HARVEY SILVERGLATE

Since Harvard came out

HARVEY SILVERGLATE — Thu, 02 Oct 2008 06:23:23 GMT

Freedom watch
It was a typical Harvard alumni event, but not a typical, self-congratulatory Crimson “glory days” fest.

Are universities selling out to oil nations?

HARVEY SILVERGLATE — Thu, 25 Sep 2008 14:16:28 GMT

As big bucks beckon, Gulf campuses of American universities are booming
As Academia searches for elusive dollars in a downward economy, oil-rich nations are enticing American schools to open satellite campuses in the Gulf.

Oil's well: American universities with Persian Gulf campuses. By Harvey Silverglate and Kyle Smeallie.

Old school? No way.
Dozens of elite American universities are establishing satellite campuses in the United Arab Emirates, a region with bottomless petro-dollars but — in the modern era — limited (if not restrictive) academic history and culture. Some of these campuses have the look and feel of an upscale theme park. The UAE University is the oldest institution in the country, established in 1976. Walt Disney World, in Florida, is five years older.

I arrived on the Princeton campus as a bewildered, Brooklyn-born-and-bred public-school product, suddenly thrust into the Class of 1964. The first week, at dinner in the freshman commons, I glanced across the 12-man table (it was only men in those days) to see two austere, well-dressed, neatly bearded undergrads. Overhearing their conversation with another student, I learned that the two fellows bore the last name al-Faisal. “Any relation,” I naively asked, “to the dictator of Saudi Arabia?” Promptly, both stood up and exited. It turned out that they were indeed members of the royal family; one, Prince Saud al-Faisal, would later become the long-serving minister of state for foreign affairs of Saudi Arabia.

For better or worse, this type of encounter will become increasingly more rare in the United States. That’s because foreign potentates, especially those from oil-rich sheikdoms, no longer need to send their children to this country to hobnob with the heathens (and boors) in order to acquire world-class degrees. Enticed by seemingly bottomless petro-dollars, American universities are flocking to the Persian Gulf to establish satellite campuses. And these aren’t the traditional study-abroad programs — they are, rather, elegantly designed campuses with state-of-the-art facilities that bear such prestigious names as Harvard, MIT, Boston University, Carnegie Mellon, and New York University. Now, the well-born-and-bred children of well-heeled oil billionaires no longer have to wander far from the royal palace to do some learning — they can get an American degree right at home.

This development raises questions for universities involved in exporting education — indeed, whole campuses — to far-off very wealthy lands: how will a foreign branch affect the home campus? Will Western educational values clash with the very different cultures of these foreign states? Will certain subjects, such as humanities courses that challenge traditional views about academic freedom or gender roles, be taboo? Will earning a Georgetown degree in Qatar — not DC — require the same intellectual rigor and hard work? And, most fundamental, what is motivating American academic institutions to set up remote campuses in such seemingly unlikely places where a culture of learning as we know it has not exactly taken root? The answer tells us much about the trend toward the corporatization of American higher education.

A legal setback for Charlie

HARVEY SILVERGLATE — Wed, 20 Aug 2008 20:21:55 GMT

Freedom Watch
Free speech has won in the struggle between the MBTA and three MIT undergrads who claim to have uncovered flaws in the T’s electronic fare-collection system.

Free speech has won in the struggle between the MBTA and three MIT undergrads who claim to have uncovered flaws in the T’s electronic fare-collection system. At a follow-up hearing on Tuesday, Federal District Judge George O’Toole, who earlier had continued an emergency 10-day temporary restraining order prohibiting the students from disclosing their findings, reversed course and denied the MBTA’s request for a preliminary injunction.

Tuesday’s hearing was Round Three in the T’s legal struggle to silence the students.

A quick recap: on August 9, Judge Douglas Woodlock issued a temporary restraining order, one day before Zack Anderson, R.J. Ryan, and Alessandro Chiesa were scheduled to deliver their insights on re-programming Charlie Cards (thus implying free rides — at least for select geeks) to the DEFCON hackers’ convention in Las Vegas. O’Toole continued the order at an interim hearing, held August 14, but promised to resolve the question on August 19, after further study. At that most recent hearing, O’Toole recognized the MBTA’s flawed arguments and refused the injunction.

How, until Tuesday, it was deemed lawful to prohibit speech when the only thing at stake was the MBTA’s possible loss of revenue, has left First Amendment advocates scratching their heads. The Supreme Court ruled in 1931 that speech could be enjoined in advance of its being spoken or published only in the “exceptional cases” where, if the speech were allowed, there would be irreparable, dire consequences. The example given was the so-called troop-ship scenario, where “a government might prevent actual obstruction of its recruiting service or the publication of the sailing dates of transports or the number and location of troops” in time of war.

Over the years, other high-court decisions echoed this high standard for “prior restraint of speech.” In 1969, the court ruled that a speech advocating violence could not be prohibited in advance unless it involved “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (That case involved a KKK rally where speakers suggested violence against blacks and Jews.) And in 1971, there was the mother of all subsequent-prior-restraint decisions: the Supreme Court allowed the New York Times and the Washington Post to publish the Pentagon Papers, a leaked classified report detailing US involvement in the Vietnam War, despite government claims that national security would be irrevocably compromised. Publication even of those controversial documents was not deemed to fit the “troop-ship exception” (though post-publication criminal prosecution was left open).

Parody flunks out

HARVEY SILVERGLATE — Wed, 30 Jul 2008 20:33:41 GMT

Political humor is no longer welcome in Academia as administrators choke the life out of parody
Artist Barry Blitt’s brilliant illustration — which sought to satirize the naysayers who portray Obama as a flag-burning, unpatriotic Muslim and his wife as a black-power radical — cut to the core of today’s political paradox.

When I first saw the cover — yes, that cover — of the New Yorker, I expected the swift and nauseatingly self-righteous condemnation it received from the TV personalities and politically correct pundits. That’s par for the course in the knee-jerk, brain-dead, humor-free Oughts. But what caught me off guard, even in this Age of Cynicism, was that Barack Obama joined their ranks: his official campaign spokesman, Bill Burton, labeled the lampoon “tasteless and offensive.”

Artist Barry Blitt’s brilliant illustration — which sought to satirize the naysayers who portray Obama as a flag-burning, unpatriotic Muslim and his wife as a black-power radical — cut to the core of today’s political paradox. The cover received so much attention, it has even led to meta-parodies, the most amusing of which was offered by the New Yorker’s sister publication Vanity Fair, which depicted a wobbly, walker-wielding John McCain and his wife in the same setting and artistic style. Still, the Illinois senator’s heated, visceral attack of the parody led me to ask: how can Obama, such a brilliant student of American law, politics, and culture, not get the joke — or at least not recognize that the joke was on his enemies?

But then I realized I had failed to account for what can be called the Harvard Factor. The presumptive Democratic presidential nominee had, after all, been elected to the staff of the Harvard Law Review in the late 1980s and assumed the presidency of that august publication in 1990. By that time, the strictures of political correctness had seeped into all levels of American higher education and had utterly destroyed the sense of humor of so many college and university students. At the very least, this atmosphere stifled them from admitting (to anyone but their friends) that they even got a joke involving matters of gender, race, sexual orientation, religion, or any other hot-button issue at the center of the nation’s culture wars. And, as was predictable, the intellectual rot that began to infect the academy in the mid 1980s spread to the “real world” within a single generation. All of this displaced outrage, by Obama and many of his supporters, suddenly made sense.

The Harvard factor
Interestingly, it was Harvard Law School, regarded by many as the apex of legal education (and located in the heart of liberal Cambridge) that early grappled with the appropriateness of punishing students for engaging in satire and parody. With the eyes of the higher-education elite watching, the fabled law school established, in the early ’90s, that a written parody poking fun at a female member of the academic community is no different than punishable “sexual harassment.”

Habeas-corpus rights restored to enemy combatants

HARVEY SILVERGLATE — Wed, 18 Jun 2008 20:56:17 GMT

One of our most important civil-liberty victories to date
This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts.

This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts. This moving reaffirmation of the so-called Great Writ of habeas corpus was probably the high court’s most important civil-liberties decision in my lifetime (and I was born in 1942). Habeas, put simply, forces jailers to produce in court legal justification for a prisoner’s incarceration. It is appropriately considered the most fundamental right of free people living under the rule of law. It is also the oldest, having been enshrined in the Magna Carta in 1215, when English barons first challenged the unchecked rule of the Crown.

We can all think of rights that deserve protection, such as privacy, property ownership, reproductive freedom, and marriage equality. But a leaner set of rights exists that functions to put Americans in a position from which they may fight to secure all the others. Free speech is perhaps the most familiar, and the right to vote is another. But the universal human right not to be held incommunicado in some government’s dungeon or gulag is too. Habeas might actually be the most important of all, as free speech and the electoral franchise are cruel jokes when attempted to be exercised from a dark, isolated cell.

Today, the prospect of a trip to the gulag might seem antiquated — but in fact repressive regimes in China, North Korea, and even Egypt have kept it a modern-day reality. The lust for unrestrained power is the exclusive province of neither the political left nor the right. We’d all do well to remember Aleksandr I. Solzhenitsyn’s monumental The Gulag Archipelago: 1918–1956, which depicted the gulags of the Soviet Union, and Jacobo Timerman’s Prisoner Without a Name, Cell Without a Number, which told of his 1977 disappearance into the torture chambers of the fascist Argentine junta. It is hardly beyond imagination that imprisonment without government accountability could come to American shores and affect not only aliens but even Americans.

Such concerns might seem a bit hysterical, but early in the “war on terror,” an American citizen, Jose Padilla, was arrested in Chicago, detained incommunicado in New York, and — in a shell game designed to evade judicial oversight — transferred to a military brig in South Carolina. As I explained in the Phoenix, the Supreme Court declined, on a technicality, to determine whether he was being held properly: his lawyers had filed their lawsuit in the wrong court because, by the time the judiciary considered the case, Padilla had been moved, in the middle of the night, to South Carolina. That case demonstrated that the Bush administration would go to great lengths to avoid judicial review of its treatment of suspected terrorists — even if they were citizens.

More police, less Harvard

HARVEY SILVERGLATE — Wed, 16 Apr 2008 18:01:51 GMT

Freedom watch
The Harvard Crimson reported this week the arrest of two non-student demonstrators at a student-organized protest in front of Holyoke Center.

The Gray Lady, the FCC, and indecency

HARVEY SILVERGLATE — Wed, 26 Mar 2008 19:48:30 GMT

Freedom watch
Phoenix readers must think I’m obsessed with four-letter locker-room words, but I’m really not.

The briefly indecent Boston Globe

HARVEY SILVERGLATE — Wed, 19 Mar 2008 21:06:46 GMT

Freedom watch
It was startling to see the Boston Globe ’s online edition publish a Reuters wire-service article on Monday, March 17, containing the words “fuck” and “shit.”

Newspapers censor Bono’s ‘fucking’ gaffe

HARVEY SILVERGLATE — Wed, 12 Mar 2008 17:29:45 GMT

The FCC’s ‘broadcast indecency’ rules: Still, well, bullshit
Why does our ostensibly “free” press insist on acting like prudes or cowards when reporting stories for which it’s vital that readers learn someone said “fuck” rather than an undefined “expletive”?

Why does our ostensibly “free” press insist on acting like prudes or cowards when reporting stories for which it’s vital that readers learn someone said “fuck” rather than an undefined “expletive”? Since the broadcast networks’ legal fight over crippling fines for on-air obscenities is back in the courts, it behooves the print medium to do its duty when actual four-letter beasties tell us more than polite but evasive circumlocution. It is time for the press to once again find its reportorial balls.

When the Federal Communications Commission (FCC) petitioned the Supreme Court this past week to weigh in on whether it can levy substantial fines against television networks for so-called fleeting expletives — spontaneously uttered obscenities on live television that a station’s censors fail to catch in time to suppress (think overexcited Cher dropping an f-bomb at the 2002 Billboard Music Awards on Fox, or U2’s Bono dropping his on NBC’s 2003 Golden Globe Awards broadcast) — the print media had a peculiar way of covering the story. The Boston Globe ran a shortened version of a March 2 Los Angeles Times piece, and never bothered to mention the actual words that landed Fox and NBC in such trouble with the FCC. The fuller Times story, by its staff writers David G. Savage and Jim Puzzanghera, hinted at the actual language at the heart of this dispute, but stopped short of printing Bono’s exclamation, “that is really, really fucking brilliant”; nor did it reprint Cher’s “fuck ’em,” directed at her critics, opting to write “f - - - ’em” instead.

American newspapers enjoy the First Amendment’s formidable protections to the maximum. So why do they voluntarily avoid printing expletives, and slang words with sexual connotations, even in cases where the controversial language itself is central to the news story being reported? Does the press really want to be seen as buying into the FCC’s bullshit that publishing these words is “indecent”?

Publish or perish
The American press is much freer than radio and television broadcast media. Under a dubious theory that the public (i.e., the government) owns the broadcast airwaves, the FCC can fine broadcast outlets up to $325,000 per violation per station if they broadcast “indecent” material. But newspapers are allowed to publish whatever they wish, subject to the obscenity laws that regulate speech at the extreme ends of the spectrum of offensiveness (examples of illegal obscenity include salacious photographs of excited sex organs or gratuitously titillating sexual acts, or words describing such acts, subject to geographic variations to account for local community standards). Newspapers are also subject to other narrow exceptions of free-press rights, including national security, defamation, and copyright.

Truth and illusion

HARVEY SILVERGLATE — Wed, 30 Jan 2008 22:06:45 GMT

The Big Dig settlement
There is a word for when a private party threatens to get someone indicted unless money is paid: extortion.

In radio and television interviews this past week, Massachusetts Attorney General Martha Coakley tried to put the best possible gloss on the $458 million state-federal civil settlement her office, along with the United States Attorney’s office in Boston, arranged with Big Dig contractors for their shoddy work on the project. (The consortium of Bechtel/Parsons Brinckerhoff is paying $407 million of that princely sum.)

But the ugly reality is that the state, desperate to fill its depleted coffers after the worst public-works boondoggle in US history, encouraged contractors to fork over big bucks in the civil settlement in order to avoid a criminal indictment for the ceiling collapse that killed motorist Milena Del Valle in July 2006. (The settlement agreement assures no indictment.) As we pointed out back in August of this past year, there is a word for when a private party threatens to get someone indicted unless money is paid: extortion.

In an interview on WBUR-FM on the morning of January 24, Coakley tried to finesse the PR-unfriendly image of the state strong-arming wealthy businessmen to buy their way out of a criminal prosecution. It was a task made more delicate since the only subcontractor to be criminally indicted so far is Powers Fasteners Inc., a relatively small, family-run epoxy manufacturer unable to come up with big “protection” bucks.

Even though “I believe that we have sufficient evidence to charge” the consortium with manslaughter, Coakley said, “we didn’t have evidence to support criminal charges against an individual” within Bechtel/Parsons Brinckerhoff. And to indict Bechtel and the other companies, she went on, would be a token gesture, since “corporations don’t go to jail.” (The maximum sentence for a corporation found guilty of manslaughter — the charge that would apply to criminal liability for the fatal tunnel-ceiling collapse — is $1000.)

Coakley managed to slide by an interview with WBUR host Bob Oakes without being asked the proverbial 64-thousand (or, more accurately, half-billion) dollar question: since corporations commit crimes only by the actions of their human officials and employees, how can you have had sufficient evidence to indict the corporation, but not enough to indict the individuals whose actions and inactions made the corporation into an alleged criminal?

This is not to say that any individual at Bechtel did commit a crime that led to Del Valle’s tragic death. Such a conclusion would ultimately have been up to the judicial system to reach. But that is impossible now because, despite US Attorney Michael Sullivan’s boast in the New York Times “to vigorously investigate and prosecute those who have perpetrated a fraud on the American people” in this case, prosecutors prioritized balancing the budget over pursuing justice.

Ring of fire

HARVEY SILVERGLATE — Wed, 23 Jan 2008 19:03:26 GMT

The deadbeat FBI fails to pay its phone bills and jeopardizes its wiretapping program
An ugly squabble between the Federal Bureau of Investigation and the nation’s biggest phone companies has, in one nasty blow, recast the image of all the entities involved.

An ugly squabble between the Federal Bureau of Investigation and the nation’s biggest phone companies has, in one nasty blow, recast the image of all the entities involved. It will now be difficult not to think of the FBI as a deadbeat and hypocritical agency, nor of the phone giants as disloyal and hypocritical dollar chasers, thanks to a problem concerning payment for the FBI’s wiretap program.

The reason that the nation’s top phone companies stopped spying on their customers, it turns out, was not due to a sudden fit of conscience, ethics, or loyalty. Rather, when the FBI stopped paying its phone bill for wiretapping services, the phone companies stopped performing their patriotic duty, ceased serving their government masters, and focused instead (dare we say predictably?) on their corporate pocketbooks.

(Recall that the companies had relied on a claim of patriotism when seeking to defend themselves against criticism and lawsuits for unlawful invasion of customers’ privacy. This was the telecommunications industry’s mantra when it lobbied Congress for immunity from such lawsuits.)

And so we are wronged once again, this time by the knowledge that our telecommunications providers betrayed us not out of idealism nor duty, but for money.

The FBI, by not paying its bills for wiretapping services, likewise put the lie to the notion that our national security depends upon warrantless snooping. Yeah, it’s a great weapon for detecting terrorists in our midst, say the Feds, but not worth paying for. And then, when the FBI found it necessary to defend its disastrous bookkeeping — something the Department of Justice (DOJ) has indicted many an individual or corporation for — it sought cover from a supposedly “independent” outside auditor that turned out not to be quite so independent.

But we’re getting ahead of our story.

Patriots for hire
After years of vocal protest, privacy advocates at the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and Electronic Privacy Information Center (EPIC) finally got their wish: part of the federal government’s warrantless surveillance program has begun to unravel. The major telephone companies announced on January 10 that they would no longer cooperate with the FBI’s wiretapping program. One would think that civil libertarians are rejoicing over the news. But the more one learns about the true reasons behind the wiretapping program’s partial demise, the more disillusioned one becomes.

Torture-tapes template

HARVEY SILVERGLATE — Wed, 16 Jan 2008 22:39:29 GMT

Bush-administration lawyers could be nailed for their role in destroying evidence in the CIA scandal, thanks to a quiet Connecticut child-porn case
Did the Bush-administration lawyers, and the CIA operatives they advised, commit obstruction of justice by destroying the now-infamous CIA-interrogation videotapes?

Did the Bush-administration lawyers, and the CIA operatives they advised, commit obstruction of justice by destroying the now-infamous CIA-interrogation videotapes? A recent but little-known obstruction prosecution in a Connecticut federal court sheds light on how this pivotal question is likely to be resolved, and could serve as a template for how the Department of Justice will prosecute those involved in the tapes scandal.

In October 2006, officials of Christ Church of Greenwich approached well-reputed local attorney Philip Russell for legal advice when they discovered child pornography on a church computer assigned to its organist, Robert Tate. After considering the options, Russell advised the church to fire Tate, recommended to the dismissed employee that he obtain his own lawyer, and then destroyed the computer’s hard drive.

Many lawyers — myself included — might have advised and acted much as Russell did. Had he left the images intact, he would arguably have put the church, and himself, at further risk of being prosecuted for the possession of contraband. Child pornography, like heroin and a few other such items, is in a legal category that makes it criminal to possess under virtually any and all circumstances.

Had Russell handed over the laptop to the FBI with the hard drive and files intact, he could have incriminated his client — the church, or its officers. And unless the FBI believed that no church official knew about or condoned that particular use of the church’s computer, the church could be liable for the hard drive’s contents, because it technically owned the computer.

Advising a client about what to do with contraband found on its premises is one of the most challenging scenarios a lawyer faces, requiring difficult and controversial judgment calls. Lawyers and legal ethicists differ as to how it should be dealt with under various circumstances. Yet federal prosecutors in the United States Attorney’s Connecticut office shocked nearly everyone, including members of the Connecticut bar and legal experts, when they indicted Russell in February 2007 on obstruction-of-justice charges for destroying the pornographic images.

The FBI had begun investigating the church’s organist three days before Russell destroyed the hard drive, but the fact that Russell had no knowledge of the investigation was irrelevant to the feds. This is because he was charged not under traditional federal obstruction-of-justice statutes — where one has to know of the existence of an investigation in order to be guilty of obstructing it — but rather under two relatively new provisions of the so-called Sarbanes-Oxley Act, named after its legislative sponsors.

Ouch!

HARVEY SILVERGLATE — Wed, 26 Sep 2007 17:07:55 GMT

The DEA’s bad-faith war on pain doctors
Things haven’t been going well as of late for Needham-based chronic-pain specialist Dr. Joseph Zolot.

Things haven’t been going well as of late for Needham-based chronic-pain specialist Dr. Joseph Zolot. In May, state and federal officials seized his office records. One month later, the state Board of Registration for medicine revoked his license. Now that the US Drug Enforcement Agency (DEA) and local police have launched a criminal investigation into whether he overprescribed narcotic painkillers such as OxyContin to patients, Zolot’s troubles are about to multiply.

The notion that Zolot crossed the line that separates legitimate treatment from enabling destructive narcotic addictions — that is, the line between ethical doctoring and a serious federal felony — presumes that such a distinction has been made. In fact, federal drug-enforcement authorities have never given physicians much guidance as to what constitutes legal versus criminal prescribing conduct.

Yet the feds continue to prosecute a handful of pain specialists every year, sending well-meaning doctors into a panic that they, too, will be the victim of ill-defined laws. For Zolot, that threat is all too real, as his will likely be the next name on the docket.

Disappearing standards
The relationship between pain doctors and the federal government has long been strained, dating back to the advent of the “war on drugs” in the early 20th century, when opioids and other analgesic drugs were first regulated.

At the time, medical professionals resented anti-drug bureaucrats for dictating what modes and amounts of anti-pain medication were appropriate. Yet in recent decades, doctors have accepted that government interference is likely here to stay. Their main complaint now is not that the government seeks to regulate prescription drug use; it’s that the laws are so vague.

Given the medical difficulties of treating patients in acute pain (or those who are willing to fake pain in order to get narcotics), this state of affairs poses grave legal dangers to conscientious physicians.

But it doesn’t have to be this way.

In 2004, in a rare and long-overdue gesture of cooperation with health-care professionals, the DEA produced a pamphlet, also posted on its Web site, titled “Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel.” The tract, co-written with the Pain & Policy Studies Group at the University of Wisconsin, was a well-reasoned and thorough guide to prescribing controlled narcotics. June Dahl, a University of Wisconsin-Madison professor of pharmacology, even hailed the guidelines as “a great step toward reducing the barriers” to the treatment of severe pain.

The Big Dig in court: a citizen's primer

HARVEY SILVERGLATE — Wed, 15 Aug 2007 21:01:53 GMT

Freedom watch
The Big Dig may at long last be 99 percent completed, but the finger-pointing is just in the early stages.

The Big Dig may at long last be 99 percent completed, but the finger-pointing is just in the early stages. Attorney General Martha Coakley kicked things off last week with her indictment of the Dig's epoxy manufacturer, Powers Fasteners, on one count of involuntary manslaughter in the death of Boston resident Milena Del Valle, who died in the I-90 tunnel collapse last summer.

As the worst boondoggle in public works history slowly winds its way through our court system, "Freedom Watch" offers a word of advice to Phoenix readers: be skeptical of our state government's every move.

It is surprising, given how untrustworthy the Commonwealth has proven to be in handling the Big Dig (not to mention other construction projects, such as the crumbling buildings at UMass), that the local media didn’t approach the indictment with more skepticism. Here's what to watch out for as this story continues to unfold.

Has Powers Fasteners been indicted to deflect blame from the Commonwealth? According to documents released to the media, the Massachusetts Highway Department was warned back in 1999 that one of Powers Fasteners’ two kinds of epoxy, the one referred to as "quick-set epoxy," had failed a crucial “creep test,” indicating a potential for the anchors holding the tunnel ceiling to slip. The “quick-set epoxy” could safely handle a variety of uses, but not the task of holding the heavy ceiling panels.

If this is true, it means that Powers Fasteners' role in the tunnel collapse can be seen as no more than minimal and most certainly does not rise to the threshold necessary to prove manslaughter, which is defined as “an unlawful homicide unintentionally caused by wanton and reckless conduct.” Since the attorney general's office is seeking to recover perhaps hundreds of millions of dollars from the various contractors for the project's overall flaws (and there are many), it would throw a huge monkey wrench into that pending civil suit if it turned out that the state highway department was largely at fault for the Del Valle catastrophe.

And why is it that the general contractors of the overall project — giant consortium Bechtel/Parsons Brinckerhoff — was not charged for its role in allowing the use of glue that the project managers had been warned not to use? The Bechtel consortium had a much larger role in the Big Dig than did Powers Fasteners.

Powers Fasteners' president, Jeffrey Powers, has said: "The only reason that our company has been indicted is that, unlike others implicated in this tragedy, we don't have enough money to buy our way out."

It’s time for some real judicial activism

HARVEY SILVERGLATE — Wed, 09 May 2007 17:26:19 GMT

Freedom Watch
There is a time and a place for “judicial activism,” no matter what so-called conservatives say.

There is a time and a place for “judicial activism,” no matter what so-called conservatives say. If ever there were a time, it was last month when the Supreme Court was asked to hear a case that would have tested the constitutionality of President Bush’s controversial Military Commissions Act of 2006 (MCA). If ever there were a place it is Guantánamo Bay, where detainees have been held indefinitely without clearly defined procedures for determining their guilt or innocence of charges that are shadowy and ill-defined — a situation that makes a joke of the rule of law. But the Supreme Court went passive and decided not to hear the case — brought by petitioners held at that hellhole for more than five years who insisted on their habeas corpus right to review and challenge the evidence against them — in what is quickly turning out to be one of the court’s most horrific blunders in recent years.

At issue was whether the federal courts’ right to review the legality of a prisoner’s detention extends to Guantánamo, or whether the MCA placed Guantánamo beyond the reach of the courts. As a result of the Supreme Court’s demurral, a newly confident Justice Department, feeling much less pressure to restore any semblance of due process and transparency to its military tribunals, has brazenly placed further limitations on the already scarce rights of Guantánamo detainees. Just last week, the Justice Department announced that it would severely limit visits to Guantánamo prisoners by pro bono lawyers who have, in the past, proven somewhat effective in keeping their clients’ plight in the public, political, congressional, and judicial eye.

It’s no wonder prisoners at Guantánamo are rapidly losing confidence in their lawyers, as the New York Times reported on May 5. Since we don’t have a president who honors basic constitutional rights, and we don’t have a congress that has yet shown the cajones to repeal the MCA (which would require a veto-proof super-majority), it was particularly urgent that the Supreme Court demonstrate its continued willingness to try, at least, to impose the rule of law on a lawless administration.

Why the Imus cave-in is bad for free speech, radio, and the whole society

HARVEY SILVERGLATE — Thu, 19 Apr 2007 19:28:45 GMT

Freedom watch
I was never a fan of Don Imus.

When CBS silenced Don Imus last Thursday by terminating his program under the enormous public outcry led by self-appointed racial-decency czars Al Sharpton and Jesse Jackson (about whom more later), it was not good for free speech or for racial and gender harmony. Nor was it good for the already low level of public discourse to which our culture and media have fallen prey.

While growing up on the streets and alleys of the Bensonhurst section of Brooklyn, in a neighborhood populated about half by Jews and half by Italian Catholics, I came to appreciate the stings but also the benefits of what has since come to be called “hate speech.” The stings were obvious; it did not feel great being called a “dirty Jew” by the kids on my block. But there were also benefits to it. By listening to which of the kids called me names, I knew which ones to stay away from. Hate speech, in other words, had what, in my later legal career, would be called “redeeming social value.” Besides telling me which kids hated me merely for my religion, I also sensed that by getting their rocks off calling me names, the hostile kids were perhaps less prone to punching me. So I learned never to complain to Vinnie Calladrushio’s mother that he was calling me names; it was not in my long-term interest to silence the expression of what he felt toward me.

When I studied and then practiced law, these early lessons in the social benefits of hate speech were confirmed. I was pleased that the Supreme Court appeared to agree with me (or vice-versa, I suppose). In 1985, a Circuit Court of Appeals declared unconstitutional a municipal anti-pornography ordinance in Indianapolis that allowed “victims” of the sale of porn to sue the purveyors for violating women’s “civil rights” by demeaning them. Supporters of the ordinance claimed that pornography, freely on sale all around us, resulted in the “subordination” of women and in turning women into “sex objects.” The Court of Appeals had declared the ordinance in violation of the First Amendment, because it sought to promote a “preferred viewpoint” on the issue of relations between the sexes, favoring only “speech treating women in the approved way.” Not a single justice of the Supreme Court dissented when it affirmed the lower court decision.

A judge speaks with candor about judicial cop-outs

HARVEY SILVERGLATE — Wed, 28 Mar 2007 17:46:45 GMT

Freedom watch
Rarely does an audience get to hear a sitting judge deliver anything more than the usual clichés about “blind justice” and the like.

Rarely does an audience get to hear a sitting judge deliver anything more than the usual clichés about “blind justice” and the like. In her 90-minute keynote (including 45 minutes of Q&A) to the annual Innocence Network Conference held this weekend at Harvard Law School, Massachusetts’s own federal district judge Nancy Gertner displayed a level of candor unusual for someone in her position (disclosure: Judge Gertner and I were law partners for 16 years). Judge Gertner’s target: the glaring flaws in our legal system that produce a disturbingly large number of wrongful convictions each year and the judiciary’s reluctance to deal with them head-on.

With her trademark mixture of humor and sarcasm, Judge Gertner — a former high-profile criminal-defense and civil-rights lawyer — saved her sharpest criticism for those aspects of the justice system beholden to a “hopeless formalism” that all too readily elevates strict procedure over substantial justice. She compared some modern judges to those who, in the antebellum period, enforced the Fugitive Slave Laws despite a gnawing concern that somehow justice was not being done when an escaped slave was returned to the South. Her point was that a judge is in fact able to combine adherence to law with the dictates of justice and conscience, but that formalism is the all-too-easy enemy of such a balancing.

She also lambasted the notion that “finality” should preclude courts from reviewing serious errors in “closed” cases. This “arid obsession with procedure” must yield, she told a sympathetic audience, to a higher commitment to accuracy and justice. Along these lines, she noted that Massachusetts is one of only nine states that do not have laws guaranteeing inmates’ access to DNA evidence. Nor has the Commonwealth yet seen fit to establish a formal innocence commission to examine erroneous convictions and recommend changes to a system that, “while the best in the world,” remains “very much flawed.”

Attendance by members of state and local innocence projects, which are springing up like dandelions at law schools and law firms all around the country, far surpassed any prior year’s confab. Also in attendance in record numbers were exonerees who were rescued from long-term prison and even death sentences by the work of lawyers, law students, and others working with or inspired by Barry Scheck and Peter Neufeld’s original Innocence Project at Cardozo Law School in New York in 1992. Our own New England Innocence Project, currently run out of the Boston-based white shoe law firm Goodwin Procter LLP, was represented at the conference by a number of area lawyers and their exonerated clients.

Getting Justice back on track

HARVEY SILVERGLATE — Wed, 21 Mar 2007 18:55:39 GMT

Freedom Watch
There’s been more than a little political posturing over the latest Bush-administration scandal.

There’s been more than a little political posturing over the latest Bush-administration scandal, stemming from the dismissal of eight US attorneys for reasons that no one in the Department of Justice (DOJ) can explain with a straight story or a straight face. The DOJ tried to float a claim that the personnel decisions were merit-based, but the record showed that to be a lie — particularly in the case of (now former) New Mexico US attorney David Iglesias, who may have been pressured by Republican Senator Pete Domenici to indict Democratic pols before the 2006 midterm elections. And so the waffling has begun, with Attorney General Alberto Gonzales claiming he didn’t know of the plan. “We never had a discussion about where things stood,” said the incompetent who got his job because he proved to be a loyal lap dog in shadowing George W. Bush’s political career from Texas to Washington.

That said, Congress knows that US attorneys, unlike the courtroom prosecutors who serve under them, have no job security and can be dismissed at the whim of an administration. (Though it is highly unusual for dismissals to come in the middle of a presidential term). Still, politics is politics, so if the DOJ decides to respond to severe political criticism, it would be wise to tell the truth or else suffer the consequences that generations of federal prosecutors’ hapless targets have encountered: if they can’t get you for the initial offense, they’ll get you for the cover-up. Scooter Libby is just the latest to learn what one might call “the Martha Stewart” lesson — those who have almost certainly committed no crime end up being prosecuted for lying about it.

There are plenty of sinecures in any presidential administration for sycophants, but the attorney general should not hold one of them. Gonzales proved his legal incompetence long ago when he tried to justify the legality of the administration’s secret torture and surveillance programs. Now, he has reinforced the suspicions of critics who saw his excessive loyalty to Bush, and his willingness to twist his advice to suit what the chief wants to hear, as serious flaws in the nation’s top law enforcement officer.

Gonzales should resign — in fact, he may have by the time this week’s Phoenix hits the stands. Senator Pete Domenici’s conduct, however, could constitute anything from an ethical breach subject to Senate discipline to obstruction of justice worthy of a grand-jury investigation.

Gossip columnist escapes indictment

HARVEY SILVERGLATE — Wed, 07 Mar 2007 21:31:21 GMT

Get me rewrite
The much trumpeted federal investigation into allegations that a former New York Post gossip writer tried to extort a friend of former President Bill Clinton has been quietly dropped.

The artists are innocent

HARVEY SILVERGLATE — Fri, 02 Feb 2007 15:54:59 GMT

It's the media and politicians who blew this one
This was an obvious joke, as anyone under 25 would have known in an instant.

The Boston Fire Department removes a Mooninite

I have to disagree with almost everyone in the mainstream press -- and many bloggers too -- in assessing blame all around for the latest “terrorist hoax,” so-called.

It was an obvious joke, as anyone under 25 would have known in an instant.

The problem is that our entire “National Security/Anti-terrorist” establishment appears to be composed of older guys (no offense meant – I’m an older guy myself) who had no idea it was a piece of performance art touting a Cartoon Network show aimed at the young.

But by the time the anti-terrorist squad water-cannoned the first “exhibit” around 10:30 am and saw that it did not explode, why was the campaign continued until 5:30 pm?

By late morning, after all, the Blogosphere realized what it was. Why did it take the “experts” six or seven more hours, with closed subway lines and a blocked Charles River and all, to catch-on? How safe does that make you feel?

I attach no blame (get that – NO blame at all) to the advertisers and performance artists. After all, the same campaign in a number of other cities did not spark panic. (And, besides, the damned things were up two weeks before the first report spurred a panic. How safe does that make you feel?)

This could be seen as a serious threat only by the people to whom we have delegated the job of protecting us in the Age of Terror. From the CIA director right down to the local city or town anti-terror squad, we’re in sorry shape. Maybe watching Cartoon Network should be part of the training henceforth. Or maybe just hire a few younger folk.

When I was a young lawyer, I represented a couple of MIT students who were charged with making so-called “black boxes” which imitated the touch-tone sounds of a telephone (touch-tone was then fairly new); by using these tones, they were able to imitate the signals that allowed them to make long-distance calls without going through the phone company’s billing computer. Hence, they were able to call all over the country and the world for free. This technical achievement by smart MIT students threatened to cost the phone company a fortune. But the phone company (then AT&T, the monopoly), rather than push ahead on the prosecution, HIRED the MIT students to advise them how to counter this technical achievement. Naturally, the MIT students, having invented the problem, also invented the solution. It was one of those times that I thought that private industry was much smarter than the government. The prosecutors were urging the phone company to put the kids in jail. The phone company just wanted to protect itself – and, besides, the MIT students were not criminals, were not the enemy. They were us. The phone company hired the kids. Problem solved.