Free For All

Why we 'need to look forward'

Harvey Silverglate — Tue, 27 Jan 2009 22:59:00 GMT

Destruction – in both a literal and constitutional sense – has been left in the wake of the eight-year Texas tornado that was the George W. Bush presidency. Citizens are understandably upset, but criminal prosecutions of former (or current, for that matter) government officials, cathartic as they may first appear, are not the answer.

While journalists, politicians, law professors, and other indignant dignitaries have called for investigations of high-ranking Bush administration officials, President Barack Obama has tried to temper their zeal. His assertion that “we need to look forward” is valid, but it perhaps requires further explanation.

As a preface, this subject requires total intellectual honesty and political consistency, rather than the kind of thinking that says that it's okay to burn and pillage your way through the legal system in order to get your enemies. (We all know where that road leads...)

One must bear in mind the challenges of successfully prosecuting and convicting these officials. After all, following legal advice that appears to have been given in good faith is a valid defense to a criminal prosecution. That leads us back to the legal abominations known as the “torture memos,” a cynical lawyers ' trick about which I've written in the past.

The lawyers who wrote the memos should be professionally disciplined or perhaps even disbarred, but not indicted. Likewise, the actors who proceeded on the basis of the "legal" advice should not be prosecuted. That includes Bush and Cheney, for whom it is very difficult for me to muster any sympathy whatsoever. Their situations, however, must be analyzed much the same as the situation of any person in our legal system.

In my view, it boils down to jury dynamics. Getting all 12 jurors to agree to vote guilty – or, for that matter, getting all to acquit – would be virtually impossible. Every trial almost certainly would result in a hung jury and would have to be re-tried time and time again, without producing a verdict. Eventually, a judge would have to dismiss each and every prosecution.

A prosecutor has an ethical obligation to indict someone only if he or she believes, in good faith, that he/she can obtain a jury verdict of guilt "beyond a reasonable doubt." There's just no way that any of these cases stands a decent change of producing unanimity among jurors. Some jurors are bound to conclude that in the fog of terrorism, so to speak, it’s understandable that some government officials and agents opted for legally questionable responses. So it would be unethical, in my view, for federal prosecutors to seek to indict and try them. The best we can do is to disbar or otherwise discipline the unethical lawyers who produced the dubious (at best) legal advice that was, or appears to have been, relied upon by government officials and agents who went on to do unspeakable things.

As for the malefactors at the top of the pyramid, the political system has gotten rid of them at long last ("our long national nightmare is over"), and history will have to deal with the rest. And as for the people toward the bottom of the pyramid – the ones who believed or at least arguably believed the "legal" advice in the John Yoo and David Addington "torture memos" – they now have a new commander-in-chief whose quite different bidding they now will do.

This is the best that we, as a free society under the rule of law, can do. "Revenge is mine, sayeth the Lord."

Dancing with dictators

Harvey Silverglate — Thu, 22 Jan 2009 23:21:00 GMT

The Boston Globe’s metro columnist, Kevin Cullen, has a revealing piece in the January 22nd issue about Harvard’s cozying-up with Libyan dictator Moammar Khadafy, who is holding political prisoner Fathi Eljahmi, while Harvard Business School is hosting and promoting Khadafy’s son, Saif Al-Islam. (And, notes Cullen, the Globe published an op-ed by Khadafy after receiving an entreaty from the Libyan family’s New York-based public relations firm.)

It is a relief to see that someone at the Globe recognizes that there’s something wrong with the picture of Harvard dancing with dictators – especially iron-fisted rulers with substantial petro-wealth and a knack for suppressing dissent. None of this comes as a surprise to The Free For All, however. Loyal readers will perhaps recall my column in this blog’s parent, The Boston Phoenix, noting the trend toward major American universities’ cooperating with, and even building campuses in, oil-rich sheikdoms and dictatorships. And, in a related Minding The Campus blog entry, I talked about the corporatization of American higher education, which accounts in large measure for Harvard’s, and other universities’, close ties to wealthy dictators who have very little in common with western notions of education and academic freedom, but do share a mutual love of lucre.

I am, by way of disclosure, making a run as a petition candidate for Harvard’s Board of Overseers, the university’s second most powerful governing body, and my platform calls for a return to certain time-honored academic values. My Statement of Candidacy is posted on my website.

“A rose by any other name….”

Harvey Silverglate — Mon, 12 Jan 2009 21:46:00 GMT

If Harvard Law School dean Elena Kagan is confirmed as the nation’s first female solicitor general – she’s been nominated to supervise all federal government litigation in the Supreme Court by HLS alum and President-elect Barack Obama – she would be addressed as “General Kagan” by the justices (and by others as well), New York Times Supreme Court reporter Adam Liptak noted on January 7th.

Technically, it’s true, but it’s hardly clear that Kagan would in fact want to be addressed by that new title, rather than simply as “Dean Kagan.” There’s an interesting precedent on the subject.

In the early 1970s, I was involved in representing then-Senator Mike Gravel (D – Alaska) and Boston-based Beacon Press in the lesser-known local angle to the infamous “Pentagon Papers” imbroglio. Intelligence reports involving details of the Vietnam War were secretly leaked to Gravel, who then handed them over to Beacon for publication. Wanting to locate and punish the informant, Richard Nixon’s Justice Department henchmen served Gravel’s staff and the publisher with a grand jury subpoena. (As we all know, the leaker turned out to be long-time Cambridge resident Daniel Ellsberg.)

Gravel’s legal team won the argument in the First Circuit Court of Appeals, sitting in Boston, which ruled that “legislative privilege” protected Gravel’s staff and Beacon from having to obey the subpoena. It was a precedent-making interpretation of the Constitutional clause that protects legislators from being questioned, much less harassed, by all the President’s men. Nixon and his Department of Justice were furious and were inclined to appeal to the Supreme Court. Gravel’s legal team arranged a meeting with the then-solicitor general, Erwin N. Griswold, who previously had been the long-time dean of the Harvard Law School. Our aim was to talk Griswold and his team out of pursuing the appeal.

Gravel’s legal team – myself included – walked into the solicitor general’s ornate office at the Department of Justice building in Washington. In the room were Griswold’s main underlings and clerks, most of them Harvard Law grads who had known Griswold since their student days. We were all waiting for the great man to arrive. I asked one of the young staff lawyers whether Griswold – a notoriously stiff and formal fellow – would want to be greeted as “General Griswold” or “Mr. Griswold.”

Without missing a beat, or even breaking into a smile, the young assistant solicitor general responded that it was normal protocol to address such august figures by the highest professional title that they’d attained. That being so, the lawyer advised me, “the solicitor general prefers to be addressed as ‘Dean Griswold.’”

Will it be General Kagan, or Dean Kagan? We’ll find out soon enough.

And, by the way, Dean Griswold decided to appeal to the Supreme Court, which reversed the First Circuit in a closely-divided and still controversial decision.

From hackers to helpers

Kyle Smeallie — Fri, 02 Jan 2009 23:14:00 GMT

By Kyle Smeallie & Harvey Silverglate

If you can’t beat ‘em, join ‘em – or at least have them join you.

That appears to be the newly-adopted attitude of the Massachusetts Bay Transportation Authority (MBTA), marking a logical denouement to the celebrated case this past summer in which three MIT students uncovered technological vulnerabilities in the fare collection system. Before the students were able to present their research at a hacker’s conference, the MBTA sued, claiming that “significant damage to the transit system” would result from public disclosure. Federal District Judge Douglas Woodlock, sitting as the emergency duty judge, agreed, slapping the students with a temporary restraining order. (But Judge George O’Toole, to whom the case was assigned, later reversed course and denied the MBTA’s request for a preliminary injunction.)

Aside from the blatant threat to the students’ First Amendment rights, the MBTA’s gag order left fair-minded citizens scratching their heads. Rather than address the obvious security flaws, the MBTA chose to squander its scarce resources – revenue from taxpayers and T riders – in a counterproductive legal battle. In essence, the T chose to shoot the messenger.

Harvey Silverglate, in a Boston Globe letter-to-the-editor, criticized the MBTA’s inherently flawed approach.

“The MBTA would have been better off hiring, rather than suing, the MIT trio to solve the electronic flaw,” Harvey wrote. “The students (and their professor) could doubtless do a better job of patching the security hole than the T's security officials, consultants, and vendors who designed the vulnerable system.”

Apparently (though not immediately), MBTA officials listened. The Electronic Frontier Foundation (EFF), which represented the students pro bono, announced last week that the students have agreed to work with the MBTA – pro bono, as well – to help fix security flaws.

“We’ve always shared the goal of making the subway as safe and secure as can be,” said MIT student Zack Anderson in a December 22 EFF press release. “I am glad that we can work with the MBTA to help the people of Boston, and we are proud to be a part of something that puts public interest first.”

To be sure, this wasn’t the first instance of tech-savvy individuals switching sides, so to speak – rogue mischief makers becoming saviors of the very companies they once annoyed. About the late 1970s, Harvey represented a couple of very smart (aren’t they all?) MIT students who had figured out how to do an end-run around the New England Telephone Company’s security and billing protocols for dialing long distance calls. The students produced a so-called “black box” that imitated dialing tones while by-passing the NET’s billing system (bear in mind, these were the bygone days of touch-tone simplicity). The students managed to make quite a large number of phone calls to their friends all around the world before NET caught-on, set a trap, and busted them.

The judge, not wanting to give the students a criminal record, put them on pre-trial probation and agreed to dismiss the case if the students kept their noses clean. Not only did they keep their noses clean, but they were hired by the phone company to augment its security office. Their task: prevent future MIT geniuses from gaming the system.

The notion that “when you can’t beat ‘em, join ‘em” makes as much sense today as it did then. It makes especially good sense when the seeming enemy can make a valuable friend – and you don’t have a dime to spare.

Due process of law vs. no law: A slim difference?

Harvey Silverglate — Tue, 09 Dec 2008 22:03:00 GMT

Every time I read something about the debate over whether captured suspected terrorists should be tried in one of President Bush's "military commissions" or in a regular federal court, I have to admit smirking a bit. As a practicing criminal defense and civil liberties lawyer, with considerable experience defending clients in the federal courts, I find that neither tribunal would do justice to, well, justice.

The latest such article to bring a smile and a frown, simultaneously, to my face, is Michael Gerson's December 8th Boston Herald piece, "Due process is delicate: No ordinary suspects at Guantanamo". Gerson seems to think that President-elect Obama is going to have to untangle this problem in the aftermath of President Bush's apparent failure to do so. Gerson repeats the oft-heard mantra that "Some detainees will be too dangerous to release but too difficult to convict in a normal court."

Well, has Gerson bothered to learn much about what a "normal" federal criminal trial is like these days, and why so many defendants plead guilty rather than take their chances with the system? There's a saying that a prosecutor can convince a grand jury to indict a ham sandwich. But in federal court, a prosecutor can get not only a grand jury to indict, but even a trial jury to convict a ham sandwich of just about anything!

Why? Well, a huge variety of seemingly ordinary activities can be squeezed into the definition of some vague or broad federal criminal statute. There's mail fraud or wire fraud or lying to a federal official (not even under oath). And, if all else fails, they can resort to that old stand-by, conspiracy to violate some federal law. If the feds can't put a suspected terrorist away in a regular federal court because the evidence was procured by torture and hence would be inadmissible, they can simply question the poor bloke and then indict him for lying. No torture there - just a little bit of old-fashioned Department of Justice or FBI trickery.

It's simply beyond the comprehension of this criminal lawyer that the feds, who can indict and convict just about any of us for something, cannot figure out how to convict a suspected terrorist in a real federal court. If they can jail Martha Stewart for false statements - even though she did not commit the securities fraud about which she was questioned - they surely can imprison a "terrorist" who has done nothing wrong, or at least against whom evidence of terrorism is too compromised to be admissible in a federal court. And that's because so many real federal trials today do not produce real justice.

I'll be discussing this recent (since the mid-1980s) diminution of real justice and true due process in the federal courts in my forthcoming book, Three Felonies a Day: How the Feds Target the Innocent, being published in the third quarter of 2009 by Encounter Books. It's not a happy development. But it does make all of the talk about the difficulties of getting terrorism convictions in the federal courts somewhat irrelevant.

The Second Amendment: Much Ado about Little

Harvey Silverglate — Thu, 23 Oct 2008 15:15:00 GMT

New York Times Supreme Court reporter Adam Liptak has thrown new light on the long-simmering battle over the Second Amendment's true meaning and import in a fascinating October 21 front-page piece. Liptak, who deftly took over the Times' Supreme Court coverage from the recently-retired and much respected Linda Greenhouse, points out that the text is anything but crystal clear: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The meaning of the amendment has become so controversial that even some prominent conservatives have an issue with the Supreme Court majority that recently came down, ostensibly, on the conservative side of the gun-control issue.

Does the Second Amendment protect the right of only state militias to stock weapons for use, as appropriate, in emergency peace-keeping operations, or may individual citizens rightfully posses arms as well? A back-and-forth gun rights shouting match has ensued, from the days of minutemen to the cold-dead hands of the late Charlton Heston. Yet few have realized the futility, or at least the lack of necessity, of this debate. An interpretation of the Amendment as protecting an individual right hardly means that "gun control" is unconstitutional. It is not the end of the world: Boston, New York City, and Los Angeles are not about to replicate the gun-slinging towns immortalized in John Wayne movies.

Some conservative judges and academics, Liptak reports, have criticized the Supreme Court's 5-to-4 decision to strike down a D.C. handgun ban in District of Columbia v. Heller. The hypocrisy, critics say, in Justice Antonin Scalia's majority opinion articulating a protection of the individual's right, is that the high court's right-leaning bloc is taking the very same subjective approach to constitutional interpretation for which they attacked the left for decades (in, for example, the abortion arena). This judicial activism, they claim, substitutes personal views for the meaning intended by the Founders, and, more importantly in this instance, substitutes the justices' views for those of state and local governments. By extension, this method of constitutional interpretation improperly confers powers on unelected judges rather than on the elected representatives of the citizenry.

In this titanic Second Amendment battle, the thinking has been that if the Constitution protects the individual's right to bear arms, then gun control must be unconstitutional. The Heller opinion, obviously aimed at settling the question once and for all, appears not to have done so - proving that the culture war between right and left has become so useful to both sides that any attempt to move forward is promptly rejected - even by some of the ostensible victors, since they are more desirous of continuing the war than of winning a long-and-hard-fought battle. However, the dispute, vitriolic though it has gotten, is truly an artifact of the culture war, and not a serious academic or constitutional dispute.

Let's assume, for argument's sake, that the Supreme Court majority is correct, and that the Second Amendment protects the right of the individual to possess, even to use, firearms. (This happens to be my view of the meaning of the text, but, as I'll make clear in a moment, it hardly matters with regard, ultimately, to the issue of the constitutionality of gun control legislation.) What impact would such an interpretation have on the power of federal, state, and local governments to enact legislation controlling, even limiting, the exercise of that right? Answer: very little.

Consider another cherished American liberty unquestionably protected by the Bill of Rights - freedom of speech: "Congress shall make no law...abridging the freedom of speech." [emphasis added] On its face, the First Amendment is absolute - "no law" may interfere with this freedom. (As the late Justice Hugo Black, a near-absolutist with regard to First Amendment interpretation, famously asked prosecutors and attorneys general arguing for an exception in, for example, obscenity cases: "What part of ‘no' can't you understand?")

Yet there are, and have always been, recognized exceptions to "no law." Legislatures have long outlawed, prosecutors and police have long made arrests for, and courts have long punished defendants for purveying "obscenity." Breaches of classification laws in the national security arena are deemed criminal, deserving of long prison sentences under the espionage statute. And speech, regardless of content, may be punished because of the time, place or manner of its delivery. For example, touting a candidate for public office by blaring through a bullhorn at three o'clock in the morning in a residential neighborhood may be core political speech, but it is also against the law ("disturbing the peace") under the circumstances. And, of course, you can't shout "fire" in a crowded theater. The details of how and where a constitutional right is exercised dictate the difference between protected activity and commission of an offense.

Thus, even if (as has now been held by the high court) the Second Amendment protects the right of individuals to bear arms, that right may be restricted and conditioned by reasonable regulation - gun control statutes and ordinances. So the Supreme Court's majority's resolution of the Second Amendment's meaning makes perfect sense - there is an individual right to bear arms, but reasonable regulation is likewise constitutional. Both liberals and conservatives should stop arguing about this long-running battle in the culture war and get on to more important and substantive issues. It's time to stop arguing over how many guns can be balanced on the head of a pin, and by whom. The constitutional gun control battle is over, and all that remain are the details that will be ironed out, case by case, by municipalities, states, and the lower state and federal courts in the years to come.

Now can we please get on to the truly urgent constitutional and other battles that remain?

Equal Time and late-night censorship

Kyle Smeallie — Tue, 14 Oct 2008 20:34:00 GMT

Jim Morrison and the Doors were scheduled to play their number one hit, "Light My Fire," on a 1967 episode of The Ed Sullivan Show, but there was one line to which the long-time host took offense. "Girl, we couldn't get much higher," sparked Sulivan's ire, and he demanded the line be re-written for the late-night show's performance. Morrison agreed. But when the cameras were rolling, the enigmatic front man strayed from script and - gasp! - sang the original line. Sullivan was furious - he refused to shake Morrison's hand after the performance and vowed never to have the L.A. band on his program again.

This chapter in rock'n'roll lore is now more than four decades old, but it appears that late-night CBS censorship is not a thing of the past. Last week, while taping an episode for the October 27th edition of The Late Late Show With Craig Ferguson, CBS representatives informed a band member that he could not wear a pro-Obama shirt while performing. Randy Randall, guitarist for the experimental rock group No Age (also from L.A.), was told that donning the threads would violate the Equal Time Rule, a 1934 law aimed at giving politicians equal on-air time.

Surely it was a different beast than Morrison faced, but the effect is strikingly similar - censoring artists' expression, whether quasi-cultural or expressly political.

Equality under the law

The Equal Time Rule has gone through several changes and has been adapted to new media, but the crux remains the same: a station that gives or sells time to one candidate must make the same offer to all other candidates for that office. (It should not be confused with the Fairness Doctrine, an FCC policy - abolished in the 1980s - which required broadcasters to present contrasting views in matters of public controversy.)

The rule's rationale is rooted in basic notions of evenhandedness - if a product is available, it must be sold to all qualified customers on an equal basis. At the time, it was considered progressive policy - bear in mind, this was the era of "separate but equal." But out of this quite sensible rule arose a doctrine that has inhibited network's political programming.

Exemptions to the rule

The rule focuses on giving equal time to candidates, but it's a tough sell to extend this to the apparel of a fresh-faced punk rocker. (Singer-songwriter Regina Spektor recently wore an Obama belt while performing on NBC's Late Night with Conan O'Brien - with no FCC consequences). Apparently, though, CBS was sufficiently scared.

"Those candidates who are on the ballot in at least 10 states could have asked for equal time from the network. Given that, CBS employees followed guidelines and asked the band member to remove his T-shirt," according to a CBS statement made last week to the Los Angeles Times.

This interpretation contrasts current readings of the Rule. In 1959, with broadcast technology changing, several exemptions were made to the law. Equal opportunity requirements were null in cases of news interviews, newscasts, news documentaries, and on-the-spot coverage of news events. In short, if a candidate appears on a bona fide news program, the station would not be obligated to afford equal time to his/her opponent.

Equal time in a modern context

In today's context, where the lines between news and entertainment are often unclear, the FCC has been reluctant to apply the equal time provisions. The FCC "has expanded its category of broadcast programs exempted from political access requirements to include entertainment shows that provide news or current event coverage as regularly scheduled segments of the program," according to Dwight Teeter, author of Law of Mass Communications. A late-night program, which often uses news as fodder for jokes, would appear to fit this paradigm.

Nonetheless, No Age was just minutes away from taking the stage when a "talent booker" informed Randall he couldn't perform with his T-shirt. At first, they considered walking off the set. Instead, Randall chose to turn the shirt inside out and write "Free Health Care" in scribbled Sharpie.

"I felt it was important to voice my choice for presidential candidate, Barack Obama, seeing as the episode would air eight days before Election Day," Randall wrote in an email to Pitchfork, a music website. When that was denied, "Dean [No Age's drummer] and I decided that it would be better to take advantage of the stage we had at our disposal...Access to affordable health care is an issue very near to my heart for many personal reasons and I am sure that many of you can relate."

Who's to blame?

As this story gains further coverage, CBS - like it did 40 years ago - will be left looking out-of-touch and all to eager to please government bureaucrats.

But maybe it isn't entirely CBS's fault. Following the infamous 2004 Superbowl "Nipplegate" affair, CBS was fined $550,000 by the FCC. Though the fine was overturned on appeal, you can be sure that the "suits in New York" (Randall's words) remember the legal headache that ensued.

The broadcast company (along with other major stations) also has an important Supreme Court appeal in the upcoming term. The case centers on the ability of the FCC to impose fines for "fleeting expletives" or spontaneous (as in, not planned by the broadcaster) usage of curse words in live broadcasts.

In these cases, the live programs did not allow CBS the opportunity to "bleep" the expletives or "blur" the oh-so-horrid nipple. But in the pre-taped Late Late Show, CBS foresaw an opportunity to avoid arousing FCC intervention, and it chose the most conservative reading of an archaic rule - instead of allowing an artist's expression. It is, unfortunately, the chilling effect that government regulation has on speech: even in the most crucial moments, when artists feel compelled to speak out on politics, their speech is stifled. Regardless of the Equal Time Rule's good intentions, it has now clearly become a tool for dampening political discourse.

“One small step against rigging our elections”

Harvey Silverglate — Wed, 24 Sep 2008 21:24:00 GMT

Normal 0 MicrosoftInternetExplorer4 st1\:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman";}

The Supreme Court's illegitimate installation of the loser in the Oval Office following the deeply flawed - the cynics would even say "rigged" - 2000 presidential election, left more than a bad taste in many American mouths. For some, it was the straw that broke the camel's (or Donkey's) back - they were entirely repulsed at the political (and judicial, such as it was) process. But the aggrieved parties (read: the U.S. populous) are entitled to utter a small cheer, at least, for the ACLU of Massachusetts' welcome victory in a similar effort - this time by the left seeking to screw the right- in the Bay State.

Federal District judge Nathaniel Gorton issued a preliminary injunction on Monday ordering the Massachusetts Secretary of the Commonwealth, who supervises elections and implements electoral regulations, to list the Libertarian candidate, former Republican Senator Robert Barr (now a registered Libertarian), on the state's ballot for the upcoming presidential election. I understand, of course, the Democratic Party's consternation when Republican operatives, and a conservative-dominated Supreme Court, conspired to put George W. Bush in the White House in 2000 and then keep him there in another flawed election in 2004. But this does not justify what Massachusetts Democrats are now doing - relying on sleazy tactics - to keep Barr off the ballot in the Bay State.

Here's the latest trick, as explained in an ACLUM press release, in a long line of efforts around the country, and even here in Massachusetts, to make American elections resemble those in places like Zimbabwe, Russia or Venezuela. Massachusetts law qualifies a "political party" in the Bay State as one that has a candidate who received three percent of the vote in the most recent statewide election. Because the Libertarian Party (LP) did not previously meet this threshold, it was forced to collect at least 10,000 voter signatures to secure a place on the ballot. With limited resources, the LP began the signature drive well in advance of election season, and it had already collected more than 7,000 signatures to list party stalwart George Phillies on the November ballot. The party, however, nominated Barr, and it sought to substitute him for Phillies once the additional 3,000 signatures were collected. The Massachusetts Election Division of the Secretary of the Commonwealth's office, however, refused to count the 7,000 toward the 10,000 signatures needed to put Barr on the ballot, despite the Division's earlier assurances that substitution would be allowed, in accordance with prior practice.

Judge Gorton issued his order on the ground that the regulations, if indeed they could be interpreted to prevent such a substitution, were so vague, and so deficient in providing guidance to minority political parties seeking ballot access, that they violated the constitutional right to "due process of law." Nor could Judge Gorton find any legitimate interest on the part of the state in blocking ballot access. "[A] minor political party, desiring to substitute its presidential nominee on the ballot in Massachusetts is left to guess how, if at all, to do so in compliance with the law," Judge Gorton said in his 11-page decision. "Surely there can be no state interest that would justify such a burden."

Of course, there was an interest in Democratic Party operatives' choking off, in its infancy, any third-party uprising. They wanted to keep the commonwealth essentially a one-party state, replete with all of the corresponding corruption and malfeasance. The consequences of Democratic legislative misrule in Massachusetts are obvious every single day, as MBTA riders screech along obsolete tracks and children learn from dated textbooks and underqualified teachers. The pillage of public coffers by a variety of public employees and private contractors seems to be a fixture on the front page of daily newspapers. Often forgotten is the corollary: the leftover pennies for necessary infrastructure and essential public services. (Similarly, the consequences of an essentially rigged two-party system on the national level are visible, and currently quite painful. The illegitimate seating of George W. Bush in the White House for two terms is the number-one argument for reform of the federal electoral system, but that's another story.)

It is not clear that the LP, any more than other minority parties, has the answers to the state's or the nation's monumental problems. But it is clear that they are entitled - by constitutional right - to have a fair shot at convincing the public that the old two-party monopoly has to be broken for the good of the nation and its people. The "deprivation of the franchise" (to use ACLUM Legal Director John Reinstein's blunt phrase) to third parties such as the Libertarians, and the removal of illegitimate and unfair "barriers to their full participation in the electoral process" (in the words of ACLUM Executive Director Carol Rose), were beaten back, at least for the moment, in Massachusetts.

(Kyle Smeallie assisted in the preparation of this piece.)

Swift returns, with more of the same

Kyle Smeallie — Mon, 15 Sep 2008 22:28:00 GMT

After years of self-imposed exile, former acting Governor of Massachusetts Jane Swift has reemerged onto the political scene. This time, rather than spending taxpayer money on babysitters and helicopter rides, she is heading - in all seriousness - the "Palin Truth Squad." This righteous group of fact-finding crusaders has come to the defense of Republican Vice Presidential candidate Sarah Palin, denouncing the nasty, truly despicable sexist slander cast by Obama and his camp.

Swift and Squad took issue with a recent Obama speech where he called out the absurdity of electing Republicans to fix the problems created by...Republicans. "That's not change," the Illinois senator said at a campaign event in a Lebanon, Virginia. "That's just calling something the same thing, something different. But you know you can put lipstick on a pig, but it's still a pig."

And just hours after the remarks, Jane Swift was on a conference call with reporters. A new talking point was born. "Senator Obama...uttered what I can only deem to be disgraceful comments comparing our vice presidential nominee, Governor Palin, to a pig," Swift said. (The accusation was based on a joke Palin made during her RNC speech, saying that "the difference between a hockey mom and a pit bull" is lipstick.)

By now, the faux-outrage has been thoroughly discredited. Obama has used the phrase countless times before. McCain even used it to criticize Hillary Clinton's 2007 Healthcare proposal. So like most campaign blather, this "shock" will quickly dissipate.

But Swift is hoping the opposite - a revival of sorts - will result for her career.

She is aligning herself with the newly anointed conservative queen, pointing out the similarities: both Swift and Palin hail from small towns, both were the first female governors of their respective states, and both gave birth while holding office.

The analogy falls short in one key aspect, as Boston Globe reporter Stephanie Ebbert points out. Swift was regarded, by both party and polis, as a failure.

After assuming the governorship (when Gov. Paul Celucci left to become the Ambassador to Canada) in 2001, she was embroiled in scandals, including the aforementioned helicopter rides and babysitting assignments. But while those may have generated headlines, an even more disturbing saga occurred under her watch, one that seriously undermines any moral soapbox on which she currently stands and from which she deigns to criticize.

The case involved the Amiraults, a working-class Malden family that ran the Fells Acre Day School, a childcare facility. In 1986, Violet and Gerald Amirault, and Cheryl LeFave (Gerald's sister) were accused of heinous and sadistic acts against children. From the beginning, it was clear that the case had major holes. It was largely based on testimony from the children, some as young as four years old. And the techniques used to obtain these stories are now widely discredited: coercive questioning, promises of reward for "right" answers, and suggestive use of anatomic dolls. The resulting stories were, by any measure, extreme - one child spoke of being tortured in a magic room by an evil clown. Others were downright bizarre - one depicted scenes of rape with butcher knives (though no wounds were found) and another claimed that 16 children were killed at the center (though no bodies were found).

Though the tales were dubious to say the least, they certainly made headlines. Even before the trial began, the Amiraults were guilty in the court of public opinion. And when the gravel pounded, the Amiraults were convicted of 26 counts of child abuse. Thus they were swept up in a disastrous hysteria of the 1980s in which sensational (and incredible) allegations, ambitious prosecutions, and a penchant for moral purity resulted in convictions based, in many cases, on evidence that had been pounded into the child-victims' heads and then predictably came out of their mouths. Indeed, it was a moral debasing of justice.

Fast-forward to 2000. Gerald Amirault, despite his wrongful conviction, had spent fourteen years as a model prisoner, taking college courses and staying out of trouble. His alleged co-conspirators, Violet and Cheryl, served eight years before being released - despite being charged with the same crimes. (Violet and Cheryl's release, interestingly, was predicated in part on their agreement to adhere to a suspicious condition imposed by the district attorney - that neither, once free, would discuss their case in the electronic media.)

Gerald Amirault's case came before the state parole board, a stern body known for little sympathy - from 1988 to 1997, the board considered 270 petitions for commutation, and granted only seven. Disturbed by the facts of the case, however, the panel led a six-month investigation, one of the longest in its history. In June 2001, the board delivered a unanimous ruling for the commutation of Gerald's sentence.

At the time, all that stood in the way of Gerald Amirault's freedom was Gov. Jane Swift.

Six months after the board's ruling, Gov. Swift spoke. Commutation, an official statement read, was "not warranted." By all accounts, she failed to give an acceptable justification. She continually cited Amirault's refusal to admit guilt, as well as his refusal to seek treatment, as reasons to keep him behind bars. She failed to account for the possibility - a thought that obviously occurred to the hard-nosed parole board - that he wasn't guilty.

Swift's repudiation of the parole board's recommendation that Gerald Amirault be released can be attributed to only two possible reasons: Either Swift did not understand the case despite the fact that the "evidence" against Amirault had been effectively and widely discredited, or she understood that he was innocent but decided to keep him in prison to further her own sinking political career. With the 2002 gubernatorial election looming, justice took a backseat to job retention.

But her calculation failed. With approval ratings in the single digits, she decided to hand over the Republican reigns to Mitt Romney and fade out of the spotlight.

Now, she has reemerged. As she has said, she is certainly qualified to defend Palin and lead the charge against Obama. Furthering her career has clearly come before any quaint notion like "truth" or "justice." Just ask Gerald Amirault.

Ancient text and imminent action

Kyle Smeallie — Thu, 11 Sep 2008 21:23:00 GMT

You need not dig deep into the annals of history to find examples of religious bloodshed. From the Crusades to the Inquisition to the terrorist attacks seven years ago today, dogmatic interpretations of religious doctrine - spanning almost every set of beliefs - have contributed to countless deaths and persisting cleavages. But does censoring theological texts and statements remove these hatreds?

Administrators at the University of Southern California (USC), after recently deleting sections from a Muslim student group website, appear to think so. The material in question is a collection of hadith, or proclamations passed down in the Muslim faith but not included in the Quran. These particular hadith - the aggrieved party pointed to five different statements - concerned the killing of Jews.

A surface reading could lead one to believe that the statements are threats. Upon closer examination, though, these hadith are evidence of a mode of thought in Islamic tradition, far from a clear instructional guide for most practicing believers. Censoring these statements, in the presence of thousands of other nonviolent hadith on the student website, not only violates key principles of academic freedom, but it is an unconstitutional form of censorship.

To understand this case, one must first examine the role of hadith in the Muslim religion. In short, hadith are the words and actions of the prophet Muhammad that have been passed down through generations, mainly by oral means. Because of this narrative nature, there are varying degrees of hadith authenticity. Both the actual words (matn) and the chain of narration (sanad) play an important role in determining validity. Indeed, some hadith flatly contradict others, and scholars carefully examine the origins and paths of each transmission, a practice known as the science of hadith. And the conclusions are different for each Muslim sect. Some reject the hadith used by others - for example, the six major hadith collections that are central to Sunni belief are not followed by a majority of Shi'a. Thus, the hadith is considered an important but ultimately supplemental guide to the Quran in Muslim living.

On the website of the Muslim Student Association (MSA), a now defunct student group whose site is hosted by the Muslim Student Union on the USC server, is a compendium of Muslim texts. These include information on the pillars of belief, a section on misconceptions about Islam, and a searchable database of hadith. At the search page, there is a preface: "[W]e would like to warn you that this database is merely a tool, and not a substitute for learning, much less scholarship in Islam." (The site also makes clear that the views expressed are not affiliated with those of the university).

Using this tool, Rabbi Aron Hier of the Simon Wiesenthal Center, a Jewish human-rights organization, found five hadith that advocated violence toward Jews, he said. After bringing it to the attention of a USC trustee, the university took action. Provost C. L. Max Nikias said "the passage cited is truly despicable...We did some investigations and have ordered the passage to be removed." The material was subsequently deleted, the Daily Trojan, USC's student newspaper, reported.

Was this censorship necessary? Charlotte Korchak, incoming president of USC's Students for Israel and a member of the Hillel Jewish Center, thinks not. "I understand the fear of Jews and why some might have an issue of it being up. I understand the reaction of trying to get them removed," she told the Trojan. "At the same time, is that really going to help? I'm Jewish and those are hard to read and hard to comprehend, but it's their religion and it's a historical thing. To leave them out would be a lie."

Not only would it arguably be a lie, but it would certainly be a statutory violation if the action was challenged in court. Because of a 1992 California statute known as Leonard's Law, First Amendment protections are applied to all private colleges and universities in the state. The Bill of Rights applies only to governmental organizations, including public universities, but this law extends protection to private institutions of higher education. Thus, the same standards for censorship apply to USC (a private university) as those schools funded by the state, giving administrators far less leeway in restricting student expression.

To uphold their censorship, administrators would have to show that the website was likely to produce "imminent lawless action." This criterion is based on the opinion in Brandenburg v. Ohio (1969), where a Ku Klux Klan leader made inflammatory statements at a rally in rural Ohio. At the rally, references were made to the possibility of "revengeance" against "niggers" and "Jews," among other instances of hate speech. Brandenburg was found guilty under a Criminal Syndicalism statute, but the Supreme Court reversed the conviction, declaring that the government could not punish simply the advocacy of unlawful action. Because Brandenburg could not conceivably execute what he claimed in his fiery speeches, much less do so imminently, the high court ruled that his speech wasn't worth prior punishment.

It is against this standard that the USC administrators would have to justify their action, and their case would undoubtedly be weak. The words were religious doctrine, and though they certainly expressed intolerance, it is highly unlikely that they would have spurned a student to actually kill their Jewish peers - much less to do so imminently.

And the censorship also reeks of viewpoint discrimination. If Bible passages were posted to a USC website, would there be the same outcry for suppression? Leviticus 20:13, says, according to the New International Version, "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads." Indeed, this excerpt could be seen as advocating violence against homosexuals, but unless it would do so imminently, rather than over the long term, the passage may not be prohibited or censored.

Debating the violent tendencies of world religions is not important to this case, though. Preserving academic freedom is.

When one hosts all points of view, there is a very practical benefit. Those who are offended know who holds what views, and who, if they deem necessary, to avoid. It is part of the genius of free speech - even hatred has a useful purpose. Suppression only shoots the messenger, but it does little to deter the message.

The MSA's site hosts thousands of hadith. It is, as the site mentions, a tool for scholarly research, a device for the continuing evaluation of hadith authenticity. Rather than remove certain texts that are offensive to some, the site should be a forum through which students and faculty (and anyone else, for that matter) can glean truth from competing ideas. Rather than trying to change history by running from doctrine, we should encourage the dialogue that has largely made these radical viewpoints obsolete.

“No, you can’t do that. It’s bad for you.”

Harvey Silverglate — Fri, 05 Sep 2008 17:50:00 GMT

I'm as vicious a critic of cigarettes as there is - my father, who smoked four packs of Camels a day, befouled our small Brooklyn apartment (as well as his lungs and heart) and died of a massive heart attack two months before my college graduation, at the age of 48. But I think that the current mania for seeking to ban the nasty habit without actually outlawing the product has finally gone too far. The recent Boston Globe report by Stephen Smith illustrates the point.

Smoking opponents, fresh from their completely appropriate and salutary victory in banning smoking in office buildings and, more recently, in restaurants and even bars, are now on the verge of significantly extending the ban. The new restrictions, given an initial nod of approval by city health regulators at a hearing held yesterday, include bans on cigarette sales at Boston drugstores and college campuses. In addition, regulations would, remarkably, extend the ban to the outdoor patios of restaurants where food is served.

It's perfectly understandable that the government would ban smoking in enclosed spaces where second-hand smoke could easily affect the health and comfort of non-smokers. And it's likewise reasonable to ban the sale of cigarettes on university campuses where some of the residents are underage. But what can be the possible justification for banning smoking on the outdoor patios of restaurants? And is it really reasonable to prevent drugstores from selling tobacco products, merely because, as Barbara Ferrer, the executive director of the Boston Public Health Commission told the Globe: "Why, in a place where people go to get healthy and get information about staying healthy, would you want to sell something that has absolutely no redeeming value and ends up killing a lot of people?" (It does not take a huge leap of logic to see the future movement to ban the sale of soda pop, candy, and anything else without "redeeming value.")

There's an answer to Ms. Ferrer's question, and it goes to the heart of our nation's founding: Liberty. The oft-forgotten (and less rosy) corollary to our celebrated self-determination is the liberty to do harm to oneself, as long as harm isn't inflicted upon others. If we continue to make it harder for people to smoke, we will get to the point where reasonable regulations, meant to protect non-smokers, will become a virtual prohibition against sale and use of a lawful product. If we continue to tighten the screws, and if we take the further (and inevitable?) step of actually outlawing cigarettes altogether, we will produce yet another disaster akin to the catastrophic "war on drugs" that has produced a series of monstrous legal and social problems, including the exorbitant costs, the massive violations of civil liberties, the highest rate of imprisonment in the world, and the corruption of many police and enforcement agencies in this country and around the world. (Has anyone noticed that the cultivation of the opium poppy in Afghanistan - sold in the form of heroin largely to the illicit American market - is a major source of funding for terrorist groups?)

There is yet another aspect of this debate that has received little attention. When these types of products are removed from the shelves of pharmacies and grocery stores, they will inevitably end up stuffed in corners of freight ships and delivery trucks - part of the black market. Rather than decrease the demand, restrictions are much more likely to distort the supply. Take, for example, the massive underground operation that has arisen in England after the government pushed cigarette taxes through the roof. The official rationale was to make the harmful product less available to the public. But it is now widely known that most London club bouncers double as bootleg tobacco providers. In just one instance in 2007, customs officials seized over 50 million illicit cigarettes and over four tons of hand rolling tobacco. Because of the nature of the black market, it is impossible to gauge the overall effect, though some groups estimate the annual revenue loss to be $50 billion worldwide. And it's not just lost money - where there is no industry or government oversight, anything can be put into an already harmful product. In addition to increased chemical levels, the counterfeit products, often made in Chinese forced labor camps, have been found to contain "sawdust, tobacco beetles and even rat droppings," according to a BBC report. So think twice when considering the benefits versus the detriments of placing cigarettes next to health information and Nicorette patches at your neighborhood pharmacy.

The Boston Public Health Commission spent less than an hour before giving the initial nod of approval for extending the ban. The discussion will soon enter a 60-day public comment phase before taking effect. Let us prove, once again, we have more intelligence, more perspective, and more faith in reason than those who represent us. Tell our city officials that there are better ways to combat smoking - ways that don't require the government to tell us what to do.

Persuasion, for instance, has proven an effective tool in reducing the smoking rate in this country from over half the adult population to well under a third. Additional progress surely can be made until the only smokers left are the hard-core addicts who will do anything and go anywhere to obtain the stuff. But to resort to increasingly Draconian bans risks not only a backlash, but also the destruction of civil liberties that, in a free society, must count for something.

By Harvey Silverglate & Kyle Smeallie

“Why is it classified?” That’s a secret!”

Harvey Silverglate — Fri, 05 Sep 2008 16:22:00 GMT

Despite breaching multiple security classification laws, former Attorney General Alberto Gonzales, who departed the office on Sept. 17, 2007 in the wake of multiple scandals, will not face criminal prosecution, the Department of Justice announced on Sept. 2. The documents, which Gonzales improperly carried to his home and failed to store in a safe, reportedly discussed aspects of the administration's top-secret wiretapping program. The DOJ investigation concluded, however, that Gonzales' breach of the classification regulations was inadvertent. (For one thing, Gonzales forgot the combination to the safe!)

Naturally, the matter quickly became a political football. Congressman John Conyers Jr (D - MI) asked the DOJ to "explain clearly why it declined to pursue charges against Mr. Gonzales and what actions it intends to take." Conyers, a member of the House Judiciary Committee, should know better. Those with even the slightest experience with the federal government's security classification program - and surely this has to include Conyers - know that these agencies won't hesitate to stamp "Top Secret" on a ham sandwich. And while it's true that a few documents containing genuine security secrets would, if disseminated, cause arguable harm to the nation's security, the extent of overclassification is a national scandal.

In my forthcoming book, Three Felonies a Day: How the Feds Target the Innocent (coming from Encounter Books in the third quarter of 2009), I write about my experience in defending an East German physicist, Professor Alfred Zehe, against a charge, growing out of an FBI sting, that he engaged in a conspiracy with East German officials to commit espionage. An FBI operative sold obsolete - but still classified - submarine sonar technology documents to the Communist East German embassy in the 1980s. East German officials allegedly consulted with Professor Zehe over the meaning of the documents, much as American governmental officials often consult with American academics on a variety of issues, then and now. When Zehe arrived in this country to attend a physics conference at MIT, he was arrested and charged.

As my law partners and I prepared to defend Zehe at trial, we asked to see the documents in order to review them with an expert. The Department of Justice objected - we needed to undergo a security clearance procedure before seeing the documents. I was taken aback. It would be absurd, I told the judge, to require such a procedure, since I was a native-born American citizen, I was a member of the bar, I had no criminal record, and there was not a single reason to doubt my loyalty. Besides, my credentials aside, the documents were functionally useless and had been selected by the FBI as bait to make an espionage case against Professor Zehe. The documents, I argued, were currently in the hands of the East German Stasi, or secret police, in East Berlin, thanks to the FBI's having sold them! If the Stasi were sold the documents by the FBI, surely a presumptively loyal citizen could be allowed to see them.

But my common sense position got nowhere. The DOJ persisted in its objection - classification regulations must be obeyed. The judge, with some apparent embarrassment, agreed. The law, as Dickens wrote, can be an ass. But surely the classification regulations and procedures take the cake - part Kafka, part Gilbert & Sullivan.

And then there's the case of the DOJ obtaining a temporary prior restraint injunction against publication of a 1979 article in the politically radical magazine The Progressive, which purported to disclose the "secret" of how to make a hydrogen bomb virtually in one's backyard. The government actually convinced a federal district court to issue an injunction that lasted for several months while the litigation proceeded, despite the fact that the article's "secrets" had been gleaned from government libraries that were open to the public! The injunction was dissolved only when another magazine published the article, making the case "moot." (Unfortunately, the specter of "security" issues clouding jurisprudence has only gained strength since The Progressive case.)

The absurdities that spring from the government's obsession about keeping too many secrets can fill volumes. But best of luck to whoever writes those volumes - their de-classifying litigation against the DOJ and other government agencies tasked with keeping so much of what our government does (so often incompetently - the real reason for so much of the secrecy) would likely last a lifetime.

Kyle Smeallie assisted in the preparation of this piece.

Second Lady

Wendy Kaminer — Sat, 30 Aug 2008 14:44:00 GMT

Sarah Palin came to praise Hillary Clinton and to bury liberal feminism. It’s too bad for the rest of us, but don’t cry for Hillary; she provided the shovel. Relying on pre-ideological appeals to female solidarity, blaming sexism when she got stuck in second place, Clinton played the dangerous game of identity politics. Her loss is Palin’s gain. She gets to play office wife to John McCain.

Mitt Romney must be fuming, being eclipsed by a woman; but he shouldn’t be surprised. When Romney ran for Massachusetts governor in 2002, after swatting aside the Commonwealth’s first female governor, Republican incumbent Jane Swift, (who subsequently endorsed McCain,) he chose a female lieutenant governor, Kerry Healey, to walk ten paces behind him. Then, he rarely looked back: pursuing the presidency, Governor Romney provided little help to Lieutenant Governor Healy when she ran for governor against Deval Patrick in 2006 (and lost by some 20 points.)

McCain may prove more loyal to Sarah Palin, but selecting an attractive, grossly inexperienced, anti-choice, anti-science, (pro-creationist) female as vice-presidential arm candy, he seems no less contemptuous of women. If he’s elected because disgruntled Hillary harpies reward him for patronizing them, his contempt may seem justified.

Can Harvard deal with cops, even Harvard cops?

Harvey Silverglate — Fri, 29 Aug 2008 17:03:00 GMT

I came upon an article in Wednesday's Boston Globe about possible reform measures for the Harvard University Police Department (HUPD) following recent allegations of racist conduct. I felt a sense of indignation, not only because I had seen this in the HUPD many times before, but because the reform mentioned in the article was, in my opinion, a prescription for failure. I was compelled to write those involved a memorandum detailing why they need to get tougher with the HUPD if they really want to see things change.

************************

Memorandum

To:       Committee to Review the Harvard University Police Department
                        Ralph Martin, Esq.
                        William Lee, Esq.
                        Professor Mark Moore
                        Professor Nancy Rosenblum
                        Matthew Sundquist, President of Harvard Undergraduate Council
                        Professor David Wilkins

Cc:       Drew Gilpin Faust, President of Harvard University
            Francis D. Riley, Chief of Police, HUPD
            Professor Charles Ogletree
            Professor J. Lorand Matory
            Robert Iuliano, Esq., Harvard General Counsel
            Hon. Margaret Marshall, Chief Justice, Supreme Judicial Court of Massachusetts
            Tracy Jan, Reporter, The Boston Globe
            Renee Loth, Editorial Page Editor, The Boston Globe
            James R. Houghton, Harvard Corporation/President and Fellows
            Roger W. Ferguson, Jr., Chairman of Harvard Board of Overseers
            Mitchell L. Adams, Member of Harvard Board of Overseers
            Malcom A. Glenn. President, The Harvard Crimson
            Andrea Saenz, Editor-in-Chief, The Harvard Law Record
            John S. Rosenberg, Editor, Harvard Magazine
            John Reinstein, Legal Director, ACLU of Massachusetts
            Carol Rose, Executive Director, ACLU of Massachusetts

Date: August 28, 2008

Re: Harvard University Police Department and abuse of students and faculty

This memo is addressed primarily to the members of the newly-appointed committee, chaired by Attorney Ralph Martin, designated to look into problems that have arisen (and been recognized) of late in connection with the Harvard University Police Department's (HUPD) treatment of students and faculty members in a racially offensive and problematic fashion. I am, however, copying certain other persons in and out of Harvard who have expressed, or are likely to have, an interest in this matter. Further, I am posting this memorandum on my weblog, The Free For All (www.TheFreeForAll.net), maintained on the website of The Boston Phoenix (www.ThePhoenix.com), for which I am long-time legal and civil liberties "Freedom Watch" columnist.

According to Tracy Jan's front page story in the August 27, 2008 Boston Globe, the six of you have been selected by President Drew Gilpin Faust, in Jan's words, "to review the diversity training, community outreach, and recruitment efforts of Harvard police." (A follow-up piece appears in today's Globe) If, in fact, this is your Committee's designated approach to resolving the problem of how the HUPD treats black members of the Harvard community, then your work is destined to fail. The long-standing problems that beset the HUPD are not going to be solved with more of the politically-correct, tendentious, and ultimately unworthy thought-reform efforts connoted by the terms "diversity training" and "community outreach." Rather, what is needed is some tough-minded reform in HUPD governance. I have been a close observer of the HUPD for many decades - ever since I entered the Harvard Law School Class of 1967. As a criminal defense and civil liberties lawyer, I noticed an explosion in the mid-1980s of student complaints about mistreatment by HUPD, with a majority (but hardly all) of those complaints coming from black students and other racial minorities. I also took some complaints from black faculty members.

In my 1998 book The Shadow University: The Betrayal of Liberty on America's Campuses (The Free Press, 1998; paperback from HarperPerennial, 1999), co-authored with Professor Alan Charles Kors, I tell the story of Inati Ntshanga, a black South African undergraduate who, in 1993, was subjected to mistreatment by the HUPD. I am enclosing with this memo a copy of the relevant pages of my book (pp. 323-325), but I will proceed here to summarize the incident, including how I tried both to obtain justice for Ntshanga and effect some reform of, or at least supervision over, the HUPD.

To summarize the case: Ntshanga was a proud student who had struggled against South African apartheid before coming to the U.S. to enroll in Harvard's Class of 1995. To support himself, he worked two campus jobs, and one was at the HUPD headquarters, dispatching vehicles operated by a campus shuttle service. One day in the fall of 1992, he claimed he was picked on, without cause, by Sgt. Kathleen Stanford. An argument ensued, and though no formal charges were brought, an air of acrimony remained. The following month, Ntshanga was once again the subject of police inquiry. Four HUPD officers approached him while he was performing his second job, collecting dirty laundry from dorms during the Christmas period. The officers demanded that he produce his student ID. Ntshanga did not have his card, he explained, at which point one officer asked for "a welfare card." As tensions rose, Sgt. Stanford arrived on the scene. Ntshanga was sure she would identify him as a student, even if she didn't particularly like him. But, to his surprise and dismay, she denied knowing him to be a student. The officers proceeded to arrest Ntshanga for trespassing, breaking and entering, and possession of burglary tools (the keys he used to enter the building - part of his job).

A county prosecutor, shocked that the HUPD had gone to such lengths, dismissed the charges. As Ntshanga's lawyer, I wrote a complaint to Margaret Marhsall, the then-Vice President and General Counsel of the University, now the Chief Justice of the Supreme Judicial Court of Massachusetts. She assigned the investigation to University Attorney Allan Ryan. Ten months later, he issued a report clearing all officers, saying that none of them - including Sgt. Stanford - knew Ntshanga was a student. He also deemed the "welfare card" statement to be "standard procedure when a person says he has no identification." There were obvious holes in the investigation, such as Ryan's failure to interview witnesses to the first argument who could attest to Stanford's knowledge of Ntshanga's status as a student. But, appeals to both the Harvard president and the secretary to the faculty of arts and sciences produced no response. Ntshanga returned to his native South Africa with a bitter taste.

The Ntshanga case bears a remarkable resemblance to one of the stories recounted in the aforementioned Globe article. Working at his summer job on campus, a Boston high school student was confronted by HUPD officers as he tried to free his bicycle from a broken lock. It is likewise similar to the experience told by Professor S. Allen Counter in 2004, when he was mistaken for a black robbery suspect while walking across Harvard Yard to his office. It is similar as well to the 2007 incident when an HUPD officer inquired whether those attending a black student group-sponsored Field Day were Harvard students or had permission to be on the Radcliffe Quad, despite their having had a permit to do so.

My point, of course, is that history has repeated itself many, many times. The first time, as it is said, might be tragedy, but by the second time it begins to resemble farce. For every case reported, there were obviously many that went un-reported. Too many have had to simply swallow the insult and proceed with life.

Indeed, I have received so many complaints over the years from affected and offended Harvard students, that I took the extraordinary step of placing a paid advertisement in the Harvard Crimson of October 29, 1993. I specifically appealed to "Harvard students who have tangled with the Harvard University Police Department." (A photocopy of the actual advertisement is appended hereto). In the advertisement, I noted that my law firm had "in recent years been involved representing students in unfortunate incidents with the Harvard University Police Department" where the students had been abused. I asked for other victims to communicate with my firm, and I then collected their incidents. The results confirmed my suspicion - that abuse was more widespread than one would have thought. I think that repeating such an outreach effort today would yield helpful information.

In my view, I've never been able to get adequate remedial action by the university in any of my cases because the HUPD, simply put, is more police than Harvard. The HUPD is unionized, and the university is very hesitant to deal forcefully with the members of the Department. Many of the same reasons that municipal and state police departments, in Massachusetts and elsewhere, are hard to reform with regard to mistreatment of civilians certainly apply to the HUPD. (Indeed, at the very time the Ntshanga case was pending, then-General Counsel Marshall, who had jurisdiction over the HUPD, was negotiating a new contract with HUPD. It proved not to be a propitious time to get strong action from the university against misfeasance by HUPD officers.)

What the HUPD needs is, assuredly, not some form of diversity or sensitivity training. Such programs, for one thing, intrude upon the right of private conscience - they are more appropriately the tool of totalitarian governments and are unworthy of a liberal arts university. Besides, such programs clearly do not work; all they do is make administrators feel morally superior and give universities public relations opportunities to claim that they are working to bring about equal rights. They are a public relations fig leaf - a façade. The goal of the university administration should be to guarantee citizens of the university the right to fair and equal treatment, not to make anyone "feel good" and not to seek to force anyone to believe, or to disbelieve, any particular proposition. The HUPD need not have their minds and attitudes reformed (that's impossible, of course); they need simply to understand that failure to abide by the rules will result in dismissal from the department.

Nor will "community outreach" or enhanced or reformed "recruitment efforts" make a difference. There is a certain ill culture at HUPD that is more likely to transform new recruits than the recruits are likely to reform the organization. What we have learned in the study of municipal police forces is that black and Hispanic police officers, once recruited, often have the same tendency to abuse citizens, including black and Hispanic citizens, as do the white members of those forces. An organization's culture is very powerful and does not readily change just because different skin colors and tones are added to the mix. Nor have I seen any convincing evidence that "diversity training" makes much of a difference. Dismissal of offenders works - not only to rid the department of offenders, but also, in the long run, to change the culture.

My suggestion is that you drop the whole idea of doing an in-depth study of HUPD. In particular, I urge you to refrain, at all costs, from recommending that the university implement "diversity training" or any similar "feel-good" program. Instead, your committee should remain a standing committee of university governance, and it should examine, with the aid of a small staff, each complaint of mistreatment of anyone in the Harvard community by a HUPD officer. When an officer, after receiving due process, is found guilty, he or she should be fired. I can assure you that in a very short time, the abusive culture of HUPD will change.

* * * * *

Enclosures/attachments: (2)

Hillary's Harpies

Wendy Kaminer — Wed, 27 Aug 2008 14:53:00 GMT

            "I'm a PUMA," the button festooned woman at the local Box Lunch declared. "Do you know what that is?"

            "I know what that is," I responded. "I think you're all nuts."

            She didn't take offense (I give her credit for a thick skin, although it may make her impervious to political realities as well as insults,) and we engaged in a brief discussion. She acknowledged that McCain was no feminist and said she would not vote for him; but she "hated" and feared Obama and warned that his "horrible" past, including unspecified prior "crimes," would be revealed as the campaign progressed. She may not be voting for McCain, but she appears to be listening to attacks on Obama made on his behalf. And she declared that McCain would have limited power as president, because "we're going to have 60 Democratic Senators in November."

            Oh. Her idiotic confidence in the prospects for a Democratic Senate (along with her ignorance of executive power) was interesting: the rationalizations of thoroughly irrational people are always a surprise and a reminder that debating them is futile. With luck, they can be neutralized, but not persuaded.

            Maybe Hillary's convention speech succeeded in convincing some of her more realistic acolytes to follow her in supporting Obama. It's too soon to tell. But they can be forgiven for assuming that her speech was more strategic than sincere, and, in any case, the enmity and contempt for Obama that she aroused during the primary will not be easily defused. Her praise for McCain's commander in chief credentials and disdain for Obama's will not be forgotten, as long as there are Republican attack ads, and an army of Hillary's harpies.

They are not feminists, if feminism entails reason and a commitment to advancing equality and reproductive choice. They're female chauvinists (who may or may not be inspired by racism along with crazed notions of gender solidarity, considering their visceral hatred of Obama and susceptibility to smear campaigns against him.) They're hysterics, who stand, or scream, in opposition to feminism and its insistence that women are rational, realistic, intelligent beings who can be trusted with power. Hillary shouldn't trust them with her legacy.