Monday, December 22, 2014

IT'S CHRISTMAS IN NEW YORK AGAIN

IT'S CHRISTMAS IN NEW YORK AGAIN

I heard it for the first time two months after the fact.

At a dinner with the Friendly Sons of St. Patrick.

I have listened to it every year since.

At Christmas.

The "it" is an Irish ballad -- "Christmas in New York" --  written and sung by a band from Yonkers, NY called Shilelagh Law.    

         There's snow in the air
         Winter is here
         The wind is blowing
         And outside's so clear
         There's presents to wrap
         And cards to send
         It's Christmas in New York again  
              
We Irish have a love affair with music.  We all think we can sing. Even those of us who can't.  With a little fuel, caution is generally thrown to the wind and whole groups of party-goers belt out their favorites.  In the old days, that meant "Whiskey in the Jar," "The Irish Rover," and -- of course -- "Danny Boy."  Nowadays, the Beatles, Shania Twain and Cold Play make the cut.  If you actually can sing, watch out.  My grandparents routinely returned from their Saturday night revelries only to wake their youngest daughter to sing for their fellow travelers. Which is how my mom became our family's best public singer.

         There's somebody singing a holiday song
         You pick up the tune and start singing along
         You learned the words some time way back when
         It's Christmas in New York again                

Irish music can be sentimental. And angry. Just like the Irish. Shilelagh Law sugar coats that just a bit when the band talks about itself.  They don't say they reflect anger.  Instead, they say they "reflect a collision of two cultures that results in bedlam."  The two cultures are New York and Ireland.  The band asserts it "embodies all that is New York Irish music," including "dancing, weeping, lots of laughter, plenty of drinks, and the inevitable visit to the local diner at 5 am."  OK,  fine, but I still think lots of those 5 am diners show up a little pissed -- at least at something.

            Fancy store windows and millions of lights
            Downtown in December, what a fabulous sight
            You spin round and round trying to take it all in
            It's Christmas in New York again

One of the fundamental facts about alcohol  is that it is a depressant. I always marvel at the drinkers (or drunks) who tell me they are depressed.  What did they think they would be?   Of course, even a blind squirrel finds the occasional nut.  Sometimes things are depressing and sadness is more than appropriate, aided or not  by a side of Jameson's.

             But as you gather round the table with everyone
             You feel that something has been left undone
             The tree is all trimmed, the shopping is through
             But there's one last thing you still have to do

New York -- my home -- has had a very bad December.  First a grand jury refused to indict anyone for what the City's medical examiner concluded was the homicide of Eric Garner, forcing thousands of my neighbors to the streets in protest against the lack of accountability on the part of those who enforce the law but seem to be able to get away with breaking it. Then, last weekend, an EDP -- that's cop speak for "emotionally disturbed person" -- traveled from Maryland to Brooklyn and gunned down two cops sitting in their police cruiser. He had previously shot his girlfriend in Maryland and instagrammed that his imminent dual homicide would be payback for the Garner travesty in New York and the Brown case in Missouri.

          It's Christmas Eve, 11 pm
          You walk down to the church and you quietly go in
          You kneel down in the last pew right on the aisle
          And say "God I know that it's been awhile
          But can you do me a favor on this Christmas Eve
          Can you send out some blessings to people for me
          You know these last few months have been kinda tough
          And we could use a little love"

The two police officers were Wejian Liu and Rafael Ramos.  Officer Liu, married only two months ago, was a seven year veteran. Officer Ramos was on the force for two years and, at 38, had become a new cop at a relatively old age in a second act of personal service. He was also about to become a chaplain.   A father of two, he is now dead at 40.  The two were working overtime as part of an anti-terrorism drill in the Bedford-Stuyvesant neighborhood in Brooklyn.  Observers say the EDP approached their car, assumed a shooting stance, and then opened fire.  The officers never had a chance.  NYC's Police Commissioner correctly called it an "assassination."  Mayor DiBlasio said it was "a despicable act."  

            So bless New York's finest, our angels in blue
            Giving us hope and helping us through
            And bless New York's bravest, the FDNY
            Giving their sweat and their tears and their lives

Many were just angry and took that anger out on the wrong people. The head of the City's Patrolmen's Benevolent Association (PBA), Patrick Lynch, blamed the Mayor for the killings, claiming that DiBlasio's support for Garner and past criticism of police meant that he had "blood on his hands"  Even Rudy Guiliani thought that comment over the top, calling it "incendiary" and "inappropriate." It actually was a lot worse than that.  I am the god-son of a New York police officer who never lived to see me become an Assistant US Attorney.  I come from a family of cops.  You can be pro-civil rights and pro-police at the same time.  The two are not remotely contradictory.  The vast majority of police fully respect the rights of those whom they police; in fact, a small minority of their fellow officers account for the vast majority of brutality or abuse. There is no need for Lynch or anyone else to claim that any protesters or politicians are responsible for the killings of Liu and Ramos because the claim is as false as it is divisive.  

               And bless all the medics and our troops overseas
               Bless the guys in the hardhats, removing debris
               Bless the everyday people who answered the call
               Bless those who gave some and those who gave all

Officers Liu and Ramos gave all.   Unfortunately, so did Eric Garner. The rest of us -- the "everyday people" -- have to answer the call. It's a call that respects the police.  But it's also a call that respects the Constitution. More than two centuries ago, before there was either a Constitution or a Revolution, John Adams, a Massachusetts lawyer, defended both. He was the defense attorney who successfully defended six of the eight British soldiers charged with manslaughter in the wake of shootings of protesters who themselves had attacked the soldiers.  Bill DiBlasio is not anti-cop. He has given the police department all the resources it has requested, and his Police Commissioner, William Bratton, has praised him for this.  Lynch's outlandish comments, moreover, are only his latest effort to drive a wedge between the cops and the Mayor. Earlier, he encouraged officers to sign letters requesting that the Mayor not be at their funerals if they were killed in the line of duty.  Liu and Ramos did not do so,and Officer Ramos's family has welcomed the Mayor to Ramos's funeral.

                   Bless all the souls who left us this year
                   You may be gone but you'll always be here
                   Singing and dancing with family and friends
                   It's Christmas in New York Again.

Thursday, December 11, 2014

WHY NOT READ IT

WHY NOT READ IT

For the better part of two days now, I have been bombarded by media accounts of and non-stop comment on the Senate Select Committee on Intelligence's Study of the CIA's Detention and Interrogation Program. 

The Study itself, which runs to more than 6,700 pages, is still classified.  On Tuesday, however, the Committee released a Forward to the Study written by the Committee's present chair, California Sen. Dianne Feinstein, the Study's Findings and Conclusions, and the Executive Summary of the Study. That Executive Summary alone is 499 pages.

In a nutshell, the Study concludes that (1) the CIA engaged in torture, (2) the program didn't work, and (3) the CIA repeatedly lied about the program to Congress, the Department of Justice (DOJ), the media and the public.  The word "nutshell" should be taken literally.  The 499 page Executive Summary contains 2552 footnotes and is based, as apparently is the full 6,700 page report, almost exclusively on CIA documents and other public records. Those documents, moreover, include voluminous memoranda, testimony,  emails and reports from the actual on ground participants in the program on up to the various directors of the CIA.  The report, though written by staffers employed by the Democratic majority on the Intelligence Committee, is also bi-partisan in its criticism -- it lambastes Obama's appointed CIA directors as thoroughly as it lambastes Bush's.

Following publication of the Executive Summary, the push back has been intense and emotional. Appearing on Fox News, former Vice President Cheney called the report "a bunch of crap," and this morning, former Congressman Joe Scarborough said the same thing on his "Morning Joe" program on MSNBC.  Yesterday, three former directors of the CIA -- George J. Tenet, Porter J. Goss and Michael V. Hayden -- along with two former deputy directors -- John E. McLaughlin and Albert M. Calland -- penned an op-ed in the Wall Street Journal skewering the Committee for not having spoken to them and stating, point blank, that the CIA program was effective and "deemed . . .legal".

Cheney and Scarborough admit that they have not read the report and it is not clear whether the former directors and deputy directors have either.  In their Wall Street Journal  piece,  Tenet et al. make a number of claims that the Executive Summary refutes in detail.  In discussing specifics, for example, they assert that "The CIA never would have focused on the individual who turned out to be bin Laden's personal courier without the detention and interrogation program"; that "Once they became compliant due to the interrogation program, both Abu Zubaydah [a senior al Qaeda operative] and KSM [Khalid Sheik Mohammed, the mastermind of the 9/11 attack] turned out to be invaluable sources on the al Qaeda organization"; and that the program disrupted and prevented other "mass casualty attacks" in the wake of 9/11, including a "second wave" attack planned against the US west coast.

None of these claims, however, are accurate.  In fact, they are refuted by the CIA's own records.

The Zubaydah/KSM and bin Laden courier claims are instructive. In the case of the first, as the Senate report makes clear, Zubaydah had provided actionable intelligence under questioning by the FBI and others long before he was detained by the CIA and subject to torture, and KSM, who was tortured from the point at which he was captured, provided information that more often than not was false. More to the point,  the CIA actually concluded during its interrogations that it was not obtaining useful information from KSM by water boarding him.  As to the courier, the report makes clear that he was identified long before any tortured detainees pointed the finger at him,  that the most accurate information on the courier came from a detainee who had not been tortured, and that the CIA knew -- again from untainted sources -- of the courier's closeness to and intimate involvement with bin Laden. Finally, as to any success in stopping other attacks, the Senate report contains a detailed examination of the CIA's twenty most repeated "success" claims, including disruption of the second wave west coast attack.  It explains that, in each of those specific cases, the CIA's "enhanced interrogation" (it's euphemism for torture) program did not create the success or disrupt any plot. In particular, the second wave attack cited by Tenet et al. was disrupted upon the arrest of a plotter and information obtained from him without any resort to torture.  

The complaint that the directors and deputy directors were not consulted in advance of the Senate report, while technically true, is also more than strained.  The Executive Summary is based almost entirely on contemporaneous CIA documents, and the views of the directors and deputy directors -- especially those of Gen. Hayden -- were available from those documents and their own public testimony, and are repeatedly cited and quoted in the Senate report. To claim, therefore, as Cheney and Scarborough have, that the report didn't consider the "other side of the story" -- or the views of the principals --  is  false.  In fact, the Senate report is for the most part simply a report of the findings of the CIA itself.  In other words, the report is based on "their" side of the story as it was told (and memorialized in emails and memos) at the time by the operatives and analysts on the ground and at CIA headquarters in Langley, Virginia.

The Senate report contains similar detail -- including accounts of evidence destruction -- in support of its claim that the CIA misled Congress and the public on the scope and success of its torture program, as well as information that it even misled the Department of Justice and the executive branch.  All of this is dismissed with a wave of the hand by Tenet et al., who instead insist that the DOJ "deemed" the CIA program legal. 

The last claim is more or less true.  What DOJ did was authorize limited use of torture in specific cases.

It is also true, however, that the CIA in effect "jobbed" DOJ.  As the Senate report makes clear, again based on the CIA's own documents, the agency misrepresented what it was getting absent torture, the number of its detainees, the significance of some of the detainees, the extent of the torture it was planning and then performed (including the use of "rectal infusions"), the medical conditions of those subjected to torture, and the physical/medical effects of the torture. The CIA even misrepresented Sen. McCain's position to DOJ, asserting that McCain had approved of the techniques for which it was seeking approval when he manifestly had not. None of this, of course, covers DOJ in glory; torture and the techniques the CIA classified as enhanced interrogations and disclosed to DOJ, has and have long been illegal.  The US itself prosecuted the Japanese for water boarding prisoners during World War II, and long before DOJ's lawyers got hold of the CIA's post 9/11 requests, there really was no debate on what constituted torture. 

Knowing John McCain's position, moreover, does not require a CIA briefing. 

The point here, however, is that the CIA's defenders -- including the ex-directors, ex-deputy directors, Cheney and Scarborough -- keep insisting that criticism of the agency is being undertaken without any appreciation of the "context" in which the CIA had to make these decisions, including fear of imminent additional attacks in the wake of 9/11, when the record discloses that the CIA itself did not even accurately describe that context to the overseers at DOJ from whom it was seeking some sort of legal cover.  

This is critical.  We depend on our leaders and on our agencies to get it right in times of crisis.  The easiest "ask" in the wake of 9/11 was the ask for torture.  No American would have cared if any al Qaeda operative had then been tortured to death.  Many will not care even today.   That we should ought not be used to disguise the fact that we won't and don't.  Law, therefore, exists precisely to save us from ourselves.  The fact that the US engaged in torture is tragic.  The fact that it did not have to do so is, perhaps, even more so.  And now, the fact that we cannot have a rational conversation about what occurred  -- that a former Vice President and a former Congressman call a voluminous report, based on contemporary documents making almost indisputable claims given the mountain of evidence amassed and discussed, "crap" without having even read it -- is perhaps the most tragic.

Because we will just repeat these mistakes in the wake of some future crisis.

Even though we should not, and even though we will not have to.

How can we stop this?

Here is a modest proposal.  

Before anyone talks about the Senate Select Committee's Study of the CIA's Detention and Interrogation Program, including the Committee's just published Executive Summary, he or she . . .

Should read it.




Thursday, December 4, 2014

"I CAN'T BREATHE"

"I CAN'T BREATHE"

If a picture's worth a thousand words, how come this one didn't convince twenty-three grand jurors?

That is the question being asked in New York City and throughout the country today in the wake of a grand jury's failure to indict Officer Daniel Panteleo in connection with the death of Eric Garner last summer.

All of us have seen the video of the encounter.  In it, one uniformed officer -- not Panteleo --  is standing in front and to the left of an obviously irate Garner, who repeatedly complains that he has been and is being  being harassed. Garner and the officer obviously know each other.  Garner excitedly tells the officer that "It stops today" and that he "did not sell nothin'," apparently referring either to the policeman's claim that he was selling illegal cigarettes -- "loosies" in the parlance of the street -- at that time,  or to prior encounters where that charge was made.  When the cop appears to ask why Garner is screaming (the audio on the police officer is hard  to pick up), Garner explains that "Every time you see me, you want to harass me, you want to stop me . . . I'm minding my business officer."  He then says, "Please just leave me alone. I told you the last time, please just leave me alone."

At that point, there appears to be a break in the tape.  Then, two more officers approach Garner from his front, and Panteleo, who is dressed in street clothes -- shorts and a green jersey with the number 99 on its back -- moves toward and touches Garner from the right and behind.  Garner raises his hands and says, apparently in response to Panteleo (who Garner does not seem to think is a cop), "Please don't touch me."

Panteleo then grabs Garner by placing his left arm around Garner's neck with his right arm under Garner's right arm near the armpit. Panteleo rapidly moves backwards, more or less parallel to the store window at which Garner was standing, turns Garner around slightly and moves back toward where they all started, and then takes Garner down.  All this time Panteleo's arm remains on Garner's neck; as Garner is prone on the sidewalk, Panteleo is spread lengthwise over Garner's back and legs.

As the other officers -- three of them -- secure Garner's legs and torso against the sidewalk, Panteleo moves to his knees and Garner's head, and then compresses  Garner's head against the sidewalk with his hands.  Garner then says, "I can't breathe."  In fact, he doesn't just say he can't breathe.  He repeats the statement . . .

Seven more times.

Meanwhile, the guy with the cell phone who is taking the video of the encounter is told by still more police (by this time , two or three additional officers appear to be on the scene) to "back up".  While doing this, and continuing to video the event, the guy says "All  he did was try to break up a fight."

Shortly after repeatedly telling them he couldn't breathe,  Garner, according to a witness, "went limp."  He apparently went into cardiac arrest.  EMS arrived and took him to Richmond County Hospital, where he was pronounced dead.

As a  matter of policy, the police in New York City are prohibited from using choke holds.  The policy was inaugurated in the early '90s after there had been at least one fatality following use of the technique during an arrest.  In that case, unlike here, the police were actually indicted.  Though they were acquitted in the subsequent criminal trial, the family later prosecuted a civil rights claim against the City and the City paid a seven figure settlement.

Why no indictment here?

There really does not appear to be a credible answer.

Grand jury proceedings are secret, so we have no idea what the jurors heard or saw during the month long investigation.  The Staten Island prosecutor who presented the case to the grand jury has petitioned the court to release some of the contents of the proceeding, but it is not clear what portions -- if any -- will be made public.  Moreover,  unless everything is disclosed, any type of selective unveiling will just contribute to the already widely shared view that the police are immune from accountability.

Is that view accurate?

It is always dangerous to make assumptions or conclusions without the benefit of seeing the full record.  But in this case, all of what we do know makes it virtually impossible not to conclude that at least some law was broken and a trial should have occurred.

First, though his lawyer says that Officer Panteleo was not applying a choke hold, the video evidence refutes that claim.  The officer clearly puts his arm around Garner's neck and keeps it there until Garner is on the ground and he can move to his knees and compress Garner's head .  If, as his lawyer is claiming, Panteleo was just using an authorized take down procedure, that arm would have been nowhere near Garner's neck; instead, it would have been under Garner's left arm and around Garner's chest or near Garner's shoulders.

Second, the medical examiner who autopsied Garner concluded that the death was a homicide caused by a combination of neck and chest compression.  This in itself refutes the claim that a choke hold wasn't applied.  The ME undoubtedly saw what are known as petechial hemorrhages -- small burst blood vessels -- on Garner's larynx,  which are the common result of  fatal neck compressions.

Third, the notion that a grand jury -- as distinct from a trial on some criminal charge, even one short of intentional murder -- is or could be an appropriate vehicle for accountability in this case is itself very suspect.  I am a former federal prosecutor, and the conventional wisdom that prosecutors control grand juries is true.  The old adage that a prosecutor could get a grand jury to indict a ham sandwich if he or she wanted is founded on the reality that prosecutors -- and prosecutors alone -- decide what evidence gets presented to a grand jury.  Prosecutors also instruct grand juries on the applicable law. Consequently, their control of the process is fairly complete.  In the case of most crimes, that structure materially favors indictment.  In the case, however,  of alleged crimes perpetrated by the police, especially alleged crimes arising out of the use of force, a countervailing pressure is at work. The police and their supporters -- the various PBAs and SBAs -- are almost universally opposed to these types of claims, and prosecutors for the most part allow them to present their defenses in an unimpeded way to the grand jury, and provide the instructions needed for a "no bill" -- law speak for no indictment -- if the jurors like what they see and hear. This, moreover, is a dispensation granted no other defendants.

Fourth, the prosecutor in this case gave all the police officers on the scene -- except Panteleo -- immunity. This allowed all of them to testify without fear that they too might be indicted.  Had they not been granted immunity, their own lawyers undoubtedly would not have allowed them to testify, so defenders of the District Attorney will naturally claim that the immunity deal allowed the grand jury to get relevant evidence it otherwise would not have heard.  

Maybe so. 

The immunity deal, however, also allowed all the other officers to support Panteleo in whatever account Panteleo provided.  Without assuming the testifying cops did anything other than tell the truth, it is still hard not to assume they were at least biased in Panteleo's favor.  It is also not clear that they themselves did not violate proper procedure.  The arrest and take down in this case was not problematic and irregular simply because a choke hold was applied. The chest compression the other police applied to Garner while he was on the ground telling them he couldn't breathe -- which the Medical Examiner cited as another factor contributing to Garner's death -- itself violated policy.

Whether the arrest was irregular for other reasons is also an open question.  From the video, it just isn't clear exactly why the police were interested in Garner that day at that time.  If, as some of the backtalk suggests, they thought he was selling illegal "loosies," a charge which Garner himself vehemently denied, why did they not just give him a summons?  Was it because he was then out on bail for that same charge? If so, what evidence did they have of the crime given Garner's denial -- a denial which appears to have been true in that there were no reports of "loosies" on his person, and one which, in any case, makes perfect sense if Garner was then minding his own business and staying on the right side of the law (lots of folks on bail try to avoid committing the crimes for which they are about to be tried).  

Or was it because this is just what cops do in the era of "broken windows" policing? 

"Broken windows" policing has been around now for more than twenty years.  The theory is that arrests for small crimes -- panhandling, subway turnstile jumping, illegal graffiti -- stop criminals from moving up the ladder to bigger crimes.  Crime has gone down dramatically in New York City over the last two plus decades, so supporters of "broken windows" claim it is working.  Whether this is so, however, has been questioned by criminologists who have noted a host of other factors --   demographic in the form of an aging population (crime is a young man's game)  and penal in the form of longer prison terms  -- which might explain the result.  

Undeniably, however, "broken windows" -- along with "stop and frisk," which NYC only recently ended -- disproportionately captures minorities and people of color, and they are rightly sick and tired of that reality.  They are also rightly sick and tired of the risks they face when confronted by the police.  Whatever Eric Garner was or wasn't doing on a street in Staten Island last summer when four cops more or less surrounded him, one thing is absolutely clear.

He  should not have died for it.

That is why thousands of New Yorkers took to the City's streets last night in protest.  As they engaged in "die-ins" at Grand Central Station, protested in Times Square, and took over a portion of the West Side Highway, passers-by gave them thumbs up and shouts of approval.  The Mayor appropriately wondered about the risks his own mixed-race son faced in the current environment. And for their part, the police in New York City last night -- unlike the para-militarists  in Ferguson a few weeks ago --  managed the protests well.  As they should have, they let the protest go forward without any undue confrontations. They followed the proper procedures.  They were professional.

Too bad that wasn't the case last summer.