Politics, et Cetera

A publication from The Political Forum, LLC

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Tuesday, July 16, 2013

They Said It:

As Clover looked down the hillside her eyes filled with tears.  If she could have spoken her thoughts, it would have been to say that this was not what they had aimed at when they had set themselves years ago to work for the overthrow of the human race.  These scenes of terror and slaughter were not what they had looked forward to on that night when old Major first stirred them to rebellion.  If she herself had had any picture of the future, it had been of a society of animals set free from hunger and the whip, all equal, each working according to his capacity, the strong protecting the weak, as she had protected the lost brood of ducklings with her foreleg on the night of Major’s speech.  Instead — she did not know why — they had come to a time when no one dared speak his mind, when fierce, growling dogs roamed everywhere, and when you had to watch your comrades torn to pieces after confessing to shocking crimes.  There was no thought of rebellion or disobedience in her mind.  She knew that, even as things were, they were far better off than they had been in the days of Jones, and that before all else it was needful to prevent the return of the human beings.  Whatever happened she would remain faithful, work hard, carry out the orders that were given to her, and accept the leadership of Napoleon.  But still, it was not for this that she and all the other animals had hoped and toiled.

George Orwell, Animal Farm, 1945.



As the entire world is now fully aware, the trial of the century ended last week amid cries of despair from the citadels of the Left throughout the world.  Lillian Gish on the ice flow could not hold a candle to the anguish that these poor souls felt at the gross injustice of it all.  Kurtz’s cries of “The horror!  The horror!” pale in comparison to the torment of the right reverends Jackson and Sharpton.

Now we won’t bother you with the details.  As best we can tell, they don’t really matter much.  Somebody was guilty.  Or not guilty.  Or not guilty pending another trial.  Or . . . well . . . something . . . It turns out that it wasn’t really a trial after all.  It was a prelude to a national display of anger at the sins of a nation of racists.  It was a stilted American version of a Greek tragedy, conducted for the edification of the nation’s secular liberal Godheads for the purpose of elucidating the unresolvable tension between the nation’s traditional judicial system, which has its roots in English common law, and the demands of a sanctimonious mob with roots in the days of the white hoods and cross burnings.

To hear those on the Left tell it, this is the tale of poor, little Trayvon Martin, an innocent young man who was harassed and shot, while minding his own business, eating his Skittles, walking home from the store, for no other reason than the fact that he was black; an all too common fate of innocent young black children in America today.  Gary Younge, writing for London’s Guardian newspaper, makes the case as follows:

Let it be noted that on this day, Saturday 13 July 2013, it was still deemed legal in the US to chase and then shoot dead an unarmed young black man on his way home from the store because you didn’t like the look of him.

The killing of 17-year-old Trayvon Martin last year was tragic.  But in the age of Obama the acquittal of George Zimmerman offers at least that clarity.  For the salient facts in this case were not in dispute . . .

Appeals for calm in the wake of such a verdict raise the question of what calm there can possibly be in a place where such a verdict is possible.  Parents of black boys are not likely to feel calm.  Partners of black men are not likely to feel calm.  Children with black fathers are not likely to feel calm.  Those who now fear violent social disorder must ask themselves whose interests are served by a violent social order in which young black men can be thus slain and discarded.

On the Right, this is the story of poor little George Zimmerman, a guy who made the mistake of wanting to protect his neighborhood so badly that he wound up in a confrontation, defended himself, and then was railroaded by an ideologically driven press that wished to see him destroyed for the crime of having a gun, when Trayvon Martin didn’t.  Boston radio talk-show host Jeffrey Kuhner makes the pitch thusly:

George Zimmerman is innocent.  The evidence clearly shows this.  Yet the liberal media have already convicted him in the court of public opinion.  The result is not only that a man’s life — regardless of the verdict — has been shattered.  Race relations have been poisoned, paving the way for possible deadly riots if Mr. Zimmerman is acquitted.

From the outset, liberal media outlets — CNN, MSNBC, NPR, CBS, ABC, NBC, the Huffington Post, The New York Times and The Washington Post — put forth one seminal narrative: The shooting of 17-year-old Trayvon Martin was a flagrant example of white racism against blacks. Modern-day Sanford, Fla., was transformed into 1960s Selma, Ala.  Mr. Zimmerman has been turned into the poster child of a more subtle and polished, but revived Ku Klux Klan.   For example, the audiotape of Mr. Zimmerman’s call to a 911 dispatcher on the night of the shooting was deliberately edited by NBC in a pathetic attempt to portray him as a vile racist bent on violence.

The entire mainstream media narrative, however, is based on lies.

Now, if you’ve paid any attention at all to American politics over the last, say, 40 years, then none of this should surprise you in the slightest.  These are two of the longest-running themes in contemporary American culture:  the Left thinks America is controlled by white supremacists who are motivated exclusively by racial animosity; while the Right thinks the media is part of a vast Left-wing conspiracy to humiliate and destroy the evil, racist Right.  These two tropes are as common as dirt.

That is not to say that these tropes are not relevant to this case.  Indeed, both probably played some part in the events that brought us to this point, although not necessarily in the sense that both sides appear to believe.  For example, “profiling” surely played a role in Zimmerman’s decision to follow Trayvon Martin that fateful night.  But since Zimmerman is himself one-quarter black and has no history whatsoever of racial animosity, we doubt seriously he was motivated by racial profiling.

In any case, the proverbial elephant in the room when it comes to the profiling of young black men is the cultural reputation of young black men, a reputation that has largely been fostered and aggravated by the very same media who feign horror every time their own prejudices are taken to heart and result in tragedy.  In movies, music, and television, young black men are portrayed as angry, violent, and troubled.  And yet the media acts as surprised as anyone when their own portrayals are taken seriously.

Likewise, the notion that the mainstream media “ginned up” the case against Zimmerman is not entirely unreasonable.  Still, it’s a little difficult to believe that all of the mainstream outlets did so in pursuit of “racial justice.”  We suspect that many were, as they usually are, simply trying to boost ratings through sensationalism.  With a little imagination, this little drama could be made into a media bonanza.  As so it was.  With these people, truth is, after all, less relevant than ratings.

So, does the tenuousness of these two prominent memes dictate that there is no reason why anyone should actually care about this trial?  Well . . . yes and no.

First, we would caution that drawing wide-ranging societal conclusions based on one incident is difficult and, worse yet, often foolish.  There are, undoubtedly, serious issues with our law enforcement and judicial systems, but it is highly doubtful that this case is particularly representative of those issues or a sensible springboard for reform.  Sometimes, as Freud may or may not have said, a cigar is just a cigar.

That said, the Zimmerman case can and perhaps should serve as a cautionary tale of sorts.  This past weekend, in his commentary on the case, our friend John Fund, formerly of the Wall Street Journal and currently writing for National Review Online, suggested that the case is a symbol of a “justice system run amok.”  To wit:

The trial of George Zimmerman should be taught in law schools and elsewhere as a prime example of one of the most mishandled and politically motivated prosecutions in recent U.S. history.  If we want to reserve the criminal-justice system for deciding guilt or innocence rather than for playing out social and racial grievances, it’s important to review the spectacle we just witnessed.

Similarly, in his take on the trial, Fund’s National Review colleague, the inimitable Mark Steyn, blamed a justice system that can and will do anything it can to get its man (or woman, as the case may be).

The defining characteristic of English law is its distribution of power between prosecutor, judge, and jury.  This delicate balance has been utterly corrupted in the United States to the point where today at the federal level there is a conviction rate of over 90 percent — which would impress Mubarak and the House of Saud, if not quite, yet, Kim Jong Un.  American prosecutors have an unhealthy and disreputable addiction to what I called, at the conclusion of the trial of my old boss Conrad Black six years ago, “countless counts.”  In Conrad’s case, he was charged originally with 17 crimes, three of which were dropped by the opening of the trial and another halfway through, leaving 13 for the jury, nine of which they found the defendant not guilty of, bringing it down to four, one of which the Supreme Court ruled unconstitutional and the remaining three of which they vacated, only to have two of them reinstated by the lower appeals court.  In other words, the prosecution lost 88 percent of the case, but the 12 percent they won was enough to destroy Conrad Black’s life.

Multiple charges tend, through sheer weight of numbers, to favor a result in which the jury convict on some and acquit on others and then tell themselves that they’ve reached a “moderate” “compromise” as befits the reasonable persons they assuredly are.  It is, of course, not reasonable.  Indeed, the notion of a “compromise” between conviction and acquittal is a dagger at the heart of justice.  It’s the repugnant “plea bargain” in reverse, but this time to bargain with the jury: Okay, we threw the book at him and it went nowhere, so why don’t we all agree to settle?  In Sanford, the state’s second closing “argument” to the strange, shrunken semi-jury of strikingly unrepresentative peers — facts, shmacts, who really knows? vote with your hearts — brilliantly dispenses with the need for a “case” at all.

This is all well and good, we suppose.  And certainly Steyn and Fund make excellent points.  But it strikes us that the importance of this case has less to do with the faults attendant to the justice system than it has to the problem of big government run amok.

Consider, if you will, how the prosecution of George Zimmerman came about.

The Sanford, Florida police investigated the incident and declined to press charges.  The case, however, was so controversial that it was handed over to state investigators in the office of State Attorney Norm Wolfinger.  Wolfinger too declined to prosecute, stating that there was not enough evidence to pursue a case.  At that point, the federal Department of Justice, headed by Eric Holder, and the FBI began their own investigations.  Florida Governor Rick Scott then appointed his own special prosecutor in the case.  The very next day, the President of the United States, allegedly a constitutional law professor at one point in his career, weighed in on the matter, inserting himself, once again, into a local dispute that had nothing whatsoever to do with him.  Roughly two weeks later, the decision was made by the Florida Special Prosecutor Angela Corey to charge Zimmerman with second degree murder.  The rest, as they say, is history.

Whatever else we know about this case, we know that someone outside of the normal prosecutorial chain wanted George Zimmerman charged with murder.  We know that that person was politically powerful, which is to say that he or she had enough power to override the State Attorney of Florida.  Given the involvement of the DoJ, the FBI, and the White House, we can guess that the pressure to prosecute came from federal government, either directly or indirectly.  And if it did not, it came from some power within the Florida state government.

Now, we are not hawking a political scandal here or a case against any one actor in particular.  We are simply stating that somewhere, somehow, the entity that is known as “the government” identified someone that it thought should be prosecuted for a crime, despite the fact that two jurisdictions had already determined that no crime was committed.  And then it ensured that this person was indeed prosecuted.  That in and of itself should terrify every American and if it becomes the norm may well signal the end of liberal democratic governance as we know it.

A little overwrought, you say?  Well, maybe.  But in order to understand our point, we have to take a brief trip back in time to a Wall Street Journal piece published almost exactly two years ago (July 24, 2011).

The piece starts with the story of Eddie Leroy Anderson of Craigmont, Idaho, “a retired logger, a former science teacher, and now a federal criminal.”  Anderson, you see, made the mistake of loaning his son some tools to dig for arrowheads.  Turns out that Anderson’s son wanted to dig on federal land.  And according to a 1979 law, digging for artifacts on federal lands is a federal crime, as – if you can believe this – is providing the tools for digging.  Never mind that Anderson’s kid didn’t find any arrowheads or that neither of the men knew anything at all about the law and the “criminality” of their actions.  Anderson and his son, facing two-year prison sentences, pleaded guilty instead, paid $1,500 fines and earned, for their efforts, federal criminal records.  The Journal continued:

The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws — as opposed to state or local laws — as the federal justice system has dramatically expanded its authority and reach.

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law.  Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent . . .

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting.  By the turn of the 20th century, the number of criminal statutes numbered in the dozens.  Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties.  Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible.  The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000.  The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

A Justice spokeswoman said there was no quantifiable number.  Criminal statutes are sprinkled throughout some 27,000 pages of the federal code . . .

With the growing number of federal crimes, the number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually.  The U.S. population grew only about 36% in that period.  The total federal prison population, over 200,000, grew more than eightfold — twice the growth rate of the state prison population, now at 2 million, according the federal Bureau of Justice Statistics . . .

Harvey Silvergate, a lawyer, author, and civil libertarian, has argued that a normal American commits three felonies a day, without even knowing it.  He made this argument most famously in his book titled (appropriately enough) Three Felonies a Day.  The basic premise is that the expansion of the federal penal code – which is an outgrowth of federal legislation more broadly – makes it likely that every American commits some crime at some point almost every day.  The federal government is so big and is involved in so much “policy” that its regulatory and legal codes are so massive that no one can either know everything that is illegal, much less avoid doing some of those things at some point.  As Alex Tabarrok, the Bartley J. Madden Chair in Economics at George Mason University, recently put it, “No One is Innocent.”

In a normal world, this would probably not matter one whit to any of us.  So we commit a handful of unintentional crimes.  Who cares?  Who would bother to make a big deal about it?  Who would prosecute someone (like us) who didn’t know he was committing a crime?  And frankly, who would ever know?

As we’ve noted countless times in these pages, however, this is anything but a normal world.

One of the traditional prohibitions against wantonly charging the otherwise innocent with unintentionally criminal acts is the concept of mens rea, which translates from Latin as “guilty mind.”  In traditional common law, mens rea has been a requirement in most criminal cases.  As the late Chief Justice Fred Vinson once noted, “the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American jurisprudence.”

As it turns out, though, mens rea is another one of those ancient Anglo-American principles that has been sacrificed in the name of “the common good,” which means that ignorance of the law is no defense, particularly at the federal level, as noted in the story above about Eddie Anderson.  It doesn’t matter if you know that it’s illegal to put a paint can in your garbage or sell a book at a garage sale.  All that matters is that it’s illegal.

Now, as the aforementioned Alex Tabarrok notes, in the majority of circumstances, “faced with evidence of a non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment.”  But that’s not always going to be true.  And certainly it won’t be true if there is political pressure brought to bear on the prosecutor in question.  Glenn Reynolds, the University of Tennessee law professor better known as Instapundit, recently penned a fascinating and troubling piece for the Columbia Law Review on precisely this topic.  Reynolds put it this way:

Prosecutorial discretion poses an increasing threat to justice.  The threat has in fact grown more severe to the point of becoming a due process issue . . .

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants.”  This method results in “[t]he most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”  Prosecutors could easily fall prey to the temptation of “picking the man, and then searching the law books . . . to pin some offense on him.”  In short, prosecutors’ discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books.

Prosecutors themselves understand just how much discretion they enjoy.  As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s Office for the Southern District of New York was to name a famous person — Mother Teresa, or John Lennon — and decide how he or she could be prosecuted:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her.  The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years).  The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.  The, result, however, was inevitable: “prison time.” 

With so many more federal laws and regulations than were present in Jackson’s day, a prosecutor’s task of first choosing a possible target and then pinning the crime on him or her has become much easier.  If prosecutors were not motivated by politics, revenge, or other improper motives, the risk of improper prosecution would not be particularly severe.  However, such motivations do, in fact, encourage prosecutors to pursue certain individuals….

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime.  Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character.  And since, as the game Wu describes illustrates, everyone is a criminal if prosecutors look hard enough, they are guaranteed to find something eventually.

Where, then, does all of this leave us?  It leaves us with a justice system that is, to put it mildly, a potential tool of repression.  Every adult in America is undoubtedly guilty of some crime, given the vast proliferation of the federal government and its attendant laws and regulations.  Every American is therefore at the mercy of prosecutors and, by extension, their elected overseers.  And as we have seen with the Zimmerman case (and as we argued up top in this piece), political overseers can, on occasion be expected to utilize their power to insist on the prosecution of those whom they deem inconvenient or a threat of some sort or another or merely just tiresome.

The only thing that remains, then, is for this cudgel of the justice system to provide evidence of the crimes necessary to convict any man or woman in the country who makes the mistake of crossing the wrong person or of standing out in the proverbial crowd.  Generally speaking the one further restraint on gung-ho or even corrupt prosecutors is the inability to collect enough evidence to convict.  That, in fact, was the problem with the prosecution in the Zimmerman case.

And that, unfortunately, brings us to an article published just yesterday by Buzzfeed, an investigative journalism, politics, and entertainment web site.  To wit:

The NSA’s massive Utah Data Center, designed for communications storage, processing, and decryption, is already up and running, despite agency claims the center won’t open until September.  Opening the facility — the largest of its kind in history — is the key final step that will allow the agency to collect and store massive amounts of data on U.S. citizens.  The NSA has numerous other data centers, but the Utah facility will be the central repository, enabling data collection on an unprecedented scale.

And according to Russ Tice, a former NSA intelligence analyst who still maintains close ties with numerous colleagues at the agency, it’s not just metadata — which has been a key distinction in the administration’s defense of its intelligence gathering programs.  The agency, according to Tice, is currently able to collect the full contents of digital communications.  That includes the contents of emails, text messages, Skype communications, and phone calls, as well as financial information, health records, legal documents, and travel documents.  This comports with statements given this week by a former senior intelligence official, claiming that NSA Director Keith Alexander’s ethos was to “collect it all, tag it, store it . . . And whatever it is you want, you go searching for it.”

The NSA’s ability to collect and store such vast quantities of information is difficult to grasp.  But so is the enormous footprint of the data center in Bluffdale, Utah, 25 miles south of Salt Lake City.  The facility, which cost the government $2 billion, covers 1 million square feet, 100,000 of which is purely for computer servers and storage hardware.

As you may recall, last month, when the data-mining “scandal” first broke, we wrote a piece arguing that the whole surveillance state bode ill for the future of democratic governance.  Among those we cited in that piece was Marc Ambinder, who writes for the Atlantic and who put it this way:

The American people have no idea who the president will be in 2017.   Nor do we know who’ll sit on key Senate oversight committees, who will head the various national-security agencies, or whether the moral character of the people doing so, individually or in aggregate, will more closely resemble George Washington, Woodrow Wilson, FDR, Richard Nixon, Ronald Reagan, John Yoo, or Vladimir Putin.

What we know is that the people in charge will possess the capacity to be tyrants — to use power oppressively and unjustly – to a degree that Americans in 1960, 1970, 1980, 1990, or 2000 could’ve scarcely imagined.  To an increasing degree, we’re counting on having angels in office and making ourselves vulnerable to devils.  Bush and Obama have built infrastructure any devil would lust after.

Given the Zimmerman trial and given the clear and manifest involvement in the prosecution of someone powerful with a political agenda, we can honestly say that we doubt seriously whether the concern over this surveillance business can or should be deferred until 2017.  The potential – and the inclination – for tyranny exists within our political system today.

As we ended that piece, we concluded that like the Industrial Revolution, which killed monarchy, the current micro-technological revolution, could well end up killing democracy.  Certainly, the government’s obsession with criminality and the “common good,” its disregard for privacy and for criminal intent, and the infrastructure it has built to allow it to keep tabs on every person and thus to collect evidence on every person, will combine to alter dramatically the way this nation operates.

At the very least, it is hard to imagine that the First Amendment – that which purportedly guarantees free speech – will have much value in a world in which everyone is presumed to be guilty of some crime and prosecutors merely await instructions and evidence to be delivered to them by their political superiors in Washington.  Sure, you are free to say, write, or post anything you want.  But, then, do you really want to call that kind of attention to yourself?

As any schoolboy knows, Patrick Henry purportedly implored the Virginia House of Burgesses to “Give me liberty or give me death,” thereby convincing Virginia’s legislators to accede to revolution against King George.

In the future, that slogan, which has become emblematic of the American spirit, is likely to be replaced by another:  “Keep your head down.  Keep your mouth shut.  And don’t go to jail.”

And that, we’re afraid, may be the biggest and most important lesson of George Zimmerman’s unfortunate brush with fame.


Copyright 2013. The Political Forum. 8563 Senedo Road, Mt. Jackson, Virginia 22842, tel. 402-261-3175, fax 402-261-3175. All rights reserved. Information contained herein is based on data obtained from recognized services, issuer reports or communications, or other sources believed to be reliable. However, such information has not been verified by us, and we do not make any representations as to its accuracy or completeness, and we are not responsible for typographical errors. Any statements nonfactual in nature constitute only current opinions which are subject to change without notice.