordination” occurred with astonishing speed, even in sectors of life not directly targeted by specific laws, as Germans willingly placed themselves under the sway of Nazi rule, a phenomenon that became known as Selbsgleichschaltung or “self-coordination”. Change came to Germany so quickly and across such a wide front that German citizens who left the country for business or travel returned to find everything around them altered, as if they were characters in a horror movie who come back to find that people who once were their friends, clients, patients and customers have become different in ways hard to discern.” (p. 56-57 “In the Garden of Beasts”)

By the spring of 1934, Martha Dodd’s sympathy toward the regime had turned into revulsion. She saw Hitler leading what she perceived as docile and kindly masses into another war. Ambassador Dodd also became increasingly horrified. Later in 1934 both the Ambassador and Martha lived through Hitler’s purge known as “The Night of the Long Knives”. The book presents an up close and personal view of how Hitler orchestrated a purge of Rohm and other storm troopers. Larson says 284 Nazis and others were executed by Hitler.

There was little public reaction to the Night of the Long Knives. Hitler claimed, without evidence, that he had suppressed an imminent rebellion. The controlled German press praised Hitler for this mass murder. Instead of protest, there was silence. Hitler’s popularity skyrocketed. It was a prelude of what was to come.

Dodd noted the irony that the German people remained fanatically committed to love of animals, especially horses and dogs. German law forbade cruelty to animals. Violators could get jail time. Dodd wrote:

“At a time when hundreds of men have been put to death without trial or any sort of evidence of guilt, and when the population literally trembles with fear, animals have rights guaranteed them which men and women cannot think of expecting. He added, “One might easily wish he were a horse.” ” (p. 336 “In the Garden of Beasts”)

“In the Garden of Beasts” is a good read. It conveys the feel of life in Berlin in the early 30’s,  first-rate sketches of prominent Nazis, and a fascinating story that is hard to put down. I do think the book offers up some lessons for all who do not want to be a part of any Gleichschaltung. Here is what I gleaned:

1. The road to fascism and authoritarianism is a road of multiple incremental steps. The worst did not arrive full-blown. Each incremental step prepared the way for the next.

2. The Nazis were concerned about public opinion and preferred to reinforce existing prejudice rather than change anyone’s mind. They wanted the masses to internalize their anti-semitism and they worked to build hate gradually.. It is what one historian called “cumulative radicalization”.

3. As sick as it sounds, the German people were led to see themselves as participating in a noble rebirth of their country. The Nazis sold the myth that they were restoring a sense of national pride and many people bought in.

4. Anti-semitism was rife on all sides. Both Germans and Americans shared the prejudice. While the Nazis were the perpetrators, too often many Americans held similar underlying views. They certainly failed to respond to the increase in anti-semitism and never offered any safe harbor for those being persecuted in Europe.

5. Americans were slow to recognize the evil of Nazism. Division about how to respond to fascism, delusions about the Nazis, pro-Nazi isolationists, and American anti-semitism led to inaction and a delayed response to a genuine threat.

i will end with a quote from Toivi Blatt, who survived the death camps. He had been forced by the Nazis to work in Sobibor. He risked his life to escape:

“People asked me, “What did you learn?” and I think I’m only sure of one thing – nobody knows themselves. The nice person on the street, you ask him, Where is North Street?” and he goes with you half a block and shows you, and is nice and kind. The same person in a different situation could be the worst sadist. Nobody knows themselves. All of us could be good people or bad people in these (different) situations. Sometimes when somebody is really nice to me I find myself thinking, “How will he be in Sobibor?” ”  (from Auschwitz by Lawrence Rees p. xx )

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A Poem for my Dad 5/12/12

November 25, 2012 1 comment

May 4 marked the third anniversary of my dad’s death. Last weekend was my mom’s unveiling in Philadelphia. Along with family and friends, I went out to Roosevelt Memorial Park where both my parents are buried along with my sister Lise, my brother Rich, and other family members. It was sobering to see the line-up of graves.

I wanted particularly to remember my dad in some small way. I found a Wendell Berry poem that I wanted to share that evokes my dad. My dad loved horses. Earlier in his life, he owned some horses and both my parents, Lise and I all rode. I think Lise was the most accomplished rider among us, a skill she had honed at Camp Red Wing.

Dad’s horses were kept in a stable in Fairmount Park. We used to ride on trails through the park that sometimes overlooked the Expressway in Philadelphia. We would ride on Saturday. I remember the trails as quiet early in the morning when we rode. I have no idea if there are still people riding those trails or if they even exist anymore. Philadelphia has developed so much since those days. I know that old stable where we kept horses is long gone. My dad had a horse named Sugar that he rode western. When I started riding he had bought me a pony named Shoe-Shoe. I graduated to bigger horses and we had some great times riding together.

My dad used to subscribe to Appaloosa Magazine. I loved the horse pictures. I used to read that along with my beloved Sports Illustrated. Dad used to keep this incredibly fancy western saddle in our house that had belonged to my Uncle Joe. The saddle had not been used for many years and was mostly a display piece in our old house at 284 Melrose Road. If I recall correctly, Dad gave the saddle back to Hank Cohen before Hank died.

I think of my dad as a horse person. Dad, this poem is for you.

Come Forth       by Wendell Berry

I dreamed of my father when he was old.
We went to see some horses in a field;
They were sorrels, as red almost as blood,
the light gold on their shoulders and haunches.
Though they came to us, all a-tremble
with curiosity and snorty with caution,
they had never known bridle or harness.
My father walked among them, admiring,
for he was a knower of horses, and these were fine.

He leaned on a cane and dragged his feet
along the ground in hurried little steps
so that I called to him to take care, take care,
as the horses stamped and frolicked around him.
But while I warned, he seized the mane
of the nearest one. “It’ll be all right,”
he said, and then from his broken stance
he leapt astride, and sat lithe and straight
and strong in the sun’s unshadowed excellence.

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Law and the Rise of the Nazis 4/22/12

November 25, 2012 Leave a comment

Over 25 years ago psychiatrist Robert Jay Lifton wrote an excellent book entitled “The Nazi Doctors”. The book looked at the role of doctors in the Third Reich. It tells the almost unbelievable story of how a noble profession dedicated to healing could become an agent of medical mass murder and horrendous, unspeakable experiments.

Being Jewish, a lawyer, and a judge, I have been curious how German lawyers and judges adapted to the ascendancy of fascism. I was not aware of any book like Lifton’s that has looked at how lawyers and judges behaved. I have  wondered: did they fight Nazism, collaborate, accommodate or simply lie low.

While I figured there would probably be a shameful story of cowardice and accommodation, I thought it would be interesting to investigate. The concept of the rule of law is in contradiction to Nazism yet I had never heard that lawyers and judges, as collective entities, actively or prominently opposed the Nazi drive to power.

From my past reading, it was my understanding that the Left, particularly the Social Democrats and the Communists, formed the main opposition to the Nazis. I know the Nazis had incarcerated thousands of leftists. I never heard about lawyers and judges.

I should say at the outset that I am not a historian. I am limited in source material. I have relied on Raul Hilberg’s work and two histories, “The Third Reich” by Michael Burleigh and “The Social History of the Third Reich 1933-1945” by Pierre Aycoberry. I did become aware of a good book by Ingo Muller, a German lawyer, entitled “Hitler’s Justice: The Courts of the Third Reich” which I have not had a chance to read. Still, I want to offer some observations.

Neither German lawyers nor judges ever mounted any effective opposition to the Nazis. The legal profession largely accommodated and collaborated with the Nazis. History shows a series of increasing restrictions and decrees focused against Jews by which the Nazis advanced their agenda. Professionals, including lawyers and judges, were all too willing to go along. Individual opponents were weeded out, threatened, purged and removed but the legal profession largely acquiesced. Hilberg stated:

“…a lawyer necessarily had to face at every turn the critical question of harmonizing peremptory measures against Jews with law. In fact this alignment was his principal task in the anti-Jewish work. Yet, in the end, lawyers, no less than physicians, mastered these mental somersaults.” (“Perpetrators, Bystanders and Victims” by Raul Hilberg p. 65-66)

Hilberg shows that from the first days of the Nazi regime, the legal profession was preoccupied with the ouster of Jewish lawyers. As early as 1933, many Jewish lawyers were getting disbarred solely on the basis they were Jewish.
The Nazis promulgated an April 7, 1933 Law for the Restoration of the Professional Civil Service which applied their blood and master race theories. If you were not Aryan, the Nazis eliminated you from practicing law. In Prussia, they dismissed 128 Jewish judges and state prosecutors that way.

The 1933 law did not eliminate all Jewish lawyers. Jewish lawyers who were disabled World War I veterans remained in practice. However, the legal profession, following the Nazis, aggressively demanded the removal of all Jewish lawyers. With the fevered pitch of anti-semitism rising, practice for Jewish lawyers and judges was made more difficult and ultimately impossible. By 1938, the legal profession restricted Jewish lawyers so they could only represent Jewish clients. Also, the legal profession took the title of lawyer away. Jewish lawyers were downgraded and given the new title “consultant”.

This gradual process by which Jews lost their rights happened on a wide range of fronts. Since Jews were classified as a sub-human “enemy of the Reich” by definition, they were not entitled to rights such as where they want to live, who they want to marry or sleep with, who they want to contract with etc. Jews could be evicted from their apartments because a lease was an instrument for a community of tenants to which a Jew could not belong.

The German Bar and Judiciary  spent great amounts of time mulling over Nazi-inspired legislation and crafting anti-Jewish law. To quote Hilberg again:

“To be defined as Jews, they only had to have had Jewish parents and grandparents. Discriminatory laws and regulations dealt in great detail with such problems as partners in mixed marriages, individuals with mixed parentage, and enterprises with mixed ownership. With each successive step, the gulf became wider. The Jews were marked with a star, and their contacts with non-Jews were minimized, formalized, or prohibited. Segregated in houses, ghettos, or labor camps, they were spatially isolated and concentrated.”  (“Perpetrators, Bystanders, and Victims” by Raul Hilberg p. X, preface)

In addition to their “laws”, the Nazis relied on thuggery. Anti-Nazi judges faced threats of violence from street toughs. Nazi officials would let judges know they were withdrawing any guarantee of protection. Amazingly, there is only one documented case of a judge who resisted and he received early retirement. The behavior of legal academics was equally dismal – another story of capitulation.

The Nazi attitude toward the law was disdain. The idea of an independent judiciary was anathema to them. Burleigh explains it this way:

“The Nazis followed many authoritarian Weimar constitutional theorists in claiming that existing law was abstract, unGermanic and overconcerned with individual rights and material interests. A dessicated law had ceased to reflect ‘racial morality’ and pulsating popular instinct. Revolutionist contempt for bourgeois justice combined with righteous indignation about the Nazis own persecution during the time of the system.”  (“The Third Reich” by Michael Burleigh p. 158)

The Nazis were conscious of the need for legal justification but they did not see law as an absolute value in itself. For them, law was instrumental. Hilberg wrote:

“Lawyers were everywhere and their influence was pervasive. Again and again, there was a need for legal justification. When the number two Nazi, Herman Goring, suggested in the course of a discussion at the end of 1938 that German travelers could always kick Jewish passengers  out of a crowded compartment on a train, the Propaganda Minister, Joseph Goebbels, replied: “I would not say that. I do not believe in this. There has to be a law”.  (Perpetrators, Bystanders and Victims” by Raul Hilberg p. 71)

The Nazis were big on formulating and promulgating decrees. Agencies would draft decrees that would be published in legal gazettes. Nazi bureaucrats would coordinate the matter of jurisdiction. Decrees could be given wide and diffuse interpretation. If not so sinister, these decrees could be a form of black humor. They were farcical as a matter of law. They were a veneer that covered the mutilation of procedural due process.

Hilberg has a provocative discussion about legal interpretation by the Nazi era German judiciary. He discusses a series of court decisions construing what was called the Law for the Protection of German Blood and Honor. This was a law that prohibited entry into a marriage as well as extramarital relations between Jews and Germans. Hilberg stated:

“…the courts ruled that sexual intercourse did not have to be consummated to trigger the criminal provisions of the law: sexual gratification of one of the persons in the presence of the other was sufficient. Touching or even looking might be enough. The reasoning in these cases was that the law covered not only blood but also honor, and a German, specifically a German woman, was dishonored if a Jew made advances toward her or exploited her sexually in any way.”  (“Perpetrators, Bystanders, and Victims” by Raul Hilberg p. 72)

If a Jewish defendant argued that he was unaware of the German background of his partner and he therefore lacked intent to violate the law, the court held that any Jew about to have sex with a German woman had first to obtain satisfactory documentary proof of her status. He could not rely on her assurance that she was of Jewish background. Such crazy interpretations became the norm.

As the Nazis proceeded to move Jews and others into the concentration camps for the Final Solution. there was no cry of outrage from the lawyers and the judges. There were no court cases raising due process, equal protection or other substantive defenses. Nor were there any Bar Association declarations or judicial pronouncements of opposition. What could have been a contrarian profession failed to say “no”.

Recognizing this history, what universal lessons, if any, are specific to lawyers and judges? Why did the lawyers and judges prove to be so weak, pliable, and accommodating? I will not even get into the how this could have happened. There are so many related questions and inquiries.

Experience shows the necessity for the rule of law and an independent judiciary, regardless of social system. I would say that is true under capitalism, socialism or really any system. Without the rule of law and an independent judiciary, there is no ultimate protection for individuals who are different because of religion, race, sex, sexual preference or political perspective (and even that may not be enough). The history of fascism shows what happens when legal machinery is fastened to a totalitarian project. The law transforms into a form of justification for ludicrous ends. The often tenuous relationship between law and justice is sundered. Lawyers and judges become mouthpieces for monsters.

The roles of lawyer and judge are both subject to opportunism and careerism. The perception of personal advancement can dictate going along, not rocking any boat, and, as happened with Nazism, degenerating into moral bankruptcy. Why so many went along and so few resisted is sobering. Personal profit, fear, anti-semitism, and a sick pride in being part of the Volk may all be reasons. Some took advantage of Jewish misfortune and did personally profit.

The idea of universal human rights was apparently an abstraction with no payoffs. It doesn’t appear too many lawyers or judges calculated there was a problem when the anti-Jewish laws came along. Demonizing the other apparently resulted in a stronger feeling of identity for the remaining members of the profession. For those who may have harbored doubts, the cost/benefit ratio probably was cautionary. As the Nazis consolidated power, the risks in opposition heightened. Nevertheless, the lack of principled opposition to the Nazis is a permanent stain and a forever disgrace on the German legal profession.

While beyond the scope of this blog entry, the lack of accountability for Nazi era behavior by the German Bar and Judiciary after the war is another story deserving of more attention.  The broad community of lawyers and judges escaped any day of reckoning. But that is a subject for another day…

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Update on Judge Baltasar Garzon 4/1/12

November 25, 2012 Leave a comment

Almost two years ago I wrote a blog entry about Spanish Judge Baltasar Garzon. Garzon had famously pursued the former Chilean dictator, General Augusto Pinochet under the doctrine of universal jusrisdiction. Judge Garzon is probably one of the best known judges in the world but he is little known in the United States. Besides issuing a warrant that resulted in the arrest and detention of Pinochet in London, Garzon had indicted Osama Bin Laden and some Al Qaeda associates. He also had attempted to indict members of the Bush Administration for authorizing torture at Guantanamo and elsewhere.

I wanted to offer a further perspective on Judge Garzon because of recent developments. In February, Spain’s Supreme Court removed Garzon from his judicial post and suspended him from the judiciary for 11 years. Philippe Sands, an international law expert, had this to say:

“This is very troubling; targeting an independent judge or prosecutor through the criminal justice system anywhere raises very serious concerns. To sanction a possible breach of ethics or misconduct is up to professional organizations. To bring down the criminal justice system on an investigative judge for an alleged fault is to use a sledgehammer to crack a nut. It is almost unique in Europe.”

The Garzon removal highlights the tension between an independent judiciary and regimes struggling to overcome a history of fascism or authoritarianism. Judges who are trying to do their jobs will be subject to the politics of the day. That could well mean interference, repression, prosecution, and removal.

I think the issues presented are almost universal. Lawyers and judges have generally not had a distinguished record either in opposing developing authoritarianism or in combating its aftermath. Possibly this is because the role of lawyer and judge is typically conventional. Stepping out may be a career, not to mention personal economic security, blaster. While this is obviously a complicated and wide-ranging generalization, I would cite the leading negative example of lawyer/judge conduct in Nazi Germany. To quote Raul Hilberg:

“The machinery of destruction included representatives of every occupation and profession.” (p.65 “Perpetrators, Victims and Bystanders” by Raul Hilberg)

While this is a subject very worthy of a separate blog piece (and more), I would say that lawyers and judges greased the way for fascism by creating a legal veneer and justification for a long series of Nazi actions. Not only did lawyers and judges not protest, they acted as loyal functionaries in an ongoing criminal system that masquaraded as legal. How and why they collaborated interests me as well as how the process unfolded. I am aware of Robert Jay Lifton’s book about Nazi doctors. I am not aware of any comparable book that has looked at the role of lawyers and judges in the Third Reich.

Spain in 2012 is far different than Germany during the Nazi era but the connection between human rights and a traumatic fascist history steeped in atrocities is similar. Unlike Germany, Spain has never had the equivalent of a Nuremberg Tribunal.

Judge Garzon angered Spanish rightists because in 2008 he launched an investigation into Spanish Civil War atrocities. Garzon was looking into the deaths of 114,000 people who had been disappeared during the fascist years. For many years, children and grandchildren of General Francisco Franco’s victims have been trying to find out what happened to their family members. Spain is littered with mass graves from the fascist period.

Garzon’s actions threatened people on the Right who, for whatever reason, did not want an investigation into past crimes. They had previously felt protected from such an investigation by a 1977 general amnesty law. That law was part of a compromise that allowed Spain to transition from fascism to democracy. Under the amnesty law, perpetrators of war crimes could not be prosecuted.

Even before the events of this year, Garzon had argued that the amnesty law could not cover mass human rights abuses. Universal jurisdiction would allow for prosecution of extraordinarily grave crimes against humanity such as torture and mass extermination. This was the basis the Israelis used, under international law, to try Adolf Eichmann.

However, in 2010, Spain’s Judicial Council suspended Garzon. The Council accused him of breaking the amnesty law of 1977. Previously the law had been interpreted to prevent any investigation into crimes committed before 1976.

It is an embarrassment and an international humiliation to arrest a judge for investigating tortures and disappearances. To quote Reed Brody, a lawyer from Human Rights Watch:

“…the spectacle of a judge as a criminal defendant, having to justify his investigation into torture, killing and disappearances was itself an affront to human rights and judicial independence.”

It must be pointed out that there is no statute of limitations under international law for prosecuting crimes against humanity. Franco’s victims have been trying to repeal the amnesty for years. The cases against Garzon are a form of reprisal for his attempt to unearth the past. Taking down Garzon protects against disclosure and possible future prosecutions.

There have been three cases brought against Garzon. The case that resulted in his removal from the judiciary had to do with supposed illegal wiretapping he authorized in a routine criminal corruption case. Garzon has vehemently denied the charges. While it is possible Garzon committed misconduct, my theory is that the cases collectively were meant to sideline and silence Garzon by putting him on the defensive. He cannot investigate when he has to spend huge resources defending himself. The tactic is hardly unusual as a way to stop a political foe although the use of the criminal justice system to shut up Garzon is a disturbing precedent.

Garzon has publicly stated that he will fight his judicial removal in Spain’s Constitutional Court or in the European Court of Human Rights. He is being prosecuted in Spain for trying to promote the principles he has successfully promoted internationally.

“This is the paradox and the irony of a situation in which Spain has been a pioneer in the application of universal jurisdiction. Yet, when it actually comes to investigating the case and the facts of the case in Spain, the country denies access to the facts and puts the judge himself on trial. It is the obligation of a judge to investigate the cases and to search for truth, justice and reparations for the victims of these crimes.” (Garzon interview by Amy Goodman on Democracy Now, May 12, 2011)

It will be interesting to see if Garzon can reverse the verdict imposed against him. His “disappearance” from the judiciary is a loss to the cause of human rights.

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Book Review: “Cheating Justice” by Elizabeth Holtzman with Cynthia Cooper 3/18/12

November 25, 2012 1 comment

This is an important book for anyone concerned about preservation of the rule of law. It has not received the public attention it deserves. Former Congresswoman Elizabeth Holtzman, who served on the House Judiciary Committee during Watergate, persuasively argues the case for why both President George W. Bush and Vice President Dick Cheney violated multiple federal and international laws during their tenure in office.

Holtzman explores the lies that led to the war in Iraq, the illegal wiretapping of American citizens, and the open flaunting of anti-torture laws. She shows not only that Bush and Cheney violated law but that they also took active steps to insulate themselves from liability since they knew they were way over the line.

While President Obama and Attorney General Holder have essentially given them a pass and they have wanted to move on, the danger of lack of accountability is becoming more obvious. Iraq now makes Iran possible. Even after ten years of a pointless war in Iraq, a war premised on an orchestrated campaign of untruths, we face another possibility of war based on an alleged nuclear threat from Iran.

You would think weak claims of a distant nuclear threat would be held up to a higher level of scrutiny than has been the case so far. After all, we were just snookered with the war in Iraq, a war with enormous human and economic costs. Yet we see the same hawkish saber-rattling like Iraq never happened. To his credit, President Obama did recently speak to the too cavalier attitude toward war which has been widespread.

The principle that the high and mighty should be held to the same standard of accountability as everyone else underlies Holtzman’s book. Due to some statute of limitations, Holtzman brings an urgency to the case she makes. There is a race against the clock for some of the crimes Holtzman addresses.

Let me outline some highlights from the case Holtzman makes:

Regarding the lies that led to starting a war in Iraq, Holtzman looks at fraud laws. She cites the False Statements Accountability Act of 1996 (18 USC 1001) which makes it a crime to submit false information to Congress in particular situations. Holtzman argues that Bush and Cheney manufactured a case for the invasion of Iraq that was based on complete falsehoods. The two major falsehoods were the existence of weapons of mass destruction and the link between Sadaam Hussein and Al Qaeda.

Holtzman also looks at 18 USC 371, a provision of the federal criminal code that makes it a federal crime to conspire to defraud the United States government through “deceit, craft, trickery or dishonest means”.

She does anticipate the likely defenses by Bush and Cheney. They might say they relied on bad intelligence or that Congress agreed with them or that some lawyers told them what they were doing was okay. Holtzman shows that Bush and Cheney had an extensive marketing plan to sell the war in Iraq. They systematically misrepresented the threat posed by Iraq’s nuclear, chemical , and biological weapons programs. Bush did this both in speeches to Congress (especially the 2003 State of the Union address) and in written submissions to Congress.

Holtzman writes:

“The predetermination of President Bush and Vice-President Cheney to embroil the country in war in Iraq and to do so under a cloak of lies and deceit is the original flaw of the Bush Administration. It led to a vicious and tangled web of secrecy, suppression of evidence, obstruction of justice, misguided policy, imperial behavior and the ravaging of people, property, privacy and our own values.” (p. 36)

The second area of constitutional concern Holtzman raises is the use of warrantless wiretaps against American citizens. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the government needs to apply for a FISA warrant if it plans to subject American citizens to electronic surveillance. There is a special FISA Court for that. The burden on the government is quite a bit less than in other typical criminal situations. The government only has to show the surveillance would serve some intelligence or counterintelligence purpose.

After 9/11, President Bush ordered the National Security Agency (NSA) to wiretap solely on his say-so. According to Holtzman, Bush did this 43 times in violation of FISA law. He never bothered to get warrants. There is also evidence that the Bush warrantless surveillance involved wholesale monitoring of communication going through routers in the United States. However, Bush and Cheney blocked an inquiry into the program by the Office of Professional Responsibility in the Justice Department. Also in 2008 Bush and Cheney promoted a FISA Amendments Act that allowed surveillance practices Bush had previously illegally authorized. They weakened existing law, confusing requirements and giving themselves cover.

While we do not know much about the data-mining operation undertaken by the Bush Administration (because they have done everything they could to hide it), we do know that the NSA was routinely examining large volumes of Americans’ email messages without any court warrant. Such random fishing is at the least constitutionally suspect.

It should be noted there is  a 5 year statute of limitation for criminal violation of FISA. The statute of limitation runs from the date of the last overt act in furtherance of illegal wiretapping. That is why I mentioned the race against the clock. Given the lack of likelihood anyone in the government will investigate, Bush and Cheney will probably be able run out the clock on violation of FISA.

The last area that Holtzman addresses is the crime of torture. She writes:

“Committing or authorizing torture is a crime. It is against the law in the United States. It is against international treaties adopted and ratified by the United States. Torture is prohibited up and down the chain of command – it cannot be authorized, condoned, or implemented; when reported, it must be investigated and prosecuted. Cruel, inhuman and degrading treatment – reprehensible actions that are not as severe as torture – is also prohibited by international law. ” (p.70)

Holtzman shows how opposed the Founding Fathers were to torture. She points to both the Fifth Amendment injunction that no person “shall be compelled in any criminal case to be a witness against himself”  and the Eighth Amendment prohibition against the infliction of “cruel and unusual punishments”. She cites both the Geneva Convention and the Convention Against Torture.

Her discussion of the intrigues and the efforts by Bush and Cheney to evade the law are fascinating. There is no doubt  Bush and Cheney are on record touting waterboarding and “enhanced interrogation techniques” (ie torture) . They used lawyer-tools (e.g. John Yoo) to create after-the-fact justifications for torture. To this day, much remains enshrouded in secrecy. Abu Ghraib was the window but much about the tortures, renditions, black sites, disappearances, and unexplained homicides remain hidden from the public.

While waging a war on false grounds is a huge crime in itself, Bush and Cheney’s violation of torture law is probably the creepiest aspect of their time in office. They also tried to cover up here as well by their efforts to weaken the War Crimes Act in 2006. They changed key definitions of torture and they made those changes retroactive as well. They have put the United States out of compliance with the Geneva Convention.

Holtzman says that in spite of the effort to scuttle torture law, Bush and Cheney are still vulnerable under 18 USC 2340-2340A which makes it a federal crime for anyone acting in a U.S. government capacity to commit torture or to conspire to do so. The law does apply to torture committed outside the United States. The 1994 law came about in conjunction with Congress’s ratification of the International Convention Against Torture. Congress ratified this law which Holtzman writes allows for no exception in its ban against torture.

There is much damning evidence already out there. Human rights organizations, the International Committee of the Red Cross, the ACLU and many experts and journalists like Karen Greenberg, Jane Mayer, Seymour Hersh and Philippe Sands have accumulated a wealth of information about the torture. Incredibly, Both Bush and Cheney have incriminated themselves by proudly and repeatedly claiming credit for waterboarding and the other enhanced techniques.

Holtzman enumerates possible ideas for achieving some accountability. She raises both the concept of a special prosecutor and also a truth commission a la South Africa with apartheid. She also suggests restoring the War Crimes Act, reclaiming protections against unchecked surveillance, abolishing statute of limitations for war crimes and torture and narrowing state secret privilege.

When talking with friends about this book, the response has invariably been the impossibility of any action being taken against a former president and vice-president. People do not argue the merits of the legal case – more often than not, they concede that. I think history shows that it often takes a long time for any type of accountability but accountability could come about in many ways. Civil litigation by victims or foreign prosecutions have already happened. Other nations, also signatories to the Convention Against Torture, might be less reticent to prosecute.

Holtzman says it took the Russian parliament 60 years to acknowledge Stalin’s guilt for the massacre of 20,000 Polish officers in the Katyn Forest. It took 25 years for justice to begin to catch up to the Chilean dictator, General Augusto Pinochet. There are still people pursuing remaining Nazi war criminals.

The danger in lack of accountability is the risk that history will repeat itself. Nothing gets learned. By not holding Bush and Cheney accountable for their crimes, we pave the way for future Bush and Cheneys and worse. Holtzman deserves credit for bravely and honestly looking at our history. Her book has the virtues of being a good read, legally sophisticated, and very well-argued.

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Income Inequality Deserves our Attention: Shrinking the Gap Benefits Society 2/26/12 published in the Concord Monitor

November 25, 2012 Leave a comment

Probably the most significant accomplishment of the Occupy Wall Street movement has been elevation of the issue of economic inequality in America. Economic inequality has not been on mainstream politicians’ agenda. It has been the equivalent of background furniture.
In the middle of a presidential primary season, no candidate on the Republican side has gotten close to touching this issue. It has been like kryptonite to Superman. On the Democratic side, President Obama talks about jobs, but you don’t hear too much about the 1 percent and the 99 percent.
The truth is that the image of the 1 percent and the 99 percent captures an unfortunate sociological reality. Over the past 30 years, America has gotten way more unequal. The rich have gotten fabulously richer, and the poor have gotten desperately poorer – but with a wrinkle. Many formerly middle-income people have fallen into the ranks of the poor, a category that has considerably expanded. Compared to the 1960s and 1970s, we have moved backward toward a more unequal society.
Considering these obvious changes, it is surprising that equality as a value has not received more discussion in the media and blogosphere. We mostly pay lip service to the value. To the extent we even discuss equality, talk is more about equal rights than economic equality. In New Hampshire, liberty gets far more play than equality as a defining value.
I would argue that we need to take equality far more seriously than we have.
The reason is simple: People in more equal societies live longer, healthier and happier lives. Equality benefits more than the poor – it benefits everyone. This is neither recognized nor appreciated.
Many would dispute this perspective, but there is a mountain of empirical evidence to back it up. In their book, The Spirit Level: Why Greater Equality Makes Societies Stronger, authors Richard Wilkinson and Kate Pickett make the case for the virtues of more equality. They show that in rich societies poor health and multiple social problems including violence, life expectancy and infant mortality, children’s educational performance, imprisonment rates and mental health all correlate to inequality. The less equal the society, the worse the outcomes.
Wilkinson’s and Pickett’s views are based on years of research studying over 20 rich countries including the United States, Canada, the United Kingdom, European countries, Japan, and the Scandinavian countries. They also look comparatively at all the states in the Unites States. The book does not focus on particular public policies as routes to achieve greater equality. They accept that there can be different routes to that goal.
Interestingly, Wilkinson and Pickett single out both New Hampshire and Vermont for some positive comment. Both are among the most equal states in the United States. This is true even though Vermont has the highest tax burden of any state and New Hampshire has the second lowest, next to Alaska.
Since 1997, the average annual income of the 400 richest Americans has more than tripled, to $345 million. At the same time, their share of the tax burden has declined by 40 percent. Billionaires pay a smaller percentage of taxes than workers who earn $25,000 a year. On the other end of the equation, we have increased human misery reflected in foreclosures, homelessness, and long-term unemployment. Poverty drenches millions in toxic stress, depression, and insecurity.
This extreme economic inequality carries political consequences. With the change in campaign finance law wrought especially by the Citizens United decision, we face the prospect that billionaires will bankroll their candidate of choice and buy elections. The United States could devolve into oligarch rule, like Russia, with billionaires’ money skewing election results especially through negative ad buys. The odds, based on past experience, that the 1 percent will look after the interests of the 99 percent could hardly be described as good.
With this context, I am at a loss to understand the relative emphasis on the value of liberty over the value of equality. I accept the merit of both values, but liberty as now defined is the value of the billionaire buying elections. It is the value of the payday lender loaning at 500 percent annual interest. It is the mortgage bubble scam. It is the billionaire sheltering his money in the Cayman Islands.
I can hear the arguments on the other side. “Inequality is not an injustice – it is a necessary component of a prosperous society.” I don’t buy it. It is an injustice, harmful to the overwhelming majority.
Lessening our extreme economic inequality should frame our political agenda. Politicians should be addressing the needs of all the people – not just the 1 percent. We seem to be stuck in old ways of looking at things. Before Occupy Wall Street, there did not seem to be political will to create greater equality. Now it is less clear. Maybe there is some resolve.
Greater equality will lead to a safer and friendlier society. Activists in Britain are looking at pay ratios between top executive and median worker compensation. They have floated a maximum wage set as a multiple of worker pay. This is a different way to look broadly at the unfairness of CEO pay relative to the average worker. American workers’ pay has stagnated for a long time, while top executive pay has been a runaway train. According to the AFL-CIO, our CEO-to-worker pay ratio is 343:1. Japan is 11:1. The U.K. is 22:1. We are in a class by ourselves.
We need to get beyond automatic dismissal of any new idea as “socialism” or “tax and spend.” The government, especially the federal government, does not deserve the demonization it has received in recent years. It is the government that has shored up capitalism during its boom-and-bust cycle. Over the past 80 years, it is the federal government, whatever its faults, that has vastly contributed to the quality of our collective lives. Think Social Security, unemployment insurance, Medicare, Medicaid, the Department of Veterans Affairs, civil rights, Head Start, and Legal Services, to name a few. These programs have made the Unites States a more civilized, humane society. We would be so much worse off without them.
There is no blueprint for making the changes I am suggesting. Nor am I opposed to cutting spending where it is wasteful. Still, the deeper issue of inequality persists. I think equality and fairness are values every bit as important as liberty. There is nothing more American than acting on these values.

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