Tag Archives: Crime - Page 2

Too big to jail?

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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Police & Protests

Riot police using tear gas on 21 April 2001 ag...

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Protests are often marred by senseless violence and the recent protest on Wall Street was no exception. One incident that has gotten extensive attention is the pepper spraying/macing of penned in women by Anthony Bologna, a relatively high ranking member of the NYC police. These sorts of incidents raise questions about the legitimate role of the police in regards to protests. My discussion is limited to the context of democratic states, such as the United States.

First, it is rather important to acknowledge that the police do have a legitimate role to play at protests. While protests are intended to draw attention and often aim to do so by creating a disruption of the normal course of events, a state of protest does not grant protestors a carte blanche right to interfere with the legitimate rights of others. As such, the police have a legitimate right to prevent protestors from violating the rights of others and this can correctly involve the use of force. Obviously, if it is argued that protestors have a right to protests, this would entail accepting that people have rights and intuitively the right to protest does not automatically trump other rights-especially the core rights of life, liberty and property. Those who claim otherwise would seem to have the burden of proof upon them.

To use an obvious example, people protesting a decision by the parliament or congress do not gain the right to loot the businesses along their path of protest and the police would act correctly in stopping these acts of theft.   To use a less extreme example, protestors who are disrupting a legitimate business can legitimately be prevented from doing so by the police.

Second, while protestors do not gain a carte blanche right to violate the rights of others, peaceful protest is a legitimate form of expression and is certainly a form of free speech (far more so than spending money on political campaigns and some rather ludicrous “free speech” defenses launched by corporations such as Google). As such, the right of protest should be respected by the police.

Even when protestors act in ways that are technically illegal, provided that their crimes do not involve violence or property damage (that is, the protests are peaceful), they should be handled with minimal force. After all, the force used by the police should be proportional to the crime and the resistance being offered. Exceeding this would be, by definition, excessive force and hence a wrongful action. The police, after all, have the right to use the force needed to enforce the law. Force beyond that would go beyond their rights and hence cross over into assault and beyond (after all, once they cross the boundary of legitimate force, they have ceased to enforce the law and are engaged in needless violence and may rightfully be regarded as criminals-albeit with badges). Spraying women that have been penned in and are offering no resistance would be, from a moral perspective, an assault with a dangerous weapon and not a legitimate act of law enforcement. The fact that the perpetrator is wearing a uniform does not change this-except to make it an even worse action-a crime committed by someone who is supposed to prevent crime.

Naturally enough, violent and destructive protests can be met with legitimate force. As an example, protestors who are looting or attacking innocent citizens can be treated as the criminals they are and handled accordingly.

Third, there are cases in which violent and destructive protest can be justified. These would involve cases in which the wrong being done was such that it warrants such a response and there is no recourse to an objective, impartial and fair legal redress. In such cases, the police should be acting in defense of the people driven to such acts rather than fighting against such people. These situations are not common in the Western democracies, but have (and no doubt will) occur.

Thus, both protestors and police have moral obligations they should respect.

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Are Taxes Theft?

Photographic portrait of Emma Goldman, facing ...

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One underlying theme I have noticed in America’s Tea Party movement (and among other folks as well) is the idea that taxes are a form of theft. Interestingly enough, this idea was also put forth by the anarchists. As the (in)famous anarchist Emma Goldman said “…the State is itself the greatest criminal, breaking every written and natural law, stealing in the form of taxes, killing in the form of war and capital punishment…” However, a negative view of taxes no doubt dates back to the first tax.

The first step of the discussion involves laying out an intuitive and adequate account of theft. Obviously, a merely legal account of theft will not do here. After all, if theft is defined as taking property via illegal means, then taxes would almost never be theft-after all, they tend to be instituted by law. As such, what is needed is a moral definition of theft.

Without getting into torturous semantical details, it seems safe to regard theft (at least in this context) as the the unjustified taking of legitimate property, typically via means such as deceit or force. This definition is, of course, easily subject to criticism as not being a sufficient and necessary definition. However, the discussion does not seem to require such a definition. If it does, however, I trust that someone will be forthcoming with a better one.

Obviously enough, states can engage in theft via taxes. For example, if the unelected dictator of a state sends his lads around to take money and valuables from people using the threat of violence, then that would seem to qualify as theft. My focus will not, however, be on such cases. Rather, I will focus on whether taxes in a democratic state can be justly considered theft or not.

One rather clear case in which taxes cannot be considered theft is the case when the citizens vote directly on a proposed tax. If I, for example, vote in favor of a tax, then that tax would not be theft. After all, part of what makes theft wrong is that it involves a lack of free consent on the part of the victim. If I freely agree to pay, then that is not theft. As another example, if I vote for a politician courageous or crazy enough to admit that she will create a new tax, then I have given my consent and cannot claim to have been robbed.

However, the people who voted against the tax or the politician would seem to have not given their consent. As such, the state would be taking their money without their consent and this would seem to be an act of theft.

The stock reply to this line of reasoning is that when people vote, they agree to abide by the outcome-even if it is not the outcome they want. To refuse to do so would be to break that agreement and it would essentially render voting pointless.

The stock counter to this is to point out that there are situations in which going along with a vote would be to go along with something whose evil would exceed the wrong of breaking the agreement to abide by the vote. For example, if a vote was taken to restore slavery, good people should vote against it and should refuse to accept the return of slavery even if it were voted back into legality. In the case of taxes, the question would be whether the evil of the taxes justifies breaking the agreement to abide by the results of a vote. This, of course, takes the discussion far beyond whether taxes are theft or not and into a discussion of the legitimacy of voting. However, if the evil of the taxes justified rejecting the vote, then it would seem that if the state imposed the taxes on the unwilling, then the state would be engaged in theft. The challenge is, of course, showing that the evil of the tax warrants what amounts to rebellion against the state.

Another type of case in which taxes cannot be considered theft is when the taxes are payments for goods and services. For example, if I pay a tax that pays for the roads I drive on, then I am hardly being robbed. To use an analogy, if I have a meal at a restaurant and the bill is brought, it would be absurd of me to cry out that I am a victim of theft because I am being forced to pay for my meal. If I did not pay, I would be the thief.

While this line of reasoning is appealing, people generally pay taxes that are used to pay for goods and services that they themselves do not use or oppose. As such, this justification would seem to fail in such cases. For example, a family that pays for its children to go to a private school would not be using the public schools that their tax dollars support. As such, it would seem that they are being robbed-provided that they do not want to pay these taxes. As another example, someone who is morally opposed to abortion could claim that they are being robbed if some of their taxes are used to pay for abortions. As a final example, someone who opposes war or corporate subsidies could argue that they are being robbed when their tax dollars are used in such ways.

To use an analogy, if I go to a restaurant and I am billed for food I did not order, want or eat, then I would be robbed if I were forced to pay. Likewise for  taxes.

One stock reply to this is that people might think that they do not benefit from what they are paying for, they actually are receiving benefits and hence are paying for goods and services rather than being robbed. For example, the family that does not want to pay for public schools does benefit from having these schools in existence. Of course, this only holds when the taxpayer is, in fact, receiving a benefit.

A second stock reply is that even if the taxpayer is not receiving a direct benefit, they are contributing to the general good or, at least, helping others who are in need. The standard reply to this is that people should be able to decide whether they want to contribute to the general good or help others. To use an analogy, if someone steals from me so as to donate the money to a charity, they are still robbing me. This, of course, takes the discussion from the specific matter of taxes to the more general question of what we owe to others. If people owe nothing to the general good or to others, then a case could be made that taxes that aim at these goals would be theft. This sort of argument would be based on the lack of consent as well as the lack of a moral obligation to provide support in such cases.

There is, of course, a great deal of appeal to the idea that people should only pay taxes that yield benefits to them or that they are morally obligated to pay. Going back to the analogy of the bill, I should pay for what I receive or use, but not beyond that-unless I wish to do so. As such, it could be inferred that taxes that go beyond this would thus be theft for they would involve taking from me without my consent and taking beyond what I owe. Avoiding this would seem to require a tax system that is modeled on a billing system and a volunteer charity system: we would pay for what we used and decide to donate (or not) to what we do not actually use. Working out what each person owes (financially and morally) would be a rather challenging matter, but does seem to be something that could be done. As far as the financial part, companies and businesses already seem to have worked out a system of billing and this could be applied to the state as well. As far as the moral aspects of what we owe, that seems to be something that must be worked out (as a practical matter) via politics. This process will likely result in people being required to pay for things they do not use or agree with, but this would seem to be part of the price of being a citizen of a democracy. This, naturally enough, leads to the questions about voting-but that is a tale for another time.

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Cyberbad

While most of the recent coverage of WikiLeaks has focused on Assange’s trial, an important bit of news is the alleged conflict between Bank of America and the organization.

WikiLeaks apparently has some documents that would be damaging to Bank of America. This is hardly surprising, given the sort of financial misdeeds that seem to have been business as usual for many of the big financial companies. Apparently the security company of HBGary Federal saw this as an opportunity and developed a rather nefarious plan that involved attempting to discredit WikiLeaks by submitting false information to the site, to expose those who have contributed to WikiLeaks and by launching attacks on journalists who have expressed sympathy for WikiLeaks. In addition to the security company, it also appears that the well connected law firm of Hunton & William and even the United States Justice Department were also involvedto some degree.

In response to this, Anonymous (a self-proclaimed defender of WikiLeaks) launched a counterattack on HBGary Federal and its head, Aaron Barr. Ironically, Anonymous was able to  hack the security company and revealed not only the plans in question but also such things as the fact that Barr’s wife intends to divorce him. They even revealed the name of his WoW character, a level 80 Night Elf Druid. That is certainly an interesting nerdtastic touch.

On the face of it, it seems that HBGary Federal and Barr reaped what they had sown. After all, by engaging in such activities and planning to engage what certainly seem to be unethical and even illegal activities, they appear to deserve to be exposed and even subject to punishment. Since the authorities appear to not be inclined to take action in regards to these activities,  it could be argued that this was a state of nature situation which justified Anonymous in taking action in its own defense and the defense of others. This could thus be seen as a falling nicely within John Locke’s theory regarding self defense and punishment in the state of nature.

It could, of course, be objected that Anonymous is in the wrong. After all, Anonymous launched some minor attacks against companies such as PayPal  for ceasing to do business with WikiLeaks. Also, WikiLeaks itself has engaged in activities that some consider unethical and illegal. On these assumptions, it could be thus argued that HBGary Federal was acting in an ethically acceptable manner by trying to stop wrongdoers and to protect  Bank of America and others from the danger posed by WikiLeaks and its allies. As such, HBGary Federal could be seen as acting as a vigilante. Of course, vigilantism might strike many as morally questionable so perhaps it is better to cast the company as acting within a cyber state of nature. In this state, the company has to act in ways that seem to go beyond the law because its chosen opponents (Anonymous, WikiLeaks, supporters, and journalist) are beyond the reach of the law.

The main and most obvious flaw in this objection is that while Anonymous and WikiLeaks have endeavored to remain outside of the reach of certain authorities, the authorities do have the means to impose their laws upon them. Even if they are regarded as criminals, they would thus still seem to be within the state of society and thus can legitimately expect to not be subject to unlawful action and vigilante style attacks. While it might be argued that Anonymous and WikiLeaks act as vigilantes and thus can be justly subject to vigilante attacks, this would be on par with arguing that criminals can be treated in criminal ways because they are criminals. It would also appear to be a case of a “two wrongs make a right” fallacy.

If Anonymous and WikiLeaks were, in fact, beyond the reach of the law and were engaged in wrongful acts, then a case could be made for vigilantism. After all, if the wronged parties had no recourse to the law, then they would seem to have the right (as per Locke) to seek to stop the wrongdoers and gain reparation for the damage done. However, this does not seem to be the case at all.

A second flaw is that the journalists that were supposed to be targeted were obviously not in a state of nature or beyond the law. If the journalists had acted in illegal ways, then they could be dealt with within the legal system. Naturally, it could be objected that since the journalists cannot be stopped via legal means, they must be stopped via what seem to be illegal (and what seem to be clearly unethical means) means. This objection would, of course, have some merit if the journalists were in the wrong and were being protected by unjust laws. However, this does not seem to be the case and the objection has no real merit. As such, it seems that a company was acting outside of the law and was hoisted by its own petard.

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Creating Terrorists

Domestic terrorism in the United States is rather rare and, as such, it is hardly a shock that the arrest of Mohamed Osman Mohamud has gotten a lot of attention. The folks who have been backing the massive anti-terror machine can point to this one arrest and feel vindicated in their devotion to security.

I am, of course, glad that Mohamed Osman Mohamud was stopped before he could actually harm anyone. However, reading about the situation made me wonder whether he would have ended up in this plot without the active involvement of the FBI.

Based on the information currently available, Mohamed Osman Mohamud seems to have been the only actual terrorist involved in the plot. After all, the FBI provided him with the fake bomb and there has been no mention of anyone else being arrested. The background given for him (he drank beer, liked hip hop, and was reported as not being particularly devout) does not seem to fit that of someone who would mastermind a plot. As such, I do wonder how much the FBI actually motivated and guided him to the point where he was there to receive the fake bomb from the FBI. In short, I wonder how much the FBI had a hand in recruiting and shaping him into being a terrorist.

Obviously, he did make the choice to go along with the plot and hence is accountable for his choices. However, it is worth wondering whether he would have become a terrorist without the intervention of the FBI. That is, did they create the very terrorist that they arrested?

It is, of course, a reasonable and ethical tactic for law enforcement agents to pose as criminals and terrorists in order to gather information and make arrests. Those who will commit misdeeds generally prefer to remain unknown. As such, those who enforce the law often have to seek them out by employing deception. This can, of course, be justified on utilitarian grounds: they deceive to make society safer.

However, there are both ethical and practical concerns in regards to how much of a role agents of the law should take in urging people to commit crimes or acts of terror in order to gain information or to put people in situations in which they can be arrested.

On the one hand, if the person would not have committed such an act but for the involvement of law enforcement, then it would seem reasonable to hold the law enforcement personnel morally accountable. After all, they helped make the person into a criminal and if they had left the person alone, then the crime would not have been committed. As such, they would seem to be accessories to the crime. After all, they acted as corrupters and perhaps even as instigators.

Naturally, the person who goes along with such guidance is not free from blame. However, the influence of the law enforcement agents would seem to serve as a mitigating factor.

Also, law enforcement should not be about creating criminals to arrest, it should be aimed at deterring crime and arresting those who chose to become criminals. To use an analogy, doctors should cure patients who are sick. To make a patient sick and then claim an accomplishment by curing the person would clearly be unethical. Likewise, creating a criminal and then arresting him hardly seems the correct thing to do.

On the other hand, it can be argued that law enforcement needs to be proactive. They cannot wait until they learn of a plot or, even worse, for a bomb to go off. They have to go out and seek potential terrorists and see if they would be willing to become real terrorists. That way they can guide their evolution from potential terrorist to actual terrorist and then arrest the person. It is not quite as good as having precognition of a crime (as in Minority Report), but it is still rather useful to be able to actualize the criminal and thus protect society from the criminal they helped actualize. Otherwise, a potential terrorist could become an actual terrorist with an actual bomb (not a fake supplied by the FBI).

Since this method works so well in the case of terrorists, it should clearly be expanded to include other crimes as well. For example, law enforcement agents should start operating in public schools and urge kids (or as we should now call them, “pre-criminals”) to use and sell drugs. They could assist the kids in setting up drug operations, motivate them, guide them and then supply them with fake drugs. At that point, they could arrest the kids and keep the schools safe. If this works, then they could expand to other crimes as well. This pre-criminal cultivation approach could revolutionize law enforcement.

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Terrorism or Not?

Andrew Joseph Stack III, apparently partially motivated by a hatred of the IRS, crashed his plane into an Austin building. This incident has been officially classified as a criminal act rather than a terrorist attack. However, some have contended that this is a case ofconservative terrorism. While this incident is a terrible one, it does raise the issue of what counts as terrorism.

From a purely cynical standpoint, it could be claimed that the label of terrorism is applied as a matter of politics. Acts are declared terrorists acts so as to gain some sort of political game piece to be played for an advantage. For example, the underwear bomber is a terrorist because this enables the Republicans to claim that a terrorist attack occurred on Obama’s watch. In this current case, neither the Republicans nor Democrats can gain a political point by calling this incident terrorism and so they do not label it as such.

However, there seems to be a matter worth discussing here that is beyond mere political rhetoric.

One plausible view of terrorism is that it is the intentional use of force on to create fear and this is done on the basis of ideological motivations. To distinguish this from standard police and military actions, it can be added that the force is aimed at civilian targets or at the very least disregards the civilian/combatant distinction. Of course, the concept is one that is rather heavily debated and, as such, this can hardly be considered a definitive and non-controversial account. However, it does seem to have intuitive appeal. This definition does seem to nicely capture paradigm cases of terrorism, such as the 9/11 attack.

Using this definition, Stack’s attack would seem to be terrorism. After all, he seems to have been clearly motivated by ideological factors (combined, of course, with various personal issues) and he used violence against civilians. The parallels to 9/11 are quite clear, even down to the use of a plane as the  weapon.

Of course, Stack’s attack has been presented as a criminal act rather than an act of terrorism. This raises the obvious question of what distinguishes Stack’s attack from a terrorist act.

One factor that might be pointed to is that Stack is an American and this makes his act a criminal act rather than a terrorist act. However, this does not seem to be enough to change the nature of the act from being an act to terror to a mere criminal act. After all, there can be internal acts of terror committed between citizens. For example, the bombings in Iraq by Iraqis are considered to be terrorist acts as were the acts of the IRA in Ireland.

Another factor is that Stack seems to have acted as an individual without any supporting group that trained or at least helped guide him towards his act. It is generally accepted that terrorism is a systematic process that requires a group or organization. Obviously there can are criminal organizations that commit violent acts to advance their goals. However, these are usually distinguished from terrorist groups by their motivations. That is, criminal groups often  create fear  to make money while terrorist groups often commit crimes to make money to fund  terrorist attacks so as to advance their ideology. Of course, the line between terrorist groups and criminal groups is often a blurry one-especially in cases involving large scale drug trafficking.

If terrorism is defined in a way that makes it a group thing, then Stack’s attack would not count as a terrorist attack. This view does have some plausibility as shown by a comparison to war.

If I organize and launch an attack against my neighbors and take over their house, then I am a criminal. If my country organizes and launches an attack against another country, then this is war and not (on the face of it) a criminal act. Perhaps terrorism works the same way. To use a metaphor, perhaps terrorism and war are team sports so that an individual cannot play those games by himself.

So, while Stack was motivated by ideological factors and used violence against civilians, the fact that he acted alone would entail that he was a criminal and not a terrorist. If he had, however, some links (however tenuous) to the right sort of group, then he could be classified as a terrorist.

As noted above, there have been some arguments that Stack was a terrorist on this basis. The general case is that he was actually part of a group with a definite ideology and hence this provides him with the necessary context for being a terrorist. The weak point in this argument is that the group that Stack is supposed to be associated with is a rather vague one, namely people who dislike the government and the IRS. Taking such tenuous group membership is taken as an adequate basis to define a person who commits violence as a terrorist seems to make the definition of “terrorist” rather broad. After all, anyone who does not dwell in complete isolation will have some sort of association with some people who have some sort of ideological views. The challenge here is, of course, to work  out what sort of relation a person would need to have to what sort of group to make that person a terrorist rather than a criminal.

It is, of course, tempting to take the view that “terrorist” is primarily a political label that is placed to serve the political ends of the person applying the label. So, for example, a person might be labeled a terrorist so that he can be interrogated with enhanced techniques, assassinated or jailed without due process.  Or someone  might declare a “war on terror” so as to use it as a political tool to reshape laws and how they are applied. A lone person who crashes a plane into a building simply doesn’t provide a useful political game piece and hence is labeled as a criminal rather than a terrorist.

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