Gorsuch and TransAm Trucking

indexThis week, the nation bore witness to Neil Gorsuch’s  Supreme Court confirmation hearings. The hearings had little to do with the qualifications of Judge Gorsuch, whose past experience both as a judge and an attorney plainly qualify him for the bench. Instead, the hearings focused on his judicial philosophy, and deeper questions about the role of the judicial branch of government outlined in Article III of the United States Constitution.

The line of demarcation was drawn across the pages of Gorsuch’s dissenting opinion in TransAm Trucking v. ARB, U.S. Dept. of Labor, 883 F.3d 1206 (10th Cir 2016). The nominee’s opposition, most notably Senator Al Franken, expressed concerns about how the Judge’s narrow reading of 49 U.S.C. § 31105 would have supported the termination of a truck driver who elected to abandon his 18-wheeler trailer rather than freeze to death per the instructions of his employer.

Admittedly, Judge Gorsuch’s opinion does offer a whiff of a time honored legal criticism:

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. ~ Anatole France.

In his dissent from the Tenth Circuit’s decision to decline review, and thus uphold, the administrative law judge’s ruling that the trucker’s termination was unlawful, Judge Gorsuch wrote that the majority stretched its application of the law to achieve the result it wanted rather than the result the statute demanded. The statute at issue reads, in pertinent part:

A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because

. . .

(B) the employee refuses to operate a vehicle because—


the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or


the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
49 U.S.C. § 31105 (a)(1)(B). In this case, the trailer’s brakes were frozen. It was cold beyond comprehension outside. The truck was out almost completely of gas, and the auxiliary cab heater was broken. The trucker showed signs of hypothermia. He elected to abandon his cargo and drive the truck to a safe location, in spite of his instructions from the dispatcher to remain with his trailer for a repair. He was terminated from TransAm Trucking as a result of his actions. He tried his lawsuit before an Administrative Law Judge, a non-article III court tasked with resolving administrative agency disputes, in this case, OSHA & the U.S. Department of Labor. The administrative judge found in favor of the trucker, and TransAm appealed to the Tenth Circuit. The majority declined to grant review of the company’s appeal. In so holding, the majority found the word “operate” in the statute quoted above to be ambiguous, so as to justify executive, administrative interpretation of congress’ words when interpreting the law. Chevron, USA Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843 (1984) (holding that an administrative agency’s interpretation of a statute is entitled to deference when “the statute is silent or ambiguous” and the administrative agency’s interpretation is a reasonable one).
Judge Gorsuch’s dissent also focuses on the word “operate,” and is critical of the majority’s reliance on Chevron:
But, respectfully, it seems to me Chevron is a curious place to turn for support given that the Department never argued the statute is ambiguous, never contended that its interpretation was due Chevron step two deference, and never even cited Chevron. In fact, the only party to mention Chevron in this case was TransAm, and then only in a footnote in its brief and then only as part of an argument that the statute is not ambiguous. We don’t normally make arguments for litigants (least of all administrative agencies), and I see no reason to make a wholly uninvited foray into step two of Chevronland.
TransAm Trucking Inc., 883 F.3d at 1216 (Gorsuch, J. dissenting).

To Gorsuch’s way of thinking, the word “operate” is unambiguous. It is easily defined. Someone who operated a vehicle is not entitled to sue under a theory that they were punished for not operating a vehicle. To many, this author included, such reasoning seems unfair. TransAm’s conduct in instructing its driver to risk death beside its cargo stinks of corporate greed. But it is important to remember that the law, particularly appellate law, is not just about the litigant in front of the court. Cases like TransAm trucking will be cited by lawyers representing plaintiffs, civil defendants, criminal defendants, relators, and petitioners for decades to come. In our system, the precedent of the circuit courts of appeals and the Supreme Court of the United States are not mere history lessons to be taught in civics class. They become the law itself.

Judge Gorsuch’s concern is a palpable one. There are too many laws. No member of the House of Representatives or the Senate even knows the substance of 1/10th of the laws on the books. To ensure the continuation in administration of these esoteric laws, congress delegates its authority to the executive branch of government. These administrative agencies, in effect, become the tyrants of small fiefdoms – wielding the power to write, interpret, and enforce regulations they come up with largely shielded from any public scrutiny. Sometimes, they use this power for good and sometimes their exercise of power works grave injustices. In both instances, they use their power like they did for Alphonse Madden, the truck driver in TransAm. They take a statute that necessitates an undesired outcome and promulgate interpretive regulations and rulings that change the outcome, without regard to any law of statutory construction or interpretation. This is the crux of Chevron, which permits such executive vigilantism so long as the administrative agency’s interpretation is not unreasonable. For those whose time fussing with the law is limited, please consult this crude example:

Congress enacts a law that caffeine in food and drinks sold or manufactured in interstate commerce should be “carefully regulated to protect the public health and to better inform consumer purchases.” This law is then placed within the purview of the Food and Drug Administration by way of congressional delegation, authorizing the FDA to promulgate regulations to achieve the ends of congress. In researching the issue, the FDA concludes that caffeine is dangerous, and should be heavily regulated and omitted from most of its current food and drink applications. It passes a regulation that concludes that doses of caffeine in food over x% are inherently unsafe, and ties the inclusion of caffeine in food above that dosage to the “tampering” language of 18 U.S.C. 1365 or some other FDA related criminal offense. Assuming that the research and interpretations required for this scenario to play out are “reasonable” interpretations of congress’ new law, the FDA’s conduct here criminalized caffeine without a single vote from a publicly elected official agreeing to it. When the law is challenged, Chevron’s “reasonableness” inquiry – what Gorsuch calls Part Two of Chevron could very well save the regulation.

There is value in holding congress to the words it prints on paper. The expectation that it is the judge’s job to cure unjust results is to pass the buck away from our elected representatives. It is in this lens that I view Senator Franken’s indignation during the confirmation hearing. The questions of a man who has no regard for what his vote in congress truly means, or the lives it can effect. Rather than justify a rejection of his nomination, Judge Gorsuch’s approach in TransAm telegraphs to the American People that he will hold congress accountable for its ineptitude. That is something we should all be grateful for, particularly if we want to keep this Republic alive in the 21st Century.

Leave a comment

Filed under Law, Political Thought

A Right Without a Remedy

WEB_GPSEdLate in 2016, the Supreme Court of the United States held that a detaining a man without a warrant and without reasonable suspicion or probable cause did not require the exclusion of evidence seized on his person because an outstanding municipal warrant “attenuated” the search of the man from his unlawful detention. Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (“We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible [at trial] because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”) (emphasis supplied). This principle is known as the “attenuation doctrine.” Hudson v. Michigan, 126 S. Ct. 2159 (2006). The test for whether or not a court should apply the attenuation doctrine to forgive a violation of the Fourth Amendment asks judges to consider (1) the temporal proximity between the initial unlawful detention and the search; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. When considering this last factor, evidently, the mere fact that an officer lacked probable cause or reasonable suspicion is not enough for the misconduct to be “flagrant.” Strieff, 136 S. Ct. at 2064 (citing Kaupp v. Texas, 123 S. Ct. 1843 (2003)).

What you need to know about Strieff is that there are, literally, millions of municipal warrants floating in the ether of the United States criminal justice system. These are warrants for arrest instructing officers across the land to pick up people who didn’t pay their traffic fines, failed to appear for a court setting, did appear at the court setting but didn’t communicate that fact to the judge correctly, etc. Quite often, the people with municipal warrants are not what you’d consider “hardened criminals.” Practically everyone has had a municipal warrant for their arrest at some point in their life, or came vert close to having one issued. As with most aspects of the criminal justice system, the people most likely to have unresolved warrants are poor.

The only way to logically read Strieff is that someone with an outstanding warrant does not have the protections of  Fourth Amendment. Conventionally, if you are detained because of arbitrary circumstance – you’re a different race than the officer pulling you over; the officer doesn’t like you because you didn’t donate to the Sheriff’s office  Christmas charity drive, you drive the same kind of car as the officer’s ex-wife – anything that the officer finds in your car or on your person can’t be used as evidence against you. In the law, this is called the “exclusionary rule.” But under Strieff, if you have an outstanding traffic warrant – never mind that the officer didn’t know that when he detained you, or that it has nothing to do with what you’re being pulled over or investigated for – the evidence gets to be considered by the jury at your trial. No, not your trial for the speeding ticket you had a warrant for. The one for the new possession of marijuana charge you’re going to be booked for when the officer finishes arresting you.

To many, including counsel for Mr. Strieff before the Supreme Court, this reasoning is terrifying. Given that there are millions of unresolved traffic warrants, officers now have no reason not to pull you over arbitrarily; there is a decent chance if you’re living in an impoverished zip code  that they’ll be able to use the warrants to cover up their wrongdoing. Not to worry, says the Supreme Court! The police would never overstep their authority like that, in the mind of Justice Thomas; if they do start engaging in this kind of dragnet policing, they’ll be sued:

Second, Strieff argues that, because of prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.

Let’s actually consider that premised for a moment. By and large, police officers are indemnified; they will not be personally liable for their misconduct no matter what happens in civil court. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). Police departments can be sued, pursuant to 42 U.S.C. 1983, but to do so the plaintiff must overcome the doctrine of Qualified Immunity. This principle, which acts as a defense to Section 1983 suits across the county, is largely an animal of judicial interpretation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (“‘The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Pearson v. Callahan, 129 S. Ct. 808 (2009)). It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

The validity of this doctrine is often questioned and criticized. I strongly encourage you to familiarize yourself with the literature on the subject. But more importantly for our purposes, Justice Thomas’ remark about civil liability seems to place America at a crossroads. We have watched, for thirty years, the applicability and relevance of the exclusionary rule shrink as law enforcement arrest more and more people. The prevailing trends in the Fourth Amendment have rendered it meaningless for many accused citizens. Seemingly, if this trend continues, something should exist to take up the slack. Civil liability is not an adequate alternative to the exclusionary rule, but it is at least a tangible way to enforce civil rights and hold violators accountable. But if Justice Thomas’ remarks are to have any meaning, the principles underpinning the doctrine of qualified immunity must be rejected, and heavily overhauled. In Justice Thomas’ own opinion, he notes that the lack of probable cause or reasonable suspicion is not enough for a fourth amendment violation to satisfy the “flagrant misconduct” prong of the attenuation doctrine. How, one wonders, is an action not flagrant enough to overcome this flimsy exception to the exclusionary rule going to be adequately flagrant to constitute a violation of “clearly established statutory or constitutional rights” to overcome qualified immunity. Under the present state of the law, it cannot.

The doctrine of qualified immunity, to my way of thinking, is far too old-world-Europe in its formulation. The very notion that, in the United States of America, there is a “sovereign” entitled to unfettered administration free of the worries and harassment associated with being sued is antithetical to democratic liberty. We don’t have a king sitting atop an unassailable pedestal. This is a country with state mottoes like “thus always to Tyrants.” The only reason not to “hold the police accountable” in civil court is to have a robust exclusionary rule to protect us from their overreach. Since opinions like Strieff undermine our confidence in this approach daily, it is incumbent on the courts and the legislature, in equal measure, to at least allow us some alternative method of bringing the beast that is law enforcement to heel.

Leave a comment

Filed under Criminal Justice, search and seizure

FISA in the time of Cholera


I recently came across a Yale Law Journal Note from 2003 entitled Leaving FISA Behind: The need to return to warrantless foreign intelligence surveillance. It is brilliantly researched and worth the read for the footnotes alone. I utterly disagree with its underlying sentiment, although not necessarily the mandate of its title.

FISA is a statutory mechanism, designed by congress, to entrench the footnoted warrant exception for national security espoused in Katz v. United States, 389 U.S. 347 (1967). By virtue of the FISA laws, domestic surveillance conducted for national security reasons involving foreign powers or their agents is reviewed by a 21st century star chamber, a tribunal of three that meets in secret within the DOJ in D.C. and determines whether or not to issue a FISA warrant with only pro forma appellate review. The standard is a watered-down version of probable cause. The court’s actions are functionally isolated from criminal discovery, and are generally unknowable. Because of these peculiarities, it is difficult to even trust the government when it represents that no FISA material was utilized in apprehending or prosecuting a defendant. After all, that is what you’d say if you’re tasked with protecting the reasoning of a secret tribunal and the existence of a secret warrant.

The article’s conclusions are necessarily naive. The article predates Edward Snowden, the Darkest of the Iraq war scandals, the abuses of the CIA in Guantanamo and black sites, changes to the text of the Patriot Act in 2015, and the election of Donald Trump. I feel that the author’s first conclusion – that the authorization of these questions should return to Article III courts – is perfectly valid. Such a shift would end a practice that, I feel, violates the right to an open court, and improve the chances of meaningful judicial review of Fourth Amendment challenges in the courts. The author’s second conclusion, however, I cannot endorse. Given the “red tape” and “procedural hurdles” that Article III warrant applications typically require, the author suggests that such surveillance be conducted without a warrant, subject only to a reasonableness inquiry. While she is correct that the warrant requirement has eroded beyond recognition, it is foolish to believe that the answer should be to lessen the burden on the government moving forward. Yes, the Freedom Act made some useful modifications to the FISA rules, but these modifications were largely half measures. For example, Section 301 of the Freedom Act prevents the use of evidence obtained by means of “deficient” procedures from being received in a trial, but the question of deficiency is still largely not subject to review outside of the FISA court system. Although this system is more transparent now than it was in 2003, it lacks the robustness of true appellate review.

Better to end FISA entirely, as the author suggests, and subject all foreign surveillance to the same strictures as Title III wiretaps.

Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

Leave a comment

Filed under Criminal Justice, Political Thought, search and seizure

To Perceive; To Communicate.

lotus-2.jpegYou perceive a tree on a hill obscured partially by mist. I, standing on the opposite side of the hill and with the sun to my back, barely perceive the mist at all, and see the comfort of a sorrowful autumn. Returning inside of the cottage behind you, you smell the acerbic flavor of tobacco and recoil in disgust. I, reflecting on the death of a loved one, savor the burning in my lungs as I drag on a cigarette in the common room. Reading an article, you internally lament a political position, drawing the lines of demarcation in your mind as you parse the text for meaning. I, reading the same newspaper, draw different lines, as if reading entirely different words. Conversations, some of critical import to the affairs of business, liberty, or morality can often be perceived as transpiring in separate languages the way the parties to the conversation carry on.

When we communicate, even when we internally process images and phenomenon around us, commonality is assumed. Yet experience has taught me that experience is anything but common. The way we see the world, and the personal history we bring to our dialogues about the world threaten to seize everything. In the East, there is an account of the Buddha’s transcendence, and thus his encounter with death. Death presented himself as a beautiful woman, the most beautiful woman that ever existed or would exist in any potential future. Pardoning the syncretism, we can almost imagine Sankara whispering “not this, not this” into the Buddha’s ear as the Sage wrenched himself away from the woman’s embrace. Scorned, Death manifested itself instead as a horrifying beast which stared at the Buddha with ravenous hunger. The Buddha stood his ground, and by way of doing so arrived at the truth. In this myth we encounter the concept of the sublime, something both immeasurably beautiful and utterly terrifying.  Being a moral parable, the tale implicitly suggests a singular answer, a universal truth. Christ’s remarks about the “resurrection and the light” suggest the same, as do the Koran or the Brahman of the Vedas. Upon these bedrock religious precepts many resort to the notion that the same concept – truth vis-à-vis universality – is, in-itself universal. In reality, it seems possible that the one concept fails to translate to the other, perhaps necessarily so.

Whatever objective universals exist are beyond our ability to know on any quantifiable level. We dwell in a different world, one governed by our perceptions. In that mire, we cannot escape our own judgments, our prioritization of the issues presented. We can consciously amend the priority, even focus upon separate aspects of the question. But whether we perceive the optical illusion of the dancer swinging left or swinging right, we still can do nothing but perceive and, through perceiving, redirect our illusion.

Foucault would categorize these observations as “problematizations of truth.Maurice Merlau-Ponty suggested these discrepancies go to the heart of the object-subject dilemma, the question of how there can be “for us” an object “in-itself.” Ironically, academic thought has increasingly drawn parallels between Merleau-Ponty’s work and that of Eastern thought, particularly Zen Buddhism, bringing the problem, seemingly, full circle.

Irrespective of how we perceive, however, the greater question is how we communicate what we perceive. Not very well.

A man is shot. A man is shot in an alley. A man is shot in an alley in the Bronx. A black man is shot in an alley in the Bronx. A black man is shot by a policeman in an alley in the Bronx. A black man was shot by a white policeman in the Bronx. A black man, minding his own business, with no criminal record was shot by a white policeman in the Bronx. A black man, visiting the United States on a tourist visa from Great Britain, got lost in the Bronx. Turning a corner into what turned out to be an alley, he was confronted by a while policeman who shot him. A black man, visiting the United States on a tourist visa from Great Britain, got lost in the Bronx. Turning a corner into what turned out to be an alley, he was confronted by a while policeman who had elected to kill himself moments before. Pulling back the hammer on his service revolver, the image of a figure suddenly appearing startled him; the weapon discharged accidentally, the black man is shot.

This simple exercise reflects the way in which words matter, but it further illustrates so many preconceived notions about how those additional words and details change our internal judgments that it becomes almost meaningless to parse it. As an English speaker, we can sense how each of these sentences in sequence adds something to the story -plot, context, causality – but in truth, even these concepts presuppose that we share understanding of how those notions affect our world, values, and sense of ethics. On the other hand, if we strip away of every last scrap of perceptive judgment, deprive  them of any noun, adjective, or adverb we’d rely upon to convey the meaning of the sentence, we’d be left with nothing other than the concept of being. An object. Man, dead body, doesn’t particularly matter. As linguist George Lakoff noted:

[T]here can be no objectively correct description of reality from a God’s eye point of view. This does not, of course, mean that there is no objective reality—only that we have no privileged access to it from an external viewpoint.

How then are we to communicate reliably? In one sense, perhaps we aren’t intended to. Language is, like most of reality, largely an illusion of convenience. As I write, I am attempting to persuade someone like myself; I write from the perspective of being my own audience. If I can satisfy myself that the material I put to paper is intelligible, then I am satisfied. In essence, I am doing nothing other than structuring my own thoughts, my own priorities and judgments. The concept of writing to a readership, like art, posits an absurd assumption that others will be able to gaze into my mental impressions by means of the words I have selected. Like art, the readership is free to reject, accept, or even misappropriate the material in its absorption.

These concepts, all of them, may appear to endorse relativism. Far from it. There is a reason why civilizations around the globe have often prized deeds over words. The pen may be mightier than the sword, but only when we acknowledge, as we must, that the pen’s might lies in its efficacy to affect the mind of the reader. The sword plunged into the surface of the ocean will not pierce the heart of a fish lying in its depths. A word on a page cannot infest the mind of a reader that denies it consent. If we are to convey meaning at all, apart from the utterly superficial – i.e. Lucky Strikes, “it’s toasted!” – it must be by eschewing broad appeal for the individual encounter. Again, coming full circle, communicating perception seems to depend primarily on perception – asking the internal question again, and again, as to whether the recipient has understanding. The answer will invariably be “no.”

We often consider human history as a ladder of advancement, but there is no such thing as human advancement. The entirety of human achievement and suffering is reinvented in every perception we have and every communication we broadcast. That sublime visage stares at us all, waiting for us to find it. Rather than retreating to relativism; we awake to encounter the constant need to live life responsibly, never ceasing to  assess our perceptions, communicate them, and make the appropriate judgments about the objects in our eyes. It’s absurd because it is, conceptually, impossible. Nevertheless, it is our only nature; we can do nothing else.




Leave a comment

Filed under Philosophy

Another Casualty of the Drug War: Medical Research

An interesting article in the New York Times concerning the use of Psilocybin in treating depression.  The article references a recent study noting that the chemical changes in the brain occurring during a trip on mushrooms can serve sort of like a “hot reboot” on a computer. Such treatment may help depressed individuals end their cyclical patterns of negative thinking. I am, of course, a serious advocate for the legalization of all drugs, regardless of whether or not a politically suppressed medical benefit for the substance exists. It is comforting nevertheless to see the case for medical research applied to another Schedule I controlled substance besides marijuana.

I still, however, contend that the case for universal legalization should not hinge upon whether or not there is a genuine medical use for the substance. If we can only persuade our government to decriminalize a substance on the basis that it could make the population “happy,” with minimal risk to the patient, we may be signing up for Aldous Huxley’s Brave New World rather than a libertarian utopia.

I’m sure I will flesh this topic out more in time, but as a parting note, please consider whether or not the rationale behind a legal policy decision should have any bearing in the dialogue.  For example, should we support efforts to legalize LSD even if the government’s agenda for legalization includes topics such as mind control, behavioral adjustment in correctional institutions, super soldiers, or men who stare at goats?

Legalize absolutely. Does the why matter?

Legalize absolutely. Does the why matter?

Leave a comment

Filed under Uncategorized

Through a glass, darkly

The media is a buzz with criticism against modern Russia and its fearless leader Vladmir Putin. The New York Times book review this morning devoted virtually every page to works on the life of Stalin, the intellectual degradation of literary works in Soviet Russia, and the corrupt, nigh fascist, policies of Putin’s oligarchic Russia.   This is all well and good. It does, however, leave one with the impression that Russia is intended – much as it was in the Cold War – as a foil for American political and social life.  This is particularly evident when one examines the subject nations’ respective propaganda outlets – RT and Fox News – which paint very different pictures of Russian and American life.  (I presume as I proceed that we can all agree that neither are factually accurate in their portrayal of global affairs). Both entities attempt to portray the other nation as overreaching violators of human rights with inept economic systems that depend upon coercion and militarism for sustenance. I would posit that both propaganda machines are moderately accurate when examined in the aggregate.

Russia’s October Revolution in 1917 was a reactionary assault upon the outmoded monarchy and centuries of serfdom. Naturally, it met the classical Marxist revolutionary paradigm – a class division predicated upon the sense of exploitation experienced by a predominantly agrarian economy on the verge of industrialization. Approximations of this historical narrative materialized in places as diverse as 18th Century France and 20th Century Mexico, Spain, Cuba, China, and Vietnam. Using Marxist terminology, we can assess the relative successes and failures of these revolutions by measuring  the abundance or dearth of surplus resources (Mexico, for example, retained a socialist party, but failed utterly to implement meaningful Marxist reform because its pending “industrialization” faltered when its newly minted national oil industry failed to secure adequate production; France in the immediate aftermath of its revolution remained an agrarian society, and communism cannot cure drought or famine).

The United States, of course, experienced a similar transition from agrarian to industrial life, but Marxism never saw a revolutionary presence in the United States. Why? Certainly, Marxist principles were espoused in the United States, often in violent expressions.  These outbursts, however, were suppressed.  The very right to speak of communist ideology was seriously disputed before the intercession of the United States Supreme Court. Political and Popular Culture figures were blacklisted, and Hoover’s FBI conducted intrusive surveillance of suspected communists, often attempting to publicly (or privately, in the case of the recently unredacted Martin Luther King “suicide letter”) discredit them. These tactics, eerily similar to the modern approach taken by the federal government in suppressing anti-government rhetoric in the NSA – Snowden scandal, worked to effectively vaccinate the United States from the introduction of communist ideology into the mainstream public dialogue. This approach stifled a full and complete political discourse on the subject and instead purported to crush out communism in the name of “democracy.” This strategy more closely resembles fascism than classical liberalism.

Of course, political Marxism has proven a failure in each of its real world applications. As the economic theorist F. A. Hayek aptly noted:

The main point of my argument is, then, that the conflict between, on one hand, advocates of the spontaneous extended human order created by a competitive market, and on the other hand those who demand a deliberate arrangement of human interaction by central authority based on collective command over available resources is due to a factual error by the latter about how knowledge of these resources is and can be generated and utilised.

In short, the communist’s obsession with preventing a surplus of resources from enriching the bourgeois at the expense of the proletariat does not cure the problem of the surplus, but rather redirects that surplus to waste and wither under bureaucratic mismanagement.    Rather than heed Hayek’s admonishments, however, America adopted a more traditional, conservative, fascist model of quelling proletariat unrest – appeasement in certain delicate economic sectors:

That the conservative opposition to too much government control is not a matter of principle but is concerned with the particular aims of government is clearly shown in the economic sphere. Conservatives usually oppose collectivist and directivist measures in the industrial field, and here the liberals will often find allies in them. But at the same time conservatives are usually protectionists and have frequently supported socialist measures in agriculture. Indeed, though the restrictions which exist today in industry and commerce are mainly the result of socialist views, the equally important restrictions in agriculture were usually introduced by conservatives at an even earlier date.

It is thus that you will find a staunchly Republican farmer or cattle man who cannot tolerate the Democratic party, but simultaneously decries the cutting of a farm subsidy bill. America is fully of such contradictions in ideology.  The nation who most proudly wears the banner of capitalism is the very same country that created protectionist tarrifs, protectionist legislation for the railroads and oil companies, income security for those demographics most likely to preserve their power (i.e. AARP re social security), and “income destabilization” or welfare incentive programs to suppress monetary and political power amongst those demographics most threatening to their power.

By choosing to stifle communist rhetoric, America never enjoyed a true competition of economic philosophy in the market. Instead, America followed in the footsteps of figures like Adolf Hitler, picking and choosing the most intoxicating aspects of collectivist ideology to better cement and increase political power.

This is the inheritance of post-Soviet Russia.  The fall of the iron curtain was praised as a victory of capitalism, but in my mind this account does not tell the full story.  In the 1980’s Russia’s economy was hobbled by Brezhnev’s systemic poor allocation of resources. The dissolution of the USSR that followed was certainly motivated by a collective desire to better allocate those resources and reconcile the supply and demand of consumer goods.  It was also motivated, I would submit, by the gradual recognition that the political power of the politburo could not be guaranteed without some way of deluding the citizenry into believing they had regained control of the economic direction of the country.  The democratization of the soviet block countries countenances this position.  However, as we ourselves have learned in our failed attempts to spread democracy in the middle east, the power of the vote (which I have discussed in a previous post) does not a free society make.  The truth of the matter is that the collective planing of the Soviet Union had generated a powerful black market of goods, a wealth of untapped resources, and fifty years of under-utilized labor. The institutions of power held within the crumbling Kremlin saw these opportunities, recognized their facile exploitation, and gave the people a more active role in the selective processes of government as a form of distraction so that those in power could retain power by a new means of controlling these resources. Naturally, they were able to model much of this new method of exploitation from the United States.

The modern Russia differs very little from the United States in terms of objective.  Both nations have adopted a very conservative approach to governance that depends upon a suppression of ideology, an opiate in the form of fictionalized “choice,” and militarized propaganda.  If anything Putin and his oligarchic administration have merely learned the lessons forged from America’s 20th century experience and applied them to greater effect, unencumbered by the same traditional distaste for open, public, fascist rule we have in the United States.

Admittedly, I am not an expert on Russian history, politics, or language. My opinions are strictly the product of casual observation and armchair historical browsing. I am writing in this fashion mostly as a challenge for anyone out there to refute my thin little thesis.  As I examine the rhetoric of our media and Russia’s I get the constant feeling that our grievances against Russia are really an act of self-loathing; this post is my own weak attempt at rationalizing these similarities and understanding them on a historical level.

That being said, I will grind my own political axe for a paragraph or so.  True political freedom depends upon the absolute choice of the individual in his economic and personal decisions. We have only experienced that kind of freedom fleetingly in the United States, and largely as the product of accident.  Government, however organized or motivated, will trend toward oppression if it is permitted to do so.  The tale of the 20th century has largely turned upon the exploitation of individuals attempting to approximate this freedom.  Whether an indigenous agrarian in Mexico, a tobacco farmer in Virginia, or a surf liberated by a humanistic aristocrat in Russia, the human desire to better their own predicament is tragically exploitable under a myriad of economic and political ideologies.  It is my deeply held belief that the historical trend of our world is to appeal to this urgency of the human condition under the auspices of democracy in an attempt to foment power covertly.  In the past, power was seized (to borrow from Nietzsche) under the “master morality” theory of “might makes right.” The 20th century operated to reject this theory and render it morally repugnant, but the heroes and victors of those movements ultimately ruled under the same paradigm, albeit more discretely.  If true liberty exists at all within a civilized society, it must acknowledge that democratization is not a counterpoint to centralized communism, monarchy, or fascism; rather, standing alone, it is simply another manifestation of the same golem that has hunted down freedom since antiquity.

Leave a comment

Filed under Uncategorized

Back in Time for Election Season

Let me begin by apologizing briefly for my absence.  I am a professed Luddite, and that coupled with gross neglect caused this website to disappear temporarily. It appears that I have finally addressed the technical difficulties, and with any luck the site will remain fully functioning for more than a month at a time.  Now, on to the diatribe!

It is election time again in America.  This fact causes me to wonder what an election is exactly. Certainly we all understand the concept somewhat; we can all describe the details and particulars of an election — “I Voted!” buttons, advertising campaigns,  white toothed politicians glaring at us on billboards, black curtained booths, etc. — but the nuances of the process deserve a more thorough inspection.  At its core, an election is a mechanism for the peaceful transition of power between competing interests.  I think it healthy, particularly on the day of or the day after an election, to examine both the finer mechanics of this political mechanism and the nature of the power(s) conveyed by that mechanism’s operation.

We use the term “vote” in a number of ways.  People often use it as a symbol of power, such as when a particular class of people obtain suffrage.  Other times we use it verbally, as in “I’m not going to vote for Prop. 8.” Still other times we use the term in an economic sense, as if it were a commodity: “You’ve got my vote;” or “He was voted in to office last November.”  Each of these uses is fine, but more globally insufficient.  Ultimately, the vote is an individual, outward expression of choice.  Unfortunately, given that the vote is 1) a human expression 2) for making human decisions, we can definitively recognize that the vote is also inherently a flawed mechanic for politics. This isn’t to suggest that a more desirable alternative exists. There likely isn’t one.  But recognizing that voting is flawed because it is human helps us to better focus the inquiry.  What is the central problem behind the modern, western, democratic model of voting? Choice.

Humanity wants to exercise choices, purportedly. I doubt few would contest the proposition that choice is the central most important facet of true freedom.  We each desire to control our own destiny, our own fate; and why should the political decisions that impact our lives operate any different? To this end, America has fought, bled, and picketed for over a century to obtain universal suffrage; nevertheless, the effects of such valiant efforts have achieved relatively little.  50 years after the “war on poverty” commenced, the poor are still poor.  Politicians wage war on drugs, and yet the drugs still flow into the country.  The middle east is still the middle east. The low income school districts still graduate children who cannot read, and farmers still lose the farm. Markets still crash and foreign powers still plot mischief. At various points in all of our lives we have cast our ballots in the hope that policies will change, reforms will be made, and the corrupt will be run out of town on a rail.  Sometimes it works, sometimes it doesn’t; regardless, the global situation does not generally change.  The reality is that the world isn’t going to change. Not in a macro sense.  Certainly some geopolitical situations will shift dramatically, but the overall effect is de minimis because such changes are typically counterbalanced by a contrary shift somewhere else in the world.  This near constant belief that an election can solve the world’s problems is popularly experienced, but it is not realistic.  This is not intended as an appeal to fate, but rather an attempt to illustrate how a colossal waste of resources (votes) has a far more dramatic consequence than simply electing ineffective officials.

The modern political campaign focuses its energies on creating “projects.”  The objective is to frame a narrative – typically accomplished by resorting to semiotic formulas – i.e. discrepancies of class, economic status, racial status, or what I like to call “tribal status” or jingoism – in order to make the voter believe that a choice is necessary on a particular occasion – say, for instance, November 4th.  For example, a candidate may run his campaign on the premise that illegal immigration is resulting in job loss across his district, bailiwick, etc. (of course, a subject like immigration is vastly more complicated than any political candidate wishes to admit, and is just as likely to contribute to economic growth as weakness). The competing candidate may seek the votes of naturalized citizens or recent descendants of immigrants, and thus adopts the contrary position.  As time drags on, the debate becomes black and white. If you’re for candidate A, you’re anti-immigration. If you’re for candidate B, you’re pro immigration. Both sides recite statistics, first hand accounts from constituents, a pithy quote from a founding father or pop culture figure.  In the end, neither side 1) has the authority individually to do anything about the “project” in question and 2) has a vested interest in keeping the “project” alive rather than risk losing the narrative entirely.  Nevertheless, the population is called to the ballot box armed with the knowledge that they must make a decision. They need to “fix” this problem to fit the version of the narrative with which they best identify.  This has occasionally been characterized as a function of psychology (and this is likely not inaccurate), but its exploitation in the form of degrading the power of the vote is better characterized as a phenomenon of bad faith – an existential dilemma caused by “projections of power,” or rather illusions of power.  It is a semiotic concern. From the elaborate ceremony of monarchic succession in antiquity to the talking head on the television set, power has always preoccupied itself with methods of controlling the narrative – of creating the illusion of choice.  To put it more simply:

Choice is an illusion created between those with power and those without.

The Merovingian, The Matrix Reloaded.

In the modern American political system, this age old problem is compounded by the system’s reliance on political parties.  Tragically, the concept of party rule is not that different from another concern of ancient democracy – the oligarchy. It should come as no surprise that in a system yoked to the concept of narrative choice, certain recurring characters are necessary to help condense the story into a more digestible form.  Most will recognize that such a phenomenon manifests itself constantly at all levels of government. The prevalence of Presidents and presidents’ sons, presidents’ wives, career senators,  etc. all suggest that large swaths of the voting public will vote for the familiar face, or the familiar narrative to the exclusion of most other options.  Many, particularly in smaller parties, blame the media for this tendency, but it is folly to assume that the media, in the business of selling the “news” as a commodity, is not listening to the demands of its audience.  Thus, in addition to confronting a narrative project “requiring” their choice, the citizenry is also confronted with a prearranged list of characters to help facilitate their choice.  This is not even to address the courtesy each political faction offers by providing a color and an animal to help alleviate the difficulty of the choice.   As a functional reality, however, neither of these factions offers a meaningful choice.  Republicans purportedly oppose “entitlement programs,” but no Republican seriously attempts to eradicate programs intended to benefit the elderly – one of their largest constituent bases. Democrats claim to support a “civil liberties” platform, and yet the jail in Guantanamo Bay, Cuba remains open for business. Each party instead concerns itself with retaining power.

The inverse of the oligarchy principle, mob rule, also has a function to play in American democracy, although not as one might suspect.  The mob was repeatedly criticized in antiquity for working as a poor man’s vulture picking the bones of the wealthy. This is certainly one aspect of the mob.  In antiquity, however, the democratic model was limited in scope to certain demographics and classes of people, and the number of participants in the system was limited by a lottery.  In America, the mob has the potential to swell its ranks into the millions. It has the potential to cross class boundaries and to even cross contradicting narratives. To this extent, I would submit that rather than mob rule, America suffers from mob economics. The “vote,” the choice, of each person within the mob is commercialized into a singular value comprised of the particular narrative that chooser will most likely find appealing.  This may dispel the more disturbing image one may harbor of an angry crowd tearing a political enemy limb from limb, but it also means that the mob’s energies become more focused in the hands of those they elect.  Discussions of mob rule often resort to referencing the Reign of Terror in revolutionary France as a choice example (I suppose that in referencing it here, I am no different). It is critical to acknowledge however, the the Terror was equal parts factional murder at the highest levels of revolutionary government and an angry general public.  The revolution had not remedied the plight of the working class french. Those politically involved in the Jacobin and Girondin factions competed in trying to capture the fractured narrative and turn it against one another (and foreign influence). In many ways, this modern incarnation of economized political choice had its genesis in the Terror. As Robespierre and Saint-Just learned on the chopping block, however, the manipulation of narrative can have devastating consequences if taking to the extreme.

None of this is to suggest that voting is a waste of time, or that the citizen does not have unadulterated political choice.  It is, rather, a call to discernment in political action.  When a law maker enters office having successfully convinced the voter to choose his “projects,” he must take steps to alleviate the concerns he addressed on the stump.  If he is too successful, he becomes superfluous unless he finds another project. If he fails . . . well, ask Robespierre about failure. The functional effect of this political tightrope is more legislation that purportedly “fixes” a project while simultaneously creating other problems or only partially redressing the original grievance.  This is not effective law making.  However, it is virtually impossible to change the outlook of lawmakers.  It is possible to change the outlook of voters.  As you watch the election results come in tonight, wherever you may be, please consider the choices you exercised, and ask yourself if the choices you manifested on the ballot were necessary ones.

Although his task is much different than my own, I would highly recommend First Democracy by Paul Woodruff of the University of Texas for an account of democratic problems facing modernity and antiquity. His eloquence and wealth of knowledge alone will make it a far more interesting read than this article.


Leave a comment

Filed under Uncategorized

What is so Terrifying About the Right to Counsel?

An article in the New York Times yesterday gave me considerable pause. The sort of pause that makes you blink, choke on your coffee,  and cough miserably before re-reading the paragraph. Evidently, the United States government has captured another alleged Al-Qaeda conspirator to the 1998 Kenyan Embassy bombings. Captured and warehoused in a naval brig floating along the Mediterranean Sea without an attorney, Abu Anas al-Libi is described by the Times as “an intelligence goldmine.”
Abu Anas is charged by way of federal indictment alleging conspiracy with Osama Bin Laden to attack American interests in Saudi Arabia, Yemen, and Somalia as well as the 1998 Kenya bombings. These facts are important. Abu Anas is not, it would appear, a prisoner of war, but rather an accused person awaiting trial. This custodial status implicates two important and dove-tailing constitutional principles. In one sense, Abu Anas’ position as a suspect in a criminal investigation implicates his Fifth Amendment right to counsel and privilege against self-incrimination. Pursuant to Miranda, Mr. al-Libi should at least be aware of this fact. In the other, Mr. al-Libi is already charged with a criminal offense, which means that critical stages of the proceedings against him should already be underway – but they are not.
This basic calculus assumes, which is particularly dangerous in this day and age, that al-Libi is held criminally and not as an enemy combatant under the authorization for the use of force set out in 2001. If he is detained under the latter category, there is still some ground for concern. Article 22 of the Third Geneva Convention excludes sea imprisonment for any period of time. I find it highly dubious, however, that the government can in good faith detain a man as an enemy combatant when he awaits trial on a federal indictment for crimes committed against the United States before the authorization for the use of force took effect.
Keeping this distinction in mind, I will focus this post principally upon the criminal justice issues this case presents. In particular, I am deeply troubled by the extensive use of the “public safety” exception to the Miranda requirement that is now in vogue amongst federal law enforcement (You may remember the use of this term recently during the Boston Marathon bombing investigation).
The methodology that will be used to extract intelligence data has already been “tested” on another government detainee – Ahmed Abdulkadir Warsame. In that investigation, the F.B.I. interrogation experts subjected the suspect to months of boat-confined interrogation before sending in a “clean” team of F.B.I. investigators, who were not privy to the prior team’s interrogation, to mirandize the defendant and extract a court-admissible confession. This method seeks to stretch the public safety exception well beyond its breaking point and then sweep away the taint of illegality by bringing a new set of eyes onto the investigation. This author’s reading of precedent finds this approach to be wanting.
Before we delve further, let us examine the public safety exception to the Miranda requirement. The seminal case on the issue – New York v. Quarles -involved a known informant alerting the police that a particular suspect raped her. She further notified law enforcement that the suspect carried a gun and that he had just entered a supermarket with his firearm. When the police confronted the suspect, they drew their weapons and asked him were they could find the gun. New York v. Quarles, 467 U.S. 649 (1984). Thus, in a moment of spontaneity, where the “kaleidoscopic” nature of events necessitates action for the protection of the public, the requirements of Miranda do not apply.
The Quarles opinion was not without its dissenters. Justices Marshall, Brennan, and Stevens all expressed the opinion that such an exception might swallow the rule, and in so doing encourage the exact type of police practice Miranda sought to abolish:

It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” . . . Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. . . .

Id. at 684 – 85 (Marshall, J. dissenting). What further strains credulity is that an exception drawn to confront the imminent threat of a firearm in a supermarket immediately possessed by a suspected rapist could be extrapolated to justify the many-months-long detention of a man without counsel for crimes he allegedly committed in 1998. Unless the government can establish that al-Libi knows the passcode to a ticking time bomb threatening American lives, it seems highly doubtful that anyone but the presidential sycophants in the Justice Department believe that such interrogation practices passes constitutional muster.
In fact, it would appear that even the aforementioned sycophants are worried. Hence the F.B.I. “cleanup crew” mentioned earlier. Although the Supreme Court has infamously permitted the use of interrogation in the non-custodial context when the suspect is free to leave or is not being directly questioned, it has carefully never permitted the use of “wave” interrogation methods where the detained suspect is first questioned sans-Miranda and is then later mirandized to cure the illegality of the initial question time. Oregon v. Mathiason, 429 U.S. 492, 499 fn. 5 (Marshall, J. dissenting) (“I trust today’s decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official “arrest” and the giving of Miranda warnings until the necessary incriminating statements have been obtained.”). Such a practice is inherently suspect. People do not, as a general rule, understand the difference between a custodial interrogation and any other type of police questioning. If a suspect “spills the beans” to the cop without being informed of his Miranda rights, does he truly understand that he has no obligation to tell the second questioning cop anything? Now, lets extrapolate this reasoning to a Navy brig, after many months of questioning. Do I even need to elaborate on the coercive nature of such an environment?
Finally, there is the “critical stages of the proceedings” question I presented earlier. Mr. al-Libi is not a generic, perpetrator’s-identity-unknown suspect leaning against the street corner. He is already facing an indictment. This means that, if he were a U.S. citizen charged with Murder, Possession of a Controlled Substance, or Reckless Driving, he would be entitled to magistration and bond (or at least a determination of bond eligibility because we are in Federal Court where there “are no [favorable] rules [governing bond] and the points don’t matter”). The high Court has ruled time and again that these pre-trial proceedings trigger the Sixth Amendment right to counsel, and not merely the more prophylactic right to counsel secured by Miranda’s interpretation of the Fifth Amendment.
Ultimately, the President cannot avoid the age old “have your cake and eat it too” quandary. If the government truly needs Mr. al-Libi’s mind for military intelligence reasons, they must accept that such a price will cost them a criminal prosecution. The U.S. Attorney’s Office is not unfamiliar with this problem – transactional immunity is commonly available when the government is put to the choice of subpoenaing one grand jury target to bolster the prosecution of another. This scenario does not readily present any meaningful differences. The Government defends its position on the basis that the Guantanamo era needs to come to an end. No one agrees with that generality more than me. Nevertheless, rather than play a game of chess with the finer points of constitutional law and criminal procedure, the Government should be asking broader questions: Do we have the right to detain people indefinitely? Are we willing to sacrifice our own values for the sake of military security? Are we the just arbiters of “terrorist” criminal conduct in the first instance?

Leave a comment

Filed under Criminal Justice

Nemo Me Impune Lacessit

By day, I work as a criminal defense lawyer. The other day, in the course of my professional duties, I had to take a stroll by the San Antonio Police Department headquarters on Cesar Chavez Street (the road once went by the moniker “Durango Street” which I though had a better ring to it). Near the main civilian entrance, I happened upon an inscription:

“Nemo me impune lacessit.” 

A life long Latin lover, I couldn’t help but smile.  The phrase has murky origins in Antiquity, although it later became the motto of the Scottish order of chivalry – the Order of the Thistle. Translated, the phrase means “No one challenges me with impunity.”

The phrase strikes me as an odd choice for an American police department decoration.  Ultimately however, I’ve concluded that a historical disagreement in the translation of the  Latin verb Lacessit fated the SAPD to become the butt of a beautifully ironic joke. 

In the United States, the phrase has taken on another meaning. It is frequently worn by law enforcement as a sign of mourning or solidarity after an officer is killed on duty.  The sense in which American police use the phrase is “no one can harm me unpunished.” I think that a closer scrutiny of the Latin rejects this translation.

The word “Lacesso” is defined as “to excite, provoke, challenge, exasperate, or irritate. A Latin Dictionary 1026, Ed. Lewis and Short,  (Oxford 1879). A fine example of its literal usage can be found in Cicero’s defense of Titus Annius Milo in 52 BC.   Pro Milo 31, 84, Marcus Tullius Cicero, Ed. Albert Clark (1918) (perhaps the finest, albeit long winded, closing argument in a self-defense murder trial the criminal defense bar will ever know). Cicero’s use of the word connotes physical violence; however, on a deeper level, the word’s placement indicates that such a “challenge” is more than an angry brawl – it implies a degradation of freedom or of self-determination:

That divine power; that very same divine power which has often brought incredible prosperity and power to this city, has extinguished and destroyed this mischief; by first of all inspiring it with the idea of venturing to irritate by violence and to attack with the sword the bravest of men, and so leading it on to be defeated by the man whom if it had only been able to defeat it would have enjoyed endless licence and impunity.

Id. In this context, it implies a certain degree of metaphysical naughtiness on the part of the actor that suggests his comeuppance will flow from divine providence rather than State action.  I think it is this connotation of the morally repugnant irritant that inspired the Scottish Order of the Thistle to adopt the word into its motto.  The code of chivalry is enforced not merely by the sword, but by virtue of its moral superiority. 

The chivalric mentality arrived in America with a considerable amount of damage in the shipping process.  The word doesn’t get much airplay outside the context of the occasional opening of a door for a woman going into the bank, but the sanctity of the individual which lies at the heart of chivalry spread into the thoughts and precepts of our nation like wildfire.  The democratization of chivalry can be tied directly to the thought processes of Locke and Rousseau, Franklin and Jefferson. In essence, as the bourgeois adopted the parlance of the landed gentry, the individual grew to believe that he could and should police himself; his internal motivation to preserve his honor, it was believed, would trump the external pressures of life that trend toward the vulgar.  Does this theorem work in practice? Yes and no.  People are, as they have always been, a rather nasty lot. But the idea of chivalric honor and individual service to others does seem to gently prod the human race in the right direction.  As the motto at the heart of this article implies, the karmic consequences of the alternative serve as a decent incentive.

Before the poor reader begins to smell a digression, it would be best to return to the central premise discussed above – irony.  The problem I find with the SAPD’s use of this inscription comes from my love of the individual and my disillusionment towards institutions – Law enforcement institutions in particular.  Usually, when the police adopt a slogan, its quite easy to smirk or ridicule. “Serve and protect” might be more adequately phrased “search and seize” or “arrest and obfuscate,” particularly if we are polling those who most frequently come into contact with the police.  This Latin motto is something entirely different. The more careful translation suggests that it is a slogan of individual liberty, a warning to tyrants; however, the Department’s approach suggests a more “no one challenges the authority of the state” slant to the quotation.  If Caesar in all of his imperial zeal coined this phrase, I can only imagine that he would have approved the SAPD’s choice. The phrase that worked as a badge of honor for the individual has now become a cold inscription on the Ministry of Love.

Some might contend that this is too harsh. The injury threatened against those who serve in the police force is real and terrifying, and the phrase (as the department uses it) promises vengeance to those that would do an officer harm. On its face, this is not an unreasonable point of view.  The tragedy of the matter, however, is the “us v. them” mentality such a slogan implies.  When those in law enforcement view its citizenry as “the other,” serious problems lie in ambush.  It is injury to the law that the police must protect; the physical toll of wrongdoing cannot be undone.  The only true preventative measure for that deep of an injury lies in education and in compassion for the individual. To achieve those ends, we must police ourselves. Placing too much stock on the authority of governmental institutions to police us works only to deny the individual his freedom and dignity.

At the most basic level, this means holding law enforcement accountable when it begins to “lacesso.” Michelle Alexander’s book “The New Jim Crow” studiously documents the culture of perjury rampant amongst police departments in this country.  Is this how departments apply the concept behind this ancient phrase? Brutality, botched arrests, disregard for the privacy rights of citizens; are these not injuries which must be thwarted before they are committed with impunity? Institutions should be challenged. When the police look on the challengers with contempt or aggression, the proof of their folly now hangs above the door to the department. Perhaps, with the help of men like Cicero, we can requisition this phrase from our captors and carry it as our own battle standard.

1 Comment

Filed under Uncategorized

Concrete Blues

Concrete Blues

Leave a comment

January 24, 2013 · 11:42 pm