Ann Arbor College Years

Misfits in America Chapter 2

To the Jewish brothers of the unnamed University of Michigan fraternity, academics took a stiff back seat to the wondrous goal of winning the intra-fraternity athletic championship.  Their personal identities as jews in America in constant conflict with the hopes and dreams of these smart ambitious young men, Bronze and his friends struggle through their years in Ann Arbor, never keeping their eyes off the prize, Christian friends and acknowledged athletic prowess.


You can listen to chapter 2 of Misfits in America here .

Episodes of Thine Alabaster Cities Gleam will be cross-posted here every Tuesday and Friday.  Thine Alabaster Cities Gleam is also available on iTunes , and in print from Amazon.com

The Misfit Genius from East Europe, Illinois

Misfits in America Chapter 1 

In some ways Harry Brohnz was the smartest man I ever met. We lived together in an apartment during the second semester of or junior year in Ann Arbor. that was the semester that he got a 4.2 grade point average - on a 4 point system, you might jokingly say....

You can listen to chapter 1 of Misfits in America here .

Episodes of Thine Alabaster Cities Gleam will be cross-posted here every Tuesday and Friday.  Thine Alabaster Cities Gleam is also available on iTunes , and in print from Amazon.com

Thine Alabaster Cities Gleam, available in print, and now as a free podcast

Dear Colleagues,

As many of you know, I have recently published a Quartet entitled Thine Alabaster Cities Gleam: A Slightly Fictionalized Memoir of a Career in the Last Half of the Twentieth Century. The book is now additionally available for free as an audio podcast. Readers of my blog might be interested in the Quartet, since the blog reflects many of the themes in the book. As well, because the Quartet covers 50 years of American life, it portrays changes in the moral nature of this country. During the fifty years the country went from a nation which values honesty, competence, diligence and modesty to a nation which rewards dishonesty, celebrification, quick fixes and braggadocio.

Episodes of Thine Alabaster Cities Gleam will be crossposted on this blog every Tuesday and Friday thoughout the next 12 months. Should you prefer, you can also subscribe to get free downloads of the audiobook from iTunes, or add the audio feed to your rss reader.

Re: A Crisis Of American Capitalism.

September 19, 2008

Re: A Crisis Of American Capitalism.



You don’t have to be a socialist (and I certainly am not) to understand that this capitalistic country is confronting a crisis of capitalism. This is not merely a matter of the huge losses and meltdowns that have taken place and have threatened to bring down the whole system with them. It is also a matter of the failure of a culture, a culture that has grown and grown since the sainted Reagan introduced the twin pillars of his morning in America: unchecked greed and militarism.

Militarism today holds high carnival: in Iraq, on somewhere between 700 and 1,100 American bases around the world (the exact number being a secret, even if known to the Pentagon), on huge carriers patrolling seas all over the world, in Bush/Cheney ideas that we should intervene all over the world, in a Pentagon budget of what -- something in the neighborhood of 500 billion dollars or more, I suppose?

Unchecked greed also held high carnival, as it drove the housing market ever higher by means visibly pregnant with failure because they defied history, economics, human comprehension and sense: Adjustable rate mortgages, with initially low rates that one knew -- I certainly knew, often said, acted accordingly, and wholly fail to grasp why everyone didn’t know -- were pregnant with disaster because they would be unsustainable for the buyers when the interest rates increased, as inevitably they would because rates always rise and fall; securitization that gave rise to so-called tranches so complicated that nobody could understand what the risks and rights were; derivatives which may be even more complicated and which nobody has a real handle on apparently. It was all nuts (as this writer often said to people), and now it has come crashing down, as was inevitable. The acclaimed geniuses -- like Alan Greenspan (who led the way) -- who lived in and loved celebrification, who profited from it, have been shown the fools that they are. In Greenspan’s case, this is at least the second burst bubble he promoted, the other being the high tech stock market which melted down at the beginning of the 2000s. (Of course, in America, where nothing succeeds like failure, as is oft typified by celebrified coaches, baseball managers and university presidents, Greenspan remains a great man.)

The heads of major firms have likewise fallen, as their houses of cards collapsed. The fall of titans represents a horrid, economy-threatening failure of the culture of greed, dishonesty (which often was a major part of pushing the insane instruments on uncomprehending buyers), and unchecked capitalism, the culture which has been pushed on us by conservative intellectuals, politicians and the uncomprehending mainstream media since Reagan took office in 1981. This vile culture (and the militarism which is in some important ways associated with it (e.g., a war for oil, huge profits for contractors)), came to dominate much of the American nation. Now the culture of unchecked greed and celebrification of its richest practitioners has come acropper (as did the war in Iraq). That it would come acropper was inevitable, based as it was on stupidity. Leaders have been exposed as fools -- yet again.

Here is an interesting fillip to this point. Goldman Sachs is one of the few huge investment houses which has not gone down, at least not yet. From what I’ve read, the reason is that Goldman was smarter than the others. It sold the garbage to others, it sold the securitized crap to anyone who wanted to buy it, but, from what I gather, it did not keep any of it. So it was not stuck with hundreds of millions or billions of worthless or deeply discountable securities on its books, as the others were. One might say that Goldman was very greedy, like the rest of them, so it made tons of money selling the garbage to fools, but it was a lot smarter than the rest of them because it apparently knew that what it was selling was garbage that should not be allowed to drag down Goldman’s own value by being owned by Goldman. Which, of course, raises the question of isn’t it morally worse, maybe morally far worse, on the one hand, to sell other people stuff you know is such garbage that you won’t keep it on your own books as part of your own assets, than to sell them stuff, on the other hand, that you yourself consider good enough to keep on your own books as part of your own asset base? The latter represents “only” a triumph of stupidity. The former represents sheer immorality, doesn’t it? (And the irony, of course, is that what happened to the other houses which held the stuff may yet drag down Goldman too.)

You know, both stupidity and greed seem always to be with us, sometimes in combination, sometimes separately. Particular examples of them over the years have stuck in my mind indelibly, but I shall skip the details. Suffice to say here that, in the public realm, greed and stupidity are promoted by the corporate mainstream mass media’s constant promotion of the conventional wisdom, the MSM’s blotting out of non-celebrity voices of opposition to the conventional wisdom, and the MSM’s celebrification of fools. Of course, since the mainstream media has such a huge percentage of people who are not very competent or intelligent, maybe it is hopeless to expect better from it. Regardless, we shall have to figure out some way to overcome the roadblock of the MSM, no doubt using the internet in some way.

That, however, is for the future. For the present, we are seeing the meltdown of a culture of unchecked greed and stupidity that has been the driving force in American capitalism since Reagan took office and began 27 years of propagandizing for this. Government is now seeking to lessen the effects of this capitalistic crisis by bailing out the big boys, the Wall Streeters. We are told, of course, that they have to be bailed out lest the whole economy, and maybe even the world’s economy, undergo collapse. And what we are told is true, I would guess. But also noticeable -- and, as always, expected -- is who is getting the short end of the stick. It is the small guys, the small people who get no relief on the mortgages whose interest rates are now way too high for them, the small investors who are losing their shirts, and the like. This, too, of course, is a despicable part of American culture: help the big boys and screw the small man. And this too has been ever more prevalent since the days -- dare I say it yet again -- of the falsely sainted Reagan.*


* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Re: The Bigger The Company, The More Disastrous The Mistake.

September 17, 2008

Re: The Bigger The Company, The More Disastrous The Mistake.


In younger days I was an antitrust lawyer for a considerable number of years. Most of my work, and my cast of mind, was on the plaintiff’s side. This mentality meant, and means to this day, that I favor views expressed by Justices Brandeis and Douglas: Antitrust is not simply about claimed efficiency that supposedly makes things better for consumers. The claims of efficiency are often false and consumers often get the short end of the stick. Rather than being solely about supposed efficiency, antitrust is also about fairness towards competitors, about the virtues of smallness in preference to corporate elephantiasis, about maintaining democracy by preserving economic opportunity for the small man or woman.

The Brandeisian-Douglas view has not prevailed in the last 30 to 40 years. Instead, with some of the most famous names in American law as the tip of the spear (in military terms), the field was taken over by, and federal judges learned from and implemented the views of, the economics boys -- famous professors and judges who claimed that economics were all that mattered and that they, with their verbal facility and occasional mathematical models, could tell us which principles of economics to apply.

The result has been the virtual death of antitrust under the guise of making it more sophisticated. Colossal mergers, legalized price fixing, forcing unwanted products upon buyers as the price of purchasing other products which they do want, are the order of the day. The consumer and the small man or woman exists to be screwed over.

One of the ideas of the economics ist alles boys (economics is all boys) has been that corporate giganticism, whether achieved by mergers, buyouts, internal growth or howsomever, represents a desirable triumph of . . . . something. Maybe a triumph of efficiency, maybe a triumph of cost savings, maybe, if corporations in different fields are melded, a triumph of smoothing out overall corporate earnings cycles because one field will be up when the other is down, maybe a triumph of the idea that huge size and diversification would enable American companies (especially financial ones) to compete more effectively with European and Japanese ones. Creating corporate giganticism had to be a triumph, the economics boys said, because, if it weren’t desirable, then hard-headed businessmen wouldn’t do it.

Well, one triumph of giganticism was for certain. It was a triumph of the economics boys’ theories, verbal fluency and even mathematical claims, over reality. Ignoring reality, the economics boys didn’t consider that high executives from one of the previously separate corporations would be at loggerheads with executives from the other, that from top to bottom the cultures of melded corporations wouldn’t mesh, that cost savings wouldn’t materialize, that earnings would not be smoothed out, that purchasing corporations wouldn’t know how to make good use of acquired corporations, that different industries require very different mentalities, that size was achieved by destroying highly innovative, often new companies, that companies make acquisitions not because this creates better economic entities but because it creates more power, more prestige and vast compensation for high executives, that people, including businessmen, do not act solely in accordance with the presumed economic dictates governing the rational economic man whose motivation the economics boys (falsely) like to posit as the only one to be considered, that the stock of the merged entity would tank, that ultimately there would have to be massive demerging (if I may call it that).

Nor did the economics boys reckon with another point, a point which is assailing us big time today, even as this is written, a point which is the very reason this is being written. The purveyors of economics ist alles did not consider that, when you create gigantic corporate organizations, you are in bigger trouble if one or a few of them make terrible mistakes or fail than if the organizations making mistakes or failing are only one third or one quarter the size.

Today there is a crisis on Wall Street. It involves enormous losses. It threatens the economy. One reason it is of such magnitude is that the institutions of Wall Street were allowed to become so huge. They are so big that their mistakes and their failures threaten all of us.

There have been Wall Street crises before that threatened or brought down the economy. I think I’m right in recollecting, and I know I’m right in some of my recollections, about how problems in the financial markets led to or threatened depressions: Such occurred in the 1830s, 1850s, 1870s, 1890s, early 1900s, and then in the Great Depression which began with the crash of 1929. After the crash of 1929, however, it was thought -- I believe rightly, though economic revisionists, like many revisionists, seek to obscure the truth -- that one of the causative factors was that large Wall Street houses were simultaneously both investment banks and commercial banks. They were, in other words, both sellers and traders of stocks and the kind of bank in which you and I have savings accounts and checking accounts and that make loans for houses and businesses. When the investment bank side of a house went down because it had made mistakes or the market tanked, it pulled down the commercial banking side of the house too.

One part of the solution to this was the Glass-Steagall Act, which decreed that a bank must choose to be either an investment bank or a commercial bank, but could not be both. The House of Morgan, for example, had to be split into two entirely separate banks, initially named, if I remember correctly, J.P. Morgan & Co. and Morgan Guarantee Trust. By forcing banks to be either one type of institution or the other, Glass-Steagall limited the havoc that could be caused by a horrible mistake or failure of a bank.

This worked pretty well for roughly 50 or 60 years. But then Wall Street greed (a reflection or leader of general American greed) took over. I don’t remember all the details, but do remember my surprise, at what was being permitted, surprise arising from a belief in Brandeisian/Douglas principles. Wall Street figures and houses began persuading various federal agencies -- if memory serves, the Federal Reserve and the Comptroller were involved at various points -- to let them make inroads on the separation ordained by Glass-Steagall. It was claimed that the inroads would make them more competitive with foreign institutions, would create desirable financial supermarkets, and achieve other great things. So given institutions got into both the stock business and the commercial banking business, thus undercutting Glass-Steagall. (This is described briefly in a posting in Slate on Monday, September 15th, by Daniel Gross.) Sometimes they did insurance too. They became gigantic, and their heads were lionized by, and featured in, the mainstream mass media. Ultimately the Wall Street titans, for their own benefit, persuaded Congress to completely repeal Glass-Steagall.

Corporate elephantiasis was further increased because -- antitrust and Brandeisian fear of huge size having become dead letters due to the economics ist alles crowd -- banks that already were huge began buying up other banks, until we now have banks with assets of what -- 500 or 750 billion dollars or more? (I recently read that the merged Bank of America/Merrill Lynch will control customers’ assets of 2.5 trillion dollars.) Similarly, investment banks (and commercial banks) began buying up mutual fund companies and/or moving into investment-related fields that were new to them.

So, at the end of the day, so to speak, the big got even bigger, the already large became gigantic, and economic power was concentrated in fewer and fewer institutions. And, when a mistake was made, it had larger ramifications because the company making it was much larger. Even worse, when lots of institutions made the same mistake, the ramifications were that much larger because the various institutions making the mistake were that much larger and had greater effect on the economy.

Now we are seeing the results of one of the greatest mistakes ever, a mistake many of the giants engaged in, one that was an effort to repeal the financial laws of nature. It involved, as all know, subprime, adjustable rate mortgages; pushing on people mortgages they didn’t understand and definitely could not afford once the adjustable rate went up -- as inevitably would occur; sometimes pushing the mortgages on them by fraud; buyer ignorance (and sometimes greed); securitizing the mortgages into hugely complex tranches with differing rights and risks; pushing these so-called mortgage-backed securities onto the public; an ever rising housing market driven higher and higher by the housing purchases made possible by the scheme; and, in the end, the bursting of the bubble.

You know, there is no end to greed, is there? Perhaps ten years ago -- maybe even longer -- I read an article in Barron’s on the mortgage securitization phenomenon, with its incomprehensible tranches, its incomprehensible, differing sets of rights and risk. The general thrust of the article was that nobody really understood the risks or who, if anyone, would come out okay if there were problems, and who would get creamed. Barron’s was obviously right, and now, years later, we read almost every day that the risks (and the ever increasing complexities (including derivatives?)) were still not understood in recent days. But greed prevailed, so the effort to defy the economic laws of nature by putting people into homes they obviously could not afford prevailed, and now the whole thing has tanked, as was expectable in the circumstances. The situation was made even worse over time, and the tanking is worse now, because the institutions caught up in the whole deal are so gigantic. The fall out from the disaster is far worse than otherwise because of the institutions’ size. The whole American economy, even the world economy, is threatened.

Much of the problem would almost surely have been avoided if the titans of Wall Street, the federal agencies, and the venal Congress which can be and is bought for the price of some campaign contributions, had not sought or granted exceptions to, and then ultimately repealed, Glass-Steagall, and if antitrust had not been eliminated as a significant factor by the theories of the economics boys. A few of us like myself and other MSL professors, occasionally wrote about why the demise of Glass-Steagall and the rise of ever greater elephantiasis was a dangerous thing, but we were just small fry whistling in the wind. The bigshots knew what they wanted and got it. And now look what’s happened, as what was once called the madness of crowds morphed into the greedy madness of the far fewer and enormously larger.

You know, it is interesting that in recent years, even in recent days, the decades-long drive for ever greater size has begun to decline or be reversed in various fields. People are buying smaller cars. People are beginning to buy smaller houses -- sometimes teeny houses. It is becoming recognized that there are great advantages to smaller schools, from grammar and high schools to universities. It is understood that small companies are often the most innovative. Small hospitals that specialize in one kind of operation are thought the best at what they do. It very well may be that god or nature or something is telling us something, is telling us, perhaps, that organizations and artifacts cannot get bigger indefinitely, that beyond a certain size dysfunctionality takes over. But the movers and shakers of the financial world and the politicians -- all of whom have a major say -- do not understand this yet. They still think ever bigger is ever better; indeed, one of the methods of rescue is that the already gigantic Bank of America will take over Merrill Lynch, thereby becoming even larger. (What will be the effect if the incredibly huge Bank of America now gets into deep doodoo in future years?) Well, our betters are wrong in thinking ever bigger is ever better. Instead of worshipping at the alter of size, Glass-Steagall should be reinstituted, antitrust should be used once again to protect the small guy, our other laws and practices should be conformed to the idea that smaller is often more desirable, and we all ought to begin to recognize that there are limits to how big things can get and remain workable.

Oh, and it also wouldn’t hurt if we tried to curb (and punish) greed and condemn associated stupidity.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Attempted Statutory Immunity For The Executive's War Crimes.

September 4, 2008

Re: Attempted Statutory Immunity For The Executive’s War Crimes.


By now it seems beyond serious doubt that George Bush and company committed numerous war crimes. There has now been book after book detailing their actions; some of the books are legal in character, even when directed at a much broader audience than lawyers, while others are not legal in nature (e.g., Charlie Savage’s and Jane Mayer’s). The question now, in reality, is not whether crimes have been committed. It is, rather, what if anything to do about them. Suggestions range from doing nothing, to a truth and reconciliation commission, to Congressional hearings (ala the Church committee), to criminal trials before state, federal, foreign or international courts, to civil suits for damages brought by injured persons (e.g., innocent persons -- some of whom are Americans) who were detained for months or years and/or physically abused or tortured.

I shall deal here only with certain matters relevant to criminal trials in American courts and possibly relevant, to some extent, to civil trials for damages in domestic courts.

Based on fairly extensive readings from about 2002-2003 until today, it seems pretty clear that people who were responsible for or committed torture were well aware from the get - go that what they were doing constituted crimes. That realization is why CIA officials, from 2002 to 2006 or 2007 demanded memoranda, from the Office of Legal Counsel of the Department of Justice, falsely claiming that the abuse and torture were not criminal acts. The officials wanted these OLC memos so that they could later avoid or defeat prosecutions by claiming that the decisionmaking office of the DOJ had approved the legality of what they were doing. The officials wanted a “golden shield,” a “get out of jail free card.”

As well, knowledge that the acts and Justice Department memoranda supporting them would be strongly opposed if they came to light were among the crucial reasons the acts and supporting memos were kept secret for years. The opposition, it was well understood, would be based both on American concepts of morality and the fact that the acts were violations of both international criminal law and domestic criminal law. It was understood by perpetrators and legal enablers of torture that many lawyers in the Executive Branch and the military would be among the strong opponents of what was being done -- lawyers such as the generals and admirals who were the military JAGs, certain armed forces General Counsels, State Department lawyers, and DOJ lawyers. Thus these lawyers were kept out of the loop to the maximum extent possible. Information was kept on “a close hold” or “a very close hold,” information was confined to as few people as possible, so that there would be no knowledge, or as little knowledge as possible, on the part of those who would object to the criminal acts. The perpetrators and enablers feared the objectors would say the acts were criminal, would say so internally if not externally and, in some cases (e.g., if opponents were legislators), might publicly denounce and condemn the actions as criminal.

It is, frankly, impossible to overestimate the crucial importance of, and concern for, secrecy to hide the criminal acts. It was well understood that what was being done could not be done if there were widespread knowledge of it. While the Executive likes to claim that secrecy was essential lest terrorists learn what was being done and prepare themselves for it -- the type of claim that in the last few years has been made to cover many Executive misdeeds -- it is at least equally if not more true that secrecy was employed because of knowledge that torture and abuse would have to end - - because they would be seen as both immoral and criminal -- when and if they and their supporting DOJ memos became widely known.

And, after the immoral and criminal actions did become widely known, the Executive Branch, via the vociferous demands of Dick Cheney, and with the cooperation of a complaisant John McCain, obtained what it hoped would be immunity for its criminal conduct. This was done in two statutory sections. The “McCain Amendment” to the Detainee Treatment Act of 2005 provides that in any criminal or civil case arising out of “specific operational practices” involving “detention and interrogation of aliens” whom Bush or his agents “believe[] to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States . . . and that were officially authorized and determined to be lawful at the time that they were conducted,” it will be a defense that the defendant “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.” In determining whether an ordinary person would know the practices are unlawful, the McCain Amendment tells courts that “an important factor” to consider is “Good faith reliance on advice of counsel.”

The other immunity-creating provision is Section 7(e) of the Military Commissions Act of 2006. Subsection (1) of the Section provides that no court can grant habeas corpus to an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Subsection (2) says no court “shall have jurisdiction to hear or consider any other action . . . relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” (Emphasis added.)

The first part of Section 7(e) of the Military Commissions Act of 2006 -- i.e., the “no habeas corpus” provision of 7(e)(1) -- was struck down by the Supreme Court in the Boumediene case in 2008. At least some experts say it is not totally clear whether the second part of the Section was also struck down, i.e, whether Subsection 7(e)(2), barring any action other than habeas corpus, was also struck down by the Boumediene decision. I shall assume for purposes of discussion that the Boumediene case did not itself strike down the second subsection, but instead left its legality to be determined in the future.

When one reads the two immunity provisions closely, it is obvious that there are certain holes in the immunity they might otherwise give. For example, the provisions give immunity only where the victim was an alien, not where he (or she?) was a citizen. But there were large numbers of citizens who got detained, got questioned, and in lots of cases were abused or even tortured. Also, the McCain amendment gives immunity only where the acts of abuse or torture were officially authorized and determined to be lawful at the time they were done. But there were lots of acts, apparently, that, when done, either had not yet been officially authorized, or had not been determined lawful, or both.

As well, the second subsection of the Military Commissions Act gives immunity only if the alien has been “determined . . . to have been properly detained as an enemy combatant or is awaiting such determination.” But numerous people who were abused or tortured have now been released without any determination that they were enemy combatants. (Indeed, a court could find that there is no such legal category as “enemy combatant” -- in reality there isn’t; it was something that was simply made up by the Executive -- so that the provision is in effect a nullity because it gives immunity only for a category that does not lawfully exist.)

There is also a so-called “preemption” issue. The wording of the two statutes does not distinguish between federal courts and state courts, but instead seem to confer immunity in any court. But can this be done? Can the federal government preemptively immunize Bush and company from liability for murder under state law -- the crime for which Vincent Bugliosi says Bush and his henchman could and should be prosecuted in state courts?

But aside from the obvious holes in the statute, there is also a broader point, one that, at least morally speaking, and perhaps legally speaking too, is far more important. It goes something like this: Can a person, knowing that acts are unlawful, engage in those acts and then obtain immunity by exercising power over the legislative process and by finding lawyers who are willing to write the most incompetent and atrocious legal opinions designed to give the guilty a get out of jail free card?

It is evident that if these things can be done, then there is an end of law where the truly wealthy and powerful are concerned. Whether it is Al Capone or Dick Cheney, the filthy rich or obscenely powerful will have it in their power to do the most awful things yet escape the law by using contributions or power to obtain immunity from preexisting law and to buy the opinions of immoral lawyers. That is the moral and philosophical basis why these things can’t be permitted. What the precise legal rationale would be is something I’m not sure of, is something on which research must be done. Perhaps there is some constitutional argument about perverting the legislative process -- which, however, is often perverted -- or some so-called “equitable” doctrine, or some (long forgotten?) doctrine of criminal law, which bars this kind of societal distortion. Or perhaps there is some theory which sets aside immunity if the provision granting it is the product of what in effect is a criminal enterprise. I myself am not sure of what the legal grounds would be, but I do feel that the immunity here is impermissible, and that a legal methodology must be found to render it impermissible, if we are to have a country of laws.

The issue of acting on advice of counsel raises additional questions. It is widely thought that there are perhaps six to ten lawyers who are guilty of crimes because they facilitated, they enabled, the criminal conduct perpetrated by torturers. The names Yoo, Addington, Haynes, Gonzalez, Flanigan, Bradbury, Bybee are among those that leap to mind. These people cannot claim advice of counsel; they were the counsel who were doing the advising and were drafting get out of jail free cards for others. They also knew that what they were advising was illegal, which was one of the main reasons they kept everything a close hold and insured secrecy so that Executive lawyers and officials who would object to their advice as immoral and unlawful would not learn what they were doing.

Guys like Cheney and Bush shouldn’t be able to plead good faith reliance on the advice of counsel either, because they told the counsel what advice to give. Could Al Capone or Lucky Luciano receive immunity for acting in accordance with the advice of counsel when they told counsel what to advise? Not to mention that, rather than acting in good faith reliance on the advice of counsel, Cheney and Bush knew that they were ordering violations of law. The fact that they were doing so, and were well aware they were doing so, was one of the reasons why they, like a significant number of CIA officials who knew the same, demanded that lawyers produce legal cover for them in the form of OLC memos authored by the likes of Yoo and Bradbury.

Then there is the situation of the lower level CIA and military people -- persons in the chain of command and/or who committed the torture and the renditions for torture. These people did not read the Yooian type memos -- actually a lot of involved higher level people didn’t either -- so they cannot claim direct reliance on advice of counsel. But, high level or low, no doubt they were told that torture was approved by lawyers. Nonetheless, these people too cannot claim good faith reliance on the advice of counsel. For they had to know that torture was forbidden no matter what some lawyers said. You could not grow up in America and not know this. (Would someone be allowed to successfully claim to have thought murder was lawful because some lawyer told him so?) People who grew up in America cannot realistically claim that they thought it was lawful to beat people mercilessly, to smash their heads against walls, to kill about one hundred of them apparently, to hang them from ceiling hooks, to make them freeze, to deny them sleep for weeks on end, and so forth. I don’t care what they were told lawyers supposedly had said. They knew what they were doing was wrong. FBI and NCIS guys on the scene knew it regardless of what lawyers like Yoo said, and it was knowledge that what they were doing was wrong that caused some lower level CIA guys too to want a get out of jail free card.

Beyond all this, the claim of good faith reliance on counsel, like the cognate claim of being tasked or ordered to torture, kidnap or rend, and like the immunity provisions themselves, simply are an effort to escape the Nuremberg principles by saying that others said what the culprits were doing was okay. Nuremberg established the principle that there are things that simply can’t be done, a principle later furthered in other treaties, conventions and cases. Nuremberg also established that one cannot rely on the defense that one is merely doing what others said to do. But claiming that their actions were immune because others okayed them is precisely what Cheney, Bush, their whole crowd, and even McCain have been attempting to do. They have been and are seeking to do forbidden acts and then to escape punishment by retroactive immunity, including immunity based on the so-called advice of counsel. They knew what they were doing was illegal, as evidenced by the extreme secrecy they practiced lest it be learned they were practicing, and lest they be accused of practicing, the crimes they were in fact practicing. Morality, decency, and Nuremberg alike forbid this.

* * * * *

There is another question, one analogous to immunity, which has also arisen. What if Bush, it is asked, before leaving office, were to pardon himself and all others involved in the crimes at issue? The theory widely accepted is that the pardon power is absolute, so the President can pardon himself and anyone else for all crimes. Some people feel the President cannot grant himself a pardon, precisely because he grants pardons - - the theory here being, I presume (but don’t actually know), that you can only grant something to someone else, not yourself. (This is purely semantic and not very persuasive, I would think.)

The idea that a President has an absolute, unfettered ability to grant pardons does not strike me as persuasive. Could a President order the mass murder of 5000 people and then allow the perpetrators and he himself to escape all punishment by pardoning them and himself? The idea is preposterous and would mark the end of a government of laws. Were such a pardon permissible, the law is at an end and we might as well all move to Canada -- or, as I believe Lincoln said, to Russia, where they take their tyranny straight, without the base alloy of hypocrisy.

So there must be some limits to the pardoning power. No doubt they are inherent in the history of the original creation of the power (perhaps in England?), a history I know nothing of and have never seen reference to. We need research on the subject. Perhaps the research will show that there cannot be a pardon for the President’s own criminal acts or for other persons who helped him carry out his criminal acts. Perhaps it will show other limits. But it is not really possible that the pardoning power lets a President commit whatever crimes he chooses, no matter how heinous and obviously unlawful, and then pardon himself as well as all others who helped him carry out atrocious illegal acts like killing hundreds or thousands of people. A claim of such unfettered power defies common sense*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

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