Re: Hiatus

June 27, 2005

Re: Hiatus
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

VelvelOnNationalAffairs.com will be "off the air," so to speak, until approximately July 20th. Postings will resume then.

Re: More Media Mistakes. And Worse

June 27, 2005

[[[audio]]] [[[audio pt2]]]

Re: More Media Mistakes. And Worse.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

On Sunday, June 19th the new ombudsman of The New York Times defended something that required no defense. To defend it was a sign of tragic weakness, a sign of inherent capitulation to the right wing sentiments that rule America today. It also exposed journalistic conduct inconsistent with the duty -- the duty -- of a free press to inform Americans about the misconduct of their leaders. And this in a time when the press has so extensively failed to live up to the responsibility arising, in the words of Justice Black in the Pentagon Papers case, from the fact that it "was protected so that it could bare the secrets of government and inform the people," has failed to live up to its "paramount . . . . responsibilit[y] . . . . to prevent any part of the government from deceiving the people and sending them off to distant lands to die of . . . foreign shot and shell."

The June 19th column by the ombudsman, Byron Calame, defended a page one article of May 31st that reported on the CIA’s creation of new "proprietary" airlines to carry out its projects. These new airlines have replaced the CIA’s infamous proprietary Air America of Viet Nam days, and have been used extensively in order to render individuals to foreign countries so that they can be interrogated by torture. Much of the May 31st article discussed the use of the proprietary airlines in the rendering process (a use which violates international law, one gathers, and which plainly is a felony under American law although the news media uniformly chooses never -- never -- to mention this fact).

As part of reporting on the existence and use of these new Bushian era successors to the infamous Air America, The Times discussed, among other things, who the CIA front men were, or are, who started or operate these lines or who front for the CIA, the airports they have flown to all over the world, the kinds of sophisticated jets being used, the small rural airport in North Carolina where one of the main "proprietaries" is based, and where its headquarters are on the airport grounds.

In reporting on the use of CIA proprietary airlines to accomplish such actions as rendering (and other bad acts too, by the way), The Times’ articles of May 31st, one of whose authors was reporter Scott Shane, was both rehashing and further elaborating matters that had been exposed previously in the media (and that have been mentioned here). The article, like its predecessors, was carrying out rather precisely the responsibility of "bar[ing] the secrets of government" and "preventing it from deceiving the people and sending them off to distant lands to die . . . of foreign shot and shell."

Why, then, did Calame feel a need to defend the article? It was because "A striking number of readers have denounced" The Times for the article in "generally strident email messages demand[ing] to know why [it] had decided to publish information that the readers believe will aid terrorists and make life in the United States less safe for everyone -- especially the people carrying out the operations." Of course, most of these outraged people, said Calame, "didn’t seem to be aware that the once-secret air operations had been mentioned in earlier articles and broadcasts elsewhere." In other words, most of them were strident but ignorant individuals who had no idea of what had been reported. In this way they were reflections of two widespread phenomena: the kind of ignorant uninformed mindset, hoped for and encouraged by George Bush and company, that still believes Saddam was behind 9/11, and the fact that ignorance of facts and consequent hatred of those who know or report them is an endemic human characteristic of overwhelming percentages of people.

But though the outraged writers were ignorant and uninformed, the ombudsman, like reporter Scott Shane, whose previous letter to one of the outraged was quoted by Calame, thought it important to prove to the right wingers that The Times had acted responsibly (as if anything but non-publication could satisfy those kinds of people). Why did the ombudsman and the reporter feel it necessary to justify the May 31st article to the ignorant? It was, one deeply suspects, because they are scared to death of being considered unpatriotic by the wacked-out right wing, from George Bush on down. Patriotism, it is often said, is the last refuge of scoundrels, but it nonetheless is simultaneously a refuge to which more reasonable people, like The Times, like even this liberal blogger, feel a need to make obeisance. This, in a way, is really too bad, since the patriotism to which obeisance is made is too often, as now, the cry of persons who want us all to support and defend horrendous conduct. As someone recently said, it is the right wing that is un-American these days -- as almost always is shown by history to be the case. The situation reminds me of Samuel Johnson’s anti-colonialist comment during the Revolutionary War of, "How is it that we hear the loudest yelps for liberty among the drivers of Negroes," i.e., the drivers of slaves? -- a comment on which he put his finger on the fundamental American disconnect that would bedevil the nation for the next 85 years, tear it apart in a horrendous Civil War, and is with us still, albeit in altered form. My point here is: how is it that the loudest cries for patriotism came from those who act and/or speak contrary to the best values of the nation? Yet, to steal from, while altering, Willy Loman, it seems that obeisance must be made.

So the personnel of The Times felt a need to reply respectfully to the right wing wackos in a fruitless effort to placate them. I have to nevertheless say that, based on both experience and observation, it is hard to imagine The Times or The Post or other media feeling such a need to respond to the liberal left. Not impossible to imagine: even as this is written the major media increasingly feels some need to respond to the liberals’ criticism of its arrogant refusal to carry or discuss, its arrogant put-down of, the Downing Street Memos. Of course, this increasingly felt need to explain about ignoring the Downing Street Memos comes after an amazing firestorm of criticism was launched on the Internet, with astonishing numbers of blogs and emails devoted to the Downing Street matter, whole organizations arising with reference to it, and major politicians taking up the cause. Whereas mere emails to The Times were sufficient to prompt Calame and others at the newspaper to respond to the right wingers.

But, as I say, respond they did. What they said in response, however, seems to me to sometimes be dubious, even inept. One major point was that, as reporter Scott Shane said, "‘if reporters using public information can penetrate these air operations, I suspect foreign intelligence services, or Al Qaeda operatives, would have little difficulty doing so.

Our story was based on information from public F.A.A. and corporate records and F.A.A. flight plan data available to all from commercial vendors. Before our story was published, the tail numbers, and photographs, of several of the rendition planes could be found easily via a Google search on the Web.

Not so fast, Mr. Shane. It is true that much of the May 31st article was based on public sources. But much wasn’t. The article repeatedly referenced and/or quoted comments by, and the reporters got information from, former CIA officers, CIA pilots, board members and employees of the proprietaries, airport personnel, and law and history professors. These people may, they sometimes to some extent will and here did, talk to someone who called them or called upon them and identified himself or herself (believably) as a reporter for The New York Times. Are they going to talk if someone calls them and says, "I’m from Al Qaeda and I’d like to talk to you about the proprietary airlines and renditions?" Or "I’m from the Iranian intelligence service and I’d like to talk to you about, etc., etc." Or "I won’t tell you who I represent but I’d like to talk, etc., etc.?" Shane’s argument that the information is publicly available is only partly true, and to some extent it is sleight of hand. Of it one might say, "By mir bist du nicht shane." Or "Don’t come back, Shane." (Not to mention, by the way, that someone in charge of relevant FAA or corporate records might report it if they got wind that a person of unknown or suspicious affiliation is nosing around in public records relating to the proprietaries.)

Another major defense offered by Calame – one that raises really important questions -- was that The Times continuously vetted the story with the CIA to give it "a chance to alert the paper to dangers the article could pose for intelligence sources or methods." "Shane," said Calame, "told the C.I.A. public affairs department in several conversations over the course of a month that The Times was pursuing the story." As well, Shane said that "‘On the afternoon of Thursday, May 26, I sent them an e-mail of several hundred words that included virtually all the facts we were planning to print (all corporate names, details on the history of [one of the proprietaries], details of arrests of Al Qaeda figures coinciding with flights, criticism of their ‘bad tradecraft’). On Friday afternoon, May 27, the chief spokeswoman, Jennifer Millerwise gave me a no comment, while assuring me that the information had been seen by all the relevant officials.’"

Calame then commented that "Sending a detailed written summary of an article is a slightly unusual step" which he nonetheless thought alright here lest lives otherwise be unknowingly endangered, plus "it didn’t give the CIA any veto power over the story," which was not published until fully five days later. During the five days, "the C.I.A. never made even a ‘request to discuss’ the article before it was published," according to Times Managing Editor Jill Abramson. The CIA and other agencies do indeed "approach The Times with concerns." Abramson said. She "estimated", said Calame, that "[s]ince 9/11 ‘deep concerns’ about Times story projects have been raised by intelligence agencies about a dozen times," with the government "argu[ing] that ‘too much detail’ about sources and methods is something that can endanger lives." "Times editors are willing to reconsider and re-evaluate whether details in stories serve a ‘compelling public need or are just details for detail’s sake,’ she said. These pre-publication discussions have led to some changes in some of the articles since 9/11, she said, declining to be more specific."

Now, one understands that the people at The Times do not want to endanger lives. This is a matter of human decency, not merely fear of the wacked out right wing. (In the latter regard, one can just imagine the outcry by George Bush and his cronies and supporters if they felt able to accuse the media of costing lives in some specific case; look what happened to Newsweek for making an alleged mistake -- that for realistic purposes was not a mistake -- about mistreatment of the Koran at Gitmo, a non-mistake that was paltry in comparison to costing lives.) And, because of the humanly decent desire not to endanger lives, if it were me who had been making the decision, I probably would not have mentioned the North Carolina airport where one of the proprietaries is based, or where on the grounds its headquarters are. Nor would I have mentioned the names of people involved with the proprietaries. It would have been enough to call the people A, B, C, and D, or, if some further detail were thought necessary to show authenticity, to provide background but non-identifying detail (e.g., a small rural airport in the South, a man who flew for Air America in Indo China, a mid-Atlantic businessman, etc., etc.). That is what this writer would have done (and what I sometimes in fact do when posting comments from people who have sent me perspicacious responses to blogs but do not wish to be identified). But I would have done it without talking to the CIA.

Why? Why might it be desirable, even very important, not to talk to the CIA (or the Pentagon, or Rumshead, or Ricehead or Busher, etc., etc.), even while taking steps oneself to ensure, as much as possible, that lives or military operations are not endangered.

The simple answer might be encapsulated in eight words: Bay of Pigs, Viet Nam, Pentagon Papers, Watergate. (Yes, Virginia, Viet Nam, properly spelled, is two words, not one, like South Carolina is two words not one (not Southcarolina). Spelling it "Vietnam" is a disrespectful American corruption, as if, say, the French were to disrespectfully call our country Theunitedstatesofamerica).

Before the Bay of Pigs invasion, The Times got wind of the invasion, even of its exact date. But after talking to Allen Dulles of the C.I.A., The Times vastly toned down the story. The invasion went forward and met disaster. Later Kennedy said that he wished The Times had written everything about the planned invasion. That could have saved us a disaster.

Viet Nam: The Kennedy administration asked The Times to withdraw David Halberstam, whose reportage was painting a bleak picture. The Times refused. Does anyone today think it should have acceded? (There are other examples, too, of The Times playing ball with the government, to the ultimate serious detriment of the country. They can be found in The Trust, by Susan Tifft and Alex Jones (Little, Brown & Co., 1999.) See particularly the story about Sydney Gruson and Guatemala.)

Pentagon Papers: The government tried to enjoin their publication, making numerous claims of "national security" -- the claim it always makes. The government, claims of national security risks were crapola in the Pentagon Papers case, and years later the Solicitor General who argued the government’s case, Erwin Griswold, admitted the lack of risk arising from publication of the Papers.

Watergate: Does anyone today think that Woodward and Bernstein should have gotten the government’s okay before publishing their articles? We know that Nixon was trying to block investigations on the phony ground of "national security." The government would have used this or other phony crapola to block Woodward and Bernstein had they tried to clear it with the government before publishing.

The lesson is too obvious. When a newspaper starts clearing it with Sidney, to use FDR’s phrase referring to Sidney Hillman, it is inviting negative responses and/or invented reasons as to why its stories are dangerous and should be killed, negative responses and invented reasons which the newspaper may very well lack the information or courage to refute or ignore. (Indeed, if it had courage, it wouldn’t ask for an okay in the first place.) It may, therefore, not publish stories that should be published, may not publish information it is important for people to learn.

One wonders in this regard, just what stories were the ones about which, as Jill Abramson said, The Times spoke with the government in advance, and what facts or details were it that The Times kept out of those stories? Abramson won’t disclose any of this. For all we know, the excluded facts or details could be ones of enormous importance for the public to know. The possibilities will not bear mention; the mind reels at some of them.

Before turning away from The Times, let me say that one Timesman continues to write the unvarnished truth about this war. That, of course, is Bob Herbert. In a column of June 20th, poignantly entitled Someone Else’s Child, Herbert said this:

"You can still find plenty of folks arguing that we have to stay the course, or even raise the stakes by sending more troops to the war zone. But from the very start of this war the loudest of the flag-waving hawks were those who were safely beyond military age themselves and were unwilling to send their own children off to fight.

It’s easy to be macho when you have nothing at risk. The hawks want the war to be fought with other people’s children, while their own children go safely off to college, or to the mall. The number of influential American officials who have children in uniform in Iraq is minuscule.
* * * * *
The president and these home-front warriors got us into this war and now they don’t know how to get us out. Nor do they have a satisfactory answer to the important ethical question: how do you justify sending other people’s children off to fight while keeping a cloak of protection around your own kids?"

Herbert speaks truth. As said here many times, wars will continue until the children of those responsible for starting and continuing them -- leaders like Johnson, Rusk, McNamara, Nixon, Kissinger, Bush, Cheney, Rumsfeld and Wolfowitz – have to participate in the fighting and risk the dying, and unless and until the culprits themselves are tried, convicted and put in cells with the keys thrown away when they act criminally, as the foregoing leaders did and are.

But Herbert’s column also presents once again another issue or phenomenon. With the probable exception of individuals who appear on Air America, which for various reasons I have no opportunity to listen to, there seem to be only five figures in the major media who have spoken the unvarnished truth about this war. They are Herbert, who does it regularly, Maureen Dowd of The Times, Paul Krugman of The Times, Eugene Robinson of The Post, and Derek Jackson of The Globe. At least those are the only five whom this writer personally is regularly able to read or hear, and nobody else on their newspapers speaks the unvarnished truth as far as I know. Three of the five, of course, are African-Americans. It says something about this country -- it says something very bad about it -- when three of the only five columnists on three major newspapers who are willing to say the truth are members of a single racial or ethnic group, which was subjected to over 200 years of slavery. It says something very bad about this nation when the vast, vast preponderance of prominent media members of any and all groups that did not have to go through the experience of slavery cannot, or refuse, to see and speak the truth about what this country does.

* * * * *

The Times, in the judgment of this writer and others, adheres to the ideology of the center, a tenet of which is the spurious but honestly believed idea that the center has no ideology. The major reason Bernard Goldberg had it wrong, one supposes, is that he claimed that various major media are controlled by those of a liberal philosophy. No they’re not. They’re controlled by those of a centrist philosophy, who are often wrong on issues and who instinctually give far too much credibility to the false claims of government, as The Times and The Washington Post did, and as The Times has breast beatingly admitted it did, with regard to the Bushers’ false claims regarding the reasons to begin the current war. The centrist ideology also is often shallow in thought and in extent of argument, and, as again was true of major media in 2002 and for a long time before that, has been arrogant, cynical and self professedly "superior" about politics, policy, what constitutes news, and honesty (to which I shall return below in connection with the Downing Street Memo).

But at least those of the centrist ideology usually prove willing to learn from facts and experience, and to ultimately correct their mistakes, albeit this can take a long time and there may be lots of disasters or deaths in the meanwhile. Not so the right wing and its media.

I recently had an experience which illustrates that, in service to ideology, the right wing and its media, the followers of the Busher philosophy, is impervious to facts. The experience was an exchange of email correspondence with an editorialist of a major, right wing, highly pro-Busher arm of the media. I feel it would be unfair to name the individual, or even to name his or her media outlet lest this promote easy identification of the particular person. For the email correspondence was private and the person could hardly have anticipated that his or her words would be made public. But -- shades of prior comments about The Times’ article on proprietaries -- the pertinent ideas can be gotten across without identifying the exact person or media outlet.

The matter began when the individual made public comments that included some generalized, highly critical remarks about torture and the mindset of torturers. Those remarks could hardly be read or heard without recognizing that they are applicable to what Americans have been doing and without wondering, therefore, whether they were intended to be an implicit criticism of what Americans have been doing. Yet, on the other hand, it is not to be believed that a person from this media outlet would publicly criticize, even merely implicitly, anything America has done in this war, or, for that matter, would even believe that anything we’ve done was wrong.

Because even an implicit criticism of American actions by an editorialist of the media outlet involved would be a major development, I emailed the person, asking whether his or her statement was an intended implicit criticism of American torture, which is not believable, or, on the other hand, were the person’s words not intended to mean what they inevitably implied?
The response I received by email was preposterous. The individual said (in part quoting my own email), "I’m at a loss to account for how you [interpret his or her remarks] as ‘an implicit attack on the torture committed by the United States.’ If you could enlighten me on this point, I’d be in a better position to respond."

This person, in the course of a long statement, had made significant extensive remarks deeply antagonistic to the process of torture and the mindset of torturers, yet was "at a loss to account for how" his or her remarks could be construed "as ‘an implicit attack’" on American torture? Are you kidding me? And if he or she was not putting me on, as seemed apparently true, is this person -- an editorialist for a major arm of the media, no less -- utterly blind to the meaning of words, to their inevitable implications, to the freight they carry? Boy oh boy.

I wrote back, saying, as was obvious, that "[y]our email necessarily provides the answer to my question." But I did then set forth the relevant language of the person’s remarks, which had been preserved by appropriate means, be they primitive or technologically advanced.

The person then sent me a doozy of a response by email. It is quoted almost entirely below, since the quoted parts provide no hint of the individual’s identity.

I'm puzzled. As best as I can understand your meaning, you seem to think that because I oppose torture I therefore oppose the interrogation policies of the U.S. This assumes that our interrogation policies are tantamount to or indistinguishable from torture. Yet I know of no serious evidence to suggest this is true. (I emphasize the word policies to distinguish it from individual actions by U.S. service members, such as what we saw at Abu Ghraib. . . .)
* * * * *
Needless to say, I and all my colleagues completely oppose the practice of torture. In keeping with that view, we also oppose expanding the definition of "torture" to interrogation practices that do not constitute torture in any meaningful sense and therefore debase the currency of language. I trust you do not seriously believe, as Amnesty International . . . [does], that U.S. practices are on a par with those of the Soviet gulag or of the North Korean regime.

This response was spurious from beginning to end. I can explain no more briefly than by quoting my return email:

The mind reels at the notion that Americans have not committed torture -- is waterboarding by the CIA just everyday fun and games? Nor can one hide behind the word "policies" when actions have gone on regularly, thus showing that the actions are our policies. (Not to mention that the policies were cleared by Department of Justice memoranda and high ranking interagency committees.) In regard to the existence of policies, moreover, it is remarkable to have sophisticated minds . . . claim at this late date that all we have are the actions of a few individuals.

Please do not try to tar me with the Gulag business as a way of eliding the issue, since I have never spoken of the Gulag in connection with our actions.

At that point my correspondent suggested, quite rightly one thinks, that we break off our correspondence because "I get the sense we are on the verge of a long, fruitless and, probably, increasingly rancorous exchange of notes. I see no reason for that: Both of us surely have better uses for our time."

The point of this story is what was said before: the right wing, even the right wing media, even the more prominent and highly thought of right wing media, is impervious to facts (as the Bushers and the Foxites show every day in a host of ways). Unlike the centrist ideology of The New York Times, the right wing doesn’t want to hear from facts; it has its ideology and facts are irrelevant except when, in a now famous phrase, they can be fixed around the policy.

Consider what my correspondent said. He or she was (supposedly?) unable to understand how words highly antagonistic to torture and the mindset of its practitioners could be regarded as an implicit attack on torture by Americans. He or she denies that we use torture, as if waterboarding, beatings, electric shocks, dogs, and deaths are baseball or frisbee, not torture. He or she denies that it is American policy to use torture, though the evidence to the contrary -- memoranda, inter-agency meetings, instructions from generals, instructions from Rumshead, and constant actions -- is conclusive, or is beyond conclusive if something can be beyond conclusive. He or she tries to pin the blame solely on low level turkeys (who, incidentally, rarely do anything in the military unless they believe it is authorized and/or desired -- and who rarely or ever do things they know are not in accordance with desire and policy). He or she claims to oppose expanding the definition of torture to cover practices that "do not constitute torture in any meaningful sense and therefore debase the . . . . language -- as if, once again, waterboarding, beatings, electric shocks and use of dogs do not constitute torture and contrary views "debase the . . . language." Finally, he or she tries, Busher-like, to pin blame on the other party by implying, with no reason I know of, that his or her interlocutor may believe American practices equal the gulag or North Korean practices.

Is there any respect for facts there? Any respect for them at all? One thinks not. And life has taught that this is typical of the right wing.

* * * * *

On the basis of regular observation of, plus some (albeit not extensive) experience with, the big time media, it has seemed to me for many years that many, many members of the Washington and New York media -- and probably of other large city media too, like the media of Los Angeles, Boston, etc. -- share particular characteristics that are not present in most of the population, particularly people in small towns (where I prefer to live) and in rural areas. Members of the big time media, members of the Washington and New York media, are, I think, arrogant, cynical, egotistical, enamored of and dazzled by power and money, and, if I may put it this way, celebrity sniffers. Enamored of power, they do not care nearly as much about honesty as lots of more ordinary citizens do, and the media has scant regard for persons who do what they think is right even when there is little or no chance of success. Indeed the media scorn and mock such people as powerless, naive, dumb, idealistic, even dangerous. Enamored of power, celebrity sniffing and personally egotistical, members of the big time media do not believe that common people have much that is worthwhile to say and that should be covered.

These characteristics shared by many members of the big time media are, one thinks, rather typical of those in the media holding centrist and rightist ideologies, and, it seems almost certain, are true as well of those holding leftist ideology. To the extent it might not be as true of leftists, one suspects this is only because the leftists are hammered so much that some of them -- not all -- become a little humble. There is nothing like continuous beatings, physical or intellectual, to destroy arrogance. If the left ever gets back on top, the humbleness, if there is any, will disappear.

The recent Downing Street Memo has provided a pluperfect example of what is being said here.

A close parsing of the language of the Downing Street Memo indicates that it does not conclusively, definitively, beyond any peradventure of doubt say that the Bush administration had decided upon war in 2002 at a time when Bush was claiming he had not made such a decision yet. But a more normal, more logical reading indicates that the decision for war had indeed been made, and that the facts were "being fixed around the policy." So the Downing Street Papers whose authenticity as minutes of a British cabinet meeting has been admitted by the British government, is the first official document to confirm that Bush and the rest of his Bushers were lying to the American people, Congress, and the media when he and his henchpeople kept claiming he had not decided on war, and when he got Congress to authorize a possible war.

To the average guy in the street, I would hazard, as well as to those on the left, official confirmation of British cabinet documents showing that Bush was lying is a very big deal, precisely because it is a form of official confirmation of what previously could only be suspected. Was it suspected? Yes, for a long time now. By some, even at the time. But there never was any official confirmation -- no American governmental document has surfaced to confirm it, nor has any official with direct knowledge (like Bush or Cheney) said it, although one suspects it will be shown by papers or emails that will become available fifty years from now unless destroyed by the Bushers first, and that memoirs and biographies appearing twenty to fifty years from now will likewise show it.

But now there is official confirmation from British cabinet documents that we were all lied to. To people who deeply value honesty -- to "nonsophisticates" who are not in, and do not share, the jaded views of "big media" -- it is a terrible thing to learn beyond any true doubt, to have it confirmed in official papers of our major ally, that we were lied to.

The major media, however, hardly deigned to cover the Downing Street Memo. The major reason seems to have been that the memo was said to be old news. After all, sophisticates had suspected all along that we were being lied to, and some people had even written this. So the media’s attitude was: what’s the big deal about the fact that now the Downing Street Memo shows it?

One might just as well say there was no point in making a big deal of the Pentagon Papers because millions of us had suspected for years, even had known for years, that from the beginning the government had been lying through its eye teeth about almost everything connected with Viet Nam. Or, albeit perhaps less plausibly, one might say there was no point in making a big deal over the Watergate stories of Woodward and Bernstein, since millions had thought or known for 20 years that Nixon was a liar, was immoral, and would stop at nothing.

Like the Pentagon papers and the Watergate stories, the Downing Street Memo has immense practical importance because it confirms truth, refutes lies, and persuades some who did not previously believe what it shows. Yet most of the "sophisticated," jaded members of the major media largely ignored it and even still do. Even worse, they make fun of us nonsophisticates who think it important.

The worst single example of this mocking that I know of is by a reporter/columnist for the centrist-ideology Washington Post named Dana Milbank. I had thought (mistakenly?) that Milbank was a pretty decent journalist. Indeed, in a June 19th column dealing with a piece written by Milbank on June 8th, The Post’s ombudsman called him "one of the paper’s most talented and observant reporters." But on June 19th, Milbank wrote a piece that was simply a disgrace, a true disgrace. It was devoted to mocking, making fun of, and slandering some people who are greatly opposed to the war and believe that the Downing Street Memo is a smoking gun, but who have no way of expressing themselves through Congress because Congress is controlled by Republicans -- by Bushers -- who absolutely refuse to investigate the conduct of the administration. (There are no Republican Fulbrights.)

Because these people, led by Representative John Conyers, have no way of expressing themselves through a Congress controlled by Bushers, on June 16th they held a simulated hearing. It was conducted in a small conference room in the basement of the Capitol, it was chaired by Conyers, and there were witnesses. Well! This certainly set off Mr. Milbank, who mocked and made fun of the participants. In a piece published on June 17th, mockingly entitled Democrats Play House To Rally Against The War, Milbank opened by saying "In the Capitol basement yesterday, long-suffering House Democrats took a trip to the land of make-believe." His next sentence said, "They pretended a small conference room was the Judiciary Committee hearing room . . . ." He then mocked Conyers, saying he "banged a large wooden gavel and got the other lawmakers to call him ‘Mr. Chairman.’" He referred to "Conyers and his hearty band of playmates." And so on. Conyers subsequently wrote a letter very appropriately excoriating Milbanks’s mocking statements, saying Milbank had made up various facts out of whole cloth (which more likely than not is so, I estimate after reading Conyers’ letter), and rightly criticizing Milbank for not telling readers that the reason the small basement conference room had to be used was that the Republicans would not let Conyers and company use any of several appropriate rooms that were available in the Capitol and the House Office Building.

The foregoing was some of what was said by dramatis personnae. This writer would say that Milbank’s piece despicably made fun of people who hold serious views. And, instead of criticizing the Republican leadership for trying to stifle inquiry into and discussion of the crucial question of how it was that we entered this war, Milbank mocked people who were doing what they could to overcome this barrier. How rotten is that? Milbank reflected the disdain for those without power, the cynicism, and the personal arrogance so typical of so many members of the Washington media crowd. Of course, Milbank went to Yale, which is not known for inculcating humility, and worked for eight years (from 1990 to1998) at The Wall Street Journal, which is not known for treating liberals fairly. So perhaps his disgraceful article of June 17th should not come as a total surprise.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.


C:\My Files\Blogspot\MoreMediaMistakes.wpd

Re: All the Supreme Court Justices, Whether Liberal Or Conservative, Have Promoted Gross Dishonesty

June 20, 2005

[[[audio]]] [[[audio pt2]]]

Re: All the Supreme Court Justices, Whether Liberal Or Conservative, Have Promoted Gross Dishonesty.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

About a month ago, in response to a blog, Professor Anthony D’Amato of the Northwestern University Law School sent me a question. It amounted, I thought, to asking what I would do if I were king, or God. Subsequent email correspondence with Tony indicates that my interpretation of his question may have been too broad, but, as they say, it was what it was. So, thinking of the question in the broadest terms, I recently included the following answer in an email to Tony:

"I haven’t forgotten your question, but rather have been ruminating on it. In all honesty the sweep of the question is too broad for my poor mind. The more I think on it, the more I come up with only a very simple response. Because I think dishonesty and its twin, secrecy for the purpose of hiding bad stuff, are the fundamental problems we face (major stories seem to stem from these twin reverse-icons every day), I would require an honest and open world. That would, I think, avoid and/or enable us to solve a lot of problems. Also, it would be highly desirable for people to care a little more about others, instead of themselves alone."

There it is: simple and short. Many would say simpleminded and (therefore thankfully) short.

"Upon further rumination" (to borrow in a way from NFL referees), I would probably add one other point to the answer given Tony. It also seems to me to be important that Americans learn at long last -- and in direct contradiction to the Southern mentality that has controlled the country since 1876 -- that war usually does not solve problems, but instead leads only to more problems, such problems sometimes being bigger, longer and deadlier wars. Does anyone who knows history deny this?

But the point I wish to pursue further here is the one about honesty. It shall be combined with the question of the federal courts, particularly the Supreme Court.

The federal courts have been much in the news lately, particularly because conservatives want to ravage them for not being conservative enough. Right wing appointments, impeachment of any judges who are to the left of Genghis Khan, Senate filibusters over nominees, appointment of religious zealots, and so on have been daily fare. Now, I don’t want to intrude upon or spoil this orgy by suggesting that who gets appointed makes little difference because in the long run, and with the exception of the truly historical -- and anomalous and therefore misleading -- period of 1954-1968, courts are almost always conservative. Nor would it be true that who gets appointed will make no difference. For there is conservatism and then there is conservatism -- read right wing wackoism (including Thomasian and Scalian conservatism?). Another 20 or 40 wacko district and appellate appointments like those who have been confirmed in the past few days, or a few Supreme Court appointments like that, could conceivably lead to a constitutional crisis as citizens rebel in some way against right wing insanity imposed by and from the federal bench (acting in a sort of ideologically-far-broader-reprise of the right wing Federalist judges who savaged defendants under the Alien and Sedition Acts at the turn of the nineteenth century). It may be that today gutless Democrats savage Howard Dean for once again saying what is largely true, as Democrats and the press savaged him in his campaign so that he could not win the nomination, and it may also be that gutless Democrats do this while ignoring comments by Garrison Keillor in his new book that make Governor Dean look like Mr. Milquetoast. But this gutlessness is likely to triumph for only so long, is already fraying, and, if and when right wing Bushian judges impose more religion (and less medical research), less abortion, and more Patriot Actism on everyone in the country regardless of how strongly victims disagree with them, the general liberal gutlessness could end in some form of serious eruption. This is not impossible. It has happened before.

So one would go only so far in claiming that who is appointed to the federal bench makes no difference. At some point it can and likely would make a difference. But, on the other hand, one also does not wish to lose sight of the fact that quite often it does seem to make no difference who is on the bench. Put more bluntly in an area this writer cares about very much, gross dishonesty will too often not be punished by the paragons of our federal courts, regardless of who sits on those bodies.

Take the recent Arthur Andersen decision as prime example number one. That is the case in which the Supreme Court overturned the conviction of a morally and legally corrupt accounting firm which had tried to obstruct justice by wholesale destruction of evidence relating to the Enron scandal. The Supreme Court’s decision was unanimous -- whether justices are liberals or conservatives was irrelevant. They all voted to get this corrupt accounting firm off the hook in circumstances which fairly screamed fraud and obstruction of justice.

As can be known by any sensate reader, Arthur Anderson was a company that had morphed from a paragon of the accountant’s art to a firm whose leaders caused it to care about nothing but money. It was deeply involved not just in the Enron scandal, but also in the Waste Management and Sunbeam scandals. When these debacles occurred, Anderson’s new motivating ethic was spread before the world for weeks and months on end in the print and electronic media. Every reader of reasonable newspapers was aware of what a morally and legally crooked outfit it had become. Its new ethic was also described in a book by Barbara Ley Toffler. Toffler had joined it for a few years as a partner after, among other things, teaching at the Harvard Business School and consulting to Fortune 500 corporations. In joining Arthur Anderson she had been motivated by its prior longstanding reputation for "hard work, competence and a steady hand" (p.7), and by admiration for a supposedly still extant ethic summed up by the fact that the "single maxim, ‘Think straight, talk straight,’ was the touchstone of the Firm," whose partners, following the precepts of its Chicago founder, "would say with pride" that it "was a place where integrity mattered more than fees," "where it was better to do the right thing than the easy thing." (Pp. 12-13.) Expecting to have joined a firm founded to be, and long regarded as, a paragon of honor, Toffler instead found a firm that had changed drastically, a firm where making ever more money was the only guideline:

"It had become a place where the mad scramble for fees trumped good judgment."

* * * * *

". . . during the 1990s, something changed. In my years working at Arthur Andersen, I came to believe that the white-shoed accounting firm known for its legions of trained, loyal, honest professionals — a place that once had the respect, envy, and admiration of everyone in Corporate America — had lost its way. The accountants and the consultants forgot what it meant to be accountable."

* * * * *

". . . I also experienced . . . an organization consumed by never-ending financial and political pressures. I worked with people so in thrall to the great bull market of the 1990s and the power and wealth of their corporate benefactors that they completely forgot that the true purpose of their job was to protect the investing public. I watched as Arthur Andersen came down from its lofty perch to wrestle in the mud in search of more fees, more power, more political clout, more everything." (Pp.6, 7, 7-8.)

Even if one had not read the newspapers or watched television, and had never read or even heard of Toffler’s book, the corruption practiced by Arthur Andersen in the Enron matter is evident in the Supreme Court’s own opinion reversing the conviction. The very first sentence of the opinion -- the very first sentence -- says this: "As Enron Corporation’s financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron’s auditor, instructed its employees to destroy documents pursuant to its document retention policy." (Emphasis added.) The opinion subsequently makes several further statements showing that Andersen acted corruptly in the Enron case -- showing that Andersen destroyed documents with knowledge that this could cover up accounting and business scandals and thereby thwart investigations of and litigation over these scandals. Thus the opinion, written by Rehnquist, says:

• "Within days" of the "unexpecte[d]" resignation on August 14, 2001 of Enron’s CEO, Jeff Skilling, "Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron’s newly [re]appointed CEO, that Enron could ‘implode in a wave of accounting scandals.’ [Citation omitted.] She likewise informed [David] Duncan" -- the head of Andersen’s "‘engagement team for Enron" - - as well as "Michael Odom, one of [Andersen’s] partners who had supervisory responsibility over Duncan, of the looming problems." (Emphasis added.)

• "On August 28th, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, [Andersen] had formed an Enron "crisis-response" team which included Nancy Temple, an in-house counsel." (Emphasis added.)

• On October 9th "Temple discussed Enron with other in-house counsel. Her notes from the meeting reflect that ‘some SEC investigation’ is ‘highly probable.’"

• "On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement team. Odom urged everyone to comply with the firm’s document retention policy. He added: ‘[I]f it’s destroyed in the course of [the] normal policy and litigation is filed the next day, that’s great . . . . [W]e’ve followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.’" (Emphasis added.) (Footnote omitted.)

• "On October 12, Temple entered the Enron matter into her computer, designating the ‘Type of Potential Claim’ as ‘Professional Practice—Government/Regulatory Inv[estigation].’ [Citation omitted.] Temple also e-mailed Odom, suggesting that he ‘remin[d] the engagement team of our documentation and retention policy.’"

• "On October 16, Enron announced" "a $1.01 billion charge to earnings. The following day the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to [Andersen] (footnote omitted)". (Footnote omitted.)

• On October 19th, "Temple also sent an e-mail to a member of [Andersen’s] internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron "crisis-response" team held a conference call, during which Temple instructed everyone to [m]ake sure to follow the [document] policy.’"(Emphasis added)

• "On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of ‘potential lawsuits, as well as the SEC inquiry.’"

• "After the call" on which Lay refused to answer questions, "Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents." (Emphasis added.)

• "On October 26, one of [Andersen’s] senior partners circulated a New York Times article discussing the SEC’s response to Enron. His e-mail commented that the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough.’ [Citation omitted.] On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents."

• "Throughout this time period, the document destruction continued," regardless of the reservation of some Andersen managers.

• "[O]n November 8, the SEC served Enron and [Andersen] with subpoenas for records."

• "Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering."

So, while the Supreme Court -- liberals and conservatives alike -- unanimously let Arthur Andersen off the hook in an opinion written by William Rehnquist, the facts stated in the Court’s own opinion make it clear as a bell that Andersen destroyed documents because it feared investigations and litigation over its accounting misconduct and wanted to do what it could to thwart those investigations and lawsuits by destroying evidence in order to make it unavailable.

Nor is it just in the opinion that one sees this. The idea was also manifested in the oral argument in the Supreme Court. As every lawyer must know, deeply-misnamed so-called "document retention programs," the kind of program that Andersen officials kept reminding people to adhere to -- reminders that were then "followed by substantial destruction of paper and electronic documents" -- are not in truth instituted or implemented for the purpose of retaining documents. Quite the contrary, even though they are euphemistically and misleadingly called document retention programs, they are actually initiated and followed to get rid of documents, to destroy them, not to retain them, and the purpose of getting rid of documents, of destroying them, is to ensure that there is no written evidence of culpability lying around which can be used against a culprit company by private plaintiffs or by law enforcement agencies. The Justices knew this. Thus Scalia made the following statement to Andersen’s lawyer at the oral argument:
"Ms. Mahoney, we -- you know, we all know that what are euphemistically termed 'record-retention programs' are, in fact, record-destruction programs, and that one of the purposes of the destruction is to eliminate from the files information that private individuals can use for lawsuits and that Government investigators can use for investigations." (Emphasis added.)

Of course Scalia, like most of the legal profession I would judge, sees nothing illegal or wrong with such dishonesty, with such destruction of evidence for the purpose of thwarting justice. Thus his very next sentence was: "And there has been nothing unlawful about having such a program, even if one of your purposes is not to leave lying around in the file stuff that can be used against you by either the government or a private individual."

So the facts in the Court’s opinion made clear that what had occurred was a major effort to obstruct justice by destroying evidence, and the Justices knew very well (as every lawyer must) that the purpose of installing and implementing a so-called document retention program is to insure that documents are not retained lest they be found and used by plaintiffs or government. Yet the Justices’ bias against the Government’s case was so pronounced -- I use the word "bias" deliberately -- that even at the oral argument experienced observers could tell the Government was going to lose. Thus, for example, in an article to which her newspaper attached the headline Justices Dubious of U.S. Case in Andersen, the highly regarded Linda Greenhouse of The New York Times wrote after the oral argument that the problem the government had faced in the trial court "looked easy compared with the one confronting it in the Supreme Court on Wednesday morning as the Justices heard Arthur Andersen’s appeal. The Justices were so clearly sympathetic to Andersen, with Justice Antonin Scalia at one point describing the government’s theory of the case as ‘weird,’ that the only question by the end of the argument appeared to be how quickly the court would produce an opinion overturning the firm’s conviction." (Emphasis added.) The answer to that lone question was "only 34 days" (the opinion came down on May 31st), which is about as fast as it gets in the Supreme Court.

How did the Supreme Court -- that supposed paragon of justice which isn’t, and which hasn’t been except for the brief interlude 1954-1968 -- justify (rapidly) letting this criminally immoral and guilty accounting firm off the hook? It did this by using a technique that it and other federal courts often employ. It did it by ignoring what had actually happened in the case and by instead treating the case as if it were based on facts worlds removed from what the actual facts were. And it did it by making abstract and technical legal arguments about words that only a formalistic lawyer could love. I shall go over the Court’s techniques -- to me, dishonest techniques -- relatively lightly, especially its mere verbal "analysis" of wording, in order to avoid boring non lawyers to death and boring most lawyers too.

What the Court fundamentally did is that it used verbal legerdemain to interpret the wording of the pertinent statute and the trial court’s instructions to the jury in a way that made it appear that the jury did not know that Andersen had to be aware it was doing something wrong, that Andersen had to be aware that it was not acting innocently. But on the facts of the case, there could be no doubt, none at all, that Andersen knew very well that its acts would obstruct justice by destroying evidence that could otherwise be used in fully expected investigations and litigations. There could be no doubt that to thwart justice by destroying evidence was indeed the precise purpose of Andersen’s actions. In fact, even the Supreme Court did not claim, while letting Andersen off the hook, that Andersen’s actions could remotely be thought innocent. No, the Court let Andersen off the hook even though the Court itself could not with a straight face claim Andersen was innocent, and the jury could hardly have failed to be aware that destruction of evidence for the very purpose of thwarting investigations and litigations had occurred.

Since not even the nine Justices -- conservatives and liberals alike -- who let Andersen off the hook could say it was an innocent, Rehnquist’s opinion instead tried to justify the Court’s ruling by saying that in other cases, other people might be innocent, since persuading a person to "‘withhold testimony or documents from a government proceeding or government official is not inherently malign.’" (Emphasis added.) To protect the rights of such other persons in other cases, the Court, said Rehnquist, had to be "restrain[ed]" in this case. Rehnquist gave examples of such innocent other persons in other cases. "Consider," he said, "a mother who suggests to her son that he invoke his right against compelled self incrimination." Of course, the privilege against self incrimination is a constitutional right, but there is no constitutional right to shred documents -- an obvious difference that somehow escaped our country’s Chief Justice.

Or consider, he said, "a wife who persuades her husband not to disclose marital confidences." But the marital privilege is affirmatively declared for good reasons by statutes or common law, whereas there is no such declaration that people should destroy evidence in order to thwart justice, another obvious distinction that somehow escaped our nation’s Chief Justice. Or consider the lawyer’s friend -- the attorney-client privilege, which is the lawyer’s answer to the plumber’s helper. Attorneys, said Rehnquist, advise clients not to disclose to the Internal Revenue Service documents that are protected by the attorney-client privilege, but "[n]o one would suggest" that lawyers who do this have acted wrongfully. But once again the obvious seems to have eluded Rehnquist. However malevolent some few benighted souls like this writer may think the attorney-client privilege often to be, there nonetheless is an attorney-client right not to disclose privileged documents to the IRS. Is there therefore a right to destroy unprivileged documentary evidence in order to obstruct justice? Not that I know of. And by the way, would Rehnquist say that nobody would claim a lawyer had acted improperly if he urged a client not to give the IRS documents that could not reasonably be thought privileged, and that therefore must under the law be turned over to the IRS? And what if the lawyer, in imitation of what people at Arthur Andersen did, and in order to obstruct justice, told the client to destroy unprivileged documents that had to be turned over to the IRS? Would the lawyer still have done nothing wrong?

All of this simple stuff, as I say, eluded the nation’s Chief Justice, who appeared interested only in finding reasons, however poor, to let Andersen off the hook for its dishonesty, and who was aided in this promotion of dishonesty by eight other judges, conservatives and liberals alike, who did not even see fit to write statements pointing out that obvious nonsense in Rehnquist’s opinion was obvious nonsense.

Now, it should go without saying that the verbal legerdemain and the specious arguments of Rehnquist’s opinion did not have to occur. There was nothing foreordained about them. As someone who taught constitutional law for twelve years (a long time ago) and who afterwards has intermittently read Supreme Court and court of appeals decisions, I cannot tell you how many dozens or scores of times, perhaps hundreds of times, I have read opinions that do something very different in circumstances closely analogous to ones claimed by Rehnquist to exist in the Andersen case. For example, many is the time that courts will say, to put it in the vernacular, "Well, what happened in the trial court wasn’t perfect. But the evidence was so strong that this lack of perfection constitutes [what lawyers and judges call] harmless error." Or courts will say, "Well, maybe the instructions weren’t perfect, but in the main they were okay and the jury must therefore have fundamentally understood what was required, and the evidence considered by the jury plainly met the requirements." But here the Court -- all nine judges -- chose a different path, chose the path of verbal legerdemain and thoughtless analogy. Why?

Well, I suppose one will not know "why" with near absolute certainty unless and until judges’ papers are both opened in the distant future (20 or 50 years from now) and disclose the underlying reasons for letting Andersen off. But though certainty is not currently possible, a pretty good informed guess is possible, a guess that is very likely to ultimately prove right is possible. And that guess is this: the Court knuckled under to the conservative reaction of business and its minions that has now set in against strong enforcement of principles of honesty that are intended to prevent another debacle of the Enron/Tyco/WorldCom/Global Crossing/Arthur Andersen mode, and that inhere in significant part in the Sarbanes-Oxley act.

You see, business and its minions, like Wall Street lawyers, big accounting firms, and certain federal legislators, and the media mouthpieces who serve business, like editorialists of The Wall Street Journal, have been counterattacking against Sarbanes- Oxley and other efforts to clean up the frauds and other misconduct that have occurred. So we regularly read that business will have too much trouble fully complying with Sarbanes/Oxley, that the SEC is acting too strongly, that Eliot Spitzer has gone way overboard, that corporations will become too timid to make progress, that companies will be destroyed and innocent people will be put out of work as occurred when Andersen collapsed after being indicted, that lawyers will be unable to do their jobs. There is, of course, no evidence of financial and economic debacles occurring because of honesty, whereas we know that, as has occurred many times in history, such debacles have occurred because of dishonesty. But never mind -- we are assured that strong enforcement of principles of honesty will lead to horrors. This, of course, is habitually the argument of the dishonest, of the unethical, of those who want to walk close to the line.

And this counter-revolution against honesty not only appears all around us, but was carried to the Supreme Court in amicus briefs filed by organizations of accountants and lawyers and by the U.S. Chamber of Commerce. (Amicus briefs are so-called friend-of-the-court briefs that in reality are usually friend-of-those-who-are-filing-them briefs.) A group of New York defense lawyers thus told the Supreme Court that strong enforcement of the pertinent statute "would threaten to impede the client’s ability to receive objective and unfettered advice" from his attorneys. A national association of criminal defense lawyers told the Court that upholding Andersen’s conviction would "plac[e] lawyers at risk of investigation, prosecution and imprisonment for doing their jobs," because "[w]hen a lawyer represents a client in connection with a potential government investigation, one of the lawyer’s goals" may be, "within the bounds of ethics and the law," to prevent the government from developing evidence against the client." (Emphasis added.) This same group, quoting a leading legal ethicist, also chimed in with "‘Don’t put it in writing’ is advice lawyers give every day." The U.S. Chamber of Commerce, and a litigating mouthpiece called The Washington Legal Foundation, said that strong enforcement would cause executives to risk prosecution for "compliance with a lawful [according to the amicus brief] document retention policy or the advice of counsel" "[i]f . . . the executive has any basis to believe that a formal government investigation may be commenced at some point in the future." The Chamber also warned the Court that while "Sadly, it is too late to spare Andersen and all its employees" since Andersen was out of business, nevertheless "reversal of the conviction will protect future targets of [so-called] excessive prosecutorial zeal." (And after the Court’s decision was handed down, the General Counsel of the Chamber, more or less thanking God for the decision, said that "The feeling is, ‘There but for the grace of God go I’ . . . . That memo [an incriminating memo by Sherron Watkins] is the kind of thing lawyers do all the time." (Emphasis added.))

Although there may be no absolute certainty until Justices’ papers are opened many years from now, to me there can be no true doubt that the parade of horribles counterattack on principles of honesty launched by business and its minions in the media and even in the Court had telling, had dispositive, effect. Thus it was that, at the oral argument, Justice Kennedy told the Government’s lawyer that the government’s position would result in liability "if you destroy any document that might raise a question, say, in the IRS audit. It seems to me that is a sweeping position, which will cause problems for every major corporation or small business in this country. I just -- I just don’t understand it." (Emphasis added.) When the lawyer replied that Kennedy was wrong because the government’s position would not cover routine use of a document retention program to get rid of masses of space-occupying paper not needed for any ongoing business reason, but that what was at issue here was a very non routine use of a "document destruction policy as a pretext and a cover to clean up and purge files when a government investigation was anticipated and it was perceived that these materials would be relevant," Kennedy didn’t want to hear it.

As ever, or as almost ever, the repeated propaganda which the wealthy can afford had effect.

The Court’s decision itself is also likely to have an effect. (This is true even though a recent Congressional statute closed one loophole in the existing law under which Andersen was prosecuted.) One cannot imagine that the effect of a decision reversing Andersen’s conviction could possibly be to make business more honest in its so-called document retention programs. The only real question, I would think, is the full extent to which it may make business less honest, e.g., by encouraging it to continuously destroy documents not because this is really necessary or desirable for business purposes, but rather to get rid of possibly incriminating documents that could later be used by government or plaintiffs, while falsely making it look as if the destruction was done not for this purpose but only as part of a regularly followed, everyday practice of disposing of documents. This type of deliberately misleading conduct seems to me a real possibility because of the Court’s opinion, including its statements that destruction is not necessarily corrupt, and because an underlying motif if you will of the opinion is that the Court can be persuaded, by regular and strident claims of possible disaster, not to allow punishment of even the most heinous misconduct by business, accountants and lawyers.

One last matter. Although the Andersen case was decided only a few weeks ago, it may already be having an influence. Consider the newly disclosed KPMG matter.

On June 16th The Wall Street Journal carried a major story saying that the government was considering indicting another large accounting firm, KPMG, for promoting illegal tax shelters and then obstructing justice by making misstatements to IRS investigators and concealing evidence about its actions. This matter arose because in the 1990s and early 2000s, major accounting and law firms, among others, were secretly selling, for huge sums of money, extraordinarily complicated, fraudulent tax shelters. These abusive secret shelters enabled people whose incomes were scores or hundreds of millions of dollars per year, or who were worth hundreds of millions or billions of dollars, to avoid paying taxes -- while the rest of us deluded schnooks of little or moderate income paid through the nose. The IRS did not know about the shelters, did not understand them when it finally learned of them, did not have the manpower to deal with them, and for a long time did nothing about them. But finally, after these things finally came to public attention, and there were newspaper exposes and Congressional investigations, the IRS began taking action. As a result of a long investigation, KPMG is now threatened with a possible indictment for promoting the abusive illegal shelters and then obstructing justice by making misleading statements to IRS investigators and concealing evidence.

Now, there are lots of good reasons to indict KPMG. Its shelters were abusive and illegal. It was involved in other accounting misconduct besides the shelters. It has in the past adopted very tough, very aggressive -- and, it would seem, wholly unwarranted and even nasty -- litigation tactics regarding its various forms of misconduct. It also misled IRS investigators and concealed documents, as said. For a period it stood by guilty personnel who were responsible for the shelters. It falsely claimed -- shades of one of Rehnquist’s analogues -- that certain documents were protected by the attorney-client privilege.

Yet, the government may choose not to indict KPMG. There are various reasons. As occurred with Arthur Andersen, KPMG might collapse and go out of business if there were an indictment, with thousands of people losing their jobs. The case would be complex to explain to a jury. KPMG has gotten rid of lots of the people responsible for the situation. It might agree to a huge fine without an indictment. It might agree to "extraordinary oversight, sweeping changes in business practices," and perhaps, as said, "a big fine." Big business and "some congressional Republicans" are claiming prosecutors are overzealous. The day that the Wall Street Journal’s article appeared -- and, one would think, motivated by that article in an effort to stave off indictment -- it issued an apology for its conduct. In its apology it said, among other things, that it "‘takes full responsibility for the unlawful conduct by former KPMG partners,"’ had gotten rid of persons "‘responsible for wrong doing"’ and had instituted "‘reforms to ensure the highest ethical standards"’. And, not to be forgotten, as well as directly relevant to this posting, the Supreme Court’s decision in Andersen shows that the government can lose even when there has been heinous misconduct. Also, the Andersen opinion shows as well in this regard that the Court will listen to big business and, regardless of whether Justices are conservative or liberal, will go out of its way to protect big business even when it has acted with gross dishonesty. So, the Andersen case, along with many other factors, is bound to have some influence here -- or at least is bound to be a subject of consideration here -+-- on the question of whether to indict another accounting firm which did grievous wrong and then, for a long period, tried to cover up its bad actions by further misconduct.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Tom Friedman's Latest Bloviation

----- Original Message -----

From: "Dean Lawrence R. Velvel"
To: "David Reiter"
Sent: Friday, June 17, 2005 1:06 PM
Subject: Re: Tom Friedman's latest bloviation

Dear David:

Amen to all you say.

Larry



----- Original Message -----

From: "David Reiter"
To: "Dean Lawrence R. Velvel"
Sent: Thursday, June 16, 2005 12:41 PM
Subject: Re: Tom Friedman's latest bloviation

Dear Larry:

I agree with all that you say and that the most logical conclusion is to break Iraq up into 3
independant countries. That would work in a vacuum, but in the real world that would create a major problem with Turkey, Syria and Iran. They do not want an independant Kurdistan, because then they're 15 million or so Kurdish National will want to become part of the newly independant Kurdistan and Turkey, for sure, would not allow that to happen. However, I still believe that is the best available solution.

David

--- "Dean Lawrence R. Velvel" velvel@mslaw.edu wrote:

> June 16, 2005
>
> Re: Tom Friedman's Latest Bloviation.
>
> From: Dean Lawrence R. Velvel
>
> VelvelOnNationalAffairs.com
>
> Dear Colleagues:
>
> I can hardly wait to see the Letters to the Editor in tomorrow's New York Times. For if form holds true, that might be the day when The Times will publish letters responding to and, my guess is, deservedly intellectually assassinating yesterday's suggestion from one of the kings of continuously globetrotting, self aggrandizing, self important bloviation, Thomas Friedman.
>
> Friedman supported our invasion of Iraq and still supports it, but is deeply disappointed, even
> horrified, at how wrong it has all gone. He also claims, as he did yesterday, that "this [war] is
> still winnable" if only we will adopt the right strategy. But if we don't adopt the right strategy,
> everything will fall apart for good and all.
>
> So what is the right strategy, according to this author of best selling books and columns whose
> writing is heralded by so many? Well, an important part of it is to correct the wrong strategy. The wrong strategy is that we went into Iraq with far too few troops to do the job -- "Our core problem in Iraq," Friedman says, "remains Donald Rumsfeld's disastrous decision -- endorsed by President Bush -- to invade Iraq on the cheap." (Emphasis added.)
>
Well, because this plainly was a major problem (and was said by many to be so at the time), let us ignore the extremely debatable claim that it was the "core" problem (rather than the fundamental problem or problems equally being one or a combination of additional matters, such as making a stupid decision to invade for false reasons in the first place, misjudging the nature and views of the Iraqi people, misjudging the ability to create democracy in Iraq and, grandiosely, throughout the Middle East, and so on and so on.
>
> As I say, let us accept as a major problem, because it is a major problem, that we invaded Iraq on the cheap. What, then, is Friedman's view of how to now cure this? Well, "[m]aybe it is too late," he says, "but before we give up on Iraq, why not actually try to do it right? Double the American boots on the ground" (while "redoubl[ing]" diplomatic efforts to bring Sunnis into the Iraqi political process).
>
"Double the American boots on the ground"?? Double the number of Americans in Iraq to about what, 200,000 or more? Give me a break. Much of the world, and middle easterners in particular, have already come to despise us for what we have done in Iraq and in our prison camps. Support for the war in America itself is going down, maybe even is beginning to drop like a rock. More and more Americans are beginning to realize, and many millions already know, that this war was based on false statements and was in several ways a big mistake. Month after
month the army and marines cannot fulfill their enlistment quotas. Soldiers and marines are being impressed into two and even three terms in Iraq, and overall military readiness
apparently is declining.

Not just Democrats, but even some Republicans in Congress are beginning to sign onto the idea that we need a timetable for withdrawal; that is to say, even some Republicans, who previously mimicked the disastrous Democrats of 1964-1966 in supporting their President's war because he was their President and they did not want to weaken him, are now saying enough is enough. Yet, despite all this, Friedman -- again mimicking the disastrous period 1964-1966 -- wants us to double the number of soldiers we have in Iraq? Wants us to put 200,000 men there? What has this guy been smoking? Is their absolutely no limit to his self important bloviation?
>
You know, in the actual situation of Iraq, the rest of the Middle East and the United States, there may be, there probably is, utterly nothing we can do at this point to save a disastrous situation. In all likelihood, the only thing that might even stand a chance of salvaging something at this point is an idea that has been rejected from the beginning by all government officials, by all major media and pundits, and by all writers (with only a tiny number of totally ignored exceptions). That is to divide Iraq into three nations, corresponding to the geographical areas in which its three major population groups (Shiites, Sunnis and Kurds) respectively are largely concentrated apparently. But it is probably too late for this idea as well, and, in any event, this idea -- perhaps because it is simple and once was probably right, and because it is not the kind of complex work of supposedly staggering genius that our nattering nabobs like to discuss -- will almost surely remain a non starter, as it always has been until now.
>
The truth is that at this point there probably is no practicable solution whatever for America in Iraq, other than the "solution" of setting a timetable to get out -- which our government resists, as it did in Viet Nam, on the (likely correct) ground that a timetable for our departure will succor the enemy. The only "solution," that is to say, is the completely phony but nonetheless only available one pioneered by Senator George Aiken with regard to Viet Nam forty years ago: declare victory and get out. Which, when you think about it, is pretty much what Nixon eventually did.*
>
>
>
> *This posting represents the personal views of
> Lawrence R. Velvel. If you wish to respond to this
> email/blog, please email your response to me at
> velvel@mslaw.edu. Your response may be posted on the
> blog if you have no objection; please tell me if you
> do object.
>
> C:\My Files\Blogspot\Blogltr.TomFriedmanArticle.wpd
>



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Re: Letters To The Editor About Tom Friedman’s Bloviation

June 17, 2005

Re: Letters To The Editor About Tom Friedman’s Bloviation.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

I cannot resist pointing out that, as predicted in yesterday’s posting (Thursday, June 16th), the letters to the editor in today’s New York Times are a deserved intellectual assassination of Thomas Friedman’s stupid bloviation of June 15th. No less than ten letter writers collectively made several, even many, of the same arguments that appeared in yesterday’s posting, and added others besides. You really should read the letters.

Re: Tom Friedman’s Latest Bloviation

June 16, 2005

[[[audio]]]

Re: Tom Friedman’s Latest Bloviation.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

I can hardly wait to see the Letters to the Editor in tomorrow’s New York Times. For if form holds true, that might be the day when The Times will publish letters responding to and, my guess is, deservedly intellectually assassinating yesterday’s suggestion from one of the kings of continuously globetrotting, self aggrandizing, self important bloviation, Thomas Friedman.
Friedman supported our invasion of Iraq and still supports it, but is deeply disappointed, even horrified, at how wrong it has all gone. He also claims, as he did yesterday, that "this [war] is still winnable" if only we will adopt the right strategy. But if we don’t adopt the right strategy, everything will fall apart for good and all.

So what is the right strategy, according to this author of best selling books and columns whose writing is heralded by so many? Well, an important part of it is to correct the wrong strategy. The wrong strategy is that we went into Iraq with far too few troops to do the job -- "Our core problem in Iraq," Friedman says, "remains Donald Rumsfeld’s disastrous decision -- endorsed by President Bush -- to invade Iraq on the cheap." (Emphasis added.) Well, because this plainly was a major problem (and was said by many to be so at the time), let us ignore the extremely debatable claim that it was the "core" problem (rather than the fundamental problem or problems equally being one or a combination of additional matters, such as making a stupid decision to invade for false reasons in the first place, misjudging the nature and views of the Iraqi people, misjudging the ability to create democracy in Iraq and, grandiosely, throughout the Middle East, and so on and so on.

As I say, let us accept as a major problem, because it is a major problem, that we invaded Iraq on the cheap. What, then, is Friedman’s view of how to now cure this? Well, "[m]aybe it is too late," he says, "but before we give up on Iraq, why not actually try to do it right? Double the American boots on the ground" (while "redoubl[ing]" diplomatic efforts to bring Sunnis into the Iraqi political process).

"Double the American boots on the ground"?? Double the number of Americans in Iraq to about what, 200,000 or more? Give me a break. Much of the world, and middle easterners in particular, have already come to despise us for what we have done in Iraq and in our prison camps. Support for the war in America itself is going down, maybe even is beginning to drop like a rock. More and more Americans are beginning to realize, and many millions already know, that this war was based on false statements and was in several ways a big mistake. Month after month the army and marines cannot fulfill their enlistment quotas. Soldiers and marines are being impressed into two and even three terms in Iraq, and overall military readiness apparently is declining. Not just Democrats, but even some Republicans in Congress are beginning to sign onto the idea that we need a timetable for withdrawal; that is to say, even some Republicans, who previously mimicked the disastrous Democrats of 1964-1966 in supporting their President’s war because he was their President and they did not want to weaken him, are now saying enough is enough. Yet, despite all this, Friedman -- again mimicking the disastrous period 1964-1966 -- wants us to double the number of soldiers we have in Iraq? Wants us to put 200,000 men there? What has this guy been smoking? Is their absolutely no limit to his self important bloviation?

You know, in the actual situation of Iraq, the rest of the Middle East and the United States, there may be, there probably is, utterly nothing we can do at this point to save a disastrous situation. In all likelihood, the only thing that might even stand a chance of salvaging something at this point is an idea that has been rejected from the beginning by all government officials, by all major media and pundits, and by all writers (with only a tiny number of totally ignored exceptions). That is to divide Iraq into three nations, corresponding to the geographical areas in which its three major population groups (Shiites, Sunnis and Kurds) respectively are largely concentrated apparently. But it is probably too late for this idea as well, and, in any event, this idea -- perhaps because it is simple and once was probably right, and because it is not the kind of complex work of supposedly staggering genius that our nattering nabobs like to discuss -- will almost surely remain a non starter, as it always has been until now.

The truth is that at this point there probably is no practicable solution whatever for America in Iraq, other than the "solution" of setting a timetable to get out -- which our government resists, as it did in Viet Nam, on the (likely correct) ground that a timetable for our departure will succor the enemy. The only "solution," that is to say, is the completely phony but nonetheless only available one pioneered by Senator George Aiken with regard to Viet Nam forty years ago: declare victory and get out. Which, when you think about it, is pretty much what Nixon eventually did.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.
C:\My Files\Blogspot\Blogltr.TomFriedmanArticle.wpd

Re: Geoffrey Stone’s "Perilous Times" and Other Books of Importance

June 15, 2005

Re: Geoffrey Stone’s "Perilous Times" and Other Books of Importance.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

As some of you know, MSL produces a number of serious (and multiple-award-winning) television shows on which experts discuss important subjects. The shows appear throughout New England at 11:00 a.m. on Sundays on Comcast’s own channel, CN8, and at 9:00 a.m. on Sundays in the Mid Atlantic states on CN8.

One of MSL’s programs is a one hour long book show on which the author of a serious book is interviewed on his or her work. In-depth outlines, usually running five to eight typed pages in length, are prepared for each show. This blogger is usually, though not always, the host of the show, and, in view of the criticism of ghostwriting that has appeared here, as well as the usual television practice of having scripts and outlines written by people other than the host, I should say that I read the books and write the outlines entirely by myself. The same is true of my MSL colleagues when one of them hosts a book show.

It has occurred to me that, because the outlines cover many of an author’s points, plus some questions relating to them, the outlines would, in relatively brief compass, give readers of this blog a reasonable picture of what the author is discussing. This may be of some value because so many of the books are on important topics. (Of course, nothing can replace reading the book itself.)

My most recent book interview, taped on June 13th, was with Geoffrey Stone, the former Dean of the University of Chicago Law School and former Provost of the University of Chicago. Stone has written a very important book, entitled Perilous Times, and subtitled Free Speech in Wartime. It is, as its subtitle suggests, a work about the suppression or non-suppression of freedom of speech during times of war. Stone focuses on six periods in American history -- 1798-1800, the Civil War, World War I, World War II, the early Cold War and Viet Nam -- and, very crucially, he identifies themes which regularly recur. The book is a truly unique blending of American history and law. Its importance is not only obvious on its face to the reader, but is attested by the fact that, as I understand it, a significant number of college professors are considering the possibility of creating courses around it. Frankly, I think it would be highly desirable for law schools, too, or perhaps especially, to create courses around it, because law graduates, as politicians and judges, have such a disproportionately influential voice in running the country, and therefore ought to learn the historical and legal matters that Geof Stone discusses.

Because the outlines for the book shows give the reader, in relatively brief compass, an idea of what important books are all about, I have decided to start posting the outlines on this blog, starting with the outline for the show with Stone, which is appended below. Subsequently, some of the outlines for prior shows with authors who have written important books will be posted; the authors include, among others, Joseph Ellis, Richard Posner, Howard Zinn, Stephan and Abigail Thernstrom, Paul Fussell, Jules Lobel, Elizabeth Warren, Andrew Bacevich, David Cay Johnston and others. And, of course, outlines for future shows will be posted.

For anyone who might be interested in seeing the show with Geof Stone, it will be broadcast by Comcast in New England on September 18th and in the Mid Atlantic states two weeks earlier, on September 4th. I would also vigorously recommend, of course, that one obtain and read Geof’s book to learn what he has to say on a subject of great importance to the present and future of the country: freedom of speech in times of war and about the very war being fought.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

OUTLINE FOR TV SHOW ON "PERILOUS TIMES"

1. What were you trying to accomplish in writing Perilous Times? That is, what lessons did you seek to teach? What perceptions do you want people to get from the book?
A. In this regard, explain the existence and relevant role of patterns in history.
2. The book melds history and law, perhaps uniquely so. Are you either trained in history or an autodidactical reader of it? Did you, on the other hand, more or less have to start from scratch in reading the pertinent history for purposes of your book?
3(a). Perilous Times revolves around six periods in American history: 1798-1800, the Civil War, 1917-1920, World War II, the early Cold War, and Viet Nam. Why did you pick these particular periods for study?
(b). There was great opposition to the War of 1812 -- when New England even considered secession; to the Mexican War -- which many people, including Lincoln and U.S. Grant, thought a war of American aggression; and to the Spanish-American War and the succeeding war over the Filipino insurgency -- a period when the anti-imperialists thought (correctly, as it turned out) that the country had launched itself on the imperialistic road. What prompted you to leave these periods out of your analysis?
4(a). What is the reason to allow maximum possible free speech in wartime -- to allow the maximum possible exercise of this freedom at a time when soldiers are losing their freedom and their lives, and when speech antagonistic to the war can weaken the war effort?
A. Discuss this as a general matter.
B. Discuss it with specific reference to the reasons given by government for:
i. The Spanish-American War.
ii. WWI.
iii. WWII.
iv. Viet Nam.
v. Gulf War I and the subsequent ten years or so of air war.
5(a). What role has each of the following governmental entities played in causing, whipping up or preventing repression in each of the six periods you discuss and in the current Gulf War II period?
A. The President.
B. The Congress. (Briefly describe, in this regard, major repressive acts enacted by Congress during these periods, Congressional investigations, and other forms of Congressional repression (e.g., by McCarthy).
C. The bureaucracy, including the DOJ.
(b). What role has been played in each period by the media?
(c). What role has been played in each period by everyday or prominent citizens?
(d). What role has been played by the courts in each period?
(e). What role has been played by the legal profession in each period?
A. Wouldn’t it be desirable for law schools to teach more history in the hope that more future lawyers will be defenders instead of opponents of civil liberties?
6(a). Discuss each of the following legal doctrines (or partial doctrines) relating to free speech, their practical meanings, and the role they’ve played in our history:
A. The doctrine of prior restraint.
B. The bad tendency test.
C. The requirement of specific intent.
D. The express advocacy requirement.
E. The clear and present danger doctrine.
F. The balancing test.
G. The need for imminent harm of a grave nature.
(b). Isn’t it basically true that, whatever doctrines they may have used, during each of the periods you’ve discussed, and in the current Gulf War, the courts have largely -- not necessarily exclusively, but largely -- abdicated to the military and the Executive (and sometimes were the willing instruments of same)? In this regard go through some of the more salient events of:
A. 1798-1800.
B. WWI.
C. WWII.
D. The Cold War.
E. Viet Nam (when, incidentally, the courts, whatever else they might have protected, refused to decide the most fundamental constitutional question of all -- whether that war was lawful -- and did this, as is now known with regard to the Supreme Court, for reasons that in significant part were nefarious.)
7. Discuss what happened with regard to civil liberties in the north during the Civil War. Include, among other things, discussions of the Merriman and Vallandigham situations, the various suspensions of habeas corpus, throwing copperheads in jail, and Lincoln’s fundamental tolerance dissenting speech and the reasons for his tolerance.
A. Doesn’t Lincoln’s tolerance reflect, at least in part, the fact that governments are tolerant when there are so many opponents that the governments cannot be intolerant or they would have to put a fifth or third or a half of their populations in jail? Isn’t this, in effect, the reason why Japanese Americans in Hawaii were not interned while those in California were, why German Americans and Italian Americans were not interned, why the Communist Party remained legal in France and Italy after the war?
8. Although FDR is generally regarded as a great president, and Truman often is regarded these days as at least a near great president, I gather that you think very poorly of Roosevelt on the matter of civil liberties and think Truman was at best a mixed bag. Is my impression correct and, if so, what are the reasons underlying your view?
A. Do you feel strongly enough about this so that it affects your overall view of the extent to which Roosevelt was a great and Truman perhaps a near great President?
9. What is your opinion of Woodrow Wilson as a civil libertarian (and, more broadly, as a President)?
10. I gather you feel that, as a general matter, we have made great progress over the centuries with regard to freedom of speech and other civil liberties, since today we wouldn’t have wholesale round-ups, wouldn’t throw political opponents (like Debs or Berger) in jail, etc. How does your view of progress square with what some consider to be, for example, the Bush Administration’s wholesale roundups of Muslims, citizens and non-citizens alike, its intent and actions to put people in jail and throw away the key, and its renditions to countries like Syria for torture?
11. One theme that arises in the book is that, when courts or the Congress close off the possibility of certain federal criminal prosecutions for speech, the Government finds new ways to stop people from speaking (e.g., harassment of one type or another). Explain how this was done in the period 1917-20, during the Cold War, during Viet Nam, in the last two to three years.
A. How was this done with specific regard to the media?
12. Don’t the possibilities of subsequent criminal punishment, or libel suits for large damages (at least before N.Y. Times v. Sullivan), operate as effectively as prior restraints in choking off speech?
13. Explain how and why secrecy is effective -- perhaps as effective as prior restraints or subsequent punishments -- in defeating both freedom of speech and the reasons for freedom of speech.
14(a). Before Gulf War II, to take one example of a not infrequent phenomenon, many of us felt that, much as we did not want to see America fight a new war in the Mideast, there appeared to be no choice because we were assured that Saddam had WMDs. This is symptomatic of the problem that one cannot say in advance that we are not in danger, or that a war will not lead to good things while not fighting a war will lead to bad things. In short, the average guy, or the average legislator (just like the Executive) cannot foresee the future. So how can freedom of speech protect us against unnecessary wars -- that is, what lessons are there to be learned from the past, what ways of thinking could arise from study of the past, that would enable freedom of speech to protect us against unneeded wars?
(b). Isn’t it true in this connection that governments always claim they are faced with new and unprecedented types of crises? In this connection, by the way, haven’t we had terrorism and bombings before?
(c). Wouldn’t the Civil War and World War II represent crises far more serious than anything we face today?
15. Looking at the repression of 1798-1800, the Civil War, the Cold War, (with McCarthyism, etc.), the Nixon years, and Gulf War II, can one make a historical case that it is more often the Republicans than the Democrats who engage in repression? (There was, of course, repression under Wilson, and some under FDR, Truman and Johnson, but I am asking a "by and large" type of question.) If the answer is affirmative, what do you think the underlying reasons are?
16. Explain why the McCarthy era is said to be responsible for the so-called "silent generation."
17(a). Describe the following persons, and their contributions to or against freedom of speech.
A. John Lord O’Brian.
B. Alfred Bettman.
C. Robert Jackson.
D. Frank Murphy.
E. Francis Biddle.
F. Emma Goldman
G. Alexander Berkman
H. Eugene V. Debs.
I. Roger Baldwin.
J. David Dellinger.
K. Tom Hayden.
L. John Wigmore.
M. Robert M. Hufihins
(b). Explain who or what the Silver Shirts and the Bund were.
18. Fear of aliens among us seems to have been a constant reason for suppression of speech. Describe this with regard to 1798-1800, the Civil War, World War I, World War II, and the current Gulf War.
19. In which of the six episodes you discuss, plus the current Gulf War, could it be said that the Government’s position was that free speech be damned, you are either with us or against us?
20. Explain the workings of the "heckler’s veto" in WWI and WWII.
21. What has been the role of the idea that, unless government acts against "disloyal" or "defeatist" speech, people will take the law into their own hands.
22. Have juries stopped governmental repression in war?
23. Explain what the Dies Committee and HUAC were.
24. Discuss the trial in Abrams, the Great Sedition Trial of World War II, the Dennis trial, and trials during the Viet Nam war such as the Chicago 7, the Catonsville 9, the Boston 5.
25. What were the teach-ins of the Viet Nam period, and how did they begin? Why haven’t there been any with regard to Gulf War II?
26. Describe the Pentagon papers, McNamara’s statement that people could be hung for what was in them, and the no collateral attack (Walker v. Birmingham) rule under which, unlike violations of a statute, one can be punished for violating an injunction even if the injunction is unconstitutional.
27. Explain your view as to why a variety of voices are needed because decisionmakers go too far when they all are like-minded.
28. Discuss the way in which the Patriot Act was enacted.