Legislate First, Ask Questions Never

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By Leonard Goodman. Published in In These Times. September 30, 2012.

The comments that Rep. Todd Akin (R-Mo.) made in August about legitimate rape helped expose a sad truth about modern-day Washington, D.C.—it has become entirely disconnected from the people it is supposed to represent. People are shocked that a six-term Congressman could be unaware that the abortion policies he and his party support would require rape victims to carry the rapist’s child. But we all must share responsibility for the ignorance of our leaders.

First, we have not stood up against disastrous federal policies whose pain is borne by the working poor. As former vice president and stalwart abortion foe Dan Quayle once explained during a rare moment of candor, if his daughter ever became pregnant, it would be her “decision” whether or not to have an abortion. Wealthy Republicans can go along with a platform to overturn Roe v. Wade because they know that their daughters will always have the option to travel someplace that has liberal abortion laws.

And because we did away with the draft after Vietnam, today’s wealthy can support disastrous but profitable wars knowing that the fighting and dying will be done by other people’s kids. Just like the wealthy can go along with our draconian and destructive war on drugs, knowing that only the poor will be targeted to serve mandatory 20-year sentences. Rep. Dan Burton (R-Ind.) thus could publicly support a federal death penalty for drug dealers, but when his own son got caught transporting nearly eight pounds of marijuana from Texas to Indiana in 1994, federal prosecutors politely looked the other way.

Perhaps the best example of this disconnect is the federal war on drugs. American taxpayers spend about $50 billion per year to finance this war. It has resulted in skyrocketing incarceration rates with no dampening effect on the availability or consumption of illegal drugs. Nonetheless, the war rages on, into its fourth decade.

But this was not Washington’s first attempt at using federalpower to control the nation’s consumption of intoxicants. In 1919, the federal government attempted to solve the nation’s booze problem with harsh federal criminal penalties. Ten years later, the murder rate had skyrocketed, the country was awash in corruption, and America’s consumption of booze was largely unchanged. In response to this disaster, President Hoover assembled a panel of experts to study the policy of alcohol prohibition. This study revealed a catalog of failure that set the stage for repeal.

Today’s leaders have learned an important lesson from the prohibition experiment. If a policy is politically advantageous—whether it be a war on drugs, a war on terror, or a war on women—never authorize a study of its effectiveness.

In December 1993, then-Surgeon General M. Joycelyn Elders dared to suggest that the federal government “study” the idea that legalizing drugs might help reduce crime. A year later, Elders was forced to resign.

The greatest pressure for a change in U.S. drug policy has come from the states. Many states, burdened by the high cost of incarcerating drug offenders, have sought to at least carve out an exemption for medical marijuana. But the federal government continues to assert that marijuana “has no accepted medical uses,” and in 2005, the Supreme Court found, in Gonzales v. Raich, that the feds can continue putting users and growers of medical marijuana into federal prison despite the conflicting policies of the states in which they reside.

In this opinion, the Supreme Court noted that medical marijuana users and growers had introduced a large amount of scientific evidence as to the therapeutic value of marijuana, citing a study that pointed to its potential use for “pain relief, control of nausea and vomiting, and appetite stimulation.” In contrast, the official U.S. policy that marijuana has “no accepted medical uses” is supported by no science, only by the pharmaceutical lobby, which asserts no homegrown substance can be a medicine.

The Supreme Court in Gonzales v. Raich accurately summed up the situation as follows: Any change in U.S. policy will have to wait until “the voices of voters … may one day be heard in the halls of Congress.” It could be a long wait.

Making Obama’s Kill List

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By Leonard Goodman. Published in In These Times. July 11, 2012.

In 1995 Albie Sachs, then a member of the Constitutional Court of South Africa, helped abolish capital punishment, explaining that his goal was to disable the post-apartheid government from “any temptation in coming years to attempt to solve grave social and political problems by means of executing opponents.”

Sachs understood that reasonable minds can differ as to whether a person who commits a heinous crime deserves to die, but no one can dispute that rulers given extraordinary powers—such as the power to decide who lives and who dies—will sooner or later abuse those powers. Sachs had reason to distrust government. During the apartheid regime, he was held in solitary confinement for his political activism on behalf of the African National Congress; later, he had his arm and eye blown off when government agents tried to assassinate him with a car bomb.

Sachs’ warnings about unchecked power came to mind recently when I read the New York Times article by Jo Becker and Scott Shane about President Obama’s “kill list.” According to Becker and Shane, Obama meets every Tuesday with his advisers to help decide who should be assassinated by killer drones in places like Pakistan, Yemen and Somalia. A February poll by ABC News/Washington Post found that 83 percent of Americans approve of Obama’s use of drones to kill terrorist suspects abroad.

In contrast, support for the death penalty here in the U.S. is declining, with five states voting to abolish it in recent years. Americans have come to accept that the state can’t be trusted with the machinery of death. So why do we trust our elected officials to assassinate terrorists on foreign soil, where they act as prosecutor, judge, jury and executioner?

The likely reason for the difference in public opinion is access to information. Our government says that its drone strikes are “crippling al Qaeda” and only rarely killing civilians. But we the people cannot evaluate this claim because the Obama administration has classified all the evidence, only releasing information at its own discretion. As David Sirota recently noted, Congress is focused not on overseeing the assassination program, but on punishing those who leaked it to the press. Meanwhile, the Obama administration is aggressively prosecuting the whistleblowers who reveal information about the disreputable acts it wants kept secret.

Under the Constitution, Congress should be overseeing the drone program and keeping the administration honest. But this system of checks and balances has broken down in favor of a system in which the political branches of government seek campaign cash from the industries they are charged with regulating—in this case, the corporations making our weapons of war.

Available evidence reveals what Congress might find if it did its job. The New York Times reports that Pakistan and Yemen are becoming less stable and more hostile to the United States. The Washington Post reports that in Yemen, videos of dead children and furious tribesmen holding up American missile parts have flooded YouTube, breeding anger at the United States and sympathy for al Qaeda. The fact that the drone war keeps expanding—from Afghanistan to Pakistan to Yemen to Somalia to the Philippines—also suggests that the strikes are not “crippling al Qaeda,” as we are told.

In a functioning representative democracy, these issues would be investigated and debated. Such an investigation would be useful to the American people who pay for these wars. But it would not be useful to the military-industrial complex, which wants to see the drone war expanded, not curtailed.

While the administration won’t say what evidence it requires to place a name on the kill list, we can glean something from three of the administration’s most celebrated drone kills: Anwar al-Awlaki, Samir Khan and Abu Yahya al-Libi. These men were reported to be clerics and scholars rather than warriors, and appear to have been targeted mostly for their anti-U.S. rhetoric and their ability to influence others.

That raises a question which might be posed by Judge Sachs: What future outspoken critics of U.S. foreign policy might qualify for the kill list, should they dare travel somewhere within the ever-expanding drone-war battlefield?

The original article may be found here.

The U.S. Department of Double Standards

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By Leonard Goodman. Published in In These Times. May 16, 2012.

On April 21, The New York Times reported that Wal-Mart de Mexico paid $24 million in bribes to local land use officials in exchange for allowing the company to build stores in virtually every corner of the country, and to make environmental objections vanish. Although its top executives apparently approved of and helped conceal the bribery scheme – in violation of the Foreign Corrupt Practices Act – the chances that any of them will face criminal prosecution is remote.

It’s not that the U.S. Department of Justice (DOJ) doesn’t criminally prosecute people who pay bribes to avoid land-use restrictions on their property. Rather, the feds prefer to bring such cases against people who don’t have access to corporate lobbyists – or even to private lawyers. According to Bureau of Justice statistics, just one in five felony defendants has private counsel.

Consider the case of Dumitru Curescu, a former janitor who recently faced two federal trials for the crime of paying $10,000 to an expediter for help obtaining a permit to build two additional garden apartments in his 13-unit building on Chicago’s North Side. Curescu, an immigrant from communist Romania who became a naturalized U.S. citizen in 1988, was advised by his architect in 2006 to hire the expediter Catherine Romasanta, when he did his first renovation project. But when he called her again in 2007, she was working as an informant for the feds and recording their calls.

In the fall of 2007, Curescu paid Romasanta the agreed-upon fee and received his building permit. Seven months later, with the renovations nearly complete, federal agents arrested Curescu and his wife Lavinia and seized their building. The feds charged both husband and wife with five counts of bribery and conspiracy.

Financially ruined, the couple chose to fight the case; I was Curescu’s court-appointed counsel. During a three-week jury trial, federal prosecutors played tapes of Curescu’s negotiations with Romasanta and argued to the jury that he and Lavinia knowingly passed a bribe through Romasanta to a city official to get around Chicago’s zoning restrictions.

The jury acquitted Lavinia on all charges but failed to reach a verdict on her husband. The government decided to try again. At the retrial, the prosecutors elicited false testimony from Romasanta about the number of apartments Dumitru Curescu had added during his first renovation project in 2006, thereby making a tape-recorded comment by Curescu about the fees he had paid her sound like a comment about a bribe payment. The prosecutors then falsely argued to the jury that this comment was proof that Curescu knew that his expediter bribed officials. Curescu was convicted on two of five counts and sentenced to six months in prison.

On March 21, Curescu’s appeal was denied. In a groundbreaking opinion authored by Judge Richard Posner, the U.S. Court of Appeals ruled that federal prosecutors may present false testimony to prove their case “hoping the error would not be caught” as long as they can establish on appeal that the “error [did not] reduce the defendant’s likelihood of being acquitted.” “Judges are not to use reversal to punish governmental misconduct,” Posner declared.

New York Times columnist James B. Stewart has written extensively about corporate executives at companies such as Wal-Mart and Tyson Foods, which regularly pay bribes to avoid troublesome regulations. In his recent column about the Wal-Mart scandal, Stewart reports that he “couldn’t find a case of an executive at a major American-based, publicly traded company who was successfully prosecuted and sent to jail.”

Yet the feds spared no expense or ethical restraints to make sure that Curescu went to jail, despite the testimony of his architect that the former janitor had “no knowledge” about the permitting process.

On April 2, after two lengthy and expensive federal trials and an unsuccessful appeal, Curescu entered a federal prison in Oxford, Wis. Three weeks later his bank sent notice that it is foreclosing on the Curescus’ home where Lavinia lives with their three children. Meanwhile, in a recent SEC filing, Wal-Mart predicted its bribery scandal will not have a “material adverse effect on [its] business … or cash flows.”

The original article may be found here.

A Broken Writ, a Kangaroo Court

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By Leonard Goodman. Published in In These Times. March 5, 2012.

On New Year’s Eve, President Barack Obama signed into law the National Defense Authorization Act (NDAA), which authorizes the indefinite detention without trial of alleged al-Qaeda terrorists–including American citizens, if the president so chooses. President Obama issued a signing statement promising not to use these new powers against Americans, which–as comedian Stephen Colbert pointed out–might be comforting if Obama passed another law declaring that no one besides him can ever be president.

Even our current Supreme Court, unduly concerned with the rights of corporations, might find that a law stripping Americans of their constitutional rights based on mere allegations violates the nation’s founding document.

Or perhaps not. The Court was called on once, in 2004, to rule on the legality of holding Chicagoan José Padilla without charges in solitary confinement at a naval brig in South Carolina, but it ducked the constitutional issue and dismissed Padilla’s habeas petition on a technicality.

One of the leading proponents of NDAA, Sen. Carl Levin (D-Mich.), assures Americans that habeas corpus will prevent the president from holding people without cause. But Levin should have checked to see what remains of the “great writ” after 10 years of efforts by government lawyers to weaken it in order to justify the indefinite detention of Guantánamo detainees.

As an attorney for one of the 171 remaining Guantánamo detainees, I can offer a firsthand account of how the writ of habeas corpus has been transformed, at least in “terrorism” cases, from the once-great bulwark against arbitrary detention into a Kafkaesque farce.

My client, Shawali Khan, is an uneducated Afghan man who grew up on an orchard outside of Kandahar. In 2002, Khan was captured by Afghan warlords and turned over to the Americans. At that time, the U.S. government was paying bounties of about $10,000 to Afghans who turned in al-Qaeda fighters. No actual evidence or corroboration was required.

Khan was sent to Gitmo in 2003, based on the word of a single informant. At his habeas hearing in 2010, the government called no witnesses but merely introduced “intelligence reports” indicating that an unidentified Afghan informant had told an unidentified American intelligence officer that Khan was an al-Qaeda-linked insurgent.

Federal appellate courts have ruled in other Guantánamo cases that the government’s evidence must be presumed accurate, thus putting the burden on Khan’s volunteer lawyers to establish that the informant is unreliable. First we demanded the informant’s file to see how much he was paid and what his reputation was for truth telling. But the government said the file was not “reasonably” available. So we asked for the informant’s name so that our Afghan investigator could investigate. But the government refused to declassify the informant’s name.

When the habeas judge requested some corroboration for the allegations against Khan, the government lawyers said that at the time of capture, Khan possessed a highly incriminating hand-written note relating to explosive devices. We demanded to see the note, given that Khan was functionally illiterate. But the note had not been preserved. So we asked to see the “intelligence” report which accused Khan of having the note. But this report had been classified above the security level of Khan’s two attorneys. So we proposed that our colleague, Joe Margulies, who has the highest level security clearance, would sign on as co-counsel to review the report about the note. The government lawyers then provided Khan’s attorneys with a “summary” of its secret report. The judge accepted this summary as sufficient corroboration, and denied Khan’s habeas petition.

The government’s “summary” of the secret intelligence report describing the missing handwritten note is still classified, but I can report that when, in April 2011, WikiLeaks released Khan’s official Pentagon file, it established that the government’s summary was false.

This past September, we filed a motion demanding Khan’s release based on the fact that the government submitted false evidence to justify his indefinite detention. We await a ruling. Perhaps the judge is struggling to reconcile the rule that says the government is presumed to always tell the truth about suspected terrorists with clear proof that it has lied about Khan.

The original article may be found here.

Assassinating the Rule of Law

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By Leonard Goodman. Published in In These Times. November 25, 2011.

Of all the promises made by candidate Barack Obama, it was his promise to end the lawlessness of the Bush years by closing Guantanamo, ending torture and restoring the United States’ reputation for justice that got me out in the streets and knocking on doors. And it is President Obama’s failure to keep these promises that makes it impossible for me to support him again.

President Bush’s foreign policy was roundly criticized by most of the world and by candidate Obama. Following 9/11, Bush’s foreign policy was simple: If my administration decides that you are a terrorist or a terrorist supporter, we reserve the right to invade and occupy your country, kill you or send you halfway around the world to a prison camp.

To implement this policy, administration lawyers wrote memos making it all legal for their masters. First, Bush’s lawyers declared that the one-sentence “Authorization for Use of Military Force” enacted by a frightened Congress one week after September 11, 2001, authorized undeclared wars and the mass incarceration of terror suspects.

But Bush’s team wanted still more power–they wanted legal authority to torture suspects. So Bush’s lawyers wrote memos stating that torture under the president’s command would not violate federal law (which proscribes “torture”), or the U.N. Convention Against Torture, as long as the torturer lacks the intent to cause “prolonged mental harm” or “death or organ failure.” One of these memos, authored by Office of Legal Councel attorney Jay Bybee, included a convenient section called “Interpretation to Avoid Constitutional Problems.”

Bush’s lawyers also wrote memos authorizing the incarceration of U.S. citizens suspected of terror links without charge or trial. But here the Supreme Court drew the line. In the case of U.S. citizen Yaser Hamdi, a terror-suspect born in Louisiana, raised in Saudi Arabia, captured in Afghanistan and sent to Guantanamo, government lawyers argued that it would be “constitutionally intolerable” to require the government to submit any evidence to support its claim that Hamdi is a terrorist. The Supreme Court disagreed. While the court permitted the government to strip Hamdi of most of his constitutional rights, it nevertheless ordered the government to give Hamdi a hearing at which it must present some minimal amount of evidence. But because the government had no evidence that Hamdi was a terrorist, it sent him back to Saudi Arabia–on the condition that he renounced his citizenship.

Obama has carried on where Bush left off. Realizing that captured American-born terror suspects must be given a hearing, Obama decided it would be more convenient to kill them. And he asked the lawyers at the Office of Legal Counsel to write memos stating that killing Anwar al-Awlaki, the American-born Muslim cleric living in Yemen, would not violate the Constitution or federal statutes banning murder and assassinations. Once again, the lawyers set aside the most fundamental rules of legal ethics to serve their master.

The Obama administration has not released these assassination memos, but it did leak an outline of the memos’ legal reasoning to the New York Times. Their analysis is every bit as shoddy as that found in the torture memos. Obama’s lawyers concluded that the administration could legally kill al-Awlaki so long as the CIA says he is playing an operational role in al-Qaeda and that it was not feasible to capture him. The lawyers don’t actually analyze any of the evidence against al-Awlaki–they just declare that Obama may accept the word of the CIA, which is able to bury evidence so it can never be second-guessed.

Al-Awlaki was killed September 30 by a drone strike in Yemen. Presumably his executioner was a CIA agent rather than a soldier in uniform, but the Obama lawyers said that this would also be lawful. The drone strike also killed a second American named Samir Khan, who had produced a jihadist web magazine titled Inspire. Two weeks after killing al-Awlaki and Khan, the administration used its newfound powers to kill another American: al-Awlaki’s 16-year-old son, Abdulrahman al-Awlaki. This strike also killed eight other human beings.

As of this writing, the administration has not come forward with any explanation for the killing of the American juvenile or his companions. Presumably, an unprincipled government lawyer is at work on the justification memo right now.

The original article may be found here.

Feds Focus on Foreclosure Fall Guys

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By Leonard Goodman. Published in In These Times. September 13, 2011.

If you follow the press releases coming out of the U.S. Attorney’s Office here in Chicago, as dutifully reported on by local and national media, you may believe the Justice Department is pursuing an “aggressive, coordinated and proactive effort” against the perpetrators of mortgage fraud. Headlines include: “Federal Investigation Leads to 14 Defendants Charged for Mortgage Fraud” (August) and “U.S. Attorney [Patrick Fitzgerald]’s Financial Crimes Folks Strike Again in $10.5 Million Mortgage Case” (June).

But different views of the performance of our federal fraud enforcers are out there. In Rolling Stone, Matt Taibbi reports that the Securities and Exchange Commission has been captured by the financial criminals it is charged with investigating. He writes, “Somewhere along the line, those at the SEC … fell and hit their head on a big pile of Wall Street’s money.”

In interviews on National Public Radio, William K. Black, litigation director of the Federal Home Loan Bank Board during the S&L mess, lamented that the major culprits of today’s crisis have gotten off scot-free.

How does one reconcile the reports from Taibbi and Black with the press releases touting tough-on-fraud prosecutions? Look no further than at whom the federal prosecutors in Chicago are targeting.

None of the “mortgage fraud” defendants dragged into the grand federal courtrooms at 219 S. Dearborn St. are bankers. Instead, they are realtors, loan originators, “straw buyers” and, occasionally, lawyers. Many of the folks taking the rap for the mortgage mess here in Chicago are minorities. Nearly all are poor and politically powerless.

I was appointed to represent a 52-year-old former train conductor and part-time realtor who, in 2005, attended a seminar on how to use other people’s good credit to invest in property with no money down. During the next two years, Calvin Townsend used straw buyers to purchase 21 homes. Eager-to-please mortgage lenders provided 100 percent financing for the loans, which were then repackaged by Wall Street investment banks and sold to investors.

After each closing, Calvin paid his straw buyers a fee for putting up their credit and agreed to make the mortgage payments. In return, he got the right to re-sell the property and realize the anticipated gains from the then-rising housing market. Calvin was true to his word, using the large commissions he earned as the agent on these sales to make 210 mortgage payments. But in 2007, after the housing market collapsed, none of the properties would sell and his money ran out. His loans went into default. He lost everything, including his own house, and his family now lives in a motel.

In 2008, Calvin was indicted for mortgage fraud together with 20 others on the bottom rung of the mortgage mess. He pleaded not guilty and was tried along with a loan originator and three straw buyers. All of the defendants were indigent and qualified for court-appointed counsel. During the month-long trial, the prosecutors argued that Calvin had defrauded the mortgage lenders–including Countrywide Bank, Fremont Investment & Loan and Washington Mutual Bank–by failing to disclose his arrangements with the straw buyers.

Our defense–that the mortgage lenders couldn’t have cared less about Calvin’s arrangements with the buyers–was eviscerated after the government lawyers convinced the judge that the sins of the lenders were “irrelevant,” and that if any such evidence were introduced at trial, there would be a risk of “jury nullification”–that is, the jury might acquit the defendants because others not on trial were more culpable. Thus, the jury never learned that the lending companies were advertising “liar” loans with “no income verification required” and that their executives were coaching loan officers on how to falsify information about a borrower to get a loan approved.

Calvin and the other defendants were convicted on all counts and now face lengthy federal prison sentences.

The pathetic truth is that the moneyed interests own at least two branches of our federal government–the ones that make the laws, and the ones that enforce the laws. And when federal officials need to send out press releases about their “aggressive, coordinated and proactive effort” to prosecute financial crimes, you can bet that it will be the poor and politically powerless who get clobbered. 

The original article may be found here.

Wall Street Pulls Obama’s Strings

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By Leonard Goodman. Published in In these Times. August 23, 2011.

Whatever grim bargain emerges from the federal debt ceiling and budget negotiations, it’s clear the losers will be poor and middle-class Americans. Less clear is who exactly to blame. Some say President Obama is a bad negotiator–too eager to please, too willing to compromise. Others say the Democratic Party is bad at messaging.

The real culprit is something much more insidious than bad tactics or message marketing. As The New York Times reported in June, Obama is aggressively courting Wall Street donors to support his re-election campaign, trying to convince them that, despite his occasional criticism of corporate jet owners, his policies remain favorable to the “investor class.” And at the same time, the president wants those of us on the left to believe that he can protect the middle class and the New Deal safety net now under attack from the right.

As Franklin D. Roosevelt understood, when painful choices can no longer be put off, leaders must choose a side. In the depths of the Great Depression, he chose to fight for poor and middle-class Americans. Announcing the Second New Deal in 1936, FDR said: “The old enemies of peace”–referring to “business and financial monopoly, speculation, reckless banking” and “war profiteering,” among other forces–“are unanimous in their hate for me–and I welcome their hatred.”

Obama, on the other hand, refuses to alienate any group with a large checkbook. That’s because in America today, both major political parties represent capital, not people, above all. Investors’ interests always come first; the people’s second. To believe they can be simultaneously satisfied is to be conned.

The main reason many on the left are so susceptible to this con is that we underestimate the gravity of our fiscal situation. Left-leaning pundits such as New York Times columnist and economist Paul Krugman correctly point out that the debt ceiling has been raised dozens of times in the past without a fuss and that investors are still willing to buy U.S. Treasury bonds at a low interest rate. But the mere fact that past presidents like Reagan and George (H.W. and W.) Bush have been fiscally irresponsible should not give us comfort.

The United States now faces a legitimate fiscal crisis: It is $14 trillion in debt and spending $1.50 for every $1 of revenue it takes in. This is unsustainable. The bank bailout–which we now know, thanks to Sen. Bernie Sander’s (I-Vt.) audit of the Federal Reserve, included a whopping $16 trillion in secret loans to American and foreign banks and businesses–merely piled on more debt while doing nothing to fix the rot in our largely unregulated and predatory financial institutions.

The manufacturing and industrial jobs that once sustained a vibrant middle class are gone, lost to trade and tax policies designed to accommodate the profit desires of corporations. There is no viable plan to bring these jobs back. Obama’s ploy–claiming to stand up for the middle class while courting Wall Street–is ludicrous, because today the interests of investors are almost entirely opposed to the interests of the middle class. In the last century, U.S. businesses had an interest in the quality public schools and high employment necessary to sustain a competitive labor force and prosperous consumers. But today, reliant on foreign labor (and, increasingly, foreign consumers), multinational companies are comfortable with underfunded public schools and high unemployment. In short, for the investor class, America’s middle class has become expendable.

Corporate Democrats like Obama will lead us to the exact same place as Republicans–toward the dismantling of Social Security and Medicare–because raising the revenue necessary to protect those programs won’t fly with Wall Street. Some may say the GOP will take us there faster, but that’s not necessarily true. If fiscal collapse occurs on Obama’s watch, the right wing will blame it on Obama’s “socialist policies.” Many Americans will believe this lie because they have not heard anyone articulate a progressive alternative to Obama’s policies. The result will be a stronger right-wing backlash and further devastation of what remains of America’s social safety net.

For all these reasons, progressives must challenge Obama and other corporate Democrats, even if it means a different president takes office in 2013. 

The original article may be found here.

Give Americans Healthcare

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By Leonard Goodman. Published in In These Times. April 26, 2011.

One year after the passage of the Obama administration’s signature healthcare reform bill, the future of the legislation is in serious doubt. Opponents have organized vigorous assaults on several fronts. The law’s most progressive features are in danger of being undermined by industry lobbyists, and two federal courts have found the law unconstitutional.

Supporters of the Affordable Care Act (ACA), which Vice President Joe Biden declared to be “a big fucking deal,” have been significantly less enthusiastic in their defense. At a press conference celebrating the ACA’s one-year anniversary on March 23, House Democrats resorted to staged displays of support from a graduate student now on her parents’ insurance plan and from a mother whose child has a pre-existing medical condition.

This enthusiasm gap between supporters and opponents of the ACA is understandable. Advocates of true reform, such as a Medicare-for-all bill or the less radical public option, were shut out of the legislative process and are now being told to embrace a bad bill written by industry lobbyists that strengthens and institutionalizes the for-profit health insurance industry and offers only crumbs for the rest of us.

One problem for ACA is that the attacks on its constitutionality are neither trivial nor purely partisan. The disputed issue is the individual mandate, which requires Americans to buy health insurance from private companies, and was favored by the insurance lobby. Unlike state lawmakers who have general powers to legislate in any area, federal lawmakers are restricted by the Tenth Amendment to only the specific powers set out in Article I of the Constitution. Congress claims power under the commerce clause to require Americans to buy an expensive product from a for-profit company, essentially for life, but such a claim has no legal precedent. (The two cases challenging ACA’s constitutionality are currently on appeal in federal appellate courts; it is anticipated that the questions raised will ultimately be decided by the U.S. Supreme Court, probably in 2012. The individual mandate is scheduled to take effect in 2014.)

A second problem is that ACA’s much-touted industry reforms are entirely dependent on federal regulators for enforcement. As has become increasingly apparent to most Americans, the federal government (under the leadership of both Democrats and Republicans) is incapable of regulating profitable industries such as banks, energy companies, defense contractors or insurance companies.

The 3,000 registered healthcare lobbyists who helped write the ACA have not gone home. They are still in the Capitol making sure that industry profits are protected. To take one example, the ACA requirement that insurers spend 80 percent of their premium dollars on medical expenses–by comparison, Medicare spends about 97 percent of its dollars on medical expenses–is already being undermined by lobbyists who are busy redefining the phrase “medical expenses” to avoid any significant reduction in profit-taking.

The biggest problem with ACA is that it does nothing to fix the problem of rising healthcare costs. To the contrary, it gives even more power to the private, for-profit insurance industry whose executives earn eight-figure salaries for performing a claims-processing function that government bureaucrats could do for a fraction of the cost. And just like with the bank bailouts, too many Democrats have bought into the fiction that if we give even more wealth and power to corporations, those corporations will somehow be persuaded to stop gouging the middle class and working poor. This formula does not work. The rich are get richer while the middle class lose their homes and jobs.

Progressives are told to be practical–Obama’s capitulation to lobbyists will help him raise the $1 billion he will need to defeat an even worse candidate from the right. We must reject this politics of fear that leads us to keep supporting politicians who will sell us out. Corporate Democrats have already taken off the table any solutions that ask the rich to pay more taxes or reduce the trillions we spend on weapons, war or our empire of military bases. Without radical change, the only available response to this crisis will be to gut the few government programs that actually help working people.

A recent article in the satirical newspaper The Onion began: “Citing a desire to gain influence in Washington, the American people confirmed Friday that they have hired high-powered D.C. lobbyist Jack Weldon of the firm Patton Boggs to help advance their agenda in Congress.” The sad truth is that working people cannot compete with corporations when it comes to buying politicians. We must have the courage to turn our backs on corporate Democrats and only support candidates who believe in radical change as policy, and not just rhetoric.

The original article can be found here.

Political Corruption Laws: Absurd Theater

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By Leonard Goodman. January 13, 2011. Published in In These Times.

A sad drama played out Christmas week in Chicago when a federal judge rejected former Illinois Governor George Ryan’s bid to overturn his conviction on corruption charges. The media reports have focused exclusively on the personal tragedy for the Ryan family–the governor’s wife of 54 years and former high school sweetheart, Lura Lynn, has advanced terminal cancer. The Ryan family lashed out at the judge for lack of compassion (and later appealed to prison officials to allow Ryan a daytime release to visit her). But ignored was the larger story of Ryan’s case, which has exposed the absurdity of the laws governing political corruption.

Ryan, a Republican, was convicted in 2006, three years after leaving office, of “honest services fraud.” At his trial, the jury was instructed that it should convict Ryan if he deprived his constituents of the “intangible right of his honest services,” a standard so vague as to allow the government to point to just about any malfeasance in office as evidence of fraud.

The governor’s challenge to his conviction was based on a recent Supreme Court case, Skilling v. United States, in which the Court agreed that the honest services fraud statute is incomprehensible to jurors. But instead of striking down the statute, the Supreme Court said that the government could continue to prosecute individuals for honest services fraud as long as there was evidence that the accused received a “bribe or a kickback.”

Ryan’s lawyers argued that because the governor received no bribe or kickback, his conviction must be overturned. Judge Rebecca Pallmeyer disagreed. While the governor did not receive any bribe or kickback in the ordinary sense of those words, Pallmeyer reviewed several decades of federal law and found that the words “bribe” and “kickback” have been given an expansive definition by the federal courts. Under federal law, a politician receives a bribe or a kickback if he receives “a stream of benefits in implicit exchange for one or more official acts” from a political supporter.

Applying this standard, Pallmeyer reviewed the evidence offered against Ryan during his five-month trial, most of which involved Ryan helping two of his key political backers obtain lucrative state contracts and leases. Based on this evidence, she concluded that the former governor had indeed received a “stream of benefits” from those backers in “implicit exchange” for official acts. Thus, Ryan’s fraud conviction remains viable after Skilling and he must serve out the remaining three years of his six-and-a-half year sentence despite the compelling argument that his ailing wife needs him during her final days.

Ironically, the same Supreme Court that in Skilling green-lighted what now amounts to political prosecutions for honest services fraud, also ruled, in Citizens United v. FEC, that corporations have the right to spend unlimited amounts of money in elections, effectively allowing them to buy their outcome. The consequence of this incoherent state of federal law is that corporate money will continue to flow into the political system without restriction, while the executive branch (through its United States attorneys) will have the exclusive power to decide when this influx of money is criminal and when it is simply the business of politics.

Corporate lobbyists will continue to write the laws regulating their industries. Wall Street firms will continue to receive billions in taxpayer-funded bailouts. But unless a U.S. Attorney’s Office decides to launch an investigation, we the people must accept that there has been no “implicit exchange” of industry money for any official act.

The Ryan family is correct–there is something rotten in the federal justice system. But its anger at the judge who refused to overturn the governor’s conviction is misplaced; deeper reforms are badly needed.

In the meantime, President Barack Obama has the power to exercise compassion and commute the sentences of nonviolent federal prisoners who, like Ryan, were singled out for prosecution by an arbitrary justice system and are needed at home to care for their families.

The original article can be found here

Are We Winning Yet?

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My editorial on the War on Drugs was published in the past Sunday’s Chicago Tribune. View the PDF of the article, or read the article on the Trib’s website.

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