… Ere the bat hath flown
His cloister’d flight, ere, to black Hecate’s summons
The shard-borne beetle with his drowsy hums
Hath rung night’s yawning peal, there shall be done
A deed of dreadful note

William Shakespeare[1]

 [This is Phil again, and I’m tired of writing about witch hunts. Really, the subject is inexhaustible. Deal with one, and five more rise up: different facts of course, or should I say “alleged” facts? But the pattern is always the same. Attack a politician’s reputation, imply [but don’t prove] that bad things have happened, and trot out some secret witnesses to relate the one to the other. But of course the witnesses aren’t really “trotted out.” They’re quoted and characterized as heroic leakers, but not identified. That’s to protect them from hostile questioning by, say, the folks they’ve been maligning.

So we the public never get anything solid to look at; only gossip and rumors; and, of course, because today there’s a 24 hour news cycle, we hear the g & r over and over … and over. Of course, the victim of the hunt can always deny guilt but so what? After all that rumor mongering the victim will have such a bad reputation that many will think he [she] must be guilty of something![2] The legally inclined might decide that no real case has been made against the victim but the undecided, no doubt, will check the “don’t know” box in any survey. But really, with lousy evidence no one polled will have a sound basis to form any opinion other than “don’t know.”

Of course, I’m talking about political witch hunts, not the supernatural kind. Political witch hunts deal with philosophy, doctrine, economics, social theory and power. A supernatural witch hunt is grounded in religion, faith, fear and the need to counter occult threats. The two are different in principle, if not in practice. This time let’s venture into the supernatural, to check our roots, as it were. Let’s look at bats – filthy creatures – what they do and whether they should be tolerated in our modern age. There are many questions.]

Witches operate at night, and bats come out at night, so are they in collusion and if so, how? You may think that’s an idle question, but I’m not so sure. Bats aren’t human, but back in the Middle Ages people weren’t afraid to try animals for violating human law. We wrote a blog about that not too long ago.[3] So perhaps bats were equally culpable with humans in witchcraft and should have been tried along with them. Or perhaps they were the real culprits, and the witches should have been excused.

Let’s put aside the question of how to catch the bats to bring them to human justice and apply instead the ancient three part test to see if they’re guilty of something. If they are, then we can formulate the details of an anti-bat campaign.

Reputation

There’s no denying that bats hang in evil places and with evil things. First, of course, they come out at night and sleep in dark spaces during the day, usually with each other. And look at what Shakespeare said about them! The bat flies his cloistered flight around the same time the beetle, at Hecate’s order, sounds “night’s yawning peal.” Hecate, as we all know, is an ancient goddess of the night, and now of witches.[4] The beetle makes a sound, not like a bell, but a buzzing, so when night “yawns” it makes us drowsy. Other poets confirm this. “Now air is hushed, save where the weak-eyed bat, [w]ith short shrill squeak flits by on leathern wing, [o]r where the beetle winds [h]is small but sullen horn …”[5] And obviously the night is dangerous to humans; it makes us drowsy, so we’re not alert to its threats. So when we hear a bat, “the dry whisper of [its] unseen wings,[6]” we know definitely it’s not the sound of an angel.

And if you need more proof, just think of how relieved we are when night and its bat companions leave us for a time. Alfred, Lord Tennyson wrote about that. “Come into the garden, Maud,” he wrote, “[f]or the black bat, night, has flown … [a]nd the woodbine spices are wafted abroad, [a]nd the musk of the rose is blown.”[7] It was dawn, and the bats were gone, and he was awake and ready to get on with life.

Indications of the Deed

Well, what about sorcerous deeds? Do we have any indications of bat involvement in such things? The literature is full of relatively minor examples of bat complicity. Who can forget, for example: “Eye of newt and toe of frog, [w]ool of bat and tongue of dog … For a charm of powerful trouble, [l]ike a hell-broth boil and bubble”?[8] That’s some powerful spell-casting straight from Macbeth, and bats contributed to the potion. Then there’s Shakespeare’s other observation, that bats keep company with sprites and other magical beings. “On the bat’s back I do fly, [a]fter summer merrily; Merrily, merrily shall I live now, [u]nder the blossom that hangs on the bough.” That’s from The Tempest.[9]

But those are old examples, and I’m more interested in the here and now, and how bats may affect us today. And really, I didn’t worry much about that until I did some research. Did you know that it’s possible to believe bats will be there at the start of the next major war? Consider this:

Ponderous and uncertain is that relation between pressure and resistance which constitutes the balance of power. The arch of peace is morticed by no iron tendons …. One night a handful of dust will patter from the vaulting: the bats will squeak and wheel in sudden panic: nor can the fragile fingers of man then stay the rush and crumble of destruction.[10]

That’s from a 20th Century diplomat.[11] Frankly I’m speechless. If bats are correlated with the next Big War, will they be the cause of it, or an effect, or both? And if we don’t know, shouldn’t we just exterminate them to be safe? What would today’s witch hunting media recommend? Are there leaker-witnesses out there to support drastic action?

Witnesses

Well, we have plenty of witnesses in literature, Shakespeare, Tennyson, William Collins and the like, but they’re not likely to appear in person at a trial; and I haven’t found much current, say on YouTube, that’s really negative on bats. Instead there seem to be videos that portray bats as useful, cute, or at least valuable partners in maintaining the balance of nature. For one of the cute ones, take a look at Baby Bat Burritos, cite given below.[12] And so far I’ve found nothing that relates bats in a causal way to war. But that’s now; you never know what or who will turn up later. Perhaps Congress should sponsor an official inquiry into the question. People need to know if they are safe.

Conclusion

Bats are occult for sure and their reputation isn’t good; but they haven’t caused any harm recently; and the available You Tube witnesses mostly testify in favor of bats. So absent a new and spectacular bat expose’ there’s not a strong basis for mounting a bat witch hunt.

It’s a tough call, but I would defer any drastic action for now. You should do the same. After all, this is the 21st Century. We can always generate a mob via social media whenever we need one. There’s no need to act until circumstances favor us.

And by all means, don’t brood about occult things after the sun sets. As Francis Bacon once said, “Suspicions amongst thoughts are like bats amongst birds, they ever fly by twilight.”[13] Have a good dinner and forget about bats, and war, and turn off the TV. That alone may be a liberating experience. Bacon didn’t know about TV but, if he had, I’m sure he would have said the same.

 

[1] This is from Macbeth, Act 3, scene 2, lines 44-49. You can find it online at http://www.shmoop.com/macbeth/the-supernatural-quotes-3.html . Or, if you have a copy of the Oxford Dictionary of Quotations, see Knowles (editor), Oxford Dictionary of Quotations (6th Edition, 2004) [hereafter, ODQ at __] go to it at Shakespeare, p.705, n. 22.

[2] Or should I have said: “he, she [or they] are” guilty of something? With all the gender confusion these days, it’s getting harder to write a sentence. How does one keep the gender option open for one person but at the same time connect him or her [or whatever] to a verb of some sort? When do he or she [or whatever] become a “they,” or should gender confused people be called “it” just to get on with the narrative?  These are questions. I don’t know the answers. If you do, please write!

[3] See the Elemental Zoo Two blog of 02/032013, Animal Rights in History, available at https://opsrus.wordpress.com/2013/02/03/animal-rights-in-history/

[4] If you want to know more see the Wikipedia piece on her, at https://en.wikipedia.org/wiki/Hecate .

[5] That’s from William Collins, an 18th Century poet. See ODQ at William Collins, p. 235, n. 11.

[6] See ODQ at R. S. Thomas, p. 790, n. 23:  “Or the dry whisper of unseen wings, Bats not angels, in the high roof.” For more information on him, take a look at https://en.wikipedia.org/wiki/R._S._Thomas .

[7] See ODQ at Alfred, Lord Tennyson, at p. 781, n. 23. The full quote is: “Come into the garden, Maud, [f]or the black bat, night, has flown. Come into the garden, Maud, I am here at the gate, alone. And the woodbine spices are wafted abroad, [a]nd the musk of the rose is blown.”

[8] It’s from Macbeth, Act 4, scene 1, line 14. See ODQ at Shakespeare, p. 706, n. 12

[9] The quote is from The Tempest, Act 5, scene 1, line 88. If you don’t have Shakespeare handy you can find the quote in ODQ at Shakespeare, p. 719, n. 6.

[10] That’s a quote by Harold Nicolson, a 20th Century diplomat. See ODQ at Harold Nicholson, p. 563, n. 10 For more information on him, take a look at the Wikipedia entry at https://en.wikipedia.org/wiki/Harold_Nicolson .

[11] See n. 10.

[12] See Baby Bat Burritos, a video incorporated in Huffington Post, Dicker, Baby Bats Swaddled Like Little Burritos Are Way Cuter Than You Might Expect (Dec. 01, 2014), available at http://www.huffingtonpost.com/2014/12/01/baby-bats-swaddled_n_6247954.html

[13] See ODQ at Francis Bacon, p. 429, n. 5.

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Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his [defense]. 

Article 11, Universal Declaration of Human Rights[1]

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law….”

Coffin v. United States[2]

[Phil, I read your last blog on witch hunts and enjoyed it quite a bit. It was colorful and incisive as usual. I think what you said was that in the old days a witch hunt could be started by any person who denounced a neighbor by filing charges with a local court, with supporting evidence. If the evidence made the case, then the accused [witch] was in trouble. If the evidence wasn’t good enough, then the accuser might be in trouble unless he had acted simply to protect the Faith or for the common good. In that case he wouldn’t be penalized “even if he fail[ed] in his proof.”[3] Or, if there were rumors of witchcraft all over the place, but no one was willing to denounce individuals, a local tribunal might simply open an inquiry [an “inquisition”] on its own motion and start dragging people in to question them.

So that brings me to the next question. Presumably even 500 years ago people accused of a crime were thought innocent until proved guilty. So how did the witch hunters prove someone was a witch? How could they do that when, as we know today, it’s simply not possible to affect weather, crops or livestock with a curse, or make people sick with a dirty look, or have sex with a demon? [4]]

That last is another very good question from our leader, G. Sallust. Perhaps one day I’ll ask the questions and he’ll answer them. But not today; the answer to his question – how to prove witchcraft – lies deep in the Malleus Maleficarum[5], a book I’ve read and he hasn’t. Not that I’m glad to have read it. It gives me nightmares, sometimes. But apparently people study it in our Journalism schools and treat it as a good example, if not a paradigm of how to report on politics. So, too bad for us, the Hammer may be as relevant to current events as today’s newspaper. Do any of you read newspapers?

The ancient witch hunters needed three things to try a witch: (i) the accused’s reputation; it had to be bad; (ii) ‘indications’ of sorcerous deeds; and (iii) adverse witness statements.[6] That sounds clear enough, I suppose, but the devil was in the details, especially where sorcery was involved. Also witch hunters wouldn’t have brought someone to trial unless they thought she [or he] was guilty. Anyway, that’s what I’m told.

Reputation as Evidence

If the accused had a bad reputation, the witch hunters assumed it was because she [or he] had committed sorcery at some place and time. “[S]orceresses are immediately branded with a bad reputation because of crimes in some village or city.”[7] A bad reputation was, in fact, evidence of sorcery. Where there’s smoke there’s fire! Or was it, “probably a liar?” I forget.

Indications of the Deed

This was the easy part. The investigators looked for sick children, diseased farm animals, barren fields, and so forth.[8] Such events were plentiful [it was the 15th Century] and easy to verify. The trick was to connect them to the accused. For this investigators needed either a confession or statements from witnesses.

Witnesses

Three witnesses were required.[9] However, they didn’t have to be witnesses to the same event. One could have said, ‘she looked at my child, and he fell sick’’ another that ‘she looked at my farm animals, and they died, and the third that ‘she waved at my fields, and they became barren.’[10] It was enough that they all agreed about the ‘essence of the deed’ – i.e., that there was sorcery.

Of course that was their opinion, unsupported by today’s science. Illness and crop failures are common when people have poor sanitation, over cultivate their land, starve periodically, and basically don’t understand how disease works. But witnesses didn’t know such things in the 15th Century, and it didn’t matter. The only important thing, apparently, was that they believed sorcery was at work and said so. How did they know that? Don’t worry; they just knew it when they saw it.

Guilty or Innocent?

So there you have it. If the witch hunters did their job properly, there was no real need for a trial. All that had to be proved would have been proved.” A trial would only validate the accused’s guilt, preferably with a confession.[11] I’m not a lawyer, but frankly I don’t see a “presumption of innocence” working anywhere in this business.

Guilt was established by the investigation. If the witch confessed as well, she would be turned over to the civil authorities and burned. If she didn’t confess, it would be just for the civil authorities to imprison her until she was ‘worn down by the misery of prison’[12] and confessed. Then she could be executed. In either case, the whole thing would be ‘summary, straightforward, and informal,’ which the hunters thought was a good thing.[13]

And, by the way, it didn’t really matter if she denied all guilt. The witch hunters thought witches successfully resisted confessing only because the devil helped them. That’s why, once a witch was arrested, the authorities were told to: search her house for ‘devices of sorcery’; lock up her ‘maids and companions,’ because undoubtedly they knew secrets; and keep her out of the house, because otherwise she might pick up magical devices that would help her keep silent.[14] Nobody wanted her to find her magical confession-repeller, because that might complicate the investigation!

Witch Hunts Today

So let’s summarize for a bit. In the 15th Century if a woman didn’t get along with the neighbors, normal illnesses, etc. attacked some of the local children, farm animals or fields, and three people blamed the woman, that was enough to prove witchcraft. You know, I used to think that it would be wonderful to live in a small town, but I’m beginning to understand the drawbacks, especially if the locals are superstitious. But that’s not our current issue, is it? What G. Sallust asked was: “Do our peerless media behave exactly the same way when they report on politics?” I’m thinking the answer is “yes,” at least where President Trump is concerned.

 

Have the media relentlessly focused on his private life, and allegations about it? Yes. Do they talk and talk and talk about what they think of him, his business practices and how he may or may not treat others? Yes. Do they routinely portray him as unstable and not to be trusted? Yes. Do they routinely ignore his popularity in troublesome places like the Middle East, and his ability to turn out its leadership when he goes there? Oh, yes! So quite obviously his reputation is a prime target.

Does Mr. Trump have a lot of accusers? Oh yes, and many of them – seemingly the most authoritative – are anonymous. They pretty much act like 15th Century witnesses who are afraid of the person they denounce, and ask the inquisitor for protection; only in this case it’s the media that shields the witness, not some judge. So there are witnesses against Trump out there, timid ones, but quite likely more than three.

But the ancient witch hunters demanded some independent, physical evidence of witchcraft before they would prosecute. You know, the ‘indications’ of the deed – sick children, barren fields, bad weather, that kind of thing. Most of these events are now known to have natural explanations. So do we have a disaster right now; one bordering on the supernatural[15]; that these many secret witnesses might connect to Trump?

So far there doesn’t seem to be anything like that. The stock market is up; employment is rising; there aren’t any new wars or plagues; and ISIS, although still active and deadly, is in retreat. And that, I would say, is the fatal flaw.  The media are hunting witches when times are good, or at least improving.

Conclusion

So, not to put too fine a point on it, if we brought in auditors from the 15th Century to look at the campaign against Trump, most likely they wouldn’t like it. There’s an essential element missing in the proof: i.e., no current disaster of near supernatural proportions to fire up the populace. Also, there’s a fussy legality that might disturb the process. Today an accused person is presumed innocent until proved guilty.

And, as we discussed last time, there are other disturbing factors in play. These days lawyers are available to an accused, for example, and the courts aren’t permitted to torture him [or her]. Given all that no doubt the inquisitors of the 15th Century would withhold their seal of approval. What else could responsible and moral hunters do?

So for now to the media: Good try, and better luck next time!

[1] The text of Article 11 of the Universal Declaration of Human Rights is available as a pdf download directly from the United Nations, at http://www.un.org/en/universal-declaration-human-rights/index.html Want to know more about the Universal Declaration? Check out the Wikipedia entry at https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

[2] See Coffin v. United States, 156 U.S. 432, 453 (1895), available from Justia at https://supreme.justia.com/cases/federal/us/156/432/case.html. For you non-lawyers, the Justia version of a Supreme Court case is not “official,” and can’t be cited as such in a legal brief, etc. But it works just fine for a blog. Also the Court is talking about a presumption of innocence, not an absolute rule. “This presumption is in the nature of evidence in his favor [i.e. in favor of the accused], and a knowledge of it should be communicated to the jury. Accordingly, it is the duty of the judge in all jurisdictions, when requested, and in some when not requested, to explain it to the jury in his charge. The usual formula in which this doctrine is expressed is that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. The accused is entitled, if he so requests it … to have this rule of law expounded to the jury in this or in some equivalent form of expression.” See id.at p. 459, citing an article in Criminal Law Magazine from January, 1888.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). See Hammer at p. 504. As noted last time, the book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

[4] G. Sallust, by phone, June 22, 2017. Again, this was what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I still don’t save voicemails.

[5] See n. 3.

[6] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[7] Id.

[8] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[9] See Hammer, Part III at p. 197A (p. 508 of the text.) The authors thought that two ought to be enough, but chose the larger number in the name of ‘legal fairness.’

[10] See generally See Hammer, Part III at p. 202B, 202C (p. 521, 522 of the text.)

[11] Once in jail, an accused might never get out. Some commentators argued that so long as the accused had an impaired reputation, there were indications of witchcraft, and three witnesses against her, she was ‘manifestly caught’ and should go to prison.  (See Hammer, Part III at p. 203A (p. 524 of the text)) The Malleus took a more liberal position. It let the judge decide to imprison or not to imprison based on the strength of the case and ‘on the basis of local procedure and upholding custom.’ But, and this is important, if released the accused witch had to produce sureties to guarantee that she would appear again in court if summoned.” (See Hammer, Part III at p. 203B (p. 524 of the text))

[12] See Hammer, Part III at p. 202C, 202D (p. 522. 523 of the text.)

[13] See Hammer, Part III at p. 202D, (p. 523 of the text.)

[14] See Hammer, Part III at p. 203C (p. 525 of the text.)

[15] Perhaps an economic disaster? Recessions always seem kind of supernatural to me.

 

I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director. Witch Hunt!

Trump Tweet, circa June 16, 2017[1]

The President claims he’s the victim of a witch hunt. We know something about those things, don’t we? At least that’s what you’ve said, from time to time. So dig back in your files, and find out what people actually did when they hunted witches. You don’t need to cover the whole process. I know it’s arduous and violent. Just tell me what’s needed to start one. And stay away from the dictionary! I don’t want to hear what some modern lexicographer thinks. I want to know what the old guys really did. We have a book about that, don’t we?

G. Sallust, by phone, June 16, 2017[2]

This is Phil, erstwhile blog philosopher and today’s lecturer. G. Sallust called me the other day, and said what I quote at the top of this piece. And he’s right. We do have a book. It’s from the 15th Century and is called the Malleus Maleficarum, or, in English, The Hammer of Witches.[3] [Actually it’s a modern and complete translation of the old Latin.] We spent a lot of time in 2011 reading and writing about it to see how the jurisprudence worked, and how ancient wisdom might be adapted to today. Not surprisingly, we found parallels between the ‘enhanced interrogation” used on suspected terrorists after 9/11 and the tactics of the witch hunters.

This was important, at least in my view, because the old witch hunters were really good at getting confessions. By one account many thousands of witches were burned in Europe, and around four thousand were hanged in England.[4] Why? Because they confessed to flying; striking livestock and fields barren with a curse; having sex with the devil; causing a man’s penis to disappear with magic; or other improbable things. The hunt didn’t seem to yield truth; only fabricated stories. So why did the accused ‘fess up’ to things that were, basically, impossible?

Why, indeed? I would say it was the torture that did it, coupled with the brainwashing, but that’s not our topic for today. G Sallust has asked a more preliminary question. What really was necessary to get that juggernaut of madness rolling? What legal process was involved? The answer: Not much.

You see, according to the old hunters there were three ways to start a witch hunt. One person could denounce another by filing a paper with some court specifying what the other had done, and offering to testify as to the specifics; or one could simply denounce another without offering to testify, apparently on the ground that everybody knew so-and-so was a witch; or the authorities could open a general investigation [an ‘inquisition’] of witchcraft in an area, because there were rumors of it all over the place. In that last situation it would be up to the authorities to bring the accusations.[5]

The witch-hunters really didn’t like option 1, by the way. The problem with laying charges is that the charging party has to justify them. There could be penalties if the facts didn’t hold up, and who knew what might happen once the lawyers got involved?[6] Instead they vastly preferred an approach where the accuser didn’t have to prove anything, or an independent party took on the burden of making the case. If a person denounced someone else to protect the Faith or the common good, the witch hunters thought he should not “become subject to penalty even if he fails in his proof.”[7] And, of course, if someone is tried by inquisition, then no individual is responsible for that. The judge [or whoever] instituted those proceedings “not at the insistence of some party, but by virtue of his office.”

Speaking of lawyers, in the 15th Century defendants in witchcraft trials didn’t get to choose their own advocates. The judge did that. And in doing it he was instructed to avoid “litigious, evil spirited persons” who might be “fussy about legal niceties.”[8] So the defendant got a limp lawyer to protect him [or her] from the torture chamber.

Does any of this sound familiar? Well, let’s see:

  • So far no one has sued Donald Trump for being “too close to” the Russians, or for firing the FBI Director, or for anything like that. At least I don’t know of any such litigation, civil or criminal. So, so far nobody has proved anything in court.
  • The 15th Century Witch Hunters would have approved. They felt that people who denounced others for the “public good” should be able to do so without repercussions. The witnesses especially needed to be protected from the accused. They were scary people, the accused – probably witches – and were dangerous to cross. So obviously if a witness didn’t want to be known, he [or she] wouldn’t be.
  • And how do today’s hunters protect accusers? Well, one way is by allowing them to anonymously leak information, or allegations really, to the media, with a pledge that their identity won’t be revealed. You may have noticed that there’s a lot of that going on, especially in the Washington Post and the New York Times.
  • And is there an inquisition out there? Well, if by that you mean an official inquiry prompted by rumor, innuendo and anonymous sources, there might be several. We have, of course, numerous Congressional committees looking into this or that, plus now a special counsel building a fiefdom over in the Department of Justice.

So in my opinion – and it’s only an opinion – President Trump is correct in part. What we have here is the start of a traditional witch hunt, an auspicious beginning that even the hunters of the 15th Century would have appreciated. We have rumor and innuendo, anonymous sources insulated by their anonymity, vague allegations that come and go, and now official inquiries [including one by a special counsel] that can go on until somebody or something breaks. For a witch hunter those are good things.

But it’s not perfect. This is America and a big part of the political class has taken on some wealthy people, so everybody has lawyers. The 15th Century witch hunters really didn’t like lawyers. Lawyers could be evil spirited and overly fussy about legal niceties. And that’s the way they are today for sure. Also law enforcement here is limited in the way it treats prisoners. Currently no torture is allowed.

So I guess we don’t have a full-blown witch hunt, yet; defendants are better protected than in the 15th Century, and nobody has confessed to improbable things; but it’s a good start, and the future is bright … for the media.

[1] This is currently reported by Twitter at https://twitter.com/realDonaldTrump/status/875701471999864833 .

[2] That’s what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I don’t save voicemails.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). The book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

[4] See Sargant, Battle for the Mind (Doubleday, 1957) at p. 198 – 199.

[5] See Hammer at p. 502 – 503: “The three methods … consist of denunciation and inquisition. The first is when someone accuses someone else before a judge with a charge of heresy or abetting it, offers to prove this and writes himself down for the penalty of retribution if he does not prove it. The second method is when someone denounces someone else without offering to prove it or being  willing to participate, and instead states that he is making a denunciation through his zeal for the Faith or on account of [penalties imposed by religious or secular authorities] . The Third is the method by inquisition, that is, when there is no accuser or denouncer, but the general rumor in a certain city or place about there being sorceresses.  In that case, the judge has to institute proceedings not at the insistence of some party but by virtue of his office. “

[6] See Hammer at p. 503: “It should be noted that the judge really should not allow the first method of proceeding, because this method is not customary in a case involving the Faith … because it is quite dangerous for the accuser on account of the penalty of retribution that is imposed when he fails to make good the proof, and because it is quite subject to legal disputation.”

[7] Id. at p. 504.

[8] See Hammer at p. 530 – 531: “As for the first point, it is noted that an advocate is not assigned according to the pleasure of the denounced person, for instance because he was inclined to have one particular person. What judges should make every provision against is granting a litigious, evil-spirited person, who could easily be corrupted by money as such people often are found to be. Rather he should grant to the accused an upright person who is not suspected of being fussy about legal niceties.”

 

Parapsychology: The name given to the scientific study of paranormal phenomena …. Parapsychology largely replaced the earlier term “psychical research,” the change indicating a significant shift in emphasis and methodology.

Psi: Greek letter used in parapsychology to indicate psychic or paranormal phenomena such as extrasensory perception (ESP) or psychokinesis (PK).

Encyclopedia of Occultism & Parapsychology [1]

[This is Fred, and today we’re going to explore subjects that the public generally don’t know about, or forget, or don’t want to remember. You know, like leprosy in the U.S.[2] or the sterilization of undesirables in our glorious country[3], or the disturbing appearance of radiation in our milk supply back in the 1950’s[4]. [Why did we call it the ‘milk supply’? What we really meant was that there was a radioactive element in our cows, which they excreted with their milk so we could drink it down.]  But we all need a little humor now and then, so let’s look for something more cheerful.  Let’s review parapsychology, i.e., mental telepathy, precognition and remote viewing, and how our government experimented with them. It turns out we [the U.S.] did quite a bit of that back in the day. Perhaps we still do? And while we’re at it, let’s revisit Unidentified Flying Objects as well.

There’s a new book, Phenomena[5], that tells us a lot about government’s research in parapsychology up to about 1990. That’s later than I would have expected; frankly I thought the taxpayer had stopped paying for mind benders, etc. around 1970, when the Air Force also gave up chasing flying saucers. I realize the two are different. Flying saucers [i.e., UFOs} are unidentified objects people have reported in the sky. Generally the folks who make the reports are reliable, ordinary citizens but bewildered. They’ve seen something but they can’t say what it is.  The people who say they can read minds, foretell the future, or see things far away are different. You’re more likely to find them in show business, as mentalists [aka mind readers], stage magicians, stage hypnotists and the like. My point is not that you have to ignore such people. It’s just that you have to be very, very careful when you test them and their abilities. After all, another word for a magician is an illusionist.

Of course government research in the paranormal once was classified, but nothing is secret forever, especially today. In fact, if you go to the CIA Library [the electronic one], and ask for a list of things that have been declassified, you’ll probably find a bunch of stuff on all kinds of subjects, including flying saucers, remote action and, of course, remote viewing. I’ve pulled a couple of their documents to illustrate a point or two.]

Flying Saucers

G. Sallust wrote an interesting blog on this not too long ago.[6] His thesis was that the Air Force had burned up a lot of time chasing reported UFO sightings after-the-fact. You remember, probably, that the Air Force discontinued its program, called Project Blue Book, in 1970. Modern technology should allow us to dispense with all that chasing around. Today a better approach would be to go to the places where sightings are reported, mine those areas with sensors, send the reconnaissance drones to loiter there, train the satellite cameras on them as well, and wait to see what shows up. Photograph [excuse me, image] an actual visitor from outer space and the program justifies itself! Now that sounds like a plan!

But something I didn’t know was that the CIA also had a role in tracking and identifying UFOs and it didn’t end until around 1990. The CIA’s activity was outlined in an article written by Gerald Haines, head of the National Reconnaissance Office.[7] So far it’s the best official explanation I’ve found of why and how the UFO controversy became, well, so controversial. Haines said that “over half of all UFO reports from the late 1950s through the 1960s were accounted for by manned reconnaissance flights … over the United States.” [8] Our Government didn’t want to discuss them at the time because the associated programs[9] were highly classified. If you take those flights into account the percentage “of what the Air Force considered to be unexplained UFO sightings fell to 5.9 percent in 1955 and to 4 percent in 1956.”[10]

Of course, the fact that 4% of sightings remained unexplained did not automatically make some of them the work of space aliens. Unexplained events prove nothing except the limits of our knowledge.  Only on TV can a lack of evidence be evidence of, say, a far-reaching conspiracy or cosmic forces arrayed against us. So if we want conspiracy in our lives, why not just blame the Devil for everything we don’t understand? People did that in the Middle Ages, and it worked, sort of, except for the occasional plague, witch hunt, pogrom or whatever. I guess today we’re supposed to know better. Or don’t our schools teach that anymore?

Oops! I got carried away there. That last paragraph was my opinion, not Mr. Haines’. But he did conclude his analysis with some pop psychology.Like the JFK assassination conspiracy theories,” he said, “the UFO issue probably will not go away soon, no matter what the Agency does or says. The belief that we are not alone in the universe is too emotionally appealing and the distrust of our government is too pervasive to make the issue amenable to traditional scientific studies [or] rational explanation and evidence.”[11]

So that’s the Government position as I understand it. If you’re not satisfied, perhaps you might consider G. Sallust’s suggestion that we investigate modern sightings [not the old ones of the 1950s and 1960s] with modern technology. Let’s lay our traps and see what shows up! And if we find drug dealers infiltrating the country, rather than space aliens, that would be good to know.

Parapsychology

So now we get to the area covered by Phenomena, i.e. the use of psi[12] powers to view far-away places or things, or to affect things [or people] at a distance. Need I point out that this was supposed to be done using mental powers rather than physical means? No radio or TV transmissions or missile strikes were permitted! Generally the experiments we know about were conducted jointly with the Stanford Research Institute. SRI would design the experiments – the protocols, as it were – and provide the facilities, and the government would supply the people.

In the case of remote viewing,[13] for example, two researchers would randomly choose a sealed envelope from a group kept in a safe at SRI, leave the SRI office, open the envelope and go to the landmark identified.  Once there, and at a specified time, they would stare at the landmark [“survey the site,” the book says] and attempt to transmit their impressions back to SRI. Transmit to whom? Why, to a “sensitive” employed by the Government and sitting in a Faraday cage at SRI. A Faraday cage, by the way, is “an enclosure used to block electromagnetic fields.”[14] Presumably the Faraday cage was there to prevent anybody from slipping a radio signal to the sensitive who was supposed to be reading minds.[15]

Many thought this and other work at CIA was interesting, and useful, but apparently CIA management didn’t fully agree. There’s an article from 1977 by Kenneth Kress, a CIA physicist[16] that pretty much encapsulates this view:

There is no fundamental understanding of the mechanisms of paranormal functioning, and the reproducibility remains poor. The research and experiments have successfully demonstrated abilities but have not explained them nor made them reproducible. Past and current support of parapsychology comes from applications-oriented intelligence and military agencies. The people managing such agencies demand quick and relevant results. The intelligence and military agencies, therefore, press for results before there is sufficient experimental reproducibility or understanding of the physical mechanisms[17]

Did you get all of that? Nobody really understands paranormal phenomena. Favorable results, when they appear, can’t be reproduced. “The research and experiments have successfully demonstrated abilities but have not explained them nor made them reproducible.” If results can’t be repeated, then why should other scientists believe them? Also CIA managers, the ones responsible for budgets, want to see results. Otherwise why should they continue to fund projects?

It sounds as though Dr. Kress might have been lobbying for some sort of “blue sky” funding, the kind of pure research that ARPA [now DARPA] finances. I wonder if today anyone over there sponsors parapsychology research? [18]

Nevertheless the work continued. In 1987, for example, SRI and JFK University experimented to see if a human could mentally affect a piezoelectric transducer “to produce an event above a preset feedback threshold.” This wasn’t a test of remote viewing. It was instead an attempt to directly affect the physical world with the mind alone.[19] While preliminary tests were encouraging, i.e., “sufficiently interesting to warrant further investigation,” the final tests produced “no evidence” of the desired effect. [20]

Conclusion

Of course, I haven’t looked at all of the government experiments out there, publically available or still classified, but so far I wouldn’t jump to any positive conclusions. Parapsychology is an area of research that by all appearances has led nowhere.

If any of you want to pursue either of these topics, UFOs or Psi Powers, by all means do so.

  • If you fancy the UFO/ space alien hypothesis, I believe the best new idea out there came from our own G. Sallust. Ask your Congressperson to support a program to provide continuous surveillance of areas that report high incidents of UFO sightings. Do the surveillance in real time, not only after something has happened. If we’re prepared, we can catch UFOs “in the act,” not after the fact.
  • If you want to follow up on parapsychology, then most likely someone – independent of the establishment – will have to do a survey of the science that’s been done so far. A lot of it is out in the public domain, courtesy of the Freedom of Information Act. I would start with the STARGATE files maintained by the CIA, mostly because I know about them.[21] You’ll have to find the rest.

Good luck on all of that!

 

[1] See Melton, Encyclopedia of Occultism & Parapsychology (Gale Group, 2001) at Parapsychology, p. 1181, & Psi, p.1246.

[2]  See Health Resources and Services Administration, National Hansen’s Disease (Leprosy) Program Caring and Curing Since 1894, available at https://www.hrsa.gov/hansensdisease/ .

[3] If you want to research this subject, start with the Wikipedia article on Eugenics in the U.S., at https://en.wikipedia.org/wiki/Eugenics_in_the_United_States . That should lead you to lots of additional sources.

[4] I remember well the consternation about Strontium 90 in the 1950s but got lazy when I looked for a reference. The most useful one I could find, for free, is the one in Wikipedia, at https://en.wikipedia.org/wiki/Strontium-90 , but it really doesn’t capture the mood of that time.

[5] See Jacobsen, Phenomena (Little Brown, 2017). Henceforth the book will be cited as Phenomena at __.

[6] See the blog of 2017/05/04, UFOs in New York, available at https://opsrus.wordpress.com/2017/05/04/ufos-in-new-york/

[7] See, e.g., Haines, A Die-Hard Issue: CIA’s Role in the Study of UFOs, 1947-90, available at https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol40no5/html/v40i5a09p.htm  Page references will be identified as Haines at __.

[8] See Haines at 73.

[9] That is, the U-2 and SR-71 projects.

[10] See Haines at 73

[11] See Haines at 79.

[12] See n. 1.

[13] See Phenomena at Chapter Ten, Remote Viewing.

[14] See the Wikipedia entry on Faraday cages at https://en.wikipedia.org/wiki/Faraday_cage .

[15] A reasonable precaution if you consider the early history of the field. In the 1950s, for example, a machinist who heard voices was found to be sane once the doctors involved discovered that the fillings in his teeth were covered with carborundum, which acted like a crystal receiver in the old crystal radio. Actually he was picking up WOR radio in New York City, not voices from the other side. See Phenomena at p. 35 – 36.

[16] See Phenomena at p. 167 -171.

[17] See Kress, Parapsychology in Intelligence: A Personal Review and Conclusions, appearing in Studies in Intelligence (Winter, 1977). This is a CIA internal publication, classified, but according to the CIA, the classification was lifted in 1996. You can verify that if you go online to the CIA Library, and search the Index of Declassified Articles, By Title. Unfortunately I wasn’t able to find the article itself at the CIA [that’s probably my mistake], but there’s a copy of what seems to be the right thing on WordPress, at https://smileyspsispies.wordpress.com/parapsychology-in-intelligence-a-personal-review-conclusions-dr-k-a-kress/.  And finally, if you want to see the blizzard of paperwork released by CIA in recent years under FOIA, go to the CIA Reading Room and search the “STARGATE” Collection. Yes, I said “STARGATE!”

[18] The DARPA website is at www.darpa.mil . Take a look for yourself. They’re quite open about many [most?] of their projects

[19] Whatever that means!

[20] See, e.g., Hubbard, et al., A Remote Action Experiment with a Piezoelectric Transducer (December 1987) (Approved for Release 2002/11/18, CIA-RDP96-00787R000300300001-7) and available from the aforementioned STARGATE file, at pp. 5, 16. “In conclusion, we found no evidence of an RA effect on a PZT.”

[21] See n. 17.

The easiest, most effective step that the federal and state governments can take to stem the tide of deaths from opioid overdoses is to make naloxone easier to get …”

Megan McLemore of Human Rights Watch, as quoted in The Lancet[1]

 

[This is G. Sallust again. It’s said that more than 90 Americans die every day from opioid overdose.[2] That simple fact makes opioids truly blog-worthy, and worth an update, so I asked for volunteers to do the job.  Unfortunately I didn’t get any. Instead my loyal staff told me to write it myself. This isn’t a democracy; but everybody here is a volunteer, so I have to listen when they yell at me. And this time they made a good case.

It’s true that I’m uniquely qualified to talk about opioids. And no, that’s not because I’m a heroin addict. Actually I don’t take anything unless it’s prescribed by a doctor, and I especially I don’t like pain killers, no matter who wants me to take them, because they make us stupid.  I’m qualified because I (i) live in a rural area that has a horrible problem with opioids and (ii) am morally offended by the situation.

Actually they didn’t say it that way. Fred says I’m loud and abrasive, and an attention-getter, and that’s what’s needed. Phil says I often sound reasonable, even when I’m not, and that might help with some readers, the ones who are not too far gone in politics. And Larry, bless his heart, says that I can be persuasive when I stick to the facts, which isn’t always the case, and if I do that I might do a passable job. All of them had other pressing business, and none of them wanted to get involved. I call that mutiny, thinly disguised.

So I’m writing this myself. And speaking of politics, which I just did, let’s start by saying that in my opinion Donald J. Trump, is not responsible for the opioid epidemic. He’s been President only since January 20, 2017[3];  and the problem predates him by several years. Of course, the same could have been said of Barrack Obama, when he first took office in 2009. The economy had collapsed in the second half of 2008, and threatened to go belly-up. That pretty much gave the election of 2008 to the Democrats. Conservative pundits then argued that Obama, who wasn’t President at the time, was actually responsible for the 2008 crash, because the mere fact that he might be elected had upset the market. A few months later they followed up by complaining that the recovery was taking too long.

Well, that was then and this is now, and today we’re talking about crimes, the criminal law and public health, not about the economy. So far no one has blamed Trump for the opioid problem, but they will. At some point the loyal opposition is going to start asking why President Trump hasn’t done more to solve it. But before we go down that road, it might be best to take a look at where we are, medically speaking, in the battle to restrict opioids. Luckily there are a couple of recent articles, one in The Lancet[4] and the other in the New England Journal of Medicine[5], to help us understand the situation.]

The Lancet Says

Let’s take first things first. Heroin is an opioid, as are morphine, opium, and various synthetics, such as fentanyl and its numerous cousins.[6] One can overdose on any of these, but it’s more likely with street drugs because those are frequently mixed with one variety or another of fentanyl. Some versions of fentanyl (I don’t know how many) are extremely potent, and can kill with very, very small quantities. So if a dealer is an amateur, he can easily kill a lot of people.

Naloxone is an antidote that reverses the effect of overdose. (In my neighborhood it’s also called Narcan.) Many jurisdictions are equipping their first responders with it, so that they can treat an overdose on the spot, rather than cart the victim off to an ER. That’s a good thing, because [apparently] it saves lives. But that doesn’t necessarily reduce the addiction rate. In fact, one can speculate that the more addicts survive overdose, and if new addicts continue to enter the population at the usual rate [whatever that is], the total number of addicts will grow over time. And as the numbers increase, the addiction rate will as well.

So that brings us to the bigger problem: How do we, in the U.S., treat addicts to reduce their numbers? Well, the Administration resolved to study the matter, which sounds like a good idea, and interim recommendations are due the 27th of this month. That sounds like something we ought to read. In the meantime The Lancet reports that a policy is beginning to emerge. So far –

  • The president’s budget for the next fiscal year (FY 2018) calls for a $279.7 million increase in funding for drug control efforts;
  • That includes a $103 million increase to the Department of Justice’s budget to “fight against opioids and other illicit drugs”.
  • Last March, the new Attorney General said “we need to focus on…preventing people from ever taking drugs in the first place”. On May 13 he ordered federal prosecutors to utilize mandatory minimum sentencing for heroin offenses. This would “prescribe that possessing any amount of heroin would be a minimum fine of $1000 and 1 year in prison.”[7]

So far none of those initiatives sound like slam-dunk wins. Do they?

Then, of course, there are the current Congressional efforts to repeal and replace Obamacare. That effort, if successful, might throw many of the addicted into the ranks of the uninsured. “The American Society of Addiction Medicine, a professional society of physicians, warned that [if so] a ‘critical lifeline for people with addiction’ would be severed.”[8] That’s interesting, but speculative. So far Congress hasn’t really done anything. I’m going to wait until there’s actual legislation on the table before I start an argument.

Science from the NEJM

OK, from what little we know of President Trump’s program, he doesn’t seem to be counting on any scientific breakthroughs to solve the opioid problem. How about the scientists? What do they think? Well, the National Institutes of Health say that since April of this year they have been working with pharmaceutical industry in three important areas:

  • Overdose Treatment. Naloxone is good, and has saved lives, but other, more effective overdose treatments are possible. The NIH/ industry objective is to develop “better overdose-reversal and prevention” therapies[9];
  • Curing Addicts. Currently “sustained treatment over years or even a lifetime is often necessary to achieve and maintain long-term recovery.” There are only three medications available for treating Opioid Use Disorder. These are methadone, buprenorphine and extended-release naltrexone. We need more and better medicines in this area.[10]
  • Managing Pain. For many, addiction starts with opioids prescribed by a doctor to relieve chronic pain. If we develop “safe, effective, non-addictive interventions” to deal with pain, we can greatly restrict the use of opioids in medical practice. That should reduce the rate of addiction as well.[11]

The NIH expect “some advances” may occur rapidly, “such as such as improved formulations of existing medications, opioids with abuse-deterrent properties, longer-acting overdose-reversal drugs, and the repurposing of treatments approved for other conditions.[12]” Others may take longer. Nevertheless, the goal “is to cut in half the time typically required to develop new safe and effective therapeutics.”[13]

Conclusion

To date the new Administration seems to have focused primarily on law enforcement to control the opioid crisis. That’s short-sighted. Addiction is a problem for doctors and scientists, as well for the police. I’m not in a position to judge the validity of the initiatives the National Institutes of Health have proposed, but they are our experts; so perhaps we should fund their initiatives, or over-fund them if necessary, to see what they can do for us. The problem with addicts is that they’re, well, addicted. There’s no talking them out of their addiction, and locking them up doesn’t seem to be helpful. Speaking for the public, we need a damned cure!

[1] See The Lancet, Reinl, Trump administration and the opioid epidemic in the USA (June 17, 2017), available at http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)31543-X/fulltext?elsca1=etoc (The proper citation for this, I think, is Reinl, Trump & Opioids at 389 World Report 2181 (June 3, 2017). We’ll just call it Trump & Opioids, until someone corrects us. To access this article [apparently] you need to register with The Lancet. Do that [it’s free] and you can download a pdf version.

[2] See New England Journal of Medicine, Volkow & Collins, The Role of Science in Addressing the Opioid Crisis (May 31, 2017), available at http://www.nejm.org/doi/full/10.1056/NEJMsr1706626#t=article There are no page numbers; henceforth we will cite this as Opioid Crisis at __ and reference the § in which the quote appears.

[3] See the President’s inauguration speech at https://www.nytimes.com/video/us/politics/100000004863342/donald-trump-full-inaugural-address-2017.html

[4] See n. 1.

[5] See n. 2.

[6] For a more full discussion of the subject, take a look at the Wikipedia entry at https://en.wikipedia.org/wiki/Opioid .

[7] All quotations are from Trump & Opioids.

[8] Id.

[9] See Opioid Crisis at Overdose-Reversal Interventions.

[10] See Opioid Crisis at Treatments for Opioid Addiction.

[11] See Opioid Crisis at Nonaddictive Treatments for Chronic Pain .

[12] See Opioid Crisis at Public-Private Partnerships.

[13] Id.

[This is G. Sallust, and today I’m only doing the introduction, so relax. There will be no long sermons from me. I see in the news that our current President is auditioning lawyers and law firms to see which of them will represent him in the multitudinous investigations now sprouting inside the Beltway. Really, we need a scorecard to keep track of things.

  • Our loose-lipped and always indignant Congress wants to know whether our President is “too close” to the Russians[1]; their evidence of that is that he’s been seen talking to Russian emissaries in the White House, and even the Oval Office[2]; that he’s said it would be nice to “get along’ with them, if possible[3]; and that prior to the last election the Russians, allegedly, gave documents to WikiLeaks that were authentic, but embarrassing to Democrats.[4] (The Russians deny they were the source of the documents, and WikiLeaks agrees.[5])
  • In the meantime the FBI is interviewing senior members of the Trump entourage, about Russia[6], and DOJ has nominated a Special Prosecutor to do pretty much the same thing.[7]

Given all that, how should the President handle the legal traffic? Is he right to hire outside counsel, or should he rely on internal resources? Of course, DOJ is an investigator in these matters, so it can’t [and shouldn’t] defend the President at the same time. But the President also has an official counsel in the White House, with a staff, so should he use them as his advisers, defense counsel and the rest?

I’ve asked Larry, our resident legal consultant, for his views on what’s going on. He wants me to say that he’s retired; he’s not advising anybody in the White House, or anywhere else on these matters, or anything related to them. Like any other pundit, he’s merely offering opinions, but unlike most of them he’s basing his views on decided cases and the written record. So with that in mind, let’s hear from Larry!]

Thanks, G. I don’t care what anybody says, it’s good to have you back. How did that romance of yours go? … Oh, strike that! Sorry I asked!

The main advantage of talking to a lawyer is, when the criminal allegations start to fly, you can discuss them frankly with an experienced person, clarify the issues, and decide what to do. These kinds of discussions need to be privileged, i.e., protected from disclosure, otherwise you can’t have them at all. At one time Presidents thought they could shield discussions about sensitive internal matters simply by claiming executive privilege, but they lost that option for criminal matters when Richard Nixon was President. So now Presidents [and other government employees] can talk only to lawyers when the gumshoes call, and not just any lawyer. One who works for the government may be no help at all.

Executive Privilege

The granddaddy of cases about executive privilege and the White House is, of course, United States v. Nixon.[8] There was a special prosecutor in those days, appointed to look into events surrounding an attempted burglary of the DNC Headquarters in Washington, D.C. Various Nixon apparatchiks were indicted in connection with that and, once it became known that the President routinely taped conversations with his staff, including apparatchiks, the relevant tapes were subpoenaed as part of the investigation.

President Nixon resisted the subpoena on the theory that his tapes were protected by “absolute” executive privilege.  This was true, he said, because (i) the doctrine of separation of powers, en-grained in our Constitution, called for it, and (ii) the President needs “complete candor and objectivity from his advisers,” which he would not get if their conversations might be exposed in some investigation.[9]

The Supreme Court rejected both claims. “[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”[10]

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[11]

In short, the internal communications of presidents may be subpoenaed in a criminal investigation. [Communications involving “military, diplomatic, or sensitive national security secrets” might be exempted, but it’s not clear from the decision how that would work, because those kinds of documents were not in play in the case]. Once made available the papers, etc. would be reviewed in the usual manner and with appropriate safeguards.[12]

Attorney Client Privilege

So if you are a President, and there is a criminal inquiry going on in your operation, who can you talk to? Better yet, who can you talk to in confidence? How about the White House Counsel or some other government lawyer? Well, of course you can talk to anybody you want to. The question is, when the subpoenas begin to fly, who can [or must] protect your conversations from hostile scrutiny by outsiders?

Lawyers and their clients have something called attorney-client privilege which should do the job. Basically in most states the lawyer’s duty to keep secrets is defined very broadly.[13] It applies to all information related to the representation of the client. The lawyer must be discreet with the information regardless of whether the client has revealed it to others. And in most states the same standard applies to government and private sector lawyers.[14]

The District of Columbia seems to be different, at least on that last point. I guess we all remember the lengthy investigation of the Clintons back in the 1990s. A “Special Prosecutor” was appointed to investigate some financial dealings Mr. Clinton had in Arkansas before he became President; collectively they were nicknamed “Whitewater;” [15] but eventually the investigation spread to all manner of things, including Mr. Clinton’s alleged sexual proclivities and stains on a junior staffer’s dress. White House Counsel staff were scheduled for interviews, but the Deputy there, Bruce Lindsey, asserted attorney-client privilege and refused to cooperate. His refusal was taken to court, first to the trial court supervising the investigation and later, to the Court of Appeals for the D.C. Circuit. That particular bit of litigation did not turn out well for the Clintons or for those of us who think that the attorney-client privilege is a good thing.

The case is In re: Bruce Lindsey [Grand Jury Testimony].[16] The basic facts were that a Grand Jury was investigating alleged wrongdoing in the Executive Branch. In that situation, the appellate court said, the duties of government lawyers are very different from those of lawyers in private practice. Members of the Executive Branch, including attorneys, must “take Care that the Laws be faithfully executed.” That’s a Constitutional duty.[17] When crimes are being investigated “and especially offenses committed by those in Government, government attorneys stand in a far different position from members of the private bar.” The government lawyer’s duty “is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.”[18] A lawyer in private practice has exactly that duty. The loyalties “of a government lawyer cannot and must not lie solely with his or her client agency.”[19] The loyalties of the private practitioner lie solely with the client.

So given that I guess we can conclude (i) when crimes are being investigated at an agency, (ii) government attorneys can’t invoke attorney-client privilege to withhold pertinent information from the investigators. There’s no such privilege available to them in that situation. However, there are other reasons why information might be withheld. It might be highly classified technical data, and withhold-able on that basis alone; or core information related to military, diplomatic or national security matters, legitimately subject to executive privilege; or who knows what? The holding of the case is simply that government attorneys can’t use attorney-client privilege to block criminal investigations..

Conclusion

So what’s a President to do when the investigators come a calling. Who does he talk to and what does he say? Well, the court had some ideas on that. It said:

Moreover, nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President [Mr. Clinton] has retained several private lawyers and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship.[20]

So there you go. If our current President wants or needs all of the advantages of dealing with a private attorney, and can afford it, perhaps he should hire one or teams of them, if necessary.[21] What’s my opinion? In the current environment, it would be irrational for him not to do so.


[1] See, e.g., the screed published by the American Bridge PAC, whatever that is, at https://americanbridgepac.org/app/uploads/Too-Close-To-Russia.pdf Strictly speaking this isn’t a Congressional product but its emblematic of the kinds of things being said on the Hill.

[2] See The Washington Post, Rucker, et al., Inside the Oval Office with Trump and the Russians: Broad smiles and loose lips (May 16, 2017) at https://www.washingtonpost.com/politics/inside-the-oval-office-with-trump-and-the-russians-broad-smiles-and-loose-lips/2017/05/16/2e8b0d14-3a66-11e7-8854-21f359183e8c_story.html?utm_term=.b335e08c0e39

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at https://www.nytimes.com/2016/08/02/us/politics/donald-trump-vladimir-putin-russia.html?_r=0

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at http://observer.com/2016/07/wikileaks-dismantling-of-dnc-is-clear-attack-by-putin-on-clinton/

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at http://www.cnn.com/2017/01/04/politics/assange-wikileaks-hannity-intv/index.html

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at http://www.msn.com/en-us/foodanddrink/video/trump-son-in-law-under-fbi-scrutiny/vp-BBBxL3C

[7] Robert Mueller is the Special Prosecutor. He now has an official spokesperson.  See Politico, Gerstein, Trump-Russia special prosecutor Mueller taps spokesman, (May 26, 2017) at http://www.politico.com/story/2017/05/26/peter-carr-robert-mueller-spokesman-238860

[8] See United States v. Nixon, 418 U.S. 683 (1974).

[9] Id. at 706.

[10] Id.

[11] Id.

[12] At that time, it would have been under Rule 17 of the Federal Rules of Criminal Procedure. Note that the Court did not address the question of what rules might apply to civil proceedings involving one or more private parties. That wasn’t an issue in the case.

[13] This is a paraphrase of the findings of someone who’s actually done the research. See Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033. 1035 (2008): “In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers.”

[14] See Leong, Note, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007), at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

[15] Rather than “Watergate.” We pundits really need our labels, don’t we?

[16] See In re: Bruce Lindsey [Grand Jury Testimony], 158 F.3d 1263 [D.C. Cir.], cert. denied, 525 U.S. 996 (1998). Here I need to apologize.  We have the correct citation for this case, but not the official report of the opinion. Also there doesn’t seem to be a way to get the official opinion without paying West Publishing or somebody like that for it. As you know, if possible we try to point our readers to free sources for the things we cite. So for the moment we’re going to rely on unofficial sources, i.e., the Washington Post for the original, redacted version, and the Justia website for the later, more complete version. You can find the version published by the Post in 1998 at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/ruling072798.htm . We’ll call it the WAPO version. Page citations will be to that version unless otherwise noted. We’ll make appropriate changes once we access the official version. You can find the more complete, un-redacted version maintained by Justia at http://law.justia.com/cases/federal/appellate-courts/F3/158/1263/544889/ . That one doesn’t have page numbers, so it’s more difficult to cite.

[17] Citing Article II, §3 of the Constitution. The President takes an oath to do that, and so does every federal employee. See Article II, §1, clause 8; Article VI, clause 8.

[18] See WAPO version at p. 9 of 24

[19] See WAPO version at p. 10 of 24

[20] See WAPO version at p. 14 of 24.

[21] The following paragraph falls at the end of the un-redacted version of the majority [per curiam] opinion published by Justia. There are no page numbers in this version!! The paragraph quoted appears just before commencement of the dissent: “If the President wishes to discuss matters jointly between his private counsel and his official counsel , he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel … may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsay in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.”

 

[Recently I heard a story about World War II that rings true today. Back then both sides used cyphers to scramble their messages, especially the ones about war plans, troop movements and so forth. The Germans had an especially good cypher, called Enigma, which they thought unbreakable. What they didn’t know was that the British had, in fact, broken it. So the Brits had a window into German operations and could take appropriate countermeasures when necessary. But the British advantage would last only so long as the Germans were unaware that their messaging was compromised.

The British advantage could be helpful for a lot of reasons, most especially because in the 1940s the Germans did a lot of bombing in England. In those days, by the way, many bombing campaigns were considered “strategic;” i.e., were focused on destroying factories, ports and other war-making “infrastructure.” The Germans didn’t worry much about civilian casualties when going after strategic targets. Later in the war our side pretty much did the same thing to them.

Well, one day the Germans did a major bombing run against Coventry, England, a town in the industrialized Midlands. The locals weren’t told about it in advance, didn’t evacuate, and the raid was catastrophic. In one night over 4,300 homes were destroyed, and two-thirds of the city’s buildings damaged.[1]So why wasn’t the target city warned? Well, there are two versions of an answer:

  • One is that the central government simply didn’t know Coventry was targeted that night. The government had data about an impending attack, but didn’t know where the German bombers would go.
  • The other is that the government did in fact know the target, but withheld the information for reasons of state. Warn Coventry and most likely that would tell the Germans Enigma was compromised. The British would lose their intelligence advantage.

So which is it? Did Winston Churchill sacrifice some civilians to preserve a competitive advantage in World War II? Or did he not know about the Coventry raid? Some say that the British had some information that might have helped them identify the target, but they didn’t understand it. On the other hand, Churchill himself is quoted as saying he had “aged 20 years” when he decided to let Coventry burn.[2] That implies he knew. This sounds like a good topic for a thesis. Perhaps some Ph.D. candidate in History can get to the truth for us.

The point of the story is not that it’s true or false. It’s that there are circumstances, conceivable circumstances, where our government – or any government – might elect not to tell its citizens about a threat. The TV version of that, of course, is the plastic character who decides people would panic if they knew the truth about this or that, so he [or she] lies to save us from ourselves. That’s pretty much a sci-fi cliché. Don’t tell anybody about the space aliens; if you do, the country might disintegrate!

But instead let’s talk about something more serious, about what happens if our government lies to us or says nothing about impending danger, and when that might happen. In particular, let’s look what might happen at the start of a global thermonuclear war.]

This is Fred, by the way, and yes, I’m back on nuclear war. Lots of people criticized my last post, saying I was far too pessimistic. Sure, if war caught us by surprise, people at the various grounds zero would not have much time to evacuate. But really, the critics said, when would a major war sneak up on us like that? Crises leading to war take time to build. Surely there would be advance warning. People would leave their bullseye neighborhoods as soon as they knew there was a problem.

Perhaps. Let’s think about evacuation for a bit. People won’t run until they’re sure there’s a crisis, right?   So who should they believe: the media [who these days are alarmists about everything, just to keep the ratings up]; the family psychic or minister, who seems to know just about everything; or our government?  I’m betting that, at the end of the day, most folks would turn to the government when the issue is war or peace. After all, it’s supposed to be the expert on foreign crises and will fight any wars that erupt. And in a crisis what will our government say about whether people should flee their homes? That depends. Remember Coventry.

Who Wants A Nuclear War?

Atomic conflicts are not a new problem. Luckily we’ve avoided nuclear war for seven decades, so we have no actual experience with it. But we’ve been thinking about it all that time, and a lot of good work has been done. For our purposes let’s start with an early example of the war plan genre: Herman Kahn’s scary treatise about the unthinkable, On Thermonuclear War.[3] It’s a classic; old but still relevant; one of the foundational books in the field. It also has things to say about our current subject.

Herman Kahn believed most governments, if left to their own devices, would prefer peace over war. [He said that over 50 years ago, and perhaps had in mind stable governments like those in Eastern and Western Europe; not the failed states we find today here and there around the globe.] Peace is safer than war. But, he added, if war is inevitable, most governments would prefer to strike first, rather than wait for their enemy to take the initiative.[4] Those who go first, attacking the enemy’s strike forces, improve their chances of surviving the engagement. This, of course, also was Dwight Eisenhower’s view when he was President.

If a country decides war is probable, the pressure on it to strike first increases. Once the other side understands that, it’s also motivated to do a first strike.  There is a “reciprocal fear of surprise attack” that pushes both sides toward war.[5]

How Bad the War?

It would be very bad. Back in the 1950s we had a combination of nuclear and thermonuclear weapons in the inventory. [The so-called “A” and “H” bombs.] The difference between them is the difference between kilotons and megatons. A kiloton is 1000 tons. A megaton is 1000 kilotons. The destructive power of the bombs used on Hiroshima and Nagasaki was measured in kilotons. Today the warheads on our missiles are measured in megatons. “Megaton weapons are comparable to gross forces of nature, such as earthquakes and hurricanes.” [6] If used, they would be enormously destructive.

Evacuating People

So here we are in a paranoid situation, two countries, hyper vigilant, sure that there will be a war, each afraid that the other will attack first, and then one of them evacuates its cities. Flee, flee, it says to its people! The bombs are coming! What does that tell the other side? That its enemy is going to war, and is preparing its people to survive retaliation after it strikes? That’s the logical conclusion, wouldn’t you think? But evacuation is more than a “tell” in poker. It’s the same as a declaration of war. [7]

Herman Kahn was of two minds about this. He thought that evacuations should be low key and reassuring to the other side. Evacuations should be “as undramatic as possible,” and assurances should be given that no decision has been made to go to war. But if one side has decided to launch a surprise attack, of course it would make reassuring noises. Why ruin the surprise? And why would its adversary believe anything from a country that’s obviously mobilizing?

Why indeed? Even Herman Kahn saw the problems. “Evacuation-type maneuvers,” he said, “are risky because they may touch off an attack by the other side.[8]” And that, I think, is the answer to the question I posed at the beginning of this piece. Why would a government refuse to tell its population about an impending threat? Answer: To avoid aggravating an already bad situation. Perhaps it thinks a peaceful resolution is still possible. Perhaps it’s going to launch a pre-emptive strike and doesn’t want to telegraph its intentions. Either way, it doesn’t want to agitate the other side. Boom!

Conclusion

So get used to it. In a crisis your government may well lie to you, for the very best reasons, of course. There are always reasons. Use your own judgment when you read the news.

[Please note: This post is speculative only. We don’t have any government secrets here at Elemental Zoo Two, and don’t want any. If you want confidential sources, named or unnamed, go to the Washington Post. And we’re not accepting calls from North Korea. Have a nice day.]

 

 

[1] See the Wikipedia entry on the Coventry Blitz, at https://en.wikipedia.org/wiki/Coventry_Blitz .

[2] Id. at Coventry and Ultra.

[3] See Kahn, On Thermonuclear War (Princeton, 1960, Transaction 2007, 2010). The Transaction edition is a reprint of the original, plus some additional material added by the publisher. The book will be cited as Thermonuclear War at __. Page references will be to the 2nd Transaction edition of 2010.

[4] Thermonuclear War at p. 136. “Most governments when asked to choose between war and peace are likely to choose peace, because it looks safer. These same governments, when asked to choose between getting the first or the second strike will very likely choose the first strike. They will do so for the same reason they choose peace in the first choice; it is safer.… [M]ost governments would much prefer getting in the first strike once they feel war is inevitable, or even very probable.”

[5] Id. “As soon as either side thinks that war is probable it is under pressure to pre-empt. …[T]he instability is increased  by the “reciprocal fear of surprise attack” in which each side feels a pressure to strike mainly because it feels the other side has exactly the same pressure.”

[6] Thermonuclear War at p. 313: “The most important technological development … is the fact that it would have been a thermonuclear rather than an atomic war.  The difference between megaton and kiloton is very large, in some ways larger than the difference between a kiloton and a ton. Megaton weapons are comparable to gross forces of nature, such as earthquakes and hurricanes. The effects of the use of such weapons are not only extremely widespread; they are also occasionally very subtle and hard to predict. As a result, for the first time in the history of war we have what might be called the problem of the post attack environment.”

[7] Thermonuclear War at p. 648. “If true and clear to the enemy, this is extremely serious, because he will be impelled to strike the U.S. during the evacuation (not to kill civilians, who are not really a military target, but to get in the first blow.)”

[8] Id. at 132.