A Philosopher's Blog

Too Big to Jail

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on June 7, 2013

English: A photo of former Deputy Attorney Gen...

Back during the bailout, the phrase “too big to fail” was used to refer to corporations that were regarded as too important to the economy to allow them to fail. To prevent these failures (or so it was claimed) public funds were deployed. While it seems blindingly obvious that a multitude of misdeeds lay behind the meltdown, the federal government has not engaged in a single prosecution. More recently, Holder’s Department of Justice decided not to prosecute HSBC despite the fact that they had apparently been engaged in rather serious money laundering. This created a new phrase, “too big to jail.”

Interestingly, the legal trail of “too big to jail” can be traced back to a 1999 memo by Eric Holder entitled “Bringing Criminal Charges Against Corporations.” While the memo does not assert that executives cannot be prosecuted, it does provide an excellent escape hatch for big corporations. To be specific, Holder contends that the state should consider “collateral consequences” when making decisions about prosecuting corporate crimes.  Holder seems to still hold to the principles of the memo and while Obama has been attacked as being an anti-business socialist, the Department of Justice has been extremely gentle in its response to white collar crimes committed by the top folks in big corporations.

On the one hand, the idea of considering consequences does make sense from a utilitarian standpoint. If, for example, prosecution would create more harm than good, then it could make excellent moral sense not to prosecute. However, there is is the utilitarian concern that the practice of  allowing corporate criminals to avoid prosecution on this principle would do harm to the legal system as a whole by undermining public faith in its justice. On the other hand, the idea that people (and corporations are legal people) can avoid prosecution because applying the law to them would result in collateral consequences seems rather contrary to the idea that no one is above the law. While I do believe that justice can involve considering the consequences, justice also seems to require consistency in the law-and allowing corporate criminals a special out seems to be unfair and inconsistent.

In 1999 Holder also advanced the notion of deferred prosecution for corporations. Under this principle, corporate defendants can be given what amounts to amnesty in return for a fine (usually small relative to corporate earnings), reforms and cooperation. This principle is connected to the principle about consequences in that a plausible reason for allowing this deferred prosecution is to keep a corporation going-and thus keep people employed. During the Arthur Anderson incident, the state brought criminal charges against the company and this resulted in the loss of about 28,000 jobs when the company failed.

On the one hand, this principle does have appeal. After all, prosecution could result in the destruction of a corporation and this could harm people who are actually innocent of wrongdoing. Deferred prosecution would, in theory, allow the problems to be addressed while avoiding the destruction of the corporation. On the other hand, there is the obvious concern that prosecution might be “deferred” forever. Even if the deferment is not eternal, there is the concern that the punishment will not be serious enough to deter future behavior.  So far, the fines that have been paid by corporations tend to be small relative to their yearly profits and it seems unlikely that such punishments will have a significant deterrence value. After all, if a corporation can make massive profits doing illegal things like money laundering and then  pay what is, to them, a moderate fine, then there is little incentive to avoid such illegal activities. To use an analogy, if I took up robbing banks and my punishment was that I had to pay a fine equal to a modest percentage of my stolen money, then I would have little incentive to stop robbing banks. As might be guessed, this is a problem.

Overall, the principles of considering collateral consequences and allowing deferred prosecution are not without merit, at least on the surface. However, while the application of these principles might result in short term goods (like preserving corporate jobs), they seem likely to create long term evils-namely a situation in which corporations are ever more likely to engage in misdeeds because they know that the punishments will be fairly minimal. However, the overall consequences of this will be rather bad, such as companies destroying themselves and the economy. Too big to fail and too big to jail are bad ideas and it is far past the time that the approach to corporations be changed.

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The Fast & The Foolish II: Executive Privelege

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on June 21, 2012
Deutsch: the fast and the furious logo

 (Photo credit: Wikipedia)

Back when the Fast & Furious debacle hit the media, I did a critical post on the incident. To this day, I wonder about the thinking behind that plan and had hoped that this mess would at least be sorted out a bit. While congress has decided to pursue the matter (and correctly so), the Obama administration decided to evoke executive privilege to avoid releasing certain relevant documents to congress.

While Fox News tends to flip-flop on executive privilege based on the political party of the president,  I have been consistently critical of the practice. As such, I can recycle much of what I have said in the past about this matter.

In the face of the “Fast and Furious” debacle and its handling by Attorney General Holder, President Obama has decided to invoke executive privilege.

While this alleged power to invoke executive privilege is not specified in the Constitution, the gist of it is that the President can refuse to provide the public with information that he deems as privileged. This power is often invoked in the name of national security but is also justified by the claim that a President’s minions need to be able to freely provide advice without being worried that such advice will be made public. Thus, the justification is based on consequences: such things must be kept secret for the good of the country.

From a moral standpoint this practice can be justified on utilitarian grounds. To be specific, this keeping of secrets  can be justified by appealing to the fact that this practice prevents far greater harms. Although the Obama administration has done little or nothing to show that these matters must be kept secret for the good of the nation, this moral logic is reasonable. However, the challenge lies in showing that revealing the information in the documents would do undue harm to the country and hence that the president is morally justified in keeping them secret.

If, for example, the documents contained detailed information about ongoing law enforcement operations (especially those involving undercover aspects) and releasing such information could prove harmful to these operations (and put people in danger), then it would be reasonable to keep these documents secret. However, this does not seem to be the case. Also, if the documents did contain such information, then the administration would not need to use executive privilege-they could appeal to the importance of secrecy in this case.

On the face of it, the most plausible explanation is that the documents contain information that would be harmful to or embarrassing for the administration. After all, evoking executive privilege will create the impression that there is something they want to hide and, assuming that the security hypothesis is not true, the reasonable inference is that whatever is being hidden would be more damaging than the harm done by creating this impression.

It might be countered that the administration is merely acting to assert the right of the executive branch against an intrusion by congress. While this does have some appeal, congress does appear to be acting well within its legal rights and is doing its job. As such, the president seems to be wrongly impeding congress rather than rightfully defending executive turf.

It might also be countered that this is a partisan attack on the president by the Republicans calculated to score political points. While I am sure that the Republicans would be happy to score points here, they are actually doing what they should be doing, namely investigating a law enforcement debacle and what might well be a cover up that reaches (as they say in the movies) all the way to the top. As such, the points they score will most likely be earned legitimately.

Unless the administration can provide a good reason to believe that the documents contain information that must be kept from congress for legitimate reasons, then this invocation of executive privilege is wrong and it invites people to speculate as to what sort of damaging information is contained in the documents.  It should be hoped that Obama changes his mind and releases these documents voluntarily. After all, while the president does have the right to evoke executive privilege, it is not a screen that is to be used to hide misdeeds. Naturally, if there are no misdeeds, then there would seem to be nothing worth hiding-so they should be released.  If there are misdeeds, then the president has no moral or legal right to conceal them with executive privilege.

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Targeted Killing & Due Process

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on March 12, 2012
English: Air Force officials are seeking volun...

I've got your due process right here...

After Anwar al Awlaki,  an American citizen, was specifically targeted and killed by a drone strike, serious questions arose regarding the legality and morality of this killing. From a legal standpoint, this sort of targeted killing seems to violate the 5th amendment of the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As might be imagined, people have generally taken “due process of law” as requiring the proper  involvement of the legal system. One likely reason for this is that the amendment seems to be focused on the judicial rather than the executive aspects of the state. In regards to targeted killings, there is also the concern that such killings involve making a person “answer for a capital, or otherwise infamous crime”. If so, a targeted killing without such an indictment or presentment would violate the constitutional rights of the target.

In response to this sort of reasoning, Eric Holder replied as follows:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

While I am not a scholar of constitutional law, the context of the 5th amendment seems to make it rather clear that the due process is, in fact,supposed to be a judicial process. Of course, since it is not worded as “judicial process”, this does open a legal door for interpreting what is meant by “due process.” As Holder sees it, in addition to following due process  the killing of an American citizen must meet four principles in order to be legal:

The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

On the face of it, these principles seem rather reasonable in regards to justifying intentional targeting. After all, they boil down to saying that it is okay to target a lawful target that has military value provided that doing so does not cause excessive collateral damage and undue suffering is not inflicted. However, the most important issue of concern here is the matter of due process.

In terms of the legality, that is a matter that must be decided by the courts. As noted above, my view is that due process requires legal proceedings in the context of the judicial branch and that ordering such executions does not fall within the powers of the executive branch. Of course, I am not a legal scholar and hence my view has no weight beyond the effectiveness (or lack thereof) of my argument.

My view does not, I contend, infringe on the president’s role as the commander and chief of the armed forces. If an American citizen is killed in the course of combat because s/he took up arms against American forces, then the citizen was a legitimate target for the armed forces.

However, singling out an American citizen to be targeted and killed is another matter since that seems to be more properly an act of law and not of war. From both a moral and a legal standpoint, there does seem to be a rather important distinction here, namely that between the criminal and the enemy combatant. The mere fact that someone is engaged in activity harmful to the United States (including killing Americans) does not make that person an enemy combatant. Otherwise almost all criminals would be enemy combatants, which would be absurd.

As might be imagined, the stock reply to this view is that we are at war with terror and hence a targeted killing of an American citizen who  is involved in terrorism is thus an act of war. By this reasoning, the targeted killing would be an act of war, on par with having a sniper take out a turncoat among the enemy on the field of battle.

While this does have a certain appeal, there is the rather obvious concern that the war on terror is a rather vague sort of war. After all, terrorism tends to blend all too smoothly into the criminal world (and vice versa). This raises  legitimate concerns about the standards used to distinguish between those citizens who are enemy combatants and those who are merely criminals. As noted above, just because someone is actively harming America or even killing Americans does not automatically make that person an enemy combatant and thus outside of the normal judicial process. After all, Americans murder each other everyday, yet they are not enemy combatants. Also, having foreign ties to violent groups and engaging in violence because of this does not seem to suffice to make a citizen an enemy combatant. After all, there are and have been American citizens with ties to foreign groups (such as the Mafia and Mexican drug dealers) who have engaged in violence against Americans without being considered enemy combatants.

The stock reply to this sort of reasoning is that terrorists can be distinguished by their goals. Crudely put, while terrorists do often engage in traditionally criminal enterprises (such as the drug trade), they are not in it for the money but for some political or religious goal. In contrast, criminals are in it for the money or for some other non-political or religious goal (like revenge).

While this also has a certain appeal, there are obviously criminals who commit their crimes (such as killing abortion doctors or attacking political figures) based on political or religious motivations. These people can even have ties to foreign groups (such as transnational religious groups) and yet they are not enemy combatants.

The standard reply to this is to bring in that the person must be on foreign soil. While this does have some appeal, this would seem to allow the targeted killing of an American criminal who has fled to another country, such as Mexico, to hang out with his drug dealer allies.   As such, it seems rather difficult to make a clear distinction between a criminal and a terrorist that would clearly protect American citizens from being executed by the executive branch. While I will not call for an exact line to be drawn, I will call for more definite standards. I am, not surprisingly, in favor of erring on the side of considering citizens criminals rather than enemy combatants in cases in which the matter is not quite clear.

As I hope is evident, my main concern with Holder’s justification is that it makes it far too easy for the president to order the execution of American citizens without due judicial process. This, I contend, extends the president’s powers in a legally unwarranted and morally dubious manner. As such, the targeted killings of Americans without due judicial process should be regarded as both morally wrong and as a violation of the constitution.

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The Fast & the Foolish

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on December 8, 2011
English: Official portrait of United States At...

Too fast, too furious?

Most folks are probably familiar with the “Fast and Furious” gun running sting operation. The idea was that guns would be allowed to fall into criminal hands but they would have tracking devices to allow law enforcement to track them. While this sort of idea would work in the movies, it failed miserably in reality. Unless, of course, success is marked by providing criminals with guns.

Given that the plan was remarkably stupid and had seriously bad consequences, it seems reasonable that those involved should be punished appropriately. One question that is currently being addressed is how far the chain of responsibility goes.

Republicans are, not surprisingly, gunning for Attorney General Eric Holder and others in the Justice Department. They are, of course, right to push this issue and determine the extent to which the upper officials were aware of the plan and hence accountable for said plan.

If it is established that the officials in question were aware of the details of the plan (and had reason to believe it would turn out badly) then they should be held responsible for the operation to the degree that they were aware and to the degree they had the authority to control the operation.

It might be tempting to simply hold that officials are fully responsible for every action conducted by those beneath them in the chain of command. Of course, this would be absurd. After all this would make the President of the United States fully accountable for the actions of all military personnel, all the way down to the buck privates. It would also make corporate CEOs accountable for every employee (at least in terms of what they do on the job). On this view, if a private leaked secrets, then the President would be responsible. Or, if an employee of BP overcharged you for a hot dog at the store, then the CEO of BP would be accountable.

It is far more reasonable to assign responsibility based on the extent of the official’s knowledge (and also what s/he should know) and authority in the matter. In the case of Holder, while he is the Attorney General it does not follow that he can be aware of all operations and their details. The same can hold true of some of the officials under him. However, it obviously is not true of all of them and what needs to be sorted out is where the accountability for this incident legitimately ends (at least in terms of who should be punished).

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