Has The Paper of Record redeemed itself? A conjecture with some examples by Political Observer (In homage to George F. Will)

While at the library yesterday I picked up a copy of the New York Times and with each turn of the page I was surprised even puzzled by these three news stories; why it almost looked like the good grey Times had grown a backbone, in the face of the authoritarian American state and the Neo-Liberal Obama administration. Was I mistaken? the evidence:

Judge Questions Legality of N.S.A. Phone Records


WASHINGTON — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.


Judge Has Record of Wrestling With Thorny Issues, and the U.S. Government


With his use of exclamation points (“How utterly disappointing!” he once wrote, excoriating the Food and Drug Administration) and cultural references (he mentioned the Beatles and Ringo Starr in a footnote in Monday’s ruling), Judge Leon does not seem bound by judicial sobriety.

“He’s very passionate; he uses a lot of italics and exclamation points,” Orin S. Kerr, a professor at the George Washington University Law School and a defender of the N.S.A.’s surveillance programs said referring to the way Judge Leon wrote the decision. Mr. Kerr said he found the judge’s ruling short “on legal reasoning.”

Judge Leon, 64, a Republican nominated on Sept. 10, 2001, by President George W. Bush and confirmed in 2002, has backed the government in past cases. He did so in 2005, holding that detainees at Guantánamo had no right to due process (though he later ordered the release of some)

Lawyers described Judge Leon as congenial and thoughtful. “I don’t think anyone could fairly characterize him remotely as a radical,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union, which has filed a lawsuit similar to the one on which Judge Leon ruled on Monday. Unlike Mr. Kerr, Mr. Jaffer said he found the judge’s legal reasoning sound and his colorful language compelling.

“His metaphors, I think, are quite devastating to the government,” Mr. Jaffer said.


Stern Words for Wall Street’s Watchdogs, From a Judge


WASHINGTON — It used to be common for the federal government to prosecute prominent people responsible for debacles that rattled the financial system. Michael R. Milken, the junk bond artist, went to prison in 1991; Charles H. Keating Jr., the face of the savings and loan crisis, pleaded guilty to four counts of fraud in 1999; and it looks like Jeffrey K. Skilling, the former chief executive of Enron, will be in prison until 2017.

And what of the recent financial crisis? The statute of limitations on most plausible charges is running out, and it seems there will not be a single prosecution of a prominent figure in the entire mess.

Judge Jed S. Rakoff wants to know why. In a blistering essay in the issue of The New York Review of Books that arrives this week, he argues that the Justice Department has failed in its rudimentary responsibilities, offering excuses instead of action.

Judge Rakoff, who sits on the Federal District Court in Manhattan, has long been outspoken, idiosyncratic and iconoclastic. In 2002, in a decision that was promptly overturned, he ruled the federal death penalty statute unconstitutional. More recently, he has presided over a series of big financial cases and has blocked proposed settlements as too opaque or lenient, to the frustration of both Wall Street and prosecutors.

I asked him what had prompted his unusual essay.

“As a judge, I got to see many cases that grew out of the financial crisis and to see situations that gave me pause,” he said. “When I added my own background as both a prosecutor and defense counsel, I was struck by how things were proceeding in a different way than they had in the past.

“That caused me to think about it more than I otherwise would have,” he said, “and I thought my views as a citizen might commend themselves to others.”

In his essay, Judge Rakoff is careful to say that he does not know if high-level executives committed crimes as they presided over the collapse of the market for mortgage-backed securities. That would seem to keep him out of judicial-ethics trouble and available to hear future cases. But he seems inclined to credit the conclusions of the Financial Crisis Inquiry Commission, which found rampant incompetence, mendacity and fraud.

Judge Rakoff is more direct in assessing the Justice Department’s principal reasons for failing to prosecute top executives. He acknowledges that it can be hard to prove criminal intent, particularly against people several levels removed from those who constructed and marketed the securities.

But the legal doctrine of “willful blindness” could be put to valuable use, he writes, adding that “the department’s claim that proving intent in the financial crisis is particularly difficult may strike some as doubtful.”

A second argument against prosecution is even weaker, the judge writes, singling out statements by Lanny A. Breuer, an assistant attorney general in charge of the department’s criminal division, in a 2012 interview with the PBS program “Frontline.” Mr. Breuer said that there were “very sophisticated counterparties on both sides” on many transactions and that proving fraud is hard if they did not accept what they were told at face value.

“I have to prove,” Mr. Breuer said, “not only that you made a false statement but that you intended to commit a crime, and also that the other side of the transaction relied on what you were saying.”

That last phrase, Judge Rakoff writes, “totally misstates the law.”

“In actuality, in a criminal fraud case the government is never required to prove — ever — that one party to a transaction relied on the word of another,” he writes.


It was I think an anomaly, for as I turned the pages I ended at the Editorial and Opinion Page, and there was Cockeyed Platonist,David Brooks, in his public moralizing mood. He fancies himself a modern day Conservative Sage. The Aspen Ideas Festival regular and Yale lecturer admonishes ‘The Thought Leader’ (aka Bill Clinton, or in a moment of political perversity, the Mitt Romney of secret video fame?) in his most condemnatory tone. But one must read the introductory paragraph that sets the tone of puerile intellectual/political history:

Little boys and girls in ancient Athens grew up wanting to be philosophers. In Renaissance Florence they dreamed of becoming Humanists. But now a new phrase and a new intellectual paragon has emerged to command our admiration: The Thought Leader.


Political Observer

About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer. 'Polemic is a discourse of conflict, whose effect depends on a delicate balance between the requirements of truth and the enticements of anger, the duty to argue and the zest to inflame. Its rhetoric allows, even enforces, a certain figurative licence. Like epitaphs in Johnson’s adage, it is not under oath.' https://www.lrb.co.uk/v15/n20/perry-anderson/diary
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