No Comment — June 24, 2007, 6:54 am

Justice in Alabama

Deep in southwestern Alabama sits the town of Monroeville. It’s a sleepy place, not of much consequence since the cotton industry gave out. People in America may think they don’t know it. But then, perhaps they do. This town gave America two of its literary giants. It is the town described in To Kill a Mockingbird. It is the home of Harper’s Magazine contributors Harper Lee and Truman Capote. (Though New York City would go to the mat to contend with Monroeville for the honor of calling itself their home, in fairness the title should be shared.) So inconsequential as Monroeville may be on the Alabama roadmap, in the literary geography of America it is a place of great consequence. It is also a place forever associated with the struggle for justice.

On a searing summer day in the sixties, I went to Monroeville. My grandfather, an administrator with the Alabama Department of Education, had business there. I was visiting for a few weeks in the summer, and he decided to take me along. The humidity was heavy, the heat intense – asphalt seemed to sag under our feet. But my grandfather, who was a compulsive, voracious reader, spoke with some pride. “There’s something about this place,” he said, “to have produced such fine writers. Come along. Maybe some of it will rub off on you.” On the way, what seemed an interminable drive on state roads, we talked about To Kill a Mockingbird, the noble figure of Atticus Finch, and all the bigotry and hatred that lurked just under the surface in Harper Lee’s Monroeville. I couldn’t help thinking that it was not a place we were driving to, but an idea.

“Here in Alabama we have more than our fair share of injustice, we always have. Our people like to go to church and read their Bibles, but the righteous are few and those whose hearts are heavy with thirst for power and money, with hatred, are many.” He told me about the case of the Scottsboro boys, of lynchings, of the pettiness and violence that had marked the courts and law enforcement. He didn’t talk about the march from Selma, which had happened only a few years earlier, but I’m sure he was thinking about that too. It was easy to understand why Harper Lee wrote To Kill a Mockingbird, and why Truman Capote wrote In Cold Blood, he said – it was about coming to grips with justice.
“If you’d lived through what they did, you’d understand why it was so important. There’s a struggle for justice here, a difficult struggle. Someday justice will come, but not just yet.” I sometimes think back to when I resolved internally to become a lawyer, and I think it was that afternoon, in Monroeville, Alabama. And it was the image of Atticus Finch and his quiet and dignified demand for justice that did it. Standing for justice is an ennobling thing. And it can only be done with a clear sense of what justice is. The word gets used so often that it has been stripped of its meaning. But nothing is so fundamental to us as human beings and to our society.

Was the name Atticus coincidental? It is a Latin name, of course. Later in life, I studied classics and I came across the name of Titus Pomponius Atticus, the dearest friend of Cicero, the man to whom De amicitia is dedicated. The man to whom partisan politics was an abomination: the corruptor of society, the subverter of justice. Rather than become involved in the fratricidal squabbles that marked the last days of the Roman Republic, Atticus withdrew from public life. He believed in a reserved judgment, always carefully detached from any bonds of personal friendship, family or partisan alignment. His character has been taken through history, thanks to the glowing portrait of Cicero, as the essence of what is judicious. And then it struck me. This is why Harper Lee took the name “Atticus.” Atticus Finch is the best-named character in the whole of American literature. His character is defined by a love of justice.

And where today is the spirit of Atticus?

“We have a Justice Department that has substantially been turned into a political arm of the White House,” Bruce Fein told the McClatchy Newspapers earlier this week. He went on to say that the public could have no confidence that federal prosecutions of Democrats by the Justice Department were fair. Mr. Fein is a conservative Republican lawyer and legal scholar of some note–the former senior legal analyst at the Heritage Foundation. As the Deputy Attorney General, he was responsible for the operational management of the Justice Department under President Ronald Reagan. Bruce Fein would not make such a charge lightly. He is speaking from knowledge, not conjecture.

His accusations rest on a growing body of evidence. Two professors at the University of Minnesota looked at the Bush Justice Department’s prosecution of cases involving political figures. It showed seven prosecutions of Democrats for every one Republican. These prosecutions are coordinated and directed by the Public Integrity Unit, a group now under suspicion of being the single most politicized part of the Justice Department.

Under the direction of the White House, and particularly Karl Rove, the Justice Department undertook a series of prosecutions designed to undermine the positions of elected Democratic officeholders and help the Republican Party take their positions. In this space over the last two months, I have catalogued a series of cases which suggest White House-driven manipulation of criminal prosecutions. Sometimes the White House has intervened to shut down or obstruct prosecutions of Republicans – a process that started certainly by the spring of 2002, when Jack Abramoff, a protégé of Karl Rove and Tom DeLay, sought White House intervention to fire the U.S. Attorney in Guam. “I don’t care if they appoint bozo the clown, we need to get rid of Fred Black,” Abramoff wrote in March 2002.. And indeed, following White House intervention, the U.S. attorney was fired, a Republican party functionary was appointed in his place, and the investigation that threatened to expose a seedy Abramoff operation involving human trafficking was shut down. Thanks to the role played directly by the White House, the process took only a few days. Similarly, we have documented meddling to protect Republicans in San Diego, Los Angeles, Little Rock, Kansas City, and Arizona.

And then, still more troubling, there is White House intervention to persecute their political opponents: the telltale sign of tyranny. Georgia Thompson was a state contracting officer in Wisconsin prosecuted for corruption when she awarded a bid to a contractor that had made campaign contributions to the state’s Democratic governor. The fact that the contractor was the low bidder was apparently considered irrelevant to the prosecutor. Records later established that the prosecutor in question had been slated for firing by Karl Rove because he was not doing enough to help the Republican Party. However, the Thompson prosecution was hyped to the media throughout the 2006 election campaign in a transparent effort to bolster the GOP’s election chances. And in the end, the prosecutor’s name disappeared from the list of those to be canned. The case resulted in a conviction. Then it came before an all-Republican panel from the Seventh Circuit Court of Appeals, which immediately ordered Thompson’s release and dismissed the whole conviction with a word: “preposterous.” But note: it was a conviction. The U.S. Attorney in Milwaukee actually hoodwinked a group of jurors and a federal district court judge into accepting a ridiculous bucket of slop as a criminal case. It’s a strong testimonial to the fact that in America today, a jury will readily accept that accusations of corruption against a political figure are true, even when there is no evidence, and no corruption.

But the Georgia Thompson case is not the worst. Far, far more troubling still is the conviction of former Alabama Governor Don Siegelman in a prosecution in Montgomery. When this case got started, I was ready to accept what those Montgomery jurors did – namely, what on earth could be surprising about allegations that a political figure sells appointments for money? Isn’t that indeed just the way our system works? And shouldn’t we throw the book at them when they’re caught doing it? Truth is, I never much cared for Mr. Siegelman anyway.

In the meantime, however, I have spent over a month looking at this case. I have spoken with a number of journalists who covered the trial, pulled out and read the transcripts, talked to figures involved in the case. And I have received tips and messages from Alabamians who are trying feverishly to spin the case one way or the other. My conclusion: I have no idea whether in the end of the day, Mr. Siegelman is guilty or innocent of corruption. But that the prosecution was corruptly conceived and pursued and that the court proceedings were corrupted, almost from the outset: that is already extremely clear. This is not a prosecution of a political figure for corruption. It is a political vendetta, conceived, developed and pursued for a corrupt purpose.

How, you may ask, can a prosecution be corrupt? At Columbia University’s Harriman Institute, where I lecture, we frequently engage in the comparative study of criminal justice administration. I have my students read from the works of Andrey Januaryevich Vyshinsky, Stalin’s great legal choreographer and from Arkady Vaksberg’s authoritative biography of Vyshinsky. For Vyshinsky, of course, the criminal justice system existed to identify and punish criminals. But more essential was its political function. If those in power have political enemies, they can throw the enemies out of power or banish them. But this carries with it some risk. The enemies may gain public sympathy over their treatment, and they may regroup and then in the future present a serious threat. The solution advocated by Comrade Vyshinsky is to use the criminal justice system to vilify political adversaries – they will be branded criminals, stigmatized, driven from all office and power. And people will be afraid to associate with them in any way. The “crime” is in the end of the day irrelevant. The process is critical, and indeed, the process must be a public one and the humiliation complete.

What has happened under Karl Rove is not so daring and dramatic as Vyshinsky prescribed. It does not entail “show trials,” nor the brutal extraction of confessions – the technique Vyshinsky dubbed the “queen of evidence.” But it follows the same general plot line and is pursued for roughly the same purpose. Perhaps Rove read Vyshinsky and perhaps not. In any event, he clearly understands the rules of the game.

The Siegelman prosecution was commenced as the result of a plan hatched between senior figures in the Alabama Republican Party and Karl Rove. This connection is not coincidental, because Rove was once fired by the first President Bush and then had to rehabilitate himself. Rove did this in spades, and the place where he worked his political magic was in Alabama. He put together a campaign to engineer the Alabama GOP’s capture of the state’s judicial machinery. It worked brilliantly. And Rove has retained tight connections with the Alabama GOP ever since. Rove and the Alabama GOP leaders set out to destroy Siegelman’s political career and thus smooth the path by which the Republican Party could secure and retain political control of the Alabama statehouse. It was crafted in such a way as to retard the ability of Democrats to raise money from campaign donors so that they might contest office in Alabama. Each of these purposes is “corrupt.” Key to this plan was the use of the machinery of the Department of Justice for its completion – involving the U.S. attorneys offices in Birmingham and Montgomery, and the Department of Justice in Washington. Rove was in a position to make this work and he did so.

The curtain was pulled back on this plan when Dana Jill Simpson, a Republican lawyer who previously worked on a campaign against Siegelman, decided to blow the whistle. Her affidavit described William Canary, a legendary figure in the Alabama GOP, bragging that “his girls” would take care of Siegelman. Canary’s wife is Leura Canary, the U.S. Attorney for the Middle District of Alabama. Alice Martin, the U.S. Attorney for the Northern District of Alabama is a close confidante of Canary’s. He referred repeatedly to “Karl,” assuring that “Karl” had worked things out with the Justice Department in Washington to assure a criminal investigation and prosecution of Siegelman. Canary is a close friend of Karl Rove, and I have documented their long relationship in another post.

The response to Simpson’s affidavit has been a series of brusque dismissive statements – all of them unsworn – from others who figured in the discussion and the federal prosecutor in the Siegelman case, who has now made a series of demonstrably false statements concerning the matter. She’s been smeared as “crazy” and as a “disgruntled contract bidder.” And something nastier: after her intention to speak became known, Simpson’s house was burned to the ground, and her car was driven off the road and totaled. Clearly, there are some very powerful people in Alabama who feel threatened. Her case starts to sound like a chapter out of John Grisham’s book The Pelican Brief. However, those who have dismissed Simpson are in for a very rude surprise. Her affidavit stands up on every point, and there is substantial evidence which will corroborate its details.

This disclosure was treated as explosive news by Time Magazine and the New York Times. However, newspapers inside of Alabama reacted with awkward silence, as if these disclosures were very unpleasant news, best swept immediately under the living room carpet. I will single out the Birmingham News and the Mobile Register. I took some time earlier this week to review their coverage of the Siegelman story from the beginning. It left me wondering whether these publications were really newspapers.

True, they have the look and feel of a newspaper. But their coverage has something oily and sulfurous about it. I previously analyzed a single story from the Birmingham News just to show how it was misleading its readership on every significant aspect of the case. The most critical facts were consistently elided from the discussion, and fake facts were touted up front. Even the headline was such a farce that the News was subsequently obliged to run a correction admitting that it was false.

But if anything the coverage in the Mobile Register is still more outlandish and disingenuous. Moreover, the Mobile paper seems to have a rather amazing relationship with the federal prosecutors handling the case – a relationship that certainly raises questions under Rule 6(e) of the Federal Rules of Criminal Procedure, under which prosecutors are obligated to maintain the secrecy of matters coming before a grand jury. The Mobile Register seems to be the prosecutors’ mouthpiece of choice, in fact, and its extensive knowledge of the prosecutors’ case and evidence was a sure sign that something was wrong. Indeed, when prosecutors begin to conduct a case through the media, that generally means that they are not pursuing a case with the interests of justice in mind, but rather something else.

And the more we dig into this case, the more irregularities mount. Let’s start with the charges against Siegelman. The main accusation is that he appointed HealthSouth’s scandal-ridden CEO to a state oversight board, and in exchange a donation was made to a not-for-profit education foundation which was supporting Siegelman’s efforts to secure a lottery to fund the state’s education system. You might very well ask what would be corrupt about this, and you would be right to ask. This is almost exactly the sort of accusation that the federal prosecutor in Milwaukee, faced with Rove’s threat to fire him, brought against Thompson – and that the Seventh Circuit Court of Appeals labeled as “preposterous.” And indeed, it’s the sort of thing that transpires in the American political environment every single day. For instance, California Governor Arnold Schwarzenegger appeared on a Donald Trump television program recently, and Trump made a payment of ten thousand dollars to help Schwarzenegger “retire his campaign debts.” Was that corrupt? Added to this is the fact that HealthSouth had no interest in anything before the oversight board in question, and its CEO had been appointed to the same board by three prior governors. This is corruption?

But still more striking – astonishing by any measure – is how this same U.S. Attorney and Department of Justice dealt with Siegelman’s successor, current Governor Bob Riley. Riley and many of his senior-most associates are closely tied to Jack Abramoff, perhaps the single most scandal-ridden figure in U.S. political history. I have detailed some of these relationships earlier. Documents that surfaced in the Abramoff investigation suggested that in exchange for millions of dollars in campaign contributions from a Mississippi tribe with gaming interests to his gubernatorial election campaign, Riley would ensure that an Alabama tribe then seeking a license would be blocked. In fact the millions flowed into Riley’s coffers, and he in fact took steps to block the license sought by his own constituents. So what did the U.S. Attorney, Leura Canary, do? Instigate an investigation for corruption? Bring evidence before a grand jury? No. In fact, Mrs. William Canary seems suspiciously involved in the entire scheme. Indeed, she secured appointment to the licensing board for the matter.

And perhaps one should take a second to scrutinize Governor Riley’s appointments to the same board. Riley appointed to head the board a certain Dr. Swaid Swaid, a man who made contributions to Riley’s gubernatorial campaign during the election, and a hefty sum after the election was over, when his appointment was under consideration. Moreover, Dr. Swaid has personal interests before the board – it approved an invention of his. I am not suggesting that there was anything wrong with Dr. Swaid’s appointment. But these facts make abundantly apparent that in the mind of the federal prosecutors there is one standard to be applied for a Democrat, and an entirely different standard for a Republican. That’s corrupt.

There is a second significant charge brought against Siegelman, namely that he accepted gifts from lobbyists. The record on this is still undeveloped, but what I have seen is very strange. For one thing, it shows that the prosecutors were from the outset obsessed with obtaining a conviction of Siegelman to the extent that they exhibited an attitude of total indifference towards other, far more serious crimes, particularly potential crimes involving Republican officeholders. A lobbyist named Lanny Young secured a plea bargain deal by agreeing to give evidence against Siegelman. Young testified that he gave Siegelman specialty advertising items of some value, but he noted that he did exactly the same thing for Republican U.S. Senator Jefferson Sessions and Karl Rove’s protégé Bill Pryor. The federal attorney insisted that this information be suppressed, and the judge trying the case concurred. This is one of a number of bizarre rulings by the judge which were consistently highly prejudicial to Siegelman. And, once more, it reflects a double standard: one rule applies to Siegelman, but another rule altogether applies to Sessions and Pryor.

Prosecutors initially brought the case before a judge in the Northern District of Alabama. He dismissed it with prejudice. The prosecutors then decided to go shopping for a new judge. And they liked the one they found. Not surprisingly, the federal judge handling the case – Mark E. Fuller – has a long record of deep engagement in Alabama Republican politics. He has consistently and quickly overruled defense objections, and also quickly overruled a motion that he recuse himself. The recusal motion asserted that Judge Fuller is the owner of a military contractor that received a $178 million dollar contract from the U.S. Government while the case was pending. The motion also ties one of the prosecutors handling the case to the contract awards. If these claims are correct, then Judge Fuller’s decision to preside over the case offers further evidence of irregularity. However, a judge is usually concerned not about improprieties as much as the appearance of improprieties.

This week, former Governor Siegelman faces sentencing before Judge Fuller. The federal prosecutors handling the case have demanded a sentence of thirty years in prison – in a case which should have been dismissed in the first instance and in any event involves no personal gain of any sort by Siegelman. The prosecutors’ sentencing request was further strong evidence that the case is a vendetta. No doubt a very harsh sentence will be issued.

And no doubt the case will not end there. The Siegelman prosecution is now receiving attention across the United States. No less than six attorneys general have written to Congressional oversight committees noting the gross irregularities and suspicious circumstances of the prosecution, and have requested that Congress conduct direct inquiries into what transpired in this case.
The Siegelman prosecution will in all likelihood soon be exposed for what it is: one of the blackest moments in Alabama justice since the trial of the Scottsboro Boys. But it provides a moment to remember that even in that case, a clear voice was raised, fearlessly pointing to the injustice that was done – at great personal danger. It was the voice of James Horton, the presiding judge in the first Scottsboro Boys trials in Decatur:

Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes it than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Christianity and the uniform lesson of all history illustrate without exception that its perpetrators not only pay the penalty themselves, but their children through endless generations . . .

Alabamians have a legacy of those who strive for justice – Harper Lee, Truman Capote, Frank M. Johnson, and James Horton. And they have a legacy which hesitates to show its face in the sunshine and does them no credit. The time has come for them to decide which they will follow.

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Serving as a US Air Force launch control officer for intercontinental missiles in the early Seventies, First Lieutenant Bruce Blair figured out how to start a nuclear war and kill a few hundred million people. His unit, stationed in the vast missile fields at Malmstrom Air Force Base, in Montana, oversaw one of four squadrons of Minuteman II ­ICBMs, each missile topped by a W56 thermonuclear warhead with an explosive force of 1.2 megatons—eighty times that of the bomb that destroyed Hiroshima. In theory, the missiles could be fired only by order of the president of the United States, and required mutual cooperation by the two men on duty in each of the launch control centers, of which there were five for each squadron.

In fact, as Blair recounted to me recently, the system could be bypassed with remarkable ease. Safeguards made it difficult, though not impossible, for a two-man crew (of either captains or lieutenants, some straight out of college) in a single launch control center to fire a missile. But, said Blair, “it took only a small conspiracy”—of two people in two separate control centers—to launch the entire squadron of fifty missiles, “sixty megatons targeted at the Soviet Union, China, and North Korea.” (The scheme would first necessitate the “disabling” of the conspirators’ silo crewmates, unless, of course, they, too, were complicit in the operation.) Working in conjunction, the plotters could “jury-rig the system” to send a “vote” by turning keys in their separate launch centers. The three other launch centers might see what was happening, but they would not be able to override the two votes, and the missiles would begin their firing sequence. Even more alarmingly, Blair discovered that if one of the plotters was posted at the particular launch control center in overall command of the squadron, they could together format and transmit a “valid and authentic launch order” for general nuclear war that would immediately launch the entire US strategic nuclear missile force, including a thousand Minuteman and fifty-four Titan missiles, without the possibility of recall. As he put it, “that would get everyone’s attention, for sure.” A more pacifically inclined conspiracy, on the other hand, could effectively disarm the strategic force by formatting and transmitting messages invalidating the presidential launch codes.

When he quit the Air Force in 1974, Blair was haunted by the power that had been within his grasp, andhe resolved to do something about it. But when he started lobbying his former superiors, he was met with indifference and even active hostility. “I got in a fair scrap with the Air Force over it,” he recalled. As Blair well knew, there was supposed to be a system already in place to prevent that type of unilateral launch. The civilian leadership in the Pentagon took comfort in this, not knowing that the Strategic Air Command, which then controlled the Air Force’s nuclear weapons, had quietly neutralized it.

This reluctance to implement an obviously desirable precaution might seem extraordinary, but it is explicable in light of the dominant theme in the military’s nuclear weapons culture: the strategy known as “launch under attack.” Theoretically, the president has the option of waiting through an attack before deciding how to respond. But in practice, the system of command and control has been organized so as to leave a president facing reports of incoming missiles with little option but to launch. In the words of Lee Butler, who commanded all US nuclear forces at the end of the Cold War, the system the military designed was “structured to drive the president invariably toward a decision to launch under attack” if he or she believes there is “incontrovertible proof that warheads actually are on the way.” Ensuring that all missiles and bombers would be en route before any enemy missiles actually landed meant that most of the targets in the strategic nuclear war plan would be destroyed—thereby justifying the purchase and deployment of the massive force required to execute such a strike.

Among students of nuclear command and control, this practice of precluding all options but the desired one is known as “jamming” the president. Blair’s irksome protests threatened to slow this process. When his pleas drew rejection from inside the system, he turned to Congress. Eventually the Air Force agreed to begin using “unlock codes”—codes transmitted at the time of the launch order by higher authority without which the crews could not fire—on the weapons in 1977. (Even then, the Navy held off safeguarding its submarine-launched nuclear missiles in this way for another twenty years.)

Following this small victory, Blair continued to probe the baroque architecture of nuclear command and control, and its extreme vulnerability to lethal mishap. In the early Eighties, while working with a top-secret clearance for the Office of Technology Assessment, he prepared a detailed report on such shortcomings. The Pentagon promptly classified it as SIOP-ESI—a level higher than top secret. (SIOP stands for Single Integrated Operational Plan, the US plan for conducting a nuclear war. ESI stands for Extremely Sensitive Information.) Hidden away in the Pentagon, the report was withheld from both relevant senior civilian officials and the very congressional committees that had commissioned it in the first place.

From positions in Washington’s national security think tanks, including the Brookings Institution, Blair used his expertise and scholarly approach to gain access to knowledgeable insiders at the highest ranks, even in Moscow. On visits to the Russian capital during the halcyon years between the Cold War’s end and the renewal of tensions in the twenty-first century, he learned that the Soviet Union had actually developed a “dead hand” in ultimate control of their strategic nuclear arsenal. If sensors detected signs of an enemy nuclear attack, the USSR’s entire missile force would immediately launch with a minimum of human intervention—in effect, the doomsday weapon that ends the world in Dr. Strangelove.

Needless to say, this was a tightly held arrangement, known only to a select few in Moscow. Similarly chilling secrets, Blair continued to learn, lurked in the bowels of the US system, often unknown to the civilian leadership that supposedly directed it. In 1998, for example, on a visit to the headquarters of Strategic Command (­STRATCOM), the force controlling all US strategic nuclear weapons, at Offutt Air Force Base, near Omaha, Nebraska, he discovered that the ­­­STRATCOM targeting staff had unilaterally chosen to interpret a presidential order on nuclear targeting in such a way as to reinsert China into the ­SIOP, from which it had been removed in 1982, thereby provisionally consigning a billion Chinese to nuclear immolation. Shortly thereafter, he informed a senior White House official, whose reaction Blair recalled as “surprised” and “befuddled.”

In 2006, Blair founded Global Zero, an organization dedicated to ridding the world of nuclear weapons, with an immediate goal of ending the policy of launch under attack. By that time, the Cold War that had generated the ­SIOP and all those nuclear weapons had long since come to an end. As a result, part of the nuclear war machine had been dismantled—warhead numbers were reduced, bombers taken off alert, weapons withdrawn from Europe. But at its heart, the system continued unchanged, officially ever alert and smooth running, poised to dispatch hundreds of precisely targeted weapons, but only on receipt of an order from the commander in chief.

Bombhead, by Bruce Conner (detail) © Conner Family Trust, San Francisco, and ARS, New York City. Courtesy Kohn Gallery, Los Angeles

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Happiness Is a Worn Gun

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Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

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