Let a Thousand "Rogue" Grand Juries Bloom!

 

Amanda Culbertson has a conscience, which is another way of saying that she wasn’t well-suited to government “work.” Until recently she was employed by the Houston Police Department as a crime lab supervisor. In 2009, she became aware of serious problems with the reliability of the department’s roadside blood alcohol testing vehicles, more commonly known as BAT vans. 

Over the past decade, hundreds of police departments nation-wide have purchased the vehicles with the help of federal grants. The testing device deployed in them, the Intoxilyzer, is considered infallible by law enforcement agencies and most trial judges. However, the Kentucky-based company that manufactures the the Intoxilyzer has refused to disclose its source code. Without access to the source code, the device's findings are unverifiable. As one defendant points out, the machine could simply be a gimmicky random number generator, rather than a finely calibrated scientific instrument. 

In 2008, it was discovered that a supervisor for the Houston Police Department had falsified BAT van inspection records for at least the previous eighteen months, thereby calling into question test results in at least 2,600 cases. When Culbertson was appointed to supervise the inspections, she learned that indifferently trained police officers allowed the units to overheat, which would skew test results. In addition, a glitch in the system caused the much-heralded Intoxilyzer to reset every time the air conditioner was turned on.

Over the course of several months, Culbertson tried to get officials in the police department and the Harris County DA’s office to address her concerns. None of them was interested in disturbing what had become a very profitable scam. 

In June, Culbertson and two of her colleagues quit their jobswith the HPD. “We could no longer choose between a paycheck and our integrity,” Culbertson explained. Not surprisingly, she was called to testify by attorneys representing some of the hundreds of people facing DUI charges as a result of BAT van tests.

In professional terms, Culbertson landed on her feet: She was hired by a laboratory at Lone Star College that had a contract to conduct breathalyzer analysis for the Harris County Sheriff’s Office. Shortly thereafter, the Harris County Commission – at the initiative of DA Pat Lykos – ended its contract with the Lone Star College lab. In effect, Lykos – in an act of vulgar retaliation-- arranged for Culbertson to be fired.

Harris County’s 185^th criminal court grand jury, which had been investigating problems with the BAT vans, called Culbertson to testify, along with former Harris County Prosecutor Brent Mayr. Lykos dispatched two members of her flying monkey corps – assistant DAs Carl Hobbs and Steve Morris – to “monitor” the grand jury testimony. 

Since Lykos and her office were suspected of covering up the use of tainted evidence and retaliating against a whistleblower, the DA and her underlings were barred from being present in any capacity other than as sworn witnesses. Accordingly, when Lykos’s minions materialized during Culbertson’s testimony, the Grand Jury Foreman ordered them to leave. When that directive was ignored, the Foreman instructed the Baliff to remove them or place them under arrest.

Lykos unsuccessfully sought a court order compelling the grand jury to grant access to her underlings. When that effort failed, the DA's office exploited a back-channel to obtain official transcripts of the grand jury testimony. That led to a summons from Judge Susan Brown to Hobbs and Morris, along with court reporters Javier Leal and Katherine Chagaris, who face the possibility of contempt citations and the prospect of six months in jail. 

The Harris County grand jury's insurrection caused consternation in the DA's office, and astonishment in the local media. "All too often in the past, Harris County grand juries have functioned as rubber stamps providing prosecutors with indictments without impartial scrutiny of their substance," notes the Houston Chronicle. Of course, this is true of practically every grand jury since the enactment of the Federal Rules of Criminal Procedure in 1946. 

The Federal Rules of Criminal Procedure were created by committee to be an instrument of what the German National Socialists called Gleichschaltung – the “synchronization” of legal (as well as political and cultural) institutions with the dictates of the central government. Germany had been a federated constitutional republic prior to 1933, when Gleichschaltung got underway. Five years later, the FDR regime’s Advisory Committee on the Rules of Criminal Procedure – invoking the supposed need for “simplicity” and “efficiency” – began the same process in the United States. 

The Advisory Committee had no legislative authority or popular mandate; it was a pure creation of the prosecutorial class. Thus it’s hardly surprising that one of its most urgent priorities was to transform the grand jury from a citizen’s assembly into an instrument of the prosecution. This meant “rectifying” – in the Orwellian sense – the Fifth Amendment by effectively removing the troublesome word “presentment.”

 The Fifth Amendment specifies that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” A “presentment” is essentially a proprio motu indictment delivered by a grand jury without approval of a government prosecutor. 

Presentments were often filed by grand juries investigating official corruption – such as the grand jury in Minneapolis that forced the resignation of the mayor and police chief in 1902, or the one that dislodged Boss Tweed and his politically sheltered cronies thirty years earlier. 

This was an entirely appropriate function of the grand jury. The “grand jury in its primal, plenary sense … was a group of men who stood as a check on government, often in direct opposition to the desires of those in power,” points out constitutional scholar Roger Roots. Rather than being an instrument of the political class, Roots continues, “American grand juries initiated prosecutions against corrupt agents of the government, often in response to complaints from individuals.” It also served as “a people's watchdog against arbitrary and malevolent prosecutions."

For most of America’s history, “the evil that the grand jury sought to address was the exercise of distant power locally,” wrote Kevin K. Washburn in an article for the Fordham Law Review. “Indeed, the grand jury came to us as an institution that was respected for its profound ability to protect local communities – indeed, possibly rebellious ones – from central government authority. It was, in essence, a local check on Crown authority.” 

 In 1734, grand juries twice refused to indict John Peter Zenger for “seditious libel.” New York’s Royal Governor William Cosby bypassed the grand jury by filing a “criminal information” against Zenger – only to see the trial jury nullify the sedition law and acquit the newspaper publisher. During the 1760s, Crown prosecutors in Massachusetts were constantly stymied by grand juries that refused to indict colonists accused of violating the Stamp Act and other impositions. 

Both before and after American Independence, “the grand jury’s primary method for exercising its power was not rigorous review of facts, but nullification of validly enacted laws,” Washburn observes. They didn’t dispute the prosecutor’s presentation of the facts, but rather “the legislator’s right to impose such laws, or at least the prosecutor’s decision to enforce them in a given context.” 

Obviously, this kind of power simply couldn’t be left in the hands of mere Mundanes. Accordingly, the term “presentment” was conspicuously absent from Rule 6 of the original Federal Rules of Criminal Procedure, which dealt with the role of the grand jury. Lester B Orfield, who served on the Advisory Committee, later explained that retaining the term “might encourage the use of the `run-away’ grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney.” 

 “Today, the grand jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury,” wrote federal District Judge William J. Campbell in a 1973 law journal article calling for formal abolition of the institution on the grounds of redundancy. This isn't to say that the grand jury is considered useless by the prosecutorial caste: It helps maintain the pretense that prosecutors are servants of the public will.

What is happening in Harris County is not an example of a grand jury going "rogue," but rather one behaving exactly as it should. It is interposing itself on behalf of the public by investigating a federally subsidized revenue-collection racket, and the abusive prosecutor who presides over it. Hopefully its example will prove to be contagious. 

 Programming Note

This Saturday (November 5) I will be one of several featured speakers at the United Republicans of California state convention at the Embassy Suites Hotel in Arcardia, California. UROC, which bills itself as "The republican wing of the Republican Party," is emphatically not a neo-con group: In 2008, it unanimously endorsed Ron Paul's presidential bid.

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Dum spiro, pugno!

"Rising" to Empire, Falling from Grace

The following article is adapted from my contribution to a forthcoming collection of essays addressing America's descent into imperialism.

“If we have to use force, it is because we are America. We are the indispensable nation. We stand tall. We see further into the future.”

This panegyric to what is commonly called “American Exceptionalism” could have been composed by any of a number of GOP-aligned media figures, such as Rush Limbaugh, Sean Hannity, Mark Levin, or their legions of local imitators. Those words were actually spoken by Madeleine Albright in 1998, when she was the Clinton administration’s Secretary of State. She was defending the U.S. role in enforcing an embargo on Iraq in the aftermath of the first Gulf War in 1991.

Albright had memorably addressed that issue in a different fashion three years earlier during an interview on the CBS program 60 Minutes. 

“We have heard that a half million children have died,” observed interviewer Leslie Stahl. “I mean, that's more children than died in Hiroshima. And, you know, is the price worth it?”

Without challenging the statistics, or displaying even a tremor of remorse, Albright replied: “I think this is a very hard choice, but the price--we think the price is worth it.”

By reconciling Albright’s statements we learn that when “we have to” impose policies that result in the avoidable death, through starvation and disease, of hundreds of thousands of children, “it is because we are America.... We stand tall. We see further into the future.”

For some reason, the self-styled seers and visionaries who defended the Iraqi embargo didn’t foresee how that policy, coupled with decades of U.S. meddling in the Middle East, would cultivate and nurture the seeds that bore murderous fruit on September 11, 2001. 

To ordinary people not blessed with Albright’s oracular insight, it seemed obvious that some variety of murderous blowback would be the inevitable product of a foreign policy that featured deliberate mass starvation punctuated with bombing raids. However, the custodians of permissible opinion have decreed that history began on the morning of 9/11 – that nothing the U.S. government did prior to that date has any organic connection to the motives and actions of those who carried out the attack (at least as that attack is described in the officially sanctioned narrative). To suggest that Washington’s policies had some relationship to anti-American sentiment in the Middle East is to commit a grave blasphemy against American Exceptionalism – the official creed of the ruling Establishment, irrespective of party.

What makes America exceptional, from this perspective, is not the blessings we have been allotted by Providence, or the individual liberties promised by our country’s founding documents. America is exceptional because of the power of the government that rules us, as manifest in its ability to kill people in distant lands. 

Death-dealing herald of empire: A Global Hawk drone.

That view, once again, is not limited to bellicose left-wing internationalists like Albright. On several occasions, Rush Limbaugh – who, like fellow late-blooming militarist Dick Cheney, had “other priorities” when he was of draft age during Vietnam – has related an anecdote about witnessing a military fly-over during a Super Bowl in the 1980. Aroused by the spectacle to the point of rapture, Limbaugh (by his own account) was moved to exclaim, “How can you see something like that, and be a liberal who hates your country?”

Offensive as it would be to both Limbaugh and Albright, a compelling case can be made that their reflexive militarism is a repudiation of our country’s founding principles. The Framers of the Constitution, painfully familiar with the uses to which large military establishments could be put, never intended for the united States of America (in Congress assembled) to have a standing, centralized army. While they did have the lamentable intention of creating a consolidated central government -- and pretty clear ambitions for territorial expansion to the West -- they did not entertain grandiose ambitions of policing the world. 

The most admirable members of the Founding Generation understood that love of country was not measured by one’s enthusiasm for government-inflicted bloodshed. That’s why Washington’s Farewell Address emphasized both adequate provision for defense and the compelling necessity to avoid entanglement in the affairs of other countries. 

Imperialism by joystick: A drone operator carries out an attack.

“Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be,” observed John QuincyAdams in his 1821 Independence Day Address. “But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force.... She might become the dictatress of the world. She would be no longer the ruler of her own spirit.” (Emphasis added.) 

Unlike the supposedly far-seeing Madeleine Albright – who couldn’t foretell how her arrogant endorsement of genocide in 1995 would help catalyze the enmity that led to the devastating 9/11 assault six years later – Adams displayed uncanny foresight in describing the degenerate state of American “patriotism” today, 190 years after he delivered his warning against interventionism: “Patriots” today celebrate force, not liberty.

Today, what Adams and his generation called “Independence Day” is simply called the Fourth of July. Rather than being a celebration of individual liberty, the “Fourth” has become an annual orgy of militarism, often involving saturation-level barrages of propaganda in the form of televised war “movie marathons” and military parades that wouldn’t be out of place in Pyongyang. 

Lest it be forgotten, Independence Day originally commemorated an act of insurrection against the “legitimate” government – an incomparably powerful globe-spanning empire on which the sun never set. The men who committed that act of rebellion would probably consider it perverse that they are “honored” by public rituals extolling the imperial power of a government that is more corrupt and oppressive – by several orders of magnitude – than that of George III.

America was unique because of its origins in principled rebellion against lawless rule, and because of a set of founding political instruments that, while imperfect, did provide individuals some protection against government aggression. Those traits that are typically celebrated as tokens of “American Exceptionalism” – an interventionist foreign policy; a Chief Executive with unqualified power to kill, imprison, and torture people at whim; a badly overgrown military establishment – are, in a specific sense, un-American. 

A commercial republic in which both citizens and their elected representatives are governed by law, and individual liberty is regarded as the highest political good, would be truly exceptional. A sprawling empire ruled by a corrupt oligarchy that plunders both the national treasury and the resources of distant lands is actually quite commonplace. 

 To catch a glimpse of the America that could have been, it's useful to pay a brief visit to the period between the end of the War for Independence and the mercantilist counter-revolution in Philadelphia that abolished the Articles of Confederation and created a more centralized constitutional Union.

 In 1782, a year after the British surrender at Yorktown and one year before the Treaty of Paris finalized American independence, a former French Lieutenant named J. Hector Saint John de Crevecoeur composed a series of essays entitled Letters from an AmericanFarmer. Six decades before Alexis de Tocqueville published Democracy in America, Crevecoeur devoted his considerable literary gifts to an examination of the question: “What, then, is the American, this new man?” 

Unlike Europe, a continent plagued by entrenched elites, there were “no aristocratical families, no courts, no kings, no bishops, no ecclesiastical dominion, no invisible power giving to a few a very visible one” in America, he wrote. The inhabitants of this new-born confederacy of constitutional republics were “a people of cultivators, scattered over an immense territory … united by the silken bands of mild government, all respecting the laws, without dreading their power, because they are equitable.” (Emphasis added.) 

At its best, the "mild" government to which Crevecoeur referred was self-government; it was the spontaneous cooperation of productive people, rather than the imposed order of a parasitical elite. This state of affairs was hardly uniform throughout the confederation, of course, but that it existed at all was something truly inspiring.

On "Evacuation Day," November 25, 1783, British troops ended their occupation of New York. In comments recorded by the New York Packet newspaper, a departing British officer expressed a bemused admiration for the Americans, who distinguished themselves by their unwillingness to be ruled:

“Here, in this city, we have had an army for more than seven years, and yet we could not keep the peace of it. Scarcely a day or night passed without tumults. Now we are [leaving] everything is in quietness and safety. These Americans are a curious, original people; they know how to govern themselves, but nobody else can govern them.”

The promise of the War for Independence was the establishment of a system of individual liberty protected by law – and, at least at that early stage, that promise was being kept. That genuinely exceptional America earned the admiration of the world – not because its government possessed the power to murder people by remote control, or annihilate entire continents in a nuclear paroxysm, but rather because its people were free and independent, and its society -- although displaying all of the imperfections to which fallen man is heir – aspired to be governed by the Golden Rule. 

 

Tragically, "our" government’s rise to global power has meant our country’s fall from grace. 

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Steven Pinker's Statist Gospel

Evolutionary psychologist Steven Pinker, who has said that he never “outgrew my conversion to atheism at thirteen,” has written a theodicy – a tract intended to validate the redemptive power of the Leviathan State. In his new book The Better Angelsof Our Nature, Pinker insists that humanity has “evolved to become less violent” through the ministry of elites who employ the State to evangelize on behalf of what he calls “enlightenment humanism.” 

According to Pinker, since the emergence of the modern secular state in the 18th century there has been a dramatic decline in primitive expressions of aggressive violence. People who live in contemporary developed societies “no longer have to worry about abduction into sexual slavery; divinely commanded genocide; lethal circuses and tournaments; punishment on the cross, rack, wheel, stake, or strappado for holding unpopular beliefs; decapitation for not bearing a son; disembowelment for having dated a royal; pistol duels to defend their honor … or the prospect of a nuclear world war that would put an end to civilization or to human life itself,” Pinker asserts. 

The precipitous decline in private violence, which Pinker heralds as “the most important thing that has ever happened in human history,” is a triumph of the “social contract,” an arrangement in which political government asserts a monopoly on the “legitimate” use of force. By over-awing those inclined toward individual acts of violence, the State supposedly suppresses “demonic” impulses – such as greed and sadism – while emancipating the “better angels of our nature” – empathy, self-discipline, and peaceful cooperation.

"Oh Divine State, protect us from the unenlightened...."

 As is the case with most religious doctrines, Pinker’s theology of the divine State is built on a paradox – in this case the idea that the human tendency toward violence can be eradicated through the scientific application of the same by enlightened people who have supposedly transcended such primitive impulses. 

Given that Pinker is one of the leading exponents of the “box with wires” view of the human brain, there is also a rich vein of irony in Pinker’s unabashed use of the terms “demons” and “angels” in describing a conflict over competing visions of morality. 

In an interview given more than a decade ago, Pinker described human beings as “nothing more than a collection of ricocheting molecules in the head.” Like others who subscribe to that view, Pinker has yet to submit a schematic explaining how morality is produced through molecular reactions. And like theologians from other traditions, Pinker is content to leave such matters undisturbed in the unfathomable depths of mystery. This would be a perfectly acceptable arrangement – were it not for the fact that Pinker, like fundamentalists from other traditions, embraces the use of sanctified coercion as a means of purifying those less enlightened than he.

As a child, Pinker, says, he thought as a child, embracing anarchism at about the same time he converted to atheism. But as an adult, he has put away childish things: “I was a Rousseauan then; now I’m a Hobbesian.” What this means in practice is that he merely abandoned one sect of totalitarian statism for another.

Rousseau, it should be remembered, was  was the author of what he called "The Civil Religion" — a doctrine that would enable the masses, in Rousseau's phrase, to "bear with docility the yoke of the public good." 

The most important article of Rousseau's Civil Religion was the absolute divinity of the State; the gravest transgression was "intolerance," which was regarded as evil not because it injured the rights of individuals, but because it challenged the State's authority.

According to Rousseau, the ideal social arrangement would be a "form of theocracy, in which there can be no pontiff save the prince, and no priests save the magistrates.... [W]hoever dares to say, 'Outside the church is no salvation,' ought to be driven from the State, unless the State is the Church, and the prince the pontiff."

The State would make belief in its dogmas compulsory, even as it denied it was doing so: "While it can compel no one to believe them, it can banish from the state anyone who does not believe them…..” Apostasy would be a capital offense: "If any one, after publicly recognizing these dogmas, behaves as if he does not believe them, let him be punished by death -- he has committed the worst of all crimes, that of lying before the law."

Rousseau believed that man --until corrupted by traditional institutions -- was intrinsically good. Thomas Hobbes – not to put too fine a point on the matter – didn’t share that opinion. He did agree that the State, as the embodiment of what could be called the “general will,” should combine the civil and ecclesial functions and exercise unlimited power to regiment the lives of its subjects. The objective wouldn’t be to save people’s souls, or elevate their morals, but merely to impose order.

Pinker claims to be “eclectically, non-dogmatically libertarian” in his political outlook. Given his unbuttoned embrace of Hobbesian absolutism, that’s a bit like claiming to be an “eclectic, non-dogmatic vegan” while subsisting on a diet of steak tartare.  

Although Pinker began his academic career in a Montreal counter-cultural milieu “dominated by hippies ... and US draft dodgers,” he has endorsed the exercise in State-inflicted violence called the “War on Drugs” in terms that would earn Hobbes’s approval:  “A regime that trawls for drug users or other petty delinquents will get a certain number of violent people as a by-catch, further thinning the ranks of the violent people who remain on the streets.”  

This process involves filling the streets with State-licensed “violent people” in military attire, and granting them a plenary indulgence to loot and terrorize the public. The “by-catch” gathered by thegovernment’s trawling net includes perfectly innocent people. But it is not our place to question the inscrutable wisdom of the divine State, which causes the pain to fall on the righteous and unrighteous alike.

Leviathan's "by-catch": A 71-year-old victim of a wrong-door drug raid.

 There is also the matter of quo warranto: By what authority does the State assault and imprison people who peacefully ingest mind-altering substances? 

This is where Pinker’s Rousseauist background comes into play: It’s not necessary for subjects to understand the logic of the State’s decrees; they simply must have faith in its bottomless competence and unalloyed goodness – or suffer the penalty for their apostasy. 

All religious belief requires the acceptance “of things hoped for, the evidence of things unseen.” Pinker’s dogma requires that we ignore the evidence of things that are clearly visible in order to embrace his vision of something yet to materialize. The most compelling argument against Pinker’s claim that humanity has evolved beyond violence is the systematic slaughter during the 20^th Century of at least 170 million people by governments claiming and enforcing a monopoly on the “legitimate” use of force. 

In The Better Angels of Our Nature, Pinker – to his credit – does recognize R.J. Rummel’s pioneering research into the phenomenon of "democide." Given the body count compiled through war and politicized mass murder during the 20^th century, and the persistent bloodshed in the Middle East, Africa and elsewhere, the idea that humanity has progressed beyond violence “seems illogical and obscene,” Pinker admits. This is something else we simply have to take on faith as well, it appears. 

The rampages carried out by totalitarian states were a tragic prelude to the “Long Peace” that has prevailed since WWII, Pinker insists. We’ve reached a point at which mass violence only among those sub-populations that have resisted signing on to a “social contract that [gives] government a monopoly on the legitimate use of violence.” That heathen population, he points out, includes Americans who reside in the southern and western states, where people “retain the right to bear arms [and] believe it is their responsibility, not the government’s, to deter harm-doers.” This means that “private citizens, flush with self-serving biases, [can act] as judge, jury, and executioner….”

Of all the impious nerve! Such power can only be exercised by those duly anointed as emissaries of the divine State – beginning with the Exalted One in the Oval Office, who commands the power to imprison, torture, or execute anybody  on the face of the planet. 

In a 2007 TED lecture, Dr. Pinker urged Leviathan’s subjects to count their blessings: A mere century ago, he pointed out, some of them may have been “burned at the stake for criticizing the king, after a trial that maybe lasted ten minutes.” Today, by way of contrast, a U.S. citizen who condemns Washington’s imperial aggression can be summarily executed by way of a drone-fired missile without the benefit of a trial. The latter approach is acceptable to at least some people of Pinker’s persuasion because the State’s priestly caste possesses the mystical power to transubstantiate violence into “policy.” 

Although he followed a different vector, Steven Pinker, a proudly irreligious cultural Jew, has arrived at the same destination as the reactionary 18th Century Catholic writer Joseph de Maistre, who insisted that "all greatness, all power, all social order depends on the executioner; he is the terror of human society and tie that holds it together. Take away this incontrovertible force from the world, and at that very moment order is superseded by chaos, thrones fall, society disappears." While Dr. Pinker criticizes the death penalty, his view of social order ultimately rests on the supposed authority of State functionaries to kill those who refuse to submit to them.

The modern material and ethical progress Pinker properly celebrates are not the product of State coercion. They are the result of private, mutually beneficial action based on reciprocal respect for individual rights -- in other words, the application of the Golden Rule, which Pinker acknowledges in passing while pointedly ignoring uncomfortable questions about its provenance and most notable Exponent. 

To use Pinker's categories: The impulses unleashed by the State are demonic, not angelic. 

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Dum spiro, pugno!