Police Accountability

January 6, 2015

I’ve been reading a case decided in the European Court of Human Rights. It involved opposing libel suits arising out of claims of police brutality in Bergen, Norway.[1] The opinion of four judges, whose names I will not try to pronounce, struck me. The judges pointed out that the purpose of the libel suits brought by the police officers “was to suppress the debate on this issue….” But they pointed out that the government has “a monopoly over force” and that monopoly “also entails the danger of force being abused to the detriment of the very values it is meant to uphold.” Therefore “abuse of force by officials is not just one of many issues of broad general interest.” Instead, “it is … a matter of primary concern in any society.” Keeping authorities in check is particularly important for a democracy. And the ability to hold the states’ use of force in check requires protecting those who raise the alarm.

The European Commission for Democracy Through Law observed that “In numerous states … [there is a] general ban on the creation of para‑military formations.”[2] That’s because they are armed and dangerous.

So the judges in the Bergen case emphasized the “vital need for every society to exercise strict supervision over all use of force in the name of society.” Critics of official abuse need to be protected. The 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment specifically protects the right to complain.

But not about the New York City police.

It’s time we learn that there are wonderful police, and there are terrible police. But the culture of silence by which they protect each other against any and all criticism makes the wonderful police into allies of the terrible police. They’re unaccountable to each other and they’re unaccountable to the rest of us.

You and I can’t go walk down the street saying that guy down there could be armed, so if he puts his hands in his pocket I’m going to kill him. That’s not self-defense; that’s murder. But the police, who have sworn to defend us, insist they have that right to kill on the mere possibility that someone could be armed with evil intent. They insist they do not even have to account for it or defend themselves – it is disloyalty even to criticize or call for an investigation as Mayor de Blasio has done.

What the police are doing is showing that they are a special interest, not public servants. Everyone else is accountable, from the President down to the janitor, everyone is subject to investigation and criticism, everyone’s methods are open for revision. Heads of government departments and heads of corporations are accountability to us, to the public. But not the guys that claim the right to kill us. That has a clear meaning for me – I don’t trust them. They have a code of silence and self-protection and they just dare us even to question them. That means they should not be trusted. Just one more special interest trying to bilk the public. New York City’s Police have LOST my respect.

Soldiers in the military, regardless of politics, do not turn their backs on the Commander-in-Chief. That’s unacceptable. But it’s typical of the NYPD – they’re spoiled, dangerous and out of control.

— This commentary was broadcast on WAMC Northeast Report, January 6, 2015.

[1] Opinion of Judges Kūris, Türmen, Strážnická and Greve, dissenting in Nilsen and Johnsen v. Norway, [1999] ECHR 23118/93[GC] (25 NOVEMBER 1999).

[2] Explanatory Report, incorporated as part III of Guidelines On Prohibition And Dissolution Of Political Parties, note 361 above, at ¶11, available at http://www.venice.coe.int/docs/2000/CDL-INF(2000)001-e.pdf.


Linda Greenhouse on Guantanamo

December 30, 2014

Just read another penetrating commentary by Linda Greenhouse, http://www.nytimes.com/column/linda-greenhouse, posted Christmas eve, this one about the people who may spend their lives at Guantanamo without any evidence they had taken up hostilities toward the US, because the American courts can’t bring themselves to enforce what should be our values. As Chris Giannou told the Alternative Radio audience, Middle Easterners love our values, but hate our hypocrisy.


Yipes – taxes for the New Year??? !!!

December 30, 2014

Some years ago I called Phil Shrag whom I knew from law school. He’d run the National Organization for the Rights of the Indigent for the NAACP and worked for the New York City Commissioner of Consumer Affairs. Phil was and is a very public spirited person. At the time he was teaching at Columbia. I don’t remember what I called him about but at some point in the conversation we made small talk. I asked him what he was teaching. Tax. That was a surprising answer since none of the things Phil had done suggested significant involvement with the tax code. But he pointed out that every public policy runs through the tax code. So it made a lot of sense.

Phil of course was right. Global warming? The tax code determines how cheap it is to buy carbon based fuels that warm the globe. And it determines whether the producers or somebody else has to pay for the cleanups, the environmental damage, dealing with the warming planet. And it determines what the carbon hawkers have to pay for threatening to obliterate our descendants and end human life on this planet. No tax – go ahead and choke the globe.

Antibiotic resistant disease? The tax code determines what cheap methods are OK to raise and sell animals and animal products. Jam animals together for “efficient” processing and they need antibiotics. The tax is on the land, not the antibiotics. Voila, it’s cheap to feed antibiotics to animals and ship them to us with resistant diseases. Of course we’ll pay the price with illness, doctors, and grieving for our dear ones – but, hey, the milk was cheap.

Landfills? Who pays for those? Do you get a break for composting, sorting, recycling or not buying so much? Nope – we all pay for garbage. But the tax could be shifted to producers and off our shoulders. Things would instantly get less wasteful.

Ever since the elder George said “Read my lips; no new taxes,” taxes have become the third rail of politics – instant suicide for any politician even to bring it up. But health, wealth and survival are right there in the tax code. We need smart taxes, that shape us the way we ought to be. The freedom to corrupt our country and our world with garbage, poison and heat isn’t legitimate freedom – that’s one person’s “freedom” to mess with another’s life, or the lives of many. That’s not freedom, not what our forefathers’ fought for, not patriotic, sensible or constructive. We need smart taxes. Now. Taxes that will make our world a better place.

So last week I wished for peace, health and good government – figuring I was on mostly safe ground. So now I’m blowing it – wishing for new, I’d rather say better, taxes. TAXES for the New Year! That Gottlieb character must be crazy.  Like a fox? Naahhh. Just nuts.  Republicans won’t allow it anyway.

Oh, devilishly inspired by Paul and Anne Ehrlich, how about a tax on more than two children per family – NO, don’t throw tomatoes, they stain. I’m out o’ here! Happy New Year everyone.

— This commentary was broadcast on WAMC Northeast Report, December 30, 2014.


Yalda and a Healthy New Year

December 23, 2014

I’m writing this after a party for what Persians call Yalda, the winter soltice. There is a significant Persian community in this area, refugees, immigrants and students. This group was put together by the Alaei brothers. They are the doctors who were imprisoned in Iran for the temerity of trying to treat people with Aids and discussing the best techniques for doing it with other doctors around the globe.  When he was released, Kamiar came here to Albany to finish his doctorate at the School of Public Health. We spent the better part of a year praying for the release of his brother Arash and as soon as he was released he joined Kamiar here in Albany. They have now been joined by their sister and Kamiar by his bride.Medical res

And as soon as they landed they started to work to set up an international program in health and human rights. Both brothers became globe-trotters, working to set up allied programs all over the world. Many institutions here in Albany, including Albany Law where I teach have joined the effort. Kamiar and Arash worked with governments, UN agencies, large foundations and universities wherever they could. I can’t begin to say how much respect I have for their effort – and I am certainly not alone, as international medical organizations and others have honored them for their work. Most of us have dreams. They are making theirs become reality.

But – I told Kamiar there would be a “but,” – the biggest health problems around this world are not medical, but political.

Africa is suffering from the lack of government – good government that could stop the wars that have killed millions there and are still killing, pillaging and selling girls into slavery. Good government that could provide sanitary services and vaccinations.

Governments around the globe are allowing industry to poison their workers with toxic gases and chemicals in the plants, and poison the people outside by dumping toxic chemicals into the air and water, or by destroying the land and forests that keep the waters clean.

We are relatively healthy in the US because of government – because government did supply the clean water and sanitation and the public health and disease control systems and the medical research to make that possible. Don’t be fooled by labels, a very large share of the research dollars have come from the government, a very large share of the medical systems until very recently were public – without government few of us would have had decent medical care.

We need to upgrade the water supplies. We need to maintain and upgrade sewage disposal and landfills. We need to fund basic medical research, research that is fundamental to the health of all of us. It is increasingly clear that we need government to continue adequate vaccination programs. And we need government to deal with the spiraling problems of global climate change that will sicken all of us if government doesn’t get out ahead of them.

So what I wish people here and abroad for the new year, is good responsible government that keeps the peace and protects the health of their peoples. That’s a real holiday gift and a happy, healthy new year.

— This commentary was broadcast on WAMC Northeast Report, December 23, 2014.


“Enhanced Interrogation”

December 17, 2014

We’ve been hearing people talk about “enhanced interrogation” for quite a while. Then the Senate Intelligence Committee Report on the CIA’s use of torture was released this week. And we got another dose of “enhanced interrogation.” We’ve been hearing it so much one stops noticing. That’s the technique of the big lie – say it often enough and people accept it.

This time I got in the car in time to hear someone talking about “enhanced interrogations.” I missed the announcement, but I think it was John Brennan, current CIA Chief. No matter, everyone seems to be using the term, George W. Bush, Dick Cheney, John Brennan, it’s in the Report and all over the place – “enhanced interrogation.”

No, they were not “enhanced.” Torture, brutal, degraded and inhumane is not enhanced. I’m disgusted at the use of enhanced as a so-called euphemism for morally unacceptable. It shows how degraded some of us have become when we think totally reprehensible is “enhanced.”

Rape is not “enhanced” affectionate behavior. Murder is not “enhanced” roughhousing.

Until now we blamed the world’s barbarians for torturing people. Now it turns out Americans used torture as official policy. And because we’ve used it, some people try to defend it. That’s the way we corrupt our souls. We’ve allowed ourselves to be dragged into the muck of sin so now we proclaim the sacred power of sin. Yippee.

Republicans were incensed when Clinton had a consensual sexual experience with a young woman but they assert the right to cause extreme suffering, and to make it worse, without even figuring out how many innocent people they were torturing in the process. God forbid we figure that out – the Bush Administration fought every effort to provide the benefit of any legal process designed to separate the innocent from the guilty to the “detainees,” another euphemism. Now they find some of them were innocent.

But these days to be tough means to forget law and order and take the law into your own hands, except that’s a euphemism too for doing whatever they felt like regardless of the law. That truly is the message of the Bush Administration and the Bush-Cheney-CIA “enhanced interrogation” – that they are lawless, have no respect for law except as something they can twist for their own purposes. Skip the nonsense of original understanding of the Constitution – it’s just a way to ignore what they don’t like and do something worse.

No “enhanced interrogation” is not acceptable, not in reality and not as a figure of speech. Those responsible should be blacklisted from civil society. Remember these were the trumpets of so-called morality – but what we’re seeing is how immoral they truly are. We’re more moral and better off without them. They deserve to be deported far more than the families they are so determined that Obama deport. Then maybe America could regain its moral compass.

— This commentary was broadcast on WAMC Northeast Report, December 16, 2014.


Killing Garner

December 9, 2014

Are we safer with or without the police around? When juries, grand juries and prosecutors regularly decide that plain, on camera, evidence doesn’t show murder, what protects people?

It’s too dangerous to put your key in your front door like Amadou Diallo a few years ago. It took 41 bullets to meet that threat and shoot him in the back. It’s too dangerous to hold your hands up like Michael Brown in Ferguson – hands up can be interpreted as threatening. It’s too darn dangerous to complain “I can’t breathe” like Eric Garner – we know from sexual politics that people understand “I can’t” to mean “I can!” On camera they could see just how dangerous a man can be when he can’t breathe. And any Black kid with a toy gun is toast.

The police talk about bad officers. Most are not looking for a chance to show just how tough they can be toward inoffensive or defenseless people. But don’t let the so-called good cops off easily when there are no repercussions, when the “good cops” stand with the “bad cops” because it’s a dangerous job, so that there are no enforceable rules of behavior toward civilians and anything the police do goes but nothing civilians do – especially if they’re African-American. The culture of silence gives us no reason for confidence. No firings, no powers for civilian review boards, plus judges and prosecutors who stand by the cops regardless, like the judge who told me he believed my client but found him guilty because “I couldn’t do that to the police.” Are those who stand-up-for-the-cops-no-matter-what any better than the Romans who liked to watch Christians thrown to lions?

Black families have “the conversation” with their kids about how to deal with the police. Actually I’m also better off when I don’t argue with the police, don’t claim to know my rights. Most of my clients were Black. I gave them the same advice plus keep quiet and politely ask for an attorney.

Apologists for the police have used the conversation to say it was Eric Garner’s and Michael Brown’s fault that they were killed. They should have done what they were told. Then they wouldn’t be dead. But so what? I teach my law students that they should not expect their clients to know what to do and what they need to tell their lawyers. The lawyers are the professionals. The lawyers are trained. The lawyers must expect themselves to shape the encounter usefully and help the clients do what needs to be done.

It is a lot too simple and too self-satisfying to blame the victim. The Americans ISIS beheaded shouldn’t have been there if they knew what was good for them but that gave ISIS no excuse to behead them. Some women might not have been raped if they made themselves look ugly but that’s no excuse to rape them. I took part in a rape case where a young man was charged with raping an older, shriveled charwoman – not looking pretty doesn’t necessarily protect women. But no matter, none of them, pretty or ugly, young or old, should have been raped. It doesn’t help to blame the victim. Blaming Brown and Garner and Diallo and the 12 year old kid doesn’t make a lot of sense to me – none of them did anything that justified execution. Do we have to take the guns out of their hands to convince the police to use their heads?

—  This commentary was broadcast on WAMC Northeast Report, December 9, 2014.

References

On Eric Garnder’s death, http://www.nytimes.com/2014/12/04/nyregion/officer-told-grand-jury-he-meant-no-harm-to-eric-garner.html?action=click&contentCollection=U.S.&region=Footer&module=MoreInSection&pgtype=article


Libertarians on and off the Court

December 2, 2014

Most Supreme Court justices are libertarians in some sense. But what kind and for whom varies widely.

We all believe we have rights to decide lots of things for ourselves. But what are the limits? The more “conservative” the justices and others are, the closer to the Tea Party, the only limits they recognize are force and fraud. Various conservative philosophers have been very plain about that. Regulations, almost all regulations, interfere with that freedom of action.

People sign contracts every day that have draconian consequences for them, but, say the far right, you agreed to that. You signed a contract for which the only remedy is a stacked deck, arbitration in front of an arbitrator arranged by the company, and you have no right to unite with other people in the same situation to fight expensive battles together and share the costs – that’s called a class action, and the Court’s conservatives forbid it in arbitration, won’t allow the states to try to protect consumers from such restrictions on their rights. That protects the company’s liberty. And of course you had the liberty not to sign – if you read and understood the contract and had a realistic choice.

You signed a mortgage with a lender and it had all sorts of hidden costs, fees, rates and traps that put a lot of people underwater and helped to build and then break the housing bubble, and with it the economy. But, tough, you signed, say the conservatives.

Most states used to forbid usury, interest rates that no one could reasonably pay but that piled up so quickly bankruptcy was inevitable. Not any more – the Supreme Court made sure states could no longer forbid usury.

And where the conservatives on the Supreme Court couldn’t block federal law, like the antitrust laws which were intended to give us the benefit of competition and protect us from monopoly, they made it impossible to prove.

There are an endless set of examples. The company gets the liberty and you get the shaft.

But when you get the shaft, that doesn’t just affect the liberty that judges and legislatures say you have. Getting the shaft affects your real liberty – liberty to make wholesome life choices for yourselves and your families. Most of us think our liberty is limited by the effect on other people’s liberty. Giving people the shaft deprives people, ourselves and lots of others, of our very real liberty.

Most states tried to limit legal liberty to do things that harm others. There should be no liberty to foul the water we drink or the air we breathe. There should be no liberty to bury costs in fine print legalese, or propose terms that the company knows will do damage. There should be no liberty to put people into unsafe working conditions when the company could have saved their lives, saved people from collapses and explosions in coal mines, oil rigs, and similar disasters. It doesn’t matter that the workers agreed, signed a contract, took the job – the company knew and we should be able to stop it.

We too believe in liberty, but it is liberty bounded by what’s good for everyone. We have a choice between freedom for those who have the money and power to exercise it, or freedom for everyone based on some realism about what’s going to happen.

Do we care? The protectors of corporate legal liberties on the Court have a child’s idea of liberty – without responsibility. Children throwing tantrums at civilization have no place on the Court.

— This commentary was broadcast on WAMC Northeast Report, December 2, 2014.


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