Case law can sometimes, make that often, be dense and too complicated for words. It is always fascinating, though, how often the back story to a boring, highly technical case can itself be riveting, and illuminate the case holdings.
The case known as In re Neagle, decided by the Supreme Court in 1890, is one such example, although little known. It asks and answers the question as to what degree the president can take actions not specifically provided him by Congress?
The Constitution tells us that the president has a duty to “take care that the laws be faithfully executed” but doesn’t use one extra word to tell us what that means. Other presidential powers (commander and chief, the appointment and pardon powers) are pretty specific, but this duty is about as vague as you can get.
On its face, the clause appears to mean that the president must make sure that the laws which were expressly passed are enforced, presumably through his officers, and nothing else.
It was a full century after the Constitution was ratified before the Supreme Court of the United States, which determines Constitutional questions, took up and decided the question. They gave us an answer which involves interpreting the Constitution as well as various statutes and legal concepts. Fear not. Little of that stuff here. We will instead look at the fascinating murder story underlying the case, and the exciting career of one unusual and highly excitable judge, David Smith Terry.
In order to get some perspective on this rather wild story which took place in the 1880s, we have to go back many decades earlier, before the civil war was fought, when Terry was one of the Associate Justices of the California Supreme Court. Terry, a former Texas Ranger who fought in the Mexican-American War came to California in 1849 and was appointed to sit on the State’s high court in 1855.
The next year he found himself in San Francisco at the head of the Law and Order party, the virulent enemies of the San Francisco Committee of Vigilance, which had been formed in 1851 and then again in 1856, in order to combat the complete lawlessness of the area and the powerlessness of the government to stop it. It was quite powerful and operated out of its own fort.
Both sides were essentially lawless as viewed from our tamer times. San Francisco was so out of control, when the Governor ordered Major General William T. Sherman (the Civil War General for whom the WWII tank was later named), who was then head of the State militia, to stop the insurrection, Sherman determined that he lacked the means to do so and resigned.
Shortly thereafter, the Committee’s strong arm, one Sterling Hopkins, tracked down a man, Maloney, in order to arrest him to be tried by the Committee. Terry and some other Law and Order men were present when Hopkins found him, and scared him off at gunpoint. Hopkins gathered armed support and caught up with Terry & Co., who were wisely fleeing the scene.
Although Hopkins was successful in wrestling Terry’s pistol from him, Terry pulled out his Bowie knife and plunged it into Hopkins’ neck. Terry, with Maloney and others, then fled to a friendly armory, but were forced to surrender by Committee troops, which surrounded it. The Judge was marched off to Fort Vigilante where he was held for murder.
Fortunately for Terry (and the rest of our story) Hopkins lived, thanks to the Herculean efforts of a Committee physician, Dr. Beverly Cole. In fact, despite his near death experience, Hopkins was back working again a few weeks later. Terry, who was, still a Supreme Court Justice, was forced to undergo a 5 week long trial as a prisoner of the Vigilance Committee. As Hopkins lived, Terry could not be convicted of murder. Nor could the Committee successfully banish a Supreme Court Justice from the State. They had to let him go (obviously, today he would be found guilty of lesser charges, but try and ignore that).
This caused such anger that Terry had to be spirited out of San Francisco at night by the Committee, as he otherwise would have been lynched (an odd case of vigilantes protecting a prisoner from other vigilantes). To be fair, The Vigilante Committee had to worry about the reaction of the rest of the State if they convicting and executed a State judge. Terry fled and returned to Sacramento, where he was hailed as a hero.
In fact, the very next year, Terry was made Chief Justice of the Court. That didn’t last long, as he resigned from the court in 1859 to challenge U.S. David Broderick to a duel. A few years earlier, when California was trying to enter the Union, the usual Slave State/Free Soil debate raged. Terry, an archetypical Southern man, was on the Slave State side, and David Broderick on the opposite. When Broderick’s side won, California entered the Union as a free state, and Broderick was elected Senator.
There had been many insults traded back and forth by the Broderick and Terry during the contest. Eventually, it led to a duel. It was a highly publicized affair and naturally, people flocked to see it. It actually had to be moved outside of town to accommodate everyone.
Terry won the right to choose weapons. He selected hair trigger pistols. He let Broderick shoot first. Not practiced with the weapon, he discharged it prematurely with his mere touch, the bullet hitting the dirt in front of Terry. The former Chief Justice slowly raised his pistol and shot Broderick dead.
Terry was charged with murder for the second time, this time officially, but was acquitted. Broderick’s revenge, if you could call it that, came nearly three decades later, and very indirectly.
Terry had been replaced as the Chief Judge of the court by Steven J. Fields, who was a good friend of Broderick. He went on to become a United States Supreme Court Justice during the Civil War. During the 19th century, the Supreme Court Justices still “rode circuit,” which means they traveled the country to sit as lower court judges for part of the year.
In the 1880s, Terry represented a woman named Sarah Althea Hill in a highly publicized Hill claimed she had documentary proof that William Sharon, a wealthy man, was married to her. Sharon denied they had been married and brought suit to have the document declared a forgery. denied that they were, in fact, ever married. Hill offered written proof which was determined to be a forgery. Before the trial was even over, Mr. Sharon died, and his son, Fred, took over the case as executor of his father’s estate (shades of Anna Nicole Smith).
In the meantime, to make things interesting, Terry and Hill had fallen in love and married. When the appeal came up to be heard at the U.S. Circuit Court, Justice Field sat with two other judges while traveling on circuit in 1888 and upheld the decision in favor of Fred Sharon against Sarah Hill. Justice Field read the opinion of the court and madness ensued.
While he was still reading the opinion Hill, now Mrs.Terry, demanded to know whether she would be required to give up the marriage contract to be cancelled. Justice Field told her to sit down. After going through that brilliant repartee twice, Mrs. Terry stated “in a very excited and violent manner” that Justice Field had been bought, and asked him how much he had gotten.
Judges don’t particularly like to be talked to that way, and he directed the Marshall, John Franks to remove her. She said she wasn’t going and nobody could make her. When Franks took her physically, David Terry jumped up, said “No one touches my wife” or something like that and punched Franks in the mouth, knocking out his tooth. While he was trying to take his bowie-knife out from under his coat when a number of men grabbed him and pinned him to the floor.
Marshall Franks finally succeeded in getting Mrs. Terry out of the court. Proving her mettle, she had been trying to open her purse, which was later found to contain a revolver. When they finally let Terry up to follow his wife, he again tried to draw his knife and this time succeeded, only to be grabbed by a deputy U.S. Marshall whose name was David Teagle. Teagle and some other men overcame Terry and took the knife. Maybe the most amazing part of the whole story is that they didn’t take it from him the first time.
They didn’t get away with it and were held in contempt. Hill, who was exceedingly disrespectful but also went for her gun, got one month. Terry got six months, probably for landing the punch. They were also both indicted. Nor were they remorseful. On the way to and in prison, Mrs. Terry repeatedly said she would kill Fields and another judge. Terry was a lot nicer about it. He merely threatened to horse whip Fields and only said he’d kill him if he resented it. Actually, I take back my previous comment about the Marshals letting Terry keep his knife after the first time he brandished it, because they apparently gave it back to him, as the Terry’s showed it to another prisoner while in jail.
Later, in an interview with a newspaperman that Terry set up, he accused Field of lying about him, and that if he did not retract it when he saw him again, he would slap his face and pull his nose. Nose pulling sounds rather harmless, but actually was the cause of at least one famous duel I know of back in the eighteenth century involving another future Supreme Court Justice, Brockholst Livingston.
Everyone expected there to be an attack on Field when he returned to California in 1889, and the papers echoed this. This caused concern among the U.S. Marshals and after a series of letters between the Marshal Franks, the U.S. Attorney General and the U.S. Attorney. From these letters it is learned that Mrs. Terry once, even before this uproar, verbally accosted another judge involved in the case on a train, while her husband sat there smiling, and that on a daily basis, in connection with the criminal case, would insult the Marshals and the U.S. Attorney.
As a result of these letters, the Attorney General directed Marshal Franks to assign Field a deputy to guard him at $5 a day when he returned. He selected David Neagle, who had been so handy in disarming Terry at the rumble in the courthouse.
The judge had to travel from San Francisco to L.A. and then back. On the way back the Terrys got on the train at Fresno. Neagle learned of it and asked the conductor to wire ahead to where they were going to stop for breakfast for extra help. Unfortunately, when they stopped, there was no extra help available.
Neagle tried to get the judge to eat on the train, but he refused. They went to the dining room at the station and were given assigned seats. Soon after the Terrys came in and saw Fields. Mrs. Terry turned on her heel and went back to the train to get her satchel containing her revolver (no silly gun control laws here). Terry took a seat. Before his wife returned, he got up, circled behind the judge and slapped him from behind once on each side of his face.
At this point, Neagle, who claims he had been watching Terry the whole time (so, you ask, why did he let him strike the Judge twice?) jumped up and said “Stop, stop. I am an officer” and brandished the gun he had been holding in his hand. Neagle thought Terry recognized him. Perhaps as a reflex his hand went inside his coat, just as he did in the courthouse, to pull out his bowie-knife. Neagle fired twice. Terry sank down and quickly died.
Mrs. Terry entered and ran to her husband. She asked the onlookers to attack Field and Neagle, accusing them of conspiring to kill her husband, and claiming truthfully that he had no weapon. Her satchel was taken from her and the gun discovered.
Ironically, Sarah Hill, who had threatened Fields life, and seemed certain to kill him if she had gotten the chance, was believed enough that both Neagle and Field were arrested. However, the case against Field was dismissed. Sarah was eventually institutionalized for the rest of her life.
The United States sought to have their man freed and not surprisingly, California did not want to go along, feeling they had the right to control the situation without interference from the federal government. A legal battle arose out of this dispute, which ended up in the nation’s highest court where Justice Field had sat for over a quarter of a century.
One of the main questions in the Supreme Court (obviously, Justice Field had to sit this one out) was whether the president, without any authority from Congress, could authorize a bodyguard for Justice Field while he wasn’t actually sitting on the bench, but was in between courts. In other words, it was argued by California that when Field’s wasn’t sitting on a bench acting as a judge, he was not enforcing the law, and the appointment of a bodyguard who protected him even while he was not on the bench was unconstitutional. Therefore, Teagle could get no protection from his federal status.
Nowadays, the answer, “yes, obviously the president can protect a judge” seems intuitive. It wasn’t obvious at the time. The fact that this was controversial and litigated is a good example of how presidential power had grown over time. One Justice even dissented, which couldn’t have made Field too happy.
The Court read the president’s duty to take care that the laws were faithfully executed very broadly. As very often happens in Constitutional cases, the court seemed to argue that what they thought should be in the Constitution, had to be in the Constitution whether or not it was actually there.
“IT WOULD BE A GREAT REPROACH TO THE SYSTEM OF GOVERNMENT IF THERE IS NO MEANS WITHIN OUR LAWS TO PROTECT JUDGES” held the court.
In this case, there seems little doubt that had not the bodyguard been appointed, Justice Fields would have been killed when Sarah Hill returned with her gun, and it seems inconceivable that the executive department could not protect him, whether or not he was sitting in court at the time.
Legally, the important thing is, that this was a major step in confirming expansive presidential power, as, although President Benjamin Harrison actually had nothing to do with the whole matter, the Attorney General was seen as acting at his behest. Certainly, the power can be abused and is not unlimited, as many presidents, including our present one, have learned. But that is for another day.
And besides all that legal mumbo jumbo, it’s just a great story, which is why it’s posted here.
Wednesday, March 28, 2007
Saturday, March 24, 2007
March 2007 update for 2008 Presidential campaign
Democrats
Why is there so much buzz this week about Bill Richardson? This buzzing keeps saying, yeah, he should be the guy, but he can’t win. This is the most likely VP candidate, whoever wins, because he brings so much to the ticket --Hispanic vote, Southwest vote, foreign and administrative experience. He also has the only reasonable outside chance for the nomination win if the front runners blow up. The usual qualifications about it being way too early to tell apply here, of course, but what fun would it be not to make predictions.
The forecast here is that Richardson will be the only nominee left running with more than a nominal share of the pledged electors after the February 5th primaries next year excluding, of course, Obama and Clinton. He will be perfectly positioned to throw his support to either of the front runners, locking in his own VP selection. This makes him very important. And yet, I can’t shake this weird feeling that if there is any Bill Clinton/Jimmy Carter-small-state-governor-comes-from-nowhere-to-win-it-all story, he is it.
That also means that John Edwards will no longer be in it after the first big primary (which will include California and probably New York), if he even gets that far. His campaign is already spinning wheels despite the emotional uptick he probably expects from the emotional news conference this week involving his wife’s cancer. Everyone thinks that Edwards is a nice guy, a smart guy (even if they disagree with his policies) and there is not a whiff of scandal about him. Nevertheless, visceral reactions are so important in presidential politics. The image the youthful looking and handsome Edwards gives casts is an inexperienced but pretty deer caught in the headlights. Bambi is probably the right image.
Edwards is too Southern for the North and too liberal for the South. The taint of failure, although more Kerry’s fault than his own, still sticks to him and won’t be forgotten quickly. If he were my opponent I would be thankful for the hysterical video of him combing his hair and making up his face, to the West Side Story, I Feel Pretty. If you haven’t seen it, Google it now.
Besides, do you know one likely voter, who says they are for Edwards.
As for Al Gore and the rumors that he is going to use his Oscar to vault into the race -- oh, c’mon. If you had watched him testify to the Congress this week, you’d know why he can’t win. Even when he is on HIS topic, global warming, he speaks in such a so slow, drawn out fashion, it is just too painful to think about listening to him for four years. More wooden than he used to be. And I voted for him in 2000.
However, he clearly slimmed down quite a bit since his appearance on the Oscars a few weeks ago. Some say that is because he is going to run. Maybe its just because he is going to run, or he got a good look at himself in the mirror.
Republicans
Someone who has gone under the radar yet deserves at least a small how do you do, is Congressman Duncan Hunter, Republican representative from San Diego. His campaign will not go anywhere fast with heavyweights like McCain and Giuliani in the field, but his presidential sounding name (it’s the one a novelist would pick), his long resume in Congress and his conservative credentials, suggest he is another likely VP candidate, as it would go a long way to succoring the social conservatives who are a little queasy about Giuliani and McCain. Here’s a mini-bio if you have never heard of him:
Vietnam veteran
lawyer
Elected to House of Representatives in 1980 (San Diego)
House Armed Services Committee from the get go.
4 years as chairman until the Democrats took over the house this year
A few words about Newt Gingrich. He spoke in public recently along with Mario Cuomo at Cooper Union (celebrating the hall where Lincoln started his campaign in 1860) and also once with Senator Chuck Schumer (I suspect they have the same publisher as Gingrich has been plugging Schumer’s book, and that’s just weird). Gingrich’s observation that Democrats and Republicans should campaign on the same stage to help take the poison out of the system was shown to be true, as these were both civil and fascinating discussions.
Gingrich is, in my humble opinion, whether or not you agree with his politics, simply the most ingenious and articulate of all the potential or actual candidates. He brims with new ideas about national security, technology, healthcare, education, fund raising and the ridiculous length of the campaign season. So, it’s a shame that . . .
. . . he is just far too partisan. His actions leading the House while Clinton was in office were politically successful and severely damaged both the president and the Democratic party, as well as the country. That degree of aggression towards political adversaries comes with a big price. It is why he is no longer Speaker or even in the Congress at all. Besides that, his interest in bringing MORE religion into politics almost certainly rules him out for those of us who want a secular government. If Gingrich runs at all, he says he will not announce until the Fall. In the meantime, if you get a chance, listen to him talk. He is his own think tank.
Republican Representative Ron Paul from Texas, really a small “l” libertarian, has announced his candidacy on C-Span last week. He is one of the few Republicans running who is against the war. Paul is a physician who has been in and out of Congress for a while now. Libertarians often attract and repel people from both parties. Paul would attract Democrats with his anti-war position, but repel them with his strong pro-life stance. Visa versa for the Republicans. Personally, he is hard not to like, but lacks anything one might mistake for charisma. Look for him to go nowhere in a hurry.
As for the big boys, Rudy and McCain (which sounds like a good title for a tv show), my early prejudice towards McCain looks wobbly because Giuliani has been literally doubling his numbers in polls. Despite the odds against him, I’m sticking with my tentative pick for the meantime. If McCain can stay focused and calm, I believe that Giuliani’s negatives will start to be noticed, particularly his tyrannical ways and his first amendment debacles (see my post from a few weeks ago). Also, although it should not matter at all, the video of him in drag flirting with Donald Trump is going to be played over and over again. I appreciate politicians who dress in drag. But, it is really creepy to see. If the Democrats are smart, they will not mention it and let the video play on people’s mind.
However, McCain’s strategy of sidling up to Social Conservatives hasn’t worked because they will not forgive him for bucking the Bush administration on too many issues, which they don’t believe Giuliani will do, despite his socially liberal views (they are wrong about that). At the same time, McCain is alienating moderates and independents with his pro-War position. He should take a note from Gingrich and fire every consultant he has. No one believes the Straight Talk Express is anything but a name this time.
What’s next?
The debates next month. This may be the first time we all get to hear the candidates practice the canned speeches that pose as authentic answers to questions which they will then repeat over and over again for the next 19 months or so until we want to scream. Get ready for hypocrisy, which is usually overwhelming, but try and have a sense of humor about it.
Why is there so much buzz this week about Bill Richardson? This buzzing keeps saying, yeah, he should be the guy, but he can’t win. This is the most likely VP candidate, whoever wins, because he brings so much to the ticket --Hispanic vote, Southwest vote, foreign and administrative experience. He also has the only reasonable outside chance for the nomination win if the front runners blow up. The usual qualifications about it being way too early to tell apply here, of course, but what fun would it be not to make predictions.
The forecast here is that Richardson will be the only nominee left running with more than a nominal share of the pledged electors after the February 5th primaries next year excluding, of course, Obama and Clinton. He will be perfectly positioned to throw his support to either of the front runners, locking in his own VP selection. This makes him very important. And yet, I can’t shake this weird feeling that if there is any Bill Clinton/Jimmy Carter-small-state-governor-comes-from-nowhere-to-win-it-all story, he is it.
That also means that John Edwards will no longer be in it after the first big primary (which will include California and probably New York), if he even gets that far. His campaign is already spinning wheels despite the emotional uptick he probably expects from the emotional news conference this week involving his wife’s cancer. Everyone thinks that Edwards is a nice guy, a smart guy (even if they disagree with his policies) and there is not a whiff of scandal about him. Nevertheless, visceral reactions are so important in presidential politics. The image the youthful looking and handsome Edwards gives casts is an inexperienced but pretty deer caught in the headlights. Bambi is probably the right image.
Edwards is too Southern for the North and too liberal for the South. The taint of failure, although more Kerry’s fault than his own, still sticks to him and won’t be forgotten quickly. If he were my opponent I would be thankful for the hysterical video of him combing his hair and making up his face, to the West Side Story, I Feel Pretty. If you haven’t seen it, Google it now.
Besides, do you know one likely voter, who says they are for Edwards.
As for Al Gore and the rumors that he is going to use his Oscar to vault into the race -- oh, c’mon. If you had watched him testify to the Congress this week, you’d know why he can’t win. Even when he is on HIS topic, global warming, he speaks in such a so slow, drawn out fashion, it is just too painful to think about listening to him for four years. More wooden than he used to be. And I voted for him in 2000.
However, he clearly slimmed down quite a bit since his appearance on the Oscars a few weeks ago. Some say that is because he is going to run. Maybe its just because he is going to run, or he got a good look at himself in the mirror.
Republicans
Someone who has gone under the radar yet deserves at least a small how do you do, is Congressman Duncan Hunter, Republican representative from San Diego. His campaign will not go anywhere fast with heavyweights like McCain and Giuliani in the field, but his presidential sounding name (it’s the one a novelist would pick), his long resume in Congress and his conservative credentials, suggest he is another likely VP candidate, as it would go a long way to succoring the social conservatives who are a little queasy about Giuliani and McCain. Here’s a mini-bio if you have never heard of him:
Vietnam veteran
lawyer
Elected to House of Representatives in 1980 (San Diego)
House Armed Services Committee from the get go.
4 years as chairman until the Democrats took over the house this year
A few words about Newt Gingrich. He spoke in public recently along with Mario Cuomo at Cooper Union (celebrating the hall where Lincoln started his campaign in 1860) and also once with Senator Chuck Schumer (I suspect they have the same publisher as Gingrich has been plugging Schumer’s book, and that’s just weird). Gingrich’s observation that Democrats and Republicans should campaign on the same stage to help take the poison out of the system was shown to be true, as these were both civil and fascinating discussions.
Gingrich is, in my humble opinion, whether or not you agree with his politics, simply the most ingenious and articulate of all the potential or actual candidates. He brims with new ideas about national security, technology, healthcare, education, fund raising and the ridiculous length of the campaign season. So, it’s a shame that . . .
. . . he is just far too partisan. His actions leading the House while Clinton was in office were politically successful and severely damaged both the president and the Democratic party, as well as the country. That degree of aggression towards political adversaries comes with a big price. It is why he is no longer Speaker or even in the Congress at all. Besides that, his interest in bringing MORE religion into politics almost certainly rules him out for those of us who want a secular government. If Gingrich runs at all, he says he will not announce until the Fall. In the meantime, if you get a chance, listen to him talk. He is his own think tank.
Republican Representative Ron Paul from Texas, really a small “l” libertarian, has announced his candidacy on C-Span last week. He is one of the few Republicans running who is against the war. Paul is a physician who has been in and out of Congress for a while now. Libertarians often attract and repel people from both parties. Paul would attract Democrats with his anti-war position, but repel them with his strong pro-life stance. Visa versa for the Republicans. Personally, he is hard not to like, but lacks anything one might mistake for charisma. Look for him to go nowhere in a hurry.
As for the big boys, Rudy and McCain (which sounds like a good title for a tv show), my early prejudice towards McCain looks wobbly because Giuliani has been literally doubling his numbers in polls. Despite the odds against him, I’m sticking with my tentative pick for the meantime. If McCain can stay focused and calm, I believe that Giuliani’s negatives will start to be noticed, particularly his tyrannical ways and his first amendment debacles (see my post from a few weeks ago). Also, although it should not matter at all, the video of him in drag flirting with Donald Trump is going to be played over and over again. I appreciate politicians who dress in drag. But, it is really creepy to see. If the Democrats are smart, they will not mention it and let the video play on people’s mind.
However, McCain’s strategy of sidling up to Social Conservatives hasn’t worked because they will not forgive him for bucking the Bush administration on too many issues, which they don’t believe Giuliani will do, despite his socially liberal views (they are wrong about that). At the same time, McCain is alienating moderates and independents with his pro-War position. He should take a note from Gingrich and fire every consultant he has. No one believes the Straight Talk Express is anything but a name this time.
What’s next?
The debates next month. This may be the first time we all get to hear the candidates practice the canned speeches that pose as authentic answers to questions which they will then repeat over and over again for the next 19 months or so until we want to scream. Get ready for hypocrisy, which is usually overwhelming, but try and have a sense of humor about it.
Friday, March 23, 2007
The Valerie Plame Affair
If you need reminding, this little scandal began in ‘03 when a columnist/reporter, Robert Novak, sometimes referred to as the Prince of Darkness by his critics, “outed” a CIA “operative,” who was the wife of the former Ambassador, appointed by Bush I, named Joseph Wilson. Wilson had recently written an op-ed column stating that he had gone to Niger to report on the truth of the allegation that Iraq was seeking to buy yellowcake uranium there. As the fear of Iraq obtaining an atomic weapon was a chief reason for the U.S. invasion of Iraq, the article apparently made the vice president furious, particularly as it singled his office out as requesting the investigation . . .
Wilson wrote (The New York Times, July 6, 2003):
“In February 2002, I was informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report. While I never saw the report, I was told that it referred to a memorandum of agreement that documented the sale of uranium yellowcake — a form of lightly processed ore — by Niger to Iraq in the late 1990's. The agency officials asked if I would travel to Niger to check out the story so they could provide a response to the vice president's office.
After consulting with the State Department's African Affairs Bureau (and through it with Barbro Owens-Kirkpatrick, the United States ambassador to Niger), I agreed to make the trip. The mission I undertook was discreet but by no means secret. While the C.I.A. paid my expenses (my time was offered pro bono), I made it abundantly clear to everyone I met that I was acting on behalf of the United States government.”
According to Wilson’s wife, Valerie Plame, who testified at a March 16, 2007 hearing before a Congressional Committee (speaking publicly about it for the first time with CIA permission), she was approached by a co-worker who had received a fax from the Vice President’s office requesting information about the Niger-Iraq connection. Another CIA officer, walking by, who had already worked with Plame’s husband on other missions, suggested that Wilson go. They went to a superior who asked Plame to request that her husband come in to speak with them, which she did. He came the following week. Plame introduced her husband at the meeting and, being very busy, left. She also testified that she would not have had the authority to send him on the mission. She also said that both of them were reluctant that he go, and, Wilson, for one, did not think it necessary.
Sometime after her identity was made public by Novak an officer in the same department as Plame (counterproliferation of Nuclear weapons), testified before a different committee that it was Plame’s idea. According to Plame, that officer approached her, saying he was misunderstood, and wrote a memo asking to be sent to testify again. Nothing came of it, and she was thereby assumed to have been the person to request him. The CIA has publicly denied that she was the cause of his trip.
The irony here is that if she had suggested sending her husband, that would somehow have impugned Wilson’s report. That makes little sense without something more indicating there was an ulterior motive. The fact that they are both Democrats isn’t enough, unless party affiliation is how you determine most or all issues (and that covers a lot of people).
Everyone seems to agree, on both sides of the aisle, that it is a bad thing when a covert CIA officer is unmasked. There is an express federal law against it passed in1964. The fear is that not only will their lives be endangered, but that the lives of people outside of the country, even ones who did not know she was CIA, who worked with her, may have live
According to this law it is illegal to intentionally identify a covert intelligence agent if the person knows that the information discloses the agent and if the CIA has taken affirmative steps to protect its association with the person. Violation carries a fine and imprisonment up to ten years.
That is a pretty high standard. Essentially, a defense might be that the person disclosing the information did not know that the agent was covert, or, that the CIA did not take affirmative steps to protect the information.
Which agents are covert? That is defined as a present or retired intelligence officer or employee (and some others) whose identity as such is classified, and, who is or has served outside of the United States within the past five years.
What would a classified job be? This is defined in the same place. Classified means knowledge protected by a presidential order or statute.
The presidential order in question is known as PE 13292, signed by President Bush in March, 2003, updating a similar order by Clinton when he was President. It explains how to classify or declassify information. The order is not easy reading, and much of it seems to only refer to documents, but it also applies to other types of information, like a person whose job is classified. You can take a look if you want (although I would set aside an hour or so to understand it) but to make it easier for you, the order allows agency heads (such as intelligence agencies) to classify information. In other words, the CIA, or other intelligence agency, director can make his officers identities secret by classifying them.
Plame insists she was covert, and that she has served outside of the United States on secret missions within the last 5 years from when she testified (and therefore, definitely within 5 years from when she was unmasked) which would probably bring her under the statute. She even had a phony company that she used as a cover.
So was she covert according to the definition in the statute? On the face of it, it seems so but the issue is a little tricky. Apparently, Novak spoke with the CIA and they did not tell him she was covert. But why would they? Why would they even acknowledge she worked there? That would seem to defeat the policy of keeping the secret. However, they also apparently did not even suggest he not print the information. Maybe they thought the best thing to do was not to say anything. Or, maybe, like most large organizations, there is a high degree of incompetence.
This is where the second requirement in the statutory definition of covert comes in. Every year the president has to give a report to Congress on the efforts made to keep covert agents’ identities secret. Is this what is meant by the agency taking affirmative steps to protect the secret? Since this requirement is found in the same area of the law, it might. On the other hand, why wouldn’t the definition just state that the report was all that was necessary. But when Novak was going to release her name (which Plame and her husband knew and reported to the CIA) the CIA did not do anything substantive to stop him. Shouldn’t that be counted as not taking affirmative steps?
Robert Grenier is a longtime Senior CIA employee who testified at the Libby trial. He stated that he had been called out of a meeting with his boss, George Tenet, about a month before the Novak article, to answer questions for Libby and told him that Wilson’s wife worked at the CIA. He remembers the occasion because it was unusual He also said that Libby later thanked him for the information. This is one of the reasons the jury did not believe that Libby was telling the truth about when he learned Plame was Wilson’s wife. But I digress. The real point is that Grenier did not tell Libby at the time that Plame was covert . Afterwards the disclosure, he told Cheney and Libby that lives could be lost as a result of the disclosure. When Plame testified before Congress, she stated that given the department she was in, she found it hard to understand how Grenier would not presume she was covert.
So, it is hard to say for sure whether Plame was covert (she says so) unless the CIA shows the method by which she was made so according to an established method. Clearly, the U.S. attorney who prosecuted Libby did not think he had enough to prosecute anyone in the White House or VP’s office for a crime (remember, Libby was prosecuted and convicted for perjury, lying to the FBI and obstructing justice). That might be simply because there is no proof that any of them knew of her covert status, or because the CIA did not take affirmative steps to protect her association with them. I note in passing that the first person to tell Novak that Wilson’s wife was a CIA agent, Richard Armitage, had no connection with the VP’s office, and was a State Department official.
In this case, even if you believe that care should have been taken by Cheney, Libby, Rove, and even Novak to make sure Plame was not covert, prosecuting them for a crime is a different story. There is no evidence I know of which would indicate that any of them did know she was covert. In fact, many are critical of the fact that the CIA did not do anything to protect her status.
Forget the criminal aspect, however. It is the cavalier actions taken by the administration that is difficult to swallow. None of the people disclosing the information were novices. There is no doubt after the Libby trial that it was important to the VP’s office to leak Plame’s CIA connection and they did do so, mostly through Libby. If Republicans and conservatives are going to not care whether a CIA officer is covert or not, at least enough to ask, they are going to have to give up their vaunted claim that they are the party most concerned with national security.
Unlike the ongoing U.S. Attorney broohaha, which has surpassed the Plame affair in the news, this is worth getting answers to. Whether or not the administration knew she was covert or not (or even if she is not, to her surprise) the VP and his staff, and Rove, should be ashamed that they took the actions they did without taking absolute care to make sure she was not.
And here is the interesting thing. At the same hearing that Plame testified at, the committee also heard from, among others, the Director of the White House Office of Security, Dr. James Knodell, a stone faced and solid looking guy if there ever was one. Despite the fact that Presidential Order 13292 imposes “administrative sanctions” . . . on an individual who fails to protect classified information from unauthorized disclosure,” no investigation was ever done by Knodell, whose job it was to make sure secrets are kept. No one ever suggested to him that he do so, despite President Bush’s public claim that anyone found involved would be fired. That is astounding. His claim that he didn’t do anything because there was a criminal investigation (now over and not involving Cheney or Rove) came out very weak. It seemed to me that he was embarrassed.
Watching the Plame hearing I could not help but note that none of the Congresspersons present seemed to be aware of any of the laws discussed here. When Plame was first outed it took me only a few minutes to find and read the applicable statutes, which are very short and plain English, and less than an hour to read the presidential order, which is lengthy, dense and repetitive. The committee members were either at the mercy of the witnesses as to what the law was, or sputtered out their rage against them if they disagreed. Congressional hearings continue to be photo ops for Congress with the starring roles usually given to the chairperson, who sits because his party is in power.
Why a member of Congress or their staff can’t get on the internet and look the law up themselves on important issues, I just don’t know, although I suspect that their time spent fundraising has something to do with it.
One other issue. It has been stated by Vice President Cheney that he was authorized by Bush in a secret order, to declassify certain information. This smacks of a post dated command, if you get my drift. Why keep that a secret? Why wasn’t PE 13292 amended? It is unlikely that anyone will ever have to answer these questions or press the VP or President to answer.
Maybe some of you have seen broadcasts of the British Prime Minister answering questions from the entire House of Commons on a weekly basis. It is not only the best political show on television, but a way to force authority to answer questions while an issue is still in the forefront. I can’t imagine why we don’t something similar, except for fact that many of our elected Presidents just would not be up to it. That’s too bad.
The verdict here: Director Knowles should advise President Bush, that short of an order to the contrary from him, he will begin to do his job and have an investigation, and make the findings public, unless Congress gets on the stick, and does its job of full oversight. An administration whose members out CIA agents without taking care that they are covert, need to be looked into. When the covert nature of CIA or other intelligence officers becomes so unimportant, we are really in trouble.
It’s not going to happen, of course. Dr. Knowles will go back to his apparently cushy job and say nothing, despite being scolded by some members of the committee for his inaction. I guess he can’t imagine facing down the President after such an announcement.
The Democrats in Congress, who are finding the courage to challenge Bush over the U.S. Attorney firings, should also investigate it, not the least in order to determine whether the criminal statute for outing an agent should be changed, and whether there is a need to supercede Presidential Orders in this regard with a permanent statute that affords more protection for our intelligence community. I doubt that will happen either, as Congress is fixated on what they perceive as a far more political matter.
But that's situation normal, isn’t it?
Housekeeping note: Tomorrow, an update on the 2008 campaign will be posted.
Wilson wrote (The New York Times, July 6, 2003):
“In February 2002, I was informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report. While I never saw the report, I was told that it referred to a memorandum of agreement that documented the sale of uranium yellowcake — a form of lightly processed ore — by Niger to Iraq in the late 1990's. The agency officials asked if I would travel to Niger to check out the story so they could provide a response to the vice president's office.
After consulting with the State Department's African Affairs Bureau (and through it with Barbro Owens-Kirkpatrick, the United States ambassador to Niger), I agreed to make the trip. The mission I undertook was discreet but by no means secret. While the C.I.A. paid my expenses (my time was offered pro bono), I made it abundantly clear to everyone I met that I was acting on behalf of the United States government.”
According to Wilson’s wife, Valerie Plame, who testified at a March 16, 2007 hearing before a Congressional Committee (speaking publicly about it for the first time with CIA permission), she was approached by a co-worker who had received a fax from the Vice President’s office requesting information about the Niger-Iraq connection. Another CIA officer, walking by, who had already worked with Plame’s husband on other missions, suggested that Wilson go. They went to a superior who asked Plame to request that her husband come in to speak with them, which she did. He came the following week. Plame introduced her husband at the meeting and, being very busy, left. She also testified that she would not have had the authority to send him on the mission. She also said that both of them were reluctant that he go, and, Wilson, for one, did not think it necessary.
Sometime after her identity was made public by Novak an officer in the same department as Plame (counterproliferation of Nuclear weapons), testified before a different committee that it was Plame’s idea. According to Plame, that officer approached her, saying he was misunderstood, and wrote a memo asking to be sent to testify again. Nothing came of it, and she was thereby assumed to have been the person to request him. The CIA has publicly denied that she was the cause of his trip.
The irony here is that if she had suggested sending her husband, that would somehow have impugned Wilson’s report. That makes little sense without something more indicating there was an ulterior motive. The fact that they are both Democrats isn’t enough, unless party affiliation is how you determine most or all issues (and that covers a lot of people).
Everyone seems to agree, on both sides of the aisle, that it is a bad thing when a covert CIA officer is unmasked. There is an express federal law against it passed in1964. The fear is that not only will their lives be endangered, but that the lives of people outside of the country, even ones who did not know she was CIA, who worked with her, may have live
According to this law it is illegal to intentionally identify a covert intelligence agent if the person knows that the information discloses the agent and if the CIA has taken affirmative steps to protect its association with the person. Violation carries a fine and imprisonment up to ten years.
That is a pretty high standard. Essentially, a defense might be that the person disclosing the information did not know that the agent was covert, or, that the CIA did not take affirmative steps to protect the information.
Which agents are covert? That is defined as a present or retired intelligence officer or employee (and some others) whose identity as such is classified, and, who is or has served outside of the United States within the past five years.
What would a classified job be? This is defined in the same place. Classified means knowledge protected by a presidential order or statute.
The presidential order in question is known as PE 13292, signed by President Bush in March, 2003, updating a similar order by Clinton when he was President. It explains how to classify or declassify information. The order is not easy reading, and much of it seems to only refer to documents, but it also applies to other types of information, like a person whose job is classified. You can take a look if you want (although I would set aside an hour or so to understand it) but to make it easier for you, the order allows agency heads (such as intelligence agencies) to classify information. In other words, the CIA, or other intelligence agency, director can make his officers identities secret by classifying them.
Plame insists she was covert, and that she has served outside of the United States on secret missions within the last 5 years from when she testified (and therefore, definitely within 5 years from when she was unmasked) which would probably bring her under the statute. She even had a phony company that she used as a cover.
So was she covert according to the definition in the statute? On the face of it, it seems so but the issue is a little tricky. Apparently, Novak spoke with the CIA and they did not tell him she was covert. But why would they? Why would they even acknowledge she worked there? That would seem to defeat the policy of keeping the secret. However, they also apparently did not even suggest he not print the information. Maybe they thought the best thing to do was not to say anything. Or, maybe, like most large organizations, there is a high degree of incompetence.
This is where the second requirement in the statutory definition of covert comes in. Every year the president has to give a report to Congress on the efforts made to keep covert agents’ identities secret. Is this what is meant by the agency taking affirmative steps to protect the secret? Since this requirement is found in the same area of the law, it might. On the other hand, why wouldn’t the definition just state that the report was all that was necessary. But when Novak was going to release her name (which Plame and her husband knew and reported to the CIA) the CIA did not do anything substantive to stop him. Shouldn’t that be counted as not taking affirmative steps?
Robert Grenier is a longtime Senior CIA employee who testified at the Libby trial. He stated that he had been called out of a meeting with his boss, George Tenet, about a month before the Novak article, to answer questions for Libby and told him that Wilson’s wife worked at the CIA. He remembers the occasion because it was unusual He also said that Libby later thanked him for the information. This is one of the reasons the jury did not believe that Libby was telling the truth about when he learned Plame was Wilson’s wife. But I digress. The real point is that Grenier did not tell Libby at the time that Plame was covert . Afterwards the disclosure, he told Cheney and Libby that lives could be lost as a result of the disclosure. When Plame testified before Congress, she stated that given the department she was in, she found it hard to understand how Grenier would not presume she was covert.
So, it is hard to say for sure whether Plame was covert (she says so) unless the CIA shows the method by which she was made so according to an established method. Clearly, the U.S. attorney who prosecuted Libby did not think he had enough to prosecute anyone in the White House or VP’s office for a crime (remember, Libby was prosecuted and convicted for perjury, lying to the FBI and obstructing justice). That might be simply because there is no proof that any of them knew of her covert status, or because the CIA did not take affirmative steps to protect her association with them. I note in passing that the first person to tell Novak that Wilson’s wife was a CIA agent, Richard Armitage, had no connection with the VP’s office, and was a State Department official.
In this case, even if you believe that care should have been taken by Cheney, Libby, Rove, and even Novak to make sure Plame was not covert, prosecuting them for a crime is a different story. There is no evidence I know of which would indicate that any of them did know she was covert. In fact, many are critical of the fact that the CIA did not do anything to protect her status.
Forget the criminal aspect, however. It is the cavalier actions taken by the administration that is difficult to swallow. None of the people disclosing the information were novices. There is no doubt after the Libby trial that it was important to the VP’s office to leak Plame’s CIA connection and they did do so, mostly through Libby. If Republicans and conservatives are going to not care whether a CIA officer is covert or not, at least enough to ask, they are going to have to give up their vaunted claim that they are the party most concerned with national security.
Unlike the ongoing U.S. Attorney broohaha, which has surpassed the Plame affair in the news, this is worth getting answers to. Whether or not the administration knew she was covert or not (or even if she is not, to her surprise) the VP and his staff, and Rove, should be ashamed that they took the actions they did without taking absolute care to make sure she was not.
And here is the interesting thing. At the same hearing that Plame testified at, the committee also heard from, among others, the Director of the White House Office of Security, Dr. James Knodell, a stone faced and solid looking guy if there ever was one. Despite the fact that Presidential Order 13292 imposes “administrative sanctions” . . . on an individual who fails to protect classified information from unauthorized disclosure,” no investigation was ever done by Knodell, whose job it was to make sure secrets are kept. No one ever suggested to him that he do so, despite President Bush’s public claim that anyone found involved would be fired. That is astounding. His claim that he didn’t do anything because there was a criminal investigation (now over and not involving Cheney or Rove) came out very weak. It seemed to me that he was embarrassed.
Watching the Plame hearing I could not help but note that none of the Congresspersons present seemed to be aware of any of the laws discussed here. When Plame was first outed it took me only a few minutes to find and read the applicable statutes, which are very short and plain English, and less than an hour to read the presidential order, which is lengthy, dense and repetitive. The committee members were either at the mercy of the witnesses as to what the law was, or sputtered out their rage against them if they disagreed. Congressional hearings continue to be photo ops for Congress with the starring roles usually given to the chairperson, who sits because his party is in power.
Why a member of Congress or their staff can’t get on the internet and look the law up themselves on important issues, I just don’t know, although I suspect that their time spent fundraising has something to do with it.
One other issue. It has been stated by Vice President Cheney that he was authorized by Bush in a secret order, to declassify certain information. This smacks of a post dated command, if you get my drift. Why keep that a secret? Why wasn’t PE 13292 amended? It is unlikely that anyone will ever have to answer these questions or press the VP or President to answer.
Maybe some of you have seen broadcasts of the British Prime Minister answering questions from the entire House of Commons on a weekly basis. It is not only the best political show on television, but a way to force authority to answer questions while an issue is still in the forefront. I can’t imagine why we don’t something similar, except for fact that many of our elected Presidents just would not be up to it. That’s too bad.
The verdict here: Director Knowles should advise President Bush, that short of an order to the contrary from him, he will begin to do his job and have an investigation, and make the findings public, unless Congress gets on the stick, and does its job of full oversight. An administration whose members out CIA agents without taking care that they are covert, need to be looked into. When the covert nature of CIA or other intelligence officers becomes so unimportant, we are really in trouble.
It’s not going to happen, of course. Dr. Knowles will go back to his apparently cushy job and say nothing, despite being scolded by some members of the committee for his inaction. I guess he can’t imagine facing down the President after such an announcement.
The Democrats in Congress, who are finding the courage to challenge Bush over the U.S. Attorney firings, should also investigate it, not the least in order to determine whether the criminal statute for outing an agent should be changed, and whether there is a need to supercede Presidential Orders in this regard with a permanent statute that affords more protection for our intelligence community. I doubt that will happen either, as Congress is fixated on what they perceive as a far more political matter.
But that's situation normal, isn’t it?
Housekeeping note: Tomorrow, an update on the 2008 campaign will be posted.
Wednesday, March 21, 2007
Gonzales - to resign or not to resign. That is the question.
Supposedly, Confucious said “When you go for revenge, first dig two graves” or something wise like that. I believe I first heard a version of it on the 70s adventure “Kung fu”. If Kwai Chang Caine says so, it’s good enough for me.
At least, it would be good advice whenever there is a power swing in the political world As one very liberal gentleman said to me in explaining why Democrats should keep going after Attorney General Gonzales . . . “Besides, they’re the bad guys”. One only needs to listen to talk radio for a few minutes to know that Limbaugh and co. feel precisely the opposite and just as deeply about it.
Americans do not want partisanship (take a look at Harris Polls at http://www.harrisinteractive.com/harris_poll/index.asp?PID=572). However, it takes a lot of people to put up a building, and one person can knock it down with a bomb. The same is true for political amity. One partisan act to destroy the other side always leads to retaliation when there is a change in which party has the majority.
So Gonzales and Libby were begat by the virulent Whitewater and impeachment hearings which were begat by the virulent Clarence Thomas and John Tower hearings which were begat . . . . and so on. Someday, sooner or later, history tells us the Republicans will regain the Congress, and they will take revenge. And then they will lose power, and the Democrats . . . .
That being said, there are times that all administrations push too far, need to be reined in, and should be. If they are wise, they eventually see it themselves and back down. Perhaps the foreign agent wiretapping scheme outside of the Courts which the current administration tried and eventually backed down on is a good example. Had they not done so, we would be seeing hearings on it right now.
The latest two uproars, the Valerie Plame scandal and the Gonzalez Attorney scandal are good examples of, in the first case, a bit of a witch hunt, and in the second case, a fair inquisition.
Since plenty of bloggers are talking about what should be done and who is right, this blog will concentrate on some of the legal underpinnings (promise not to bore you to tears), which almost no one ever speaks about.
Today Gonzales, tomorrow Libby.
The argument is over whether President Bush should have fired 7 or 8 (depends who you count) United States Attorneys, possibly for political reasons.
The first important rule to know is that U.S. Attorneys are appointed and removed according to a federal act. Summarizing the act --
- - The President appoints U.S. Attorneys with the advice and consent of the Senate for four year terms.
-- The President can remove them on his own say so.
-- There is one for U.S. attorney for each judicial district in the United States (so, if you have heard there are 93, that's why).
-- Since the Senate has to approve the new one, the old one serves until the substitute comes in.
So, although the President needs the Senate to approve an appointment (under the Constitution too), he does not need approval to remove one (although he will need them to approve a new one). This is common with many political positions. Although now its done this way because of some federal act, the issue was fought out in the Supreme Court long ago, and at least in typical cases, the executive department won. It was a pragmatic decision, because the president can’t get a lot done if he doesn’t have the support of the people beneath him.
It is not uncommon practice for presidents to replace all U.S. Attorneys when they come into office just like they have an entire new cabinet. In Carter, Reagan and Clinton did. Bush 41 did not, but he was a Republican following a Republican, and did not really need to do so. In Bush 43’s case, I believe almost all of them were replaced.
This does not answer all questions as to whether what happened here was right because two issues still exist (1) whether the Attorney General, Alberto Gonzalez, or others in the administration, lied to Congress about the reason 8 U.S. Attorneys were let go (I, for one, will give him the benefit of the doubt until there is good reason to think differently) and as to whether it was done for the purposes of effecting ongoing investigations or prosecutions (which I see little evidence of, just a guess).
While it has become evident to some that the reasons were “political” it is not clear that Gonzalez was aware of the reasons for the firings (although, you would like to think the Attorney General would be aware of something so important), the waste of Congress’ time in discovering this possible untruth, when Gonzalez’ chief of staff has already resigned over it, is just not worth it.
What should be the result if you think these 7 or 8 should not have been replaced? It’s simple. If you don’t like Bush or his underlings, then vote for the Democrats next time. We have a system with regular elections for a reason. Every unpopular act should not be a reason for hearings, particularly in the middle of a war. It is a little sickening when Congress or the President gets caught up in some partisan squabble while dogs are seen in Baghdad carrying heads (well, at least on reporter saw it once -- but you get the point).
Almost everyone agrees, once the U.S. Attorney is in office, there should not be undue pressure to act politically. Republicans and Democrats seem to agree on this. The Senate just voted 94-2 to get rid of a loophole in the Patriot Act which lets the President appoint a new U.S. Attorney without Senate approval. If you ask me, that law was unconstitutional – Article 2, section 2 of the Constitution, sometimes called the advice and consent clause. It should pass the house just as easily, and I doubt Bush will veto it, because Congress would almost certainly have enough votes to override the veto.
The Democrats on the House Judiciary Committee has demanded the testimony under oath of Karl Rove and Harriet Miers to see the White House’s involvement in the scandal. Bush has already stated, in effect, over his dead body, claiming executive privilege. Usually, these disputes are worked out between the two departments without a lawsuit, such as when Condoleeza Rice’s testimony was sought during the 9/11 hearings. In retaliation, the Congress authorized subpoenas, and the president’s spokesman said if they issue subpoenas, the president’s offer to have Rove and Miers answer questions in a closed session, not under oath, will be withdrawn.
We way overdue presidential power in this country, and every administration gets away with overusing executive privilege, because they all want to use it when it suits their purposes.
The hypocrisy squads, are, as always, rushing to the front. Democrats and Bush haters are pointing out that “executive privilege” isn’t even in the Constitution and should only apply to situations where national security is at stake. The Republicans are claiming that the president has every right to raise it as otherwise advisors will be afraid to tell him what they think If you can recall all the way back to the Clinton era, they have now precisely reversed their claims. The amazing thing to me is that they do this without any shame, even in an age when their earlier statements are easily dredged up on the internet, as White House Spokesman, Tony Snow’s, 90’s rant against Clinton for claiming executive privilege was brought up today.
Some think that this issue might take quite a while to wind its way through the courts if it goes this way. Rush Limbaugh has suggested that it would be a good strategy for Bush. He should be reminded that it didn’t take very long when Nixon tried to use executive privilege during Watergate. In fact, it went like lightning.
This issue is not likely to go away unless Gonzales resigns, which would at least take the temperature down some. It might make it harder for the Democrats to use it as a springboard to go after Rove (which, let's face it, Democrats dream about). Gonzales shouldn’t have to resign over this unless it is shown he outright lied about his part in it, but it would help his boss, himself and his party if he does step aside. He may come to that conclusion himself, if he has not done so already.
I had a laugh today. Ted Olsen, an attorney from the Reagan and this Bush’s administration, was suggested as a good replacement for Gonzales. Democrats might miss the fact that Olsen is up there with the most conservative people in politics and an ardent advocate of the unitary executive theory that drives liberals berserk.
For all you disappointed Dems and libs, I come down quite differently on the Libby/Plame scandal, which should be taken much more seriously and thoroughly investigated. So, stay tuned until tomorrow.
At least, it would be good advice whenever there is a power swing in the political world As one very liberal gentleman said to me in explaining why Democrats should keep going after Attorney General Gonzales . . . “Besides, they’re the bad guys”. One only needs to listen to talk radio for a few minutes to know that Limbaugh and co. feel precisely the opposite and just as deeply about it.
Americans do not want partisanship (take a look at Harris Polls at http://www.harrisinteractive.com/harris_poll/index.asp?PID=572). However, it takes a lot of people to put up a building, and one person can knock it down with a bomb. The same is true for political amity. One partisan act to destroy the other side always leads to retaliation when there is a change in which party has the majority.
So Gonzales and Libby were begat by the virulent Whitewater and impeachment hearings which were begat by the virulent Clarence Thomas and John Tower hearings which were begat . . . . and so on. Someday, sooner or later, history tells us the Republicans will regain the Congress, and they will take revenge. And then they will lose power, and the Democrats . . . .
That being said, there are times that all administrations push too far, need to be reined in, and should be. If they are wise, they eventually see it themselves and back down. Perhaps the foreign agent wiretapping scheme outside of the Courts which the current administration tried and eventually backed down on is a good example. Had they not done so, we would be seeing hearings on it right now.
The latest two uproars, the Valerie Plame scandal and the Gonzalez Attorney scandal are good examples of, in the first case, a bit of a witch hunt, and in the second case, a fair inquisition.
Since plenty of bloggers are talking about what should be done and who is right, this blog will concentrate on some of the legal underpinnings (promise not to bore you to tears), which almost no one ever speaks about.
Today Gonzales, tomorrow Libby.
The argument is over whether President Bush should have fired 7 or 8 (depends who you count) United States Attorneys, possibly for political reasons.
The first important rule to know is that U.S. Attorneys are appointed and removed according to a federal act. Summarizing the act --
- - The President appoints U.S. Attorneys with the advice and consent of the Senate for four year terms.
-- The President can remove them on his own say so.
-- There is one for U.S. attorney for each judicial district in the United States (so, if you have heard there are 93, that's why).
-- Since the Senate has to approve the new one, the old one serves until the substitute comes in.
So, although the President needs the Senate to approve an appointment (under the Constitution too), he does not need approval to remove one (although he will need them to approve a new one). This is common with many political positions. Although now its done this way because of some federal act, the issue was fought out in the Supreme Court long ago, and at least in typical cases, the executive department won. It was a pragmatic decision, because the president can’t get a lot done if he doesn’t have the support of the people beneath him.
It is not uncommon practice for presidents to replace all U.S. Attorneys when they come into office just like they have an entire new cabinet. In Carter, Reagan and Clinton did. Bush 41 did not, but he was a Republican following a Republican, and did not really need to do so. In Bush 43’s case, I believe almost all of them were replaced.
This does not answer all questions as to whether what happened here was right because two issues still exist (1) whether the Attorney General, Alberto Gonzalez, or others in the administration, lied to Congress about the reason 8 U.S. Attorneys were let go (I, for one, will give him the benefit of the doubt until there is good reason to think differently) and as to whether it was done for the purposes of effecting ongoing investigations or prosecutions (which I see little evidence of, just a guess).
While it has become evident to some that the reasons were “political” it is not clear that Gonzalez was aware of the reasons for the firings (although, you would like to think the Attorney General would be aware of something so important), the waste of Congress’ time in discovering this possible untruth, when Gonzalez’ chief of staff has already resigned over it, is just not worth it.
What should be the result if you think these 7 or 8 should not have been replaced? It’s simple. If you don’t like Bush or his underlings, then vote for the Democrats next time. We have a system with regular elections for a reason. Every unpopular act should not be a reason for hearings, particularly in the middle of a war. It is a little sickening when Congress or the President gets caught up in some partisan squabble while dogs are seen in Baghdad carrying heads (well, at least on reporter saw it once -- but you get the point).
Almost everyone agrees, once the U.S. Attorney is in office, there should not be undue pressure to act politically. Republicans and Democrats seem to agree on this. The Senate just voted 94-2 to get rid of a loophole in the Patriot Act which lets the President appoint a new U.S. Attorney without Senate approval. If you ask me, that law was unconstitutional – Article 2, section 2 of the Constitution, sometimes called the advice and consent clause. It should pass the house just as easily, and I doubt Bush will veto it, because Congress would almost certainly have enough votes to override the veto.
The Democrats on the House Judiciary Committee has demanded the testimony under oath of Karl Rove and Harriet Miers to see the White House’s involvement in the scandal. Bush has already stated, in effect, over his dead body, claiming executive privilege. Usually, these disputes are worked out between the two departments without a lawsuit, such as when Condoleeza Rice’s testimony was sought during the 9/11 hearings. In retaliation, the Congress authorized subpoenas, and the president’s spokesman said if they issue subpoenas, the president’s offer to have Rove and Miers answer questions in a closed session, not under oath, will be withdrawn.
We way overdue presidential power in this country, and every administration gets away with overusing executive privilege, because they all want to use it when it suits their purposes.
The hypocrisy squads, are, as always, rushing to the front. Democrats and Bush haters are pointing out that “executive privilege” isn’t even in the Constitution and should only apply to situations where national security is at stake. The Republicans are claiming that the president has every right to raise it as otherwise advisors will be afraid to tell him what they think If you can recall all the way back to the Clinton era, they have now precisely reversed their claims. The amazing thing to me is that they do this without any shame, even in an age when their earlier statements are easily dredged up on the internet, as White House Spokesman, Tony Snow’s, 90’s rant against Clinton for claiming executive privilege was brought up today.
Some think that this issue might take quite a while to wind its way through the courts if it goes this way. Rush Limbaugh has suggested that it would be a good strategy for Bush. He should be reminded that it didn’t take very long when Nixon tried to use executive privilege during Watergate. In fact, it went like lightning.
This issue is not likely to go away unless Gonzales resigns, which would at least take the temperature down some. It might make it harder for the Democrats to use it as a springboard to go after Rove (which, let's face it, Democrats dream about). Gonzales shouldn’t have to resign over this unless it is shown he outright lied about his part in it, but it would help his boss, himself and his party if he does step aside. He may come to that conclusion himself, if he has not done so already.
I had a laugh today. Ted Olsen, an attorney from the Reagan and this Bush’s administration, was suggested as a good replacement for Gonzales. Democrats might miss the fact that Olsen is up there with the most conservative people in politics and an ardent advocate of the unitary executive theory that drives liberals berserk.
For all you disappointed Dems and libs, I come down quite differently on the Libby/Plame scandal, which should be taken much more seriously and thoroughly investigated. So, stay tuned until tomorrow.
Thursday, March 15, 2007
The Amazing Richard Burton (but not the one you are thinking about)
If you could pick one person from history who died before you were born, and relive their life, who would you pick? It takes some thought and obviously the question is highly personal. If it were something we could actually do, it might have its pitfalls.
Someone, for example, might decide they would like to be The Great Emancipator. Signing the 13th amendment announcing the end of slavery, delivering the emancipation proclamation, winning the Civil War, the joy of discovering the attributes of General Grant, being a renowned country lawyer, celebrated by your peers for your wealth of anecdotes, fairness and physical strength, all sound great.
On the other hand, suffering long bouts of depression, having two young sons die on you, a marriage which caused you to frequently flee your home and make months long trips on the road, spending a few years losing the bloodiest war in our history before the tide turned, and, let’s not forget, getting shot in the head in your mid-50s, might make you want to pick Bertram Russell (he lived to 98) or someone like that.
The same thing goes for Mozart (died young), Beethoven (went deaf), Jim Thorpe (stripped of his medals), Jesus (well, you know), Van Gogh (depression, the ear thing), King Tut (died really young), Martin Luther King (assassinated at his height) and so on. You get the point.
There are good choices too, or so it seems. Ben Franklin might be a good choice, unless his sad personal break with his son and long absence from his wife are signs of things we just don’t know enough about. And don’t forget his painful gout. You don’t really know until you go for it and live their life. He’s still in my top ten. Gandhi might not be a bad choice either. A life filled with purpose and lots of devotion. Although he got shot in the end too, he was 87 at the time. Not bad. Still, all that fasting and chastity might rule him out.
Shakespeare might be a good choice for other reasons. At least you would know if you really wrote those plays or were just a front as some recent commentators (wrongly!) claim.
My personal choice would be the great Richard Burton, despite a hefty downside. Not the actor who married Liz Taylor so many times. I refer to Sir Richard Francis Burton the adventurer, swordsman, historian, explorer, super-linguist, best selling author, primal-anthropologist, Royal Army Captain, translator of Arabian Nights and the Kama Sutra, tactician, ground breaking chronicler of sexual habits, secret agent and roving diplomat. I may be understating his achievements, but it’s best to overlook his mediocre poetry and claimed prowess at hypnosis.
Burton was seemingly born with his testosterone pedal permanently floored, his synapses firing in overdrive and his sense of English Victorian entitlement ever present. His parents were relatively well off, enough to cart Richard and his siblings about Europe for most of their youth. There, he and his brother Edward terrorized nannies and tutors, but got a unique education, including picking up a number of languages.
Burton attended Oxford and, like all good English rakes, managed to get himself thrown out, although the reason, his honesty to the college administration about attending a steeplechase, would hardly qualify today. Supposedly, he was happy as hell to leave, and road over their flower gardens blowing on a trumpet on his way out.
Joining the East India Company as an officer at age 21, Burton narrowly missed the slaughter of British troops in Afghanistan which would have ruled out our ever having heard of him. Assigned to Britain’s colony in India, Burton began picking up languages at an sizzling pace from Arabic (some of which he already knew in addition to Greek and Latin) to Hindu to Farsi, among many others, eventually about 40 or so, including dialects, through his life. He also began his own method of self-instruction by taking a local servant as a mistress in order to speak the language as the natives did. Apparently, it worked well.
Already no stranger to scandal (don't forget Oxford), he participated in an Army sting concerning a homosexual brothel frequented by English soldiers. His report, unfortunately released later on, gave some the idea that he participated in the then highly illegal and questionable activities.
Returning to Europe after 8 years in India, he authored his first book on Goa, the Portuguese colony in India. Several other books followed, but none caught on. On official leave, Burton became one of the first and very few Europeans ever to take the Haj and enter the Holy Muslim cities of Mecca and Median disguised as a Afghani doctor in 1853.
The Haj is the duty of every Muslim, if possible, and concerns traveling to Islam’s holiest city, Mecca (the direction in which Muslims still pray). Millions of Muslims make the Haj every year. One who goes on it is ever after known as Hajji as has an exalted place in Muslim culture. Despite his subterfuge, he was respected his whole life by Muslims for his achievement.
Burton’s feat is remarkable, not only for his perfection of the language skills enabling him to pull off the subterfuge, but also for his adept imitation of the rituals, customs and day to day habits of an Islamic doctor.
His mastery of the rudimentary medicine of the time and place is in itself an astonishing feat, but his sheer courage in accomplishing this deception in the face of certain death and likely horrific torture, if caught, is unbelievable. On at least one occasion, he was almost unmasked after using the one European tool he had brought with him. Leaving that aside, even for a genuine Muslim, the travel was fraught with risk, including being killed by bandits, which he almost was. Ironically, the group he was traveling with was helped in defending themselves by Wahabis, the same Islamic traditionalists known for their intolerance, and today associated with the Saudi Arabian monarchy (where, after all, Mecca is located).
Reading A Personal Narrative of a Pilgrimage to Mecca & Medina is a rare experience, but it’s not for everyone. I don’t doubt that many people would find it quite boring, as a formidable appetite for things Eastern is required (I’ll give you a sample below). Nevertheless, like all of Burton’s works, it is a virtuoso performance.
The sheer volume of information Burton seemed to be able to accumulate was not just impressive, it seems super-human. That he could learn as much as he did in less than a year, well enough to write an extremely long and fact intensive account with enough scholarship to contest the findings or beliefs of the few earlier travelers who had their written reports, that he could acquire endless amounts of cultural, historical, religious and linguistic minutia (e.g., even the history of the families who were caretakers of various mosques and holy sites), his descriptions of events, names, places, a seemingly innate ability to look through proto-sociological and anthropological lenses, although neither discipline had been invented, make one wonder when he had time to eat, drink, sleep, pray five times a day, and travel. Yet he managed to do this while maintaining his disguise and even running a medical practice. There is no doubt, that after a few months, Burton knew more about the Middle East than most of those who had spent a lifetime there, and perhaps more than any Westerner ever had.
Actually, a heavily edited version of Pilgrimage would be much more interesting to most of us, but we have to keep in mind that his audience’s minds were not filled up with television, movies, music and the internet. Many craved information about the world unknown to them such as only a Burton could provide.
For those who crave Middle Eastern lore or romanticize it, Pilgrimage contains battles with other Hajjis, fights to the death with bandits, fascinating bits of linguistic trivia, a caravan full of strange characters worthy of a modern reality show, and a description of Ramadan (the major Muslim holiday) that imprints itself on your mind.
The trip and his successful publication was enough for a lifetime for most of us, even a magnificent lifetime for one person, but it is just one part of Burton’s tale. Made famous by Pilgrimage, and more easily able to get his way in planning his adventures, Burton became one of the world’s great explorers, fearlessly delving into the African interior. He explored present day Somalia, where he accomplished entering the fabled city of Harar, something no Christian had accomplished before.
In his next trip, he teamed up with John Speke, who would not far in the future become his great nemesis and destroy one of his fondest dreams. While preparing to leave camp, they were set upon by several hundred warriors. Speke was captured but managed to escape. His captors made the same mistake that all bad guys manage to do in modern movies, they tied his hands in front. He clobbered his guard and ran zigzag fashion into the water, dodging a blitz of spears. Burton was less lucky. He was nearly killed when a spear literally went in one side of his face and came out the other. Yet he lived. Burton seemed to have a guardian angel watching over him at all times.
The exploration being a disaster, Burton traveled to the Crimean Peninsula (modern day Ukraine) for the war of the same name. Despite all his experience fighting, he was not to be a war hero or even see any action.. He was limited to training Turkish irregular fighters, which landed him in another scandal, not worth going into here. Returning to Africa, Speke and he again moved into the interior in order to discover the Source of the Nile River, sort of the holy grail of the time.
The two eventually took separate paths when Burton became ill, not an unusual occurrence for any explorer. Burton discovered Lake Tanganyika and Speke, Lake Victoria (of course, "discovering" only as far as Europeans were concerned). Each claimed the lake he discovered as the true source of the Nile. Burton couldn’t take it. Back in England the two, now bitter enemies, engaged in a harsh public debate about who was right.
Finally, years later, this heated discussion led to the scheduling of a real debate at the Royal Geographical Society. It was greatly anticipated, but, in the end, not to be. One day before the debate Speke mystifyingly shot himself to death. It was said to be a hunting accident, but the specter of suicide hung all about it. Burton only learned of it while awaiting Speke to begin the debate and was shaken. Perhaps Speke, suspecting he was wrong, could not bear the dishonor of being proved wrong by Burton after now staking his growing reputation on it. Or perhaps he just feared Burton as a debater. Either way, too bad for him, because it turned out that he was right and Burton wrong. Victoria was the Nile’s source.
Although his trip to Mecca, and his African explorations were probably the peak of his career, Burton was far from through. He was in his young thirties when he went to Mecca and only a few years older when he and Speke discovered the lakes.
Burton eventually became a British consul, which included escaping at least one massacre, traveling and writing. He was most famous for his translation of Arabian Nights (which Burton translated as A Thousand Nights and One Night), various erotica, including the Kama Sutra. Much of his writing was quite shocking to Victorian society and caused his wife (more on her later) more than a little grief. He even came to America just before our Civil War and wrote City of the Saints (referring to the Mormon Salt Lake City), which is also packed with so much information gained on such a short trip, it just boggles the mind (it is really heavy reading – don’t try it at home).
Burton was always an independent thinker, particularly about culture and sex. Aside from the controversy from his publication of Eastern erotica like The Perfumed Garden, Burton argued against British policy to end slavery in Africa. He believed that it was a much different type of arrangement than slavery in America, and necessary for many poverty stricken Africans to survive. Kind of hard to swallow that one nowadays, but Burton was no picnic.
He was also one of the world’s great fencers in an age before professionals, sometimes easily defeating famous instructors despite the little time he spent training. He wrote a treatise on swords (The Book of Swords) and a training manual for using the bayonet, which, at first caused great ire in the military, but was later adopted by them. Supposedly, in exchange for using the book, the military advised him that he was due one shilling for the work, a customary and nominal fee, which he insisted on collecting but then gave to the first beggar he saw.
Burton was married at age 40 to Isabel Arundell, who had been long and ardently devoted to him despite a lopsided relationship. Isabel literally seemed to worship him despite his many faults. Over the years, she obeyed his command to "pay, pack and follow," suffered long absences from him early on, and later traveled with him, defended him, protected and cared for him. Educated and very spiritual, she eventually became quite a successful writer in her own regard. Their marriage was unusual, but admirable.
Queen Victoria named him Sir Richard in 1886. He died four years later and was buried at Mortlake, London within an unusual mausoleum built in the shape of a nomad’s tent. Regrettably, when he died, Isabel burned his papers, in order to protect his reputation from further damage. The loss is heavy.
Here is a taste of Burton, first from his book First Footsteps in East Africa concerning his travels to Harar in Somalia:
"The punishments, when money forms no part of them, are mostly according to Koranic code. The murderer is placed in the market street, blindfolded, and bound hand and foot; the nearest of kin to the deceased then strikes his neck with a sharp and heavy butcher’s knife, and the corpse is given over to the relations for Moslem burial. If the blow prove ineffectual a pardon is generally granted. When a citizen draws dagger upon another or commits any petty offence, he is bastinadoed in a peculiar manner: two men ply their horsewhips upon his back and breast, and the prince, in whose presence the punishment is carried out, gives the order to stop. Theft is visited with amputation of the hand. The prison is the award of state offenders: it is terrible, because the captive is heavily ironed, lies in a filthy dungeon, and receives no food but what he can obtain from his own family,—seldom liberal under such circumstances,—buy or beg from his guards. Fines and confiscations, as usual in the East, are favourite punishments with the ruler."
This one is from Pilgrimage:
"I had scarcely composed myself upon the carpeted Mastabah, when the remainder was suddenly invaded by the Turkish, or rather Slavo-Turk, pilgrims inhabiting the house, and a host of their visitors. They were large, hairy men, with gruff voices and square figures; they did not take the least notice of me, although feeling the intrusion, I stretched out my legs with a provoking nonchalance. At last one of them addressed me in Turkish, to which I replied by shaking my head. His question being interpreted to me in Arabic, I drawled out, "My native place is the land of Khorasan." This provoked a stern and stony stare from the Turks, and an "ugh!" which said plainly enough, "Then you are a pestilent heretic." I surveyed them with a self-satisfied simper, stretched my legs a trifle farther, and conversed with my water-pipe. Presently, when they all departed for a time, the boy Mohammed raised, by request, my green box of medicines, and deposited it upon the Mastabah; thus defining, as it were, a line of demarcation, and asserting my privilege to it before the Turks. Most of these men were of one party, headed by a colonel of Nizam, whom they called a Bey. My acquaintance with them began roughly enough, but afterwards, with some exceptions, who were gruff as an English butcher when accosted by a lean foreigner, they proved to be kind-hearted and not unsociable men. It often happens to the traveler, as the charming Mrs. Malaprop observes, to find intercourse all the better by beginning with a little aversion."
If that rings your bell, you will find a lifetime reading Burton. If not, read one of his biographies which will spare you his mania for facts, and satisfy you with his adventurous life. Books by Burton are still published, particularly Pilgrimage, his translation of the Arabian Nights and some of the erotica. Modern biographies are plentiful. I particularly recommend A Rage to Live: A biography of Richard and Isabel Burton, which focuses on their unusual marriage, and The Devil Drives: A Life of Sir Richard Burton. Captain Sir Richard Francis Burton: A Biography is good too, although not my favorite, but easiest to find.
Getting back to the original premise, would it be worth it to live Burton’s life? Spear through the face, long periods of starvation and physical suffering, near death experiences, public bickering and a controversial life, venereal disease and depression in exchange for the excitement, the scholarship, phenomenal accomplishment, swashbuckling adventures and derring-do. It is hard to think of a more renaissance character than Burton’s or a life more challenging and fulfilling.
For me, the answer is yes? Apparently, he is everything that I would like to be, and the negatives seem bearable phantoms in comparison (although the spear through the face thing, well . . .).
What say you?
Tuesday, March 06, 2007
The Book Sale [fiction]
“Your Honor, I have advised my client, Mr. Ferramonte, that he should not, I repeat, NOT, take advantage of his Constitutional right (he said these two words, CON-STI-TU-TIONAL rrrright!, as if he had had a clue what was in the constitution) to put a statement on the record before sentencing.”
"I sense you are coming to a close,” Judge Davis says.
That’s my attorney and friend, John T. Stuart, speaking for himself. He’s certainly not representing me now. He’s protecting his reputation. I don’t blame him. I’m acting like a prick. A sullen, spoiled, insane, prick.
Justice David Davis looks down from the bench benevolently. I’m glad he is the judge, because I know no matter how outrageous I am, he will find it in his sweet lovable three hundred pound nature to let me have my say. He is probably the only judge on the bench I could count on. But I will test him. Not just because I’m a prick, but because I’m still angry at what happened to me.
I know this about Judge Davis because I had been in front of him many times myself as an advocate. I didn’t expect him to know me well, or even recognize me. I had never had a big case in front of him and he sees a zillion attorneys every week. But he must have read in the pre-sentencing report from the probation department that I am a practicing attorney. I’m presuming that will not mean he will be going to go easy on me, out of some misplaced ideal of “courtesy” to a brother attorney. First of all, I hate that stuff. Second of all, he’s not going to like me very much.
I intended to go to jail for a fair amount of time.
“Mr. Ferramonte,” begins Judge Davis, “before you speak, I must warn you that I have thoroughly read the entire pre-sentence report sent down by the probation department, and have some knowledge of the nature of your complaint, or, what you claim led you to commit an assault, and I am also aware that you have repeated this story over and over again to the probation department. It’s not going to help your situation any. In fact, it may hurt you to repeat it here, as I see business failure as no excuse for violence. Now, as I am about to sentence you, I would think that you would listen to your very experienced counsel . . . .”
Let me give you a break here, because Judge Davis, who in all honesty, is a great guy, is smiling at me like I was waving an ice cream sandwich in front of his face, and goes on in that vein for longer than you would like to hear. What he is trying to say was “Shut up, be a good boy, and things will go easier for you.” Sorry, judge. That’s not going to happen. I’ll cut to the end of his two-minute speech.
“. . . if you take what I mean. That being said, do you now have anything you want to say?”
I place my hands behind my back. I’m going to let any of these court officers, all packing guns and handcuffs, say that I had made an aggressive motion towards his Honor when this gets hairy. I want to go to jail, not get beat up or shot.
“I surely fucking do, your Honor,” I say.
“What?”
That’s the judge, looking back and forth between my lawyer, the court reporter and the clerk like he is playing all three gunfighters in the climax to the “The Good, The Bad, and The Ugly” all by himself. There were about ten to twenty other defendants with their counsel and family members in the courtroom and about half of them say “What?” outloud too. The rest of them were snickering. The security officer is turning beet red trying not to laugh out loud. The district attorney, who I think I went to law school with, was looking down. Little choked up bits of laughter are coming from his lips. Either that or he’s crying, and I can’t see why he would do that.
“I said ‘I surely fucking do,’ your Honor”.
The judge, the nicest guy on the bench, really he is, looks as if he can’t decide whether to pass out or kill me. He waves franticly to the court reporter and says “That’s not on the record.”
“Oh, but Your honor,” I add “this is a court of fucking record, and everything should be placed (I paused) on . . . the . . .fucking . . . record.”
The courtroom totally loses it and the judge bangs his gavel down hard.
“Counsel,” he snaps, now standing up and bellowing, “approach the bench.”
John Stuart later told me that he was never in such pain from biting his lip, trying not to laugh, as he was when speaking to the judge up at the bench. Don’t get me wrong, he wanted to kill me too, but it was funny. Come on.
Judge Davis and Stuart, who I think is still my friend, are in furious argument, but at the end it is mostly his Honor snarling, and Stuart nodding his head. The district attorney is clenching and unclenching his hand behind his back, so he must be dying inside too. I hear Stuart say something about “a vow” and the “his wife” and “jail.” His Honor says something about contempt and beating the crap out of me himself, and that’s probably all you need to know.
Stuart comes back to my side. He’s not very happy. He whispers fiercely in my ear. “It’s not funny anymore, Ferramonte. He’s going to hold you and ME in contempt if you don’t cut it out now and apologize to the court.”
I nod, showing remorse. His Honor takes this as his cue. “Now, we can go back on the record, which shall reflect that counsel had a conference at the bench, and that we can now proceed in a more professional fashion. I would like to add, Mr. Ferramonte, that you have only pled guilty to a misdemeanor, not a felony. That means you would not automatically lose your license to practice . . . ,"
I’ll spare you once again his Honor’s lengthy speech to me. He just means – now really shut up and behave or you’ll be in such trouble. We’ll jump in at the end of his lecture again.
“Now, I think you were going to say you were finished, and we should move on to sentencing.” He looks so self-satisfied, almost happy.
“I certainly do apologize for my behavior, your Honor, and I hope you recognize that other than my use of an intemperate word, I’ve been ever so fucking respectful, but you know now that I’ve taken a vow.”
That did it. His Honor explodes from his seat, not an insignificant movement for someone his size, and orders counsel to chambers. I can hear a lot of yelling coming from chambers – it’s just outside the courtroom doors – and the folks in the courtroom are smiling and laughing, thinking they could not be luckier to have gotten arrested and be in court on this wonderful day.
Now I told you that this judge is really a good fellow. I’ve never seen him lose his temper before. So, I’m not surprised when he enters the courtroom again with a smile on his face. That’s Okay. It only means he will allow me to have my say, vent my spleen, as they say, and then clobber me with jail time. Good.
He picks up his gavel, flips it around in his hand, and looks at me.
“Mr. Ferramonte. I understand from your counsel that you have taken a vow involving the use of a certain word, which I will not repeat here, in every sentence, for the indefinite future. I also understand that you have advised your counsel that you are standing on a constitutional right to use whatever words YOU feel are most beneficial to your defense. So, right or wrong - and I think you are very wrong - and very foolish, I will allow you to relate your story, if for no other reason, than to speed you out of my courtroom. But, before we do, I am going to clear the courtroom . . . .”
“If I may interrupt, your Honor,” I say, interrupting, whether he likes it or not. “that’s just not fucking possible.” He is looking at me blankly now and waits for me to go on. “I have, as every defendant does, a right to a hearing IN public, and I intend to stand on my fucking rights.”
That was a tough one, as, in my excitement, I almost forgot to say “Fuck,” and just got it in at the end. I don’t want to break my vow so fast.
His Honor sits back, motions with his hand for my counsel and the D.A. to sit. I proceed in my most didactic fashion, hands still clasped behind my back, like a hobbit reciting poetry.
“May it please the court (that’s the way a lawyer starts an argument in court and I just thought it funny to throw it in now – Davis seems to get the irony and smiles down at me, folding his hands on his belly), there is no way I can relate this fucking sad story in a brief fashion, so please bear with me a few minutes. I have lived in Suffolk County for about ten years now, and have decided it’s time to fucking move.”
“Well,” interjects his Honor, “I think I may be able to help you with that one as soon as you are through.”
Fantastic. He was joining in on the fun, and I could already count the days in jail.
“Well, I thank you for understanding, your Honor, but I will move, sadly, because I am about to be sued for divorce by my fucking wife.”
This delights Judge Davis. “Oh, my. How awful, and how difficult to believe.” See, I told you this was a good guy. He was funny too.
“So,” I continue, “realizing that I owned an awful lot of fucking books, I decided to have a sale on my driveway, just like the way you see many people sell their old crappy furniture or knick-knacks. I have never done anything even remotely fucking like this before, but it didn’t seem very difficult to sell a few books. The only thing hard about it was that I that I love my fucking books, more than anything. But I was planning on traveling light and decided to just fucking do it. All by my lonesome self, I took the fucking trouble to haul some bookcases out to the front of my driveway where anyone passing by would see them. Now, keep in mind, I live right on a crossroads, so people are driving and walking by from every fucking direction. I painstakingly filled up those fucking bookshelves with all my precious books. It took a good fucking hour."
I paused a moment for effect. "Now, if you get my meaning, your Honor, I am a fucking patient man, and also one of low expectations.”
“I imagine your wife must have those same good qualities,” cracks His Honor, which was a good one and breaks up the courtroom. Apparently, he is not intending to let a zinger go by unused.
“How fucking droll, your Honor” I replied, which furrows his Honor’s judicial brow a little. “As I was saying before your witticism, I have rather low expectations, and as far as the book sale goes, I didn’t expect to sell fucking many of them. In fact, I was hoping to sell just fucking enough to buy myself a steak at a restaurant down the road from my house. So, I put out a comfortable chair, picked up a good book to reread, and plopped my fucking ass down on the seat. I then proceeded to fucking wait for someone to buy a book. And what would a fucking book cost at my sale, your Honor may be wondering?”
“I was just about to ask.”
“A quarter, a fucking quarter, your Honor. Twenty-five fucking cents.”
“Hmmm,” he says, “that sounds quite reasonable.”
“Some of these books cost up to thirty dollars, but most were paperbacks in very good shape, all great books and for just a fucking quarter.”
I realized that was a run-on sentence, and a stickler might say I technically broke my vow by not using "fuck" twice, but fuck ‘em.
“Well, a lot of fucking time went by, and I started to get the fucking idea that people were just too busy or just too fucking disinterested to stop and buy for a quarter what would cost them at least twenty times as much at a fucking bookstore.”
His Honor interrupted me here. “Excuse me, but I think you had about three or four expletives in that sentence. I was given to understand by your esteemed counsel that you have taken a vow not to speak a sentence without using ONE certain expletive.”
“Yes, your Honor has it ex-fucking-actly, but there is no upper limit.”
“Sorry. I will try not to f . . . ehh (cough) stop you again.”
I knew from my interviews with the probation department that saying "fuck" would be contagious but I didn’t expect to catch him so fast.
“So, there I was, your Honor," I continue, "sitting out there on a beautiful fucking day, and no one wants to even look at a book, never mind buy one. Now, I’ve said that I am a patient man with low fucking expectations, but truth was, I was starting to get pissed. I mean, can it be possible, that I, who spend maybe a couple of hundred dollars a year on books, could somehow be single-handedly fucking responsible for supporting the multi-fucking-billion dollar a year book industry in this ever-fucking-loving country? I couldn’t fucking believe it”.
“Well,” the judge offers timidly, “I read books. A lot, actually.”
“Well, then it’s just too fucking bad that you didn’t drive by when I was having this sale because you could have saved Mr. Logan’s nose, and spared us all this trouble.” He looks down at the file. I think he’s trying to figure out who Logan is. Logan is the poor schnook who ended up getting punched in the nose by me, as a result of which, I was arrested.
I continue. “Eventually, I went inside, your Honor, and I got on that fucking Craig’s List I imagine you’ve probably heard of.”
“Heard of it? I sold my car in just one day on it.”
“Ex-fucking-actly, again, your Honor. That’s just what I was fucking thinking. So, I get on Craig’s List and put up an ad for people to come down and take a look at my fucking books. But you know, fucking what? Not one fucking computer junkie could take a fucking fifteen-minute break and drive down to look at them. Too busy emailing their friends with witty comments like 'What are you doing' 'nothing' and 'wazzup?'"
“Excuse me, Mr. Ferramonte,” interrupts the judge, “could I ask you a question?”
“I’m all fucking ears, your Honor.”
He came close to getting me on this one. I almost just said “Yes.” But I don’t think he realizes it.
“Could you tell me what kind of books you were selling? I mean, were they obscure titles?”
“No fucking way, your Honor, although an excellent point. I do have some fucking obscure books I am keeping, but these were all fucking bestsellers, and they were mostly all in great fucking condition. These fucking people just couldn’t bother to stop and look.”
The judge nods sagaciously.
“So, I go back to my fucking computer," I say, "and I edit my fucking ad on Craig’s List. This fucking time I say that the books are fucking free. Do you hear me, your Honor, FUCKing free.”
“And still no bites, right?” he responds happily. See, once you resign yourself to something you think is going to be horrible, it can become fun.
“Ex-fucking-actly again, your Honor."
"Not one fucking bite, your Honor. So I decide not to wait more than an hour, because it’s two fucking o’clock in the afternoon already, and I’m getting seriously pissed that no one has even gotten out of their car or slowed down while walking by.” I pause.
“Wait a minute,” screams out the judge. “Got you. You didn’t say it . . . . you know, the word.” He’s all smiles.
I was just about to correct him when some women calls out from the audience “He said two fucking o’clock, your Honor.”
The judge just looks over my shoulder at the women who called out, and then at the court reporter, raising his eyebrows. The reporter looks at the screen in front of her and says “’By the defendant -- 'So I decide not to wait more than an hour, because it’s two fucking o’clock in the afternoon now, and I’m getting seriously pissed . . . .’ Should I go on?”
His Honor puts up his hand. “No. Sorry. Go on, Mr. Ferramonte.” He is leaning back in his chair with a great big grin now, and holds out an open palm, face up. “Please,” he says.
“Well, other than one or two drivers who had to slow down because of traffic, I’m getting fucking nothing. So, I go back on Craig’s List, and I edit it once again, this time threatening to brutally and irrevocably destroy the books if someone doesn’t at least stop and take a look. A fucking hour later and I’m back online, this time offering to pay people a quarter for each book they take away. I’m even fucking stopping people on the street like a maniac and asking them to just to look for one minute. And no one, not one fucking person will stop and even look at my fucking books. Now, I know for a fucking fact that if I drove around in my fucking car, there’d be a traffic jam in front of any driveway where they put out some old dusty lamps and their kid’s twenty-year old pajamas with jelly stains on it."
"I sense you are coming to a close,” Judge Davis says.
I do not ex-fucking-actly him, but continue. “Well, I had pretty much fucking had it around five o’clock, your Honor, and I started bringing my fucking books back in the house. I brought in the first bookcase I had the books on, and I have a nice fucking sweat going, because it was heavy. The next thing I know, my wife walks by, and she’s got this fucking smirk on her face. I know ex-fucking-actly what she’s thinking – no one cares about books except you. Right then I wanted to rear back and punch her one, right in her fucking snoot.”
The judge’s eyes are squinting. He doesn’t like where this is going.
“Don’t worry, your Honor, your Honor," I say. "I wasn’t going to fucking hit her. I let her have her fucking joke. I go back outside to bring the last fucking table in when I see this old guy, maybe fifty-five or sixty fucking years old, standing right in front of my driveway looking about. I walked outside and put out my fucking hand, which he politely shakes. I said ‘I knew someone educated would stop by and look at a book."
He fucking smiles at me and says ‘Oh, I’m just waiting here for my granddaughter to come by on her bike. I don’t really bother with reading.”
I stop here and look at the judge. He looks backs at me quizzically and says “That would be Logan, I presume?”
“Fucking Stephen Logan, your Honor. Also known as the fucking complainant.”
“And . . . then you . . . ?”
“Popped him right in his fucking nose.”
The courtroom is in stitches and the judge was trying hard not to smile at that. Poor Logan.
“Is that it, Mr. Ferramonte?”
“That’s all she fucking wrote, your Honor.”
The judge stands up and looks at me, no longer smiling. “Give me five minutes.” He goes into his chambers, I guess to think. I relax and turn around. I’m getting thumbs up from some of the younger defendants, winks from one or two lawyers and even nods from some older folks. I notice only one guy glaring at me, and suddenly I realize its Logan. The poor guy I punched in the nose. He still had a bandage right across it too. I had no idea he was going to be here, and now I’m feeling a little bad. I’m not a bad guy at heart, and didn’t mean to hurt him. It just happened. Frankly, he’s a lot bigger than I am and probably could have kicked my ass if he wasn’t so shocked. Instead, he walked away and called the cops.
Now he’s just glaring at me. I guess he didn’t find my performance very funny. Probably glared the whole time while everyone else was giggling. I’m not sure why, but I sort of nod to him in recognition and turn away.
I feel relieved. Now, the judge can put me in jail for a while and I can get past this nonsense. I may be crazy, but not toooo crazy. I know that he can give me max, one year. But, I will get out in a little more than eight months, getting four off for good behavior. By that time, of course, my job will be gone, my house in foreclosure and I will have defaulted on all our other debts. I won’t even declare bankruptcy. The house will be sold at auction, and I will have nothing left.
But neither will she.
That’s the plan. She can try and divorce me or just sue me, but I don’t care. The last time I see her, I am going to smirk too, just the way she smirked at me when she proved that no one else cares about books. Now she will pay.
The point is, if I have to spell it out for you (I personally hate stories where I have no idea what the point was) is that she thought it was so funny that no one else cared about what mattered to me in life. Books. So, now I was going to show her how much I cared about what matters to her. The house and our stupid furniture.
I know I could just move away, but I like this better. There isn’t much she can do legally while I’m in jail. Not even serve divorce papers on me. Won’t even be able to claim I abandoned her, abused her or sue me for support. What were they going to do, demand I pay while I’m doing time? I don’t think so. Things will spiral out of control for her fast.
And when I get out, I’m going to move fast. . . somewhere far away. She’ll never know where I’ve gone and good luck getting anything from me then. I like the plan, even if it is irrational and wacky, and puts me in a cell. I can use a rest. The good citizens of New York should pay, at least with their taxes, as punishment for not even looking at one damn book.
You can logically quibble with me, argue that I could just put out a hit on her or something, but I wouldn’t do something that crazy. Only just this crazy. And emotionally speaking, it feels great.
Once the judge puts the hammer down on me, there is still one small problem left. My vow, which I take very seriously. I had vowed, after knocking down Logan and getting arrested, that I would not say one sentence out loud without using the word “fuck” until someone bought a book from me for a lousy quarter. Doing time, how was I going to accomplish that?
I am still thinking about this problem when the bailiff, I think his name is Herndon, comes over to me. Me, not my counsel, John Stuart, who is sitting in a chair with his chin in his hand, wondering why he even talks to me, no doubt. Herndon hands me a piece of yellow notepaper, and whispers to me that it’s from the judge. I look at it, look back at the bailiff and unwrap it. Something falls out, onto the floor and bounces. I pick it up and read the note. Now this is interesting.
About a minute later, the judge comes out of his chambers and takes the bench. Everyone stands, of course. When he takes his seat, everyone else sits but me, and my attorney, who is now at my side, for whatever it is worth.
The judge sits down, looks at his hands, and then up at me.
“I suppose every judge gets a case as perplexing as this one once in his tenure, Mr. Ferramonte. Normally, this would be very difficult to decide (Really?, I’m thinking). But I believe I know of a precedent. Now, you know, your attorney has explained to me why you want to go to jail so badly. Not a bad plan, although I do have some moral qualms with it. And he also, as you well know, explained to me all about your vow, which I think you will agree I gave you quite a bit of leeway on.”
“That you did, your Honor.”
“No one has ever used that word in my court before, and you got away with it I don’t know how many times.”
“73. I counted 73 . . . your Honor,” says some older woman in the back of the room.
His Honor nods in appreciation. “I could give you the max, you know. Despite the fact that you are a first-timer, you show no remorse whatsoever.” He pauses again. “Or . . . or, I could do something worse, that will really make you sorry.”
What could be worse? Is he going to have me tortured?
He resumes. “Have you ever seen Miracle on 34th Street?”
“Huh?" I answer, puzzled. "Me? Oh, yes. I’ve seen it a million times. It’s my favorite movie, your Honor.”
“Well, then we have something else in common, young man, other than reading, I mean. Do you remember what the last thing the judge in that movie says at the end of the trial? I’ve always wanted to say something like it in court, but I now give you that honor.”
I had to think a minute. I had seen Miracle on 34th Street a million times, but I had other things on my mind now. This was embarrassing. Then it came to me, and I said it out loud.
“’Since the United States government declares this man to be Santa Claus . . . this court will not dispute it. Case dismissed.’”
The judge looked at me and nodded. “Ex-fucking-actly, Mr. Ferramonte. Ex-fucking-actly. Case dismissed.”
As His Honor gets up and walks back to his chambers, we are all a bit stunned. He has screwed me but good, although no one else in the courtroom knows it except my own lawyer and the DA. My loving audience is actually cheering. Well, maybe not everyone. I can’t really see well, as people are pushing towards me and offering their hands, but I am pretty sure it is Logan shouting from the back of the court “What the fuck? What the fuck? What the fuck did he do?”
John Stuart is just standing around looking at me as if I’m the devil. Maybe I am the devil, but if so, Daniel Webster just kicked my ass again, if you’re familiar with that story. If not, I have it in a book, and you can borrow it.
There’s nothing left to do. So, I walk out, hero of the hour, with everyone making a path before me and patting my back. They are thinking - one of us made it. Because they have no idea what His Honor really did to me. Certainly Logan didn't, or he'd be smiling.
You might have noticed that in my last conversation with the court, I never cursed once. I couldn’t. It would have been disrespectful. My vow was no longer in effect. You see, Judge Davis, who I told was a good guy, had the clerk deliver me a note, with a quarter in it, paying, as the note said, for one book of my choice, to be delivered to his courtroom within 24 hours.
After all, they were only twenty-five cents apiece. I pocket the quarter with the yellow note it came in and walk out into freedom, damn him, trying to figure out what to do about my wife.
*
Author’s note: I really do hate it when I can’t understand a story. I want the point to jump out at me. That's one of the reasons I don’t understand or have much patience for poetry. So, I don’t mind giving you my inspiration and the back story.
I really did try and sell my old books this past weekend, and I did it because I’m planning on moving. Just like in the story, not one person stopped or looked. This pleased my insignificant other (our affectionate little pet name for each other) to no end, as she had predicted that no one would buy a book, gleefully pointing out that, like her, no one cares about books (except, of course, me and readers of this blog).
I did place an ad on Craig’s List, but I didn’t make all those additions that happened in the story. I did think about adding them, though. And while I was sitting there thinking about it, this story sort of wrote itself.
Some inspirations: Well, of course, I’m a lawyer, so the backdrop came easy. The nuttiness of the proceeding, well, that came from that unbelievably silly Nicole Anna Smith hearing in Florida last week, of which I got to watch about an hour or two. I wish you could all see it, because it was just the craziest thing. The names, David Davis, John Stuart, Steven Logan and Herndon are all from President Lincoln’s life. David Davis was a judge, and an influential supporter of Lincoln’s, who in return, put him on the Supreme Court. He actually was rather fat. Stuart, Logan and Herndon were Lincoln’s law various law partners. I just threw their names in to amuse myself.
No, Ferramonte was not a stand-in for Lincoln. Ferramonte is Italian for “Iron Mountain,” same as Eisenberg is in German. So, our foiled protagonist is just my alter ego, although a lot more prickly, I hope. I can’t even really take credit for the pseudonym, as Herman Hesse used it first as a stand-in for his friend, Eisenberg (possibly his agent -- I forget), although I borrow it at times for fun. I imagine I will get a cease and desist letter from Herman Hesse's heirs' lawyer now, which may cause another story to erupt.
The inspiration for the repeated use of the word “Fuck,” which is my favorite curse word and stress reliever, came from my younger brother, who used to use the word so much (“I went to the fucking store to buy some fucking food . . .” being a typical sentence) that I used to make little marks on a piece of paper when we spoke on the phone to count how many times he would use it in a conversation, sort of like the lady in the back of the courtroom in the story. I forget the record, but it was well over one hundred times in one call, I think 124. And Miracle on 34th Street really is my favorite movie, just edging out Casablanca, Raiders of the Lost Ark and The Outlaw Josey Wales. If you haven’t seen it, you must it this Christmas. But ONLY see the original.
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About Me
- David
- I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .