Ironies

Posted on February 6, 2011 | 4 comments

      A dictator never sleeps easily, but the longevity of any particular despot seems to depend on the depth of his wickedness. Bad dictators do not endure as long as do absolutely evil dictators. That is to say, the worse the person, the more depraved and murderous the dictator, the more likely it is that he will remain in power and the less likely it is than he will be overthrown by a popular revolution.

     The reason is clear: dictators whose brutality knows no limits will wantonly murder civilians who challenge their rule. Hitler and Stalin, of course, stand out in this genre as they murdered civilians by the millions (and Stalin almost all his own citizens), as does Assad of Syria, who liquidated an entire city – Hama – with its population of 20,000 when they threatened his regime in 1982. Mao Zedong likely murdered more civilians than Stalin and Hitler combined, and died a peaceful death. Pol Pot, who executed approximately two million fellow Cambodians, is another who escaped justice. The crueler they are, the less they are encumbered by any sense of restraint or proportion.

   Dictators who are bad, rather than atrocious, are more susceptible to popular uprising, and Mubarak falls into that category. These are second-tier tyrants, who usually imprison or murder political opponents but are not wanton executioners, and thus fall prey to popular revolt. Nicolae Ceausescu of Romania, Ferdinand Marcos of the Philippines, even the parade of Latin American tin pot dictators like Somoza, Pinochet, Peron, Noriega (he was overthrown by the United States) and others were driven from power by popular rebellions, often aided by the military.

    Indeed, the only way the completely evil dictators are ever deposed is through a military rebellion, as it is the military that enables them to maintain their grip on power and can readily detach that grip as well. Thus, Idi Amin was exiled by his army, and Hitler himself almost killed in July 1944 by a military conspiracy. Stalin, aware of this dynamic, executed almost his entire officer corps in the 1930s to prevent any semblance of opposition from arising against him. Mussolini was deposed and arrested by members of his own government.

      The Communist regimes in Eastern Europe were toppled in the late 1980s and early 1990s because their autocrats, although repressive, never engaged in mass slaughter of civilians. Much the same could be said of the collapse of the Soviet Union, whose rulers allowed it to come apart. In fact, the classification of despots reflects this division. The merely “bad” dictators are often referred to as “authoritarians” or “totalitarians,” whereas the heinous, depraved rulers are termed “dictators.” The major difference between the Eastern European era of repression on 1968 and the era of freedom in 1989 and thereafter was that, unlike Brezhnev, Gorbachev did not send in the tanks to bolster the old Communist regimes.

     They are all despicable, to be sure, but it is ironic that the more fiendish the dictator, the more he is likely to survive, and it is the relative moderation of the others that facilitates popular uprisings. As in Mubarak’s case – and in the rest of the Arab world – the street does not matter as much as the support of the military. But, oddly, a Mubarak can be driven from power not because he was brutal or repressive but because he was not brutal or repressive enough.

     Here’s another irony that is now old news. The Arab “Wikileaks” scandal (the release by Al-Jazeera of PA diplomatic correspondence) sent Abbas and company into a frenzy when it was allegedly revealed that they had entertained making certain concessions to Israel – acceptance of most settlements, a limitation on the re-flooding of Israel with “refugees” (known as the “Right” of Return), deep security cooperation, and other tantalizing notions. In truth, it is still unknown whether these were PA positions or simply their record of Israeli concessions. But rather than bask in their unexpected “moderation,” the PA was quick to castigate Al-Jazeera and deny making any concessions at all. Most diplomats concerned with public relations would have been quick to embrace their efforts at “peace-making” as good news, a sign of progress and maturity. Instead the PA perceived this as an attempt to overthrow their government and besmirch them in the eyes of their public.

    This strange reaction presents only two possibilities: that the PA negotiators are insincere, and are only trying to induce more and more Israeli concessions in exchange for nothing (a winning tactic for twenty years); or that the PA negotiators are sincere, but they recognize that their public will never consider  or accept a permanent peace with Israel. Rather than prepare the average Palestinians for the give-and-take of negotiations in which not every demand will be satisfied, the leadership is completely incapable of transforming Palestinian society from being enthusiastic purveyors of terror into being proponents of c o-existence.

   Either way, it reflects the sheer insanity of a continued “peace process,” notwithstanding Tom Friedman’s tedious advice (that he has been proffering for…30 years) that now is the last and best opportunity for Israel to make peace. His theory – that Mubarak’s downfall will usher in a wave of radical Islamic governments across the region, and therefore peace must come now, immediately and without delay, with Israel making all the concessions necessary – is as foolish and irrational as most of his advice has always been (so, nominate him for another Pulitzer). Making “peace” (meaning, signing agreements and having ceremonies) with people who cannot enforce it, and are unelected rulers soon to be deposed, makes as much sense as embarking on a cross-country trip now in an old jalopy, because the car is dying and may not be available in a week. Well, yes, but the same car will break down on the journey – like the Oslo train stalled because of terror, rockets, Hamas, and a violation of all agreements to date.

    So why would he think that this new agreement, just another agreement, would not meet the same fate and dissolve into more terror and more vulnerability for Israel? Well, maybe that is not such a concern for him, all his protestations to the contrary notwithstanding. More to the point, when will people stop taking seriously the policy recommendations of a person who has been consistently wrong for decades ?

     And from irony to farce:  The “peaceful” revolution is Egypt, in which the police and military have been lauded for their “restraint,” has to date claimed over 300 lives. That is, 300 Egyptians have been killed in the rioting in a little over a week. And yet, strangely enough, there has been no reference to use of “excessive force,” no laments over the killing of unarmed, innocent civilians, and no calls for UN Security Council condemnations, all standard operating procedure when Israel kills Arab terrorists.

     Could it be… hypocrisy ? Might it be a … double standard ? Or perhaps just vicious, anti-Israel propaganda, all to remind us that next time those accusations are lodged against Israel – and there will be a next time – ignore them.

4 Comments

Posted in Contemporary Life, Current Events, Israel

Egyptian Ejections

Posted on February 2, 2011 | 5 comments

   So a secular, Western-leaning Middle Eastern country with an authoritarian ruler and openly linked to Israel is beset by mobs of its own citizens calling for the overthrow of their own dictatorship. Where have we seen this story before ? Iran, circa 1979. There is an uncanny resemblance between that Iran and today’s Egypt, even in the “blessings” bestowed on each by American leaders (Jimmy Carter praised Iran as an “island of stability” just a month before demonstrations erupted, and Hillary Clinton declared the Mubarak government “stable,” just one week before he announced he will not seek re-election.) More importantly, Egypt’s fate is likely to be remarkably similar to that of Iran.

   The riots in Egypt are not rooted in a coherent and uniform message. The protests originated, typically for the region, over an increase in the price of bread, an economic catastrophe in a poor kleptocracy in which more than half the population lives in poverty and subsists on less that $2 per day, and the ruling elite enrich themselves at the public’s expense. But the peasants were joined by opponents of the brutality of the Egyptian regime and its secret police, most ominously by the radical Muslim Brotherhood (the terrorist group that has spawned Hamas and Hezbollah and has roots in Al Qaeda), and fatuously by individuals calling for “democracy” and “freedom” – those mostly Western journalists and the handful of Egyptian elitists who feed them information that they naively swallow and disseminate. Suffice it to say, democracy – not at all indigenous to the Middle East and completely unknown in that region outside of Israel – is the least likely outcome of the turmoil in Egypt. A true democracy in Egypt is as likely as Hosni Mubarak succeeding Shimon Peres as president of Israel.

    Recent history in the region demonstrates that, given the choice, Arabs will vote for an even more repressive dictatorship than the one they rejected in the streets. “Democracy” is limited to voting, but has not been extended to such basic concepts as individual liberties, protection of minority rights, and an independent judiciary. That has been the reality in Gaza and Lebanon, and elsewhere. Even where they overthrew their jailers, they immediately voted for a new jailer, as much as testimony to the incongruity of freedom in that part of the world as it is to the inchoate human desire for stability, security, and, yes, bread.

     In Iran, for all the talk of democracy and opposition to the Shah’s oppression, it took only a few months for the “people” to vote for an Islamic theocracy. Note that, as is likely in Egypt, the Islamic rulers did not assume power immediately. There was an intervening “secular” leader – the pro-democracy Mehdi Bazargan – who stepped down when the US Embassy in Teheran was sacked in November 1979. Change the name and place to Mohammed El-Baradei in today’s Egypt, and a similar scenario unfolds – a figurehead who holds power and lulls the world to sleep while the radical Muslims plot their ascension.

    This el-Baradei is a character in his own right, Noble Peace Prize winner (but, then again, so was Yasser Arafat) for his “work” in not discovering the Iranian nuclear program. He thus has solid Western credentials (awards and acclaim with no accomplishments). And even though he has not lived in Egypt for decades, and has no base of support, he will be a useful foil for radical forces as they gradually seize control of Egypt.

    There are ironies in this affair, as well as a lesson that must be learned and implemented. Despite the rhetoric about the police/military not firing on protesters, well over 100 Egyptians have already been killed since the beginning of the revolution. I recall very well the oleaginous, contemptuous words that Mubarak spat at Israel when Israel was attempting to suppress the Arab civil war in Israel – how violence was disgraceful, how Israel must stop using lethal force against unarmed demonstrators, about human rights, the children, the innocent, the occupation, etc. That the shoe is now on his face – and he responds with typical brutality (granted, it could have been worse) – only points out the utter hypocrisy of his earlier complaints.

    Additionally, reports of the looting of the Egypt National Museum and the theft of antiquities by some of the demonstrators (obviously, the cultured ones) recall the sneering criticism lobbed at President Bush, who apparently should have prevented Iraqis from stealing the valuables from Baghdad’s museums. Clearly, though, one cannot have greater respect for a nation’s cultural past – than citizens of that nation. And, it is astonishing how quickly events turn, and nations are transformed. Just six months before the Shah fled, the CIA reported that Iran was not “in a revolutionary or even a pre-revolutionary situation.” The Soviet Union seemingly collapsed suddenly. Who would have thought – even two weeks ago – that Egyptian-Americans in Astoria, Queens would be marching in the streets and chanting for Mubarak’s overthrow ? Who even knew there were Egyptian-Americans – and Mubarak enemies – in Astoria, Queens ? There is a spontaneity,  a suddenness to the downfall, a snowball effect in street revolutions – and, I can’t help thinking, the hidden hand of Iran, Egypt’s main rival for supremacy in the Muslim world – an Iran, no doubt alarmed by the Wikileaks disclosures that Mubarak was actively campaigning for America or Israel to attack Iranian nuclear facilities.

    All of which points to the inherent instability of the dictatorship, which always resembles an earthquake before the ground is sundered: a veneer of stability that conceals extreme turbulence underneath the surface. That is why negotiations with dictatorships are usually futile and self-destructive. Israel is living – as always – through very anxious moments, as the fate of its treaty with Egypt hangs in the balance. There is always an asymmetry in negotiations between democracies and dictatorships. A democracy can never repudiate a treaty signed by a predecessor government, because it is the government that is the symbol of continuity and not any particular person. Thus, Yitzchak Shamir voted against the Israel-Egypt treaty as a member of Knesset, but honored it as prime minister, as did President Reagan and the Panama Canal Treaty. But a treaty with a dictator is a treaty with one person, and whether that treaty survives that person is always a gamble. Mubarak honored Sadat’s treaty, even though he ushered in the coldest peace imaginable and never even visited Israel in his 30 years in power (except briefly for the Rabin funeral). Will Mubarak’s successor honor the treaty ? In the short term, undoubtedly, but in the longer term – even one or two years from now ? Don’t bet on it, especially if the Muslim Brotherhood seizes control of the government officially or unofficially. If so, count on the discovery of a list of Israeli “breaches” of the agreement that enable the Egyptians to renounce it.

     Two democracies will always honor treaties with each other. The actions of a dictatorship are always speculative, based on the whims of one man. The bigger danger that emerges from such asymmetrical negotiations is that the democracy – i.e., Israel – always winds up trading away tangible assets in exchange for words and promises. Israel relinquished to Egypt substantial territory – the Sinai Peninsula and  its strategic depth, and vital material assets – the Abu Rodeis oil fields, all in exchange for intangible verbiage on a piece of paper. Will Egypt post-Mubarak continue to sell oil and natural gas to Israel, as per the terms of the treaty ? Will Egypt maintain its demilitarization of Sinai ? Will it move its forces into Sinai to test Israel and its patience ? Who knows ?

    What a democracy gives up in such negotiations is very hard to retrieve, and what it gains is very easily lost. Yet, Israel finds itself in the same position regarding the never-ending “peace” process with the Palestinians, with the advantage that Israel already knows that its interlocutor does not fulfill its commitments under the various treaties signed – and yet it still hungers for more agreements. The instability of the Egyptian dictatorship demonstrates the futility and menace of continued negotiations with the Palestinian dictatorship. But is there a way to express this in diplomatese that makes it obvious to the neutral third-party (if there are any such left) or to the Israeli public ?

       It is also ironic that because of the treaty with Israel, Mubarak was deprived of the staple of his fellow Arab dictators – distracting the masses from their miserable lives by inciting them against Israel and blaming Israel for all Arab woes. The Arab potentate – think Assad, father and son, for example – is skilled at fomenting hatred towards Israel as a release valve for pent-up frustration. The treaty deprived Mubarak of that option.

      Some might argue that the Israel-Egypt peace treaty was still worthwhile, because it bought 30 years of non-aggression, and there is a compelling logic to that argument. Most Israelis have grown up with a “peaceful” Egypt. But, even aside from the basic principle that no country should ever return to an aggressor territory that it won in a defensive war against that aggressor, it is clear that such treaties will not endure. Ultimately, though, the price is paid, and when it is paid, it is especially deadly and disheartening. It is true that one can only make peace with enemies, and one can’t choose one’s enemies – but it is also true that one can’t always enter into a true peace with an enemy, especially an enemy that does not identify with cherished values such as freedom, liberty and individual rights.

    That will be the true measure of the Arab world, but that day is far off, notwithstanding the sincere but misguided efforts in this direction of President Bush. So Israel is in for some difficult days – but it will manage well if it learns from this debacle the perils of asymmetrical negotiations. It will manage even better if it remains true to our heritage and worthy of Divine Providence, in these most interesting times.

5 Comments

Posted in Contemporary Life, Current Events, Israel

Jews and Art

Posted on January 25, 2011 | 3 comments

   J. J. Gross, in a recent Jerusalem Post column, lamented the near-complete absence of American Orthodox Jews from the world of arts and letters. There are few, if any, Orthodox Jewish musicians or artists, novelists or poets, and still fewer parents who would encourage their children to make such an unusual career choice. (Read it at http://www.jpost.com/Magazine/Opinion/Article.aspx?id=203464).

     Gross, a recent oleh himself (last March), realized this anomaly when he began studying clarinet in Israel, and his instructor wore a kippa, as did many other students. He decries the lack of artistic creativity on the part of Orthodox Jews in America, or even a genuine interest in the arts, and bemoans the high cost of living Jewishly that deprives young Jews of the capacity to follow their muse and instead dispatches most to medicine, law, business, etc. And a shame it is. So why don’t US Orthodox Jews share these passions ?

     In Israel, by contrast, there are schools – even yeshivot – that cater to religious students who are artistically-inclined. There is a Rosh Yeshiva who is an acclaimed novelist (alas, but one). There are conservatories and even a film school for the religious population. The young are even encouraged to pursue (what we would construe as) offbeat careers that enable them to express themselves and uncover latent aptitudes and abilities, thereby enriching both their lives and society itself.

    Gross attributes the American Orthodox reluctance to embrace the arts as stemming from a lack of “courage.”  Herewith is his argument: “Clearly there is something else that fundamentally differentiates Israelis from Americans, and Americans who make aliya from those who don’t.
     Economic excuses for avoiding aliya are an anachronism. This country’s economy is booming while America’s is on the wane. The cost of Orthodox living is significantly lower here. The weather is better, the food fresher and health care is universal. Plus, the cost of university tuition is relatively tiny, and the likelihood of on-campus assimilation is nil.
    What then keeps the 95% who do not make aliya stuck in Teaneck and Englewood, Riverdale and the Upper West Side, Flatbush and the Five Towns? They march religiously in the Salute to Israel Parade, send their kids to Bnei Akiva and NCSY, come to Jerusalem for Succot or Pessah, yet insist on staying in a declining America.
   I believe the answer is courage. Diaspora Jews are not blessed with a surfeit of courage. They are geniuses at risk aversion. They choose safety in numbers, safety in professions, safety in neighborhoods, safety in the cars they drive. None ride motorcycles.
    Israelis and American olim have far greater courage – above all, the courage to enlist in the IDF, not to mention the courage to camp out in the forest or undertake a six-month trek in the jungles of South America. By contrast, even younger Diaspora Jews prefer cruises and luxury hotels with three meals a day and round-the-clock tearooms.
     Choosing painting over law, music over medical school, writing over banking takes courage. One chooses an art because it is a passion, not because it comes with a guarantee. The kind of young man who volunteers for Golani or commands a tank is not easily intimidated by the risk of being a poor writer or filmmaker.
     It appears to be a combination of expediency and fear that derails American Orthodox youth from pursuing the arts. We can only wonder at the staggering loss of genius that would enrich us as a people, and make this world a better place.

   Well, now that he personalized it by mentioning Teaneck, I can respond…

    Firstly, for goodness’ sake, Mr. Gross just made aliya last March, not even ten months ago. Could he please wait just a little longer before he begins lecturing American Jews about aliya? I don’t know who he is, how old he is, where he is from, what precluded his aliya until last March, and I recognize that one of the joys of aliya is the freedom to condescend to American Jews. There are some pleasures that are foregone because of aliya, and those deprivations are minimized through indulging the pleasures of the ego and looking down on all others who haven’t made aliya.  But please, decorum itself dictates that there should be a moratorium between the time of aliya and the time of permissible condescension. It is insufficient merely to walk off the plane, clear customs, receive your te’udat zehut, and encounter your first obstacle (or ten) with an Israeli bureaucrat. I would suggest a waiting period of at least one year, maybe two. After all, the recent oleh had the identical character traits of his derided targets – until just a short time ago.

    Secondly, there clearly are Orthodox writers and novelists who have achieved general success (the Kellerman’s, for two), as well as Orthodox painters, artists, architects, etc., although not many. So, too, there are Orthodox classical musicians. Most of those that I know personally are baalei teshuva, who in some cases had to renounce or limit many of their career opportunities because of their commitment to Shabbat. That is the definition of courage, perhaps requiring even more raw courage than traipsing about aimlessly through the Amazon or the Himalayas, and also underscores Gross’ concession that many careers in the arts can neither pay the bills nor are necessarily compatible with Torah observance. There are Orthodox motorcyclists (and jungle hikers and bungee jumpers) – but let us not conflate foolhardiness with courage.

   Thirdly, Gross misses the main point, which is surprising, to say the least, for someone who apparently is enamored with all aspects of Israeli life and has successfully made aliya. Jews can be more prominent in the arts in Israel, and less so (or not at all) in America or the rest of the world, because that is the way it is supposed to be. The Jewish soul can only flourish completely in the land of Israel, both spiritually and artistically. Undoubtedly, he is correct that Jews in the exile have not pursued the arts professionally (except for the occasional band musician), nor produced the poets, painters, composers, etc. for which he longs. But that is because the Jewish soul is constricted outside the land of Israel, and therefore there cannot ever be a full expression of Jewish culture outside the land of Israel.

   One need only glance at the Jewish (i.e., non-Torah Jews) influence on American culture to recognize the truth of this statement. For the most part, neither the Jews of Hollywood nor the celebrated American-Jewish novelists bring any great glory to the world of Torah or to the Jewish people. Their representations of Jews and Jewish life are often awash in ignorance and self-hatred, and too often mired in decadence and debauchery. The exceptions (Robert Avrech, for one) stand out, because they have been mostly successful in bringing the true, inner dimension of Jewish life – or framing universal issues with a uniquely Jewish sensibility – into the public sphere. Bear in mind, though, that there is a limited market in American for Torah “culture,” as opposed to the land of Israel.

    For sure, the Jews of Israel have the capacity to mass market Torah-oriented culture – books, plays, paintings, productions – to a wider and more receptive audience, but only the Jews of Israel are so blessed. As Rav Kook wrote in his letter to the newly-founded Bezalel Academy of Arts and Design (1907, from Letters, 158), Jews in the exile have to concentrate on physical and spiritual survival and cannot indulge in the Jewish creative spirit. But, “one of the clear signs of revival” is the revitalization of “Hebrew art and aesthetics in Israel.” Rav Kook perceived the growth of the arts in Israel as beneficial not only in providing employment to many families, but also because it will “nurture the sensitivity for beauty and purity with which the precious children of Zion are so blessed, and it will uplift many depressed souls, giving them a clear and illuminating view of the beauty of life, nature and work…” (Of course, Rav Kook admonished them that art should be used for noble, not degrading purposes, and that they were only limited by Jewish law in the prohibition of sculpting a complete human face – which they promptly ignored.)

     Furthermore, the Jewish “genius,” it is important to add, is not to be found in the creative impulse but in the moral and intellectual realms. Art never existed in Jewish life for its own sake but only as a tool to stimulate a person’s connection to, or reflections on, the Creator. Art is the spice of life, but Torah is life itself.

     Rav Kook saw it as natural and proper that Jewish arts and creativity should only – could only – flourish in the land of Israel. That is the way it should be, and that is, overwhelmingly so, the way it is. That fact should be celebrated throughout the Jewish world, without the need to in the process belittle the American Orthodox Jew, who will yet ascend to Israel for the most positive and virtuous reasons.

 
 

 

3 Comments

Posted in Contemporary Life, Current Events, Machshava/Jewish Thought

Anyone, Anytime

Posted on January 19, 2011 | 4 comments

      We have reached an unprecedented nadir in American jurisprudence, where ostensibly law-abiding citizens are ensnared in the criminal justice system because they fall victim to aggressive prosecutors and vaguely- worded laws that do not clearly delineate the line between legal and illegal conduct.

      Those are the findings of criminal defense attorney Harvey Silverglate in his recent book “Three Felonies a Day: How the Feds Target the Innocent.” It posits that the average person can unknowingly commit three felonies daily, and he is not prosecuted either because he has not been targeted or because the system could not handle such an overload. Many of the cases cited are from Silverglate’s own practice, and even conceding the often irrational exuberance that defense attorneys can muster on behalf of their clients’ innocence (having practiced criminal defense for many years myself, I am quite familiar with the prototypical lawyer who sees no wrongdoing in any of his clients, ever), he makes a very compelling case of prosecutorial overreach and outright injustice.

    A few examples suffice. A Boston lawyer was prosecuted and convicted of obstruction of justice for advising his client not to testify before the Grand Jury (his constitutional right, of course), which in turn protected another client of his (both knew of the conflict and agreed). A pain-management physician was convicted of illegally prescribing more Oxycontin that the Feds determined that patient should have received; the patient was selling them, and the doctor “should have known” that his patient was disposing of the painkillers on the street. The FDA criminally prosecuted a manufacturer of a catheter used in heart surgery for failure to report product malfunctions – even when those malfunctions occurred through misuse of the device by the surgeon. Thus, a criminal jury was asked to decide whether a medical device was “safe and effective,” and convicted the manufacturer. The first two defendants served prison time; the latter case was reversed on appeal, but not in time to avoid ruining the manufacturer’s life and career.

      In our legal system, Indictments are very easily obtained.  A former Chief Judge of the New York Court of Appeals famously said that in New York, “the prosecutor could indict a ham sandwich.” (The judge, Sol Wachtler, himself later became someone’s treif lunch, and served time for blackmailing a former mistress.) But indictments wreak havoc on a defendant’s life; wasted time and money and heightened stress and aggravation are the norms, even when the defendant is eventually acquitted. And many defendants plead guilty to avoid bankrupting their families and to simply get on with their lives, even when they are innocent, especially when a draconian sentence hangs over their heads if they are convicted at trial. Government resources are essentially unlimited; they have all the attorneys and investigators they need. The private individual, excluding the very wealthy, is very limited. Yet, others fight on, and are rescued either by juries or appellate courts.

     For example, the law now bars drug manufacturers from offering “anything of value” to physicians or corporate purchasers. Even a pen is considered a bribe that is actionable. One company offered free seminars to educate medical personnel as to how their product is used – and they were indicted and prosecuted ! The jury acquitted. Famously, the Arthur Andersen accounting firm, that audited Enron, was prosecuted, convicted and hounded out of existence – for applying the common accounting standards to the fake numbers that Enron was providing them. Their conviction, technically, was for obstruction of justice in following their routine procedures in shredding corporate documents while (unbeknownst to them) Enron was being investigated by the Department of Justice. By the time the US Supreme Court reversed Arthur Andersen’s conviction – in 2005 – Arthur Andersen was long out of business. At the end of the day, there was no conviction – but the company had failed as a result of the prosecution. Under similar charges in another matter, another accounting firm, KPMG, simply capitulated, sacrificed some employees, paid fines, and remained in business – even though the charges against it were equally tenuous.

    Often the Feds will entice one principal, with the prosecutorial Sword of Damocles hanging over the victim’s head, to testify against his mates. Some are forced to sing, others (in Silverglate’s phrase borrowed from a former colleague) are taught how to compose – what to say in order to ensure convictions for others and a good deal for oneself. Other times they will hone in on a celebrity and prosecute the celebrity for “crimes” for which few others are charged; Martha Stewart is a case in point.  Michael Milken pleaded guilty to a felony (to avert a prosecution of his innocent brother) that a judge in another trial later ruled was not even a crime.  And there have been other prosecutions in securities and corporate matters – and even convictions – where appellate courts later ruled that no crime had been committed.

   The prosecutorial zeal feeds the notion that the Government can prosecute anybody and everybody, if they so choose. Silverglate cites a magazine article that reported a snack-time game played in the US Attorney’s office in New York’s Southern District: the lawyers would name a random celebrity – e.g., Mother Theresa – and a junior prosecutor had to concoct a realistic crime for which that person could be indicted. And many statutes are so broadly worded that it is not that difficult. Built into the criminal justice system are catch-all offenses like mail fraud and wire fraud (transmitting false statements – even if you didn’t know they were false), conspiracy and racketeering, obstruction of justice and a host others that are loosely defined weapons with very sharp tips.

    Some people therefore have no luck and no chance. A Connecticut lawyer was tried, convicted, sentenced to prison and disbarred for obstruction of justice for destroying child pornography given to him by his client – even though had he kept it, he would have been guilty of “possessing” child pornography and prosecuted for that.

   Added to the uncertainty is the selectivity of prosecution, known in the trade as “prosecutorial discretion.” Thus, the actor Wesley Snipes sits in prison for tax evasion, whereas Al  Sharpton has escaped the criminal justice system’s attention for very similar acts. AIPAC officials Steven Rosen and Keith Weissman were indicted for “espionage” for receiving information they were “not entitled to receive” about Iranian nuclear capabilities from a government employee (who himself pleaded guilty) – even though they were not government employees and theoretically not subject to that provision of the law. The prosecution was recently dropped, but not before the two had lost their positions at AIPAC.

     What is completely absent in most of these cases is a “criminal state of mind,” i.e., an awareness by the individual that the acts he committed were in fact criminal and that he committed them with criminal intent. There are many fine lines in the law – that is why there is a Tax Court where the IRS doesn’t always win. There are scenarios in which it is impossible to determine whether in fact a particular course of conduct is criminal, leaving it ultimately to the prosecution to determine whether to indict, to a jury whether to convict, and to an appellate court whether to confirm or reverse. But it is obvious that elementary justice would demand that the laws have clarity so that even a layman would be able to ascertain what is lawful and what is unlawful. That shouldn’t take a team of lawyers, and certainly not an appellate court.

   There are other equally egregious cases in the book, all of which leads me to take another look at the conviction of Sholom Rubashkin, now on appeal. Rubashkin was convicted on 86 of 91 counts charged, but the notoriety he has garnered far exceeds the weightiness of the crimes for which he was convicted and sentenced to 27 years in prison. Many of those counts were duplicative – each time a bank advanced his company money under “fraudulent” circumstances and each month’s report to the bank filed by his company were each considered separate counts in the indictment. Since the reports were likely mailed, those gave rise to the wire and mail fraud charges. The heft of the indictments can also influence a jury, on the theory that someone who is charged with so many things must be guilty of something. What was that ?

    The basic fraud committed was apparently Rubashkin’s representation to the bank that his company ran a lawful business, which the Government charged was a “fraudulent” statement because of the alleged employment of child labor and immigration violations. But since those charges were either dismissed by the Government, or Rubashkin was acquitted at trial thereon, it emerges that the “fraud” was, if not contrived, at least overstated. And evidence of prosecutorial overreach is apparent in Rubashkin’s conviction for “failure to pay livestock dealers in a timely fashion” (he was a few days late), the very first time anyone had ever been prosecuted for such a “crime,” a regulation of the Department of Agriculture (seems more like a matter for small claims court).

    What is even stranger is that Rubashkin was making timely repayments to the banks he allegedly defrauded, only defaulting after he (again, like Arthur Andersen) was forced into bankruptcy after the initial charges were lodged against him. How often is a person – businessman or homeowner – prosecuted for making a false statement to a bank on a loan application, even though he continues to make timely repayments on the loan ? Curious. That is not to say that Rubashkin is innocent of every charge; only that it seems that he – and the others cited above – were targeted for prosecution, and almost every target is eventually nabbed on something, anything, and then sentenced to an outrageously-disproportionate prison term.

     That was also the fate of Scooter Libby, former Chief of Staff to VP Dick Cheney, who was convicted on several counts of perjury and obstruction of justice (and also ignored in the book). Libby was hauled before the Grand Jury investigating the outing of CIA agent Valerie Plame, and it was widely suspected that Libby had leaked her identity to journalist Judy Miller, leading to widespread condemnation of the Bush administration for trying to destroy the career (life ?) of an administration foe. But… shortly after the investigation began, the special prosecutor, Patrick Fitzgerald, had already learned that the source of the leak was not Libby but Richard Armitage, a State Department official who had inadvertently revealed Plame’s identity to journalists. So why was Libby being investigated for a crime that the prosecution knew he had not committed ? That is the question that remains unanswered, but Libby was convicted, sentenced to prison (commuted by President Bush) and disbarred for acts that amount to “mis-remembering” (to use a Bush-ism) details of conversations years in the past.

     Obviously, prosecutorial misconduct is not the norm, and just as obviously, laws have to be obeyed by everyone without exception. But the laws have to be clear and comprehensible, prosecutions have to be reasonable and warranted, and justice has to be administered fairly and sensibly. Justice has to be “blind,” i.e., dispensed objectively without regard to politics, race, religion, wealth or status. It can’t ever be a perfect system, because it is administered by fallible human beings. But Silverglate contends, for the most part persuasively and frighteningly, that we still have very far to go even to achieve elementary fairness.

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