Archive for the ‘Law’ Category

WHAT’S AMERICA TO DO?

Monday, July 2nd, 2012

Well, well . . . one unelected governmental officeholder with lifelong tenure, Chief Justice John Roberts, Jr., ironically a known epileptic, became the single, deciding factor in determining the future of all medical services for the entire USA.(1) What power! What would James Madison say?

It might be noted that the context in which Mr. Roberts made his decision not only is his own chronic illness but a Court in which not one of the “Supremes” is a WASP-male or a WASP-female. As Mr. Roberts reasoning represented a gross distortion of the language of the legislation, the composition of the Court represents a gross distortion of American demographics. Mightn’t even Abraham Lincoln be aghast?

To what extent did Mr. Roberts having served as counsel to the insurance-industry influence his decision, especially his loss in 2002 before what is now his Supreme Court (Rush Prudential HMO, Inc. v Moran)? The answer is unclear, given the disparate consequences for different companies.(2)

Twisting definitions the way only a lawyer can do, Mr. Roberts pronounced legislation that he himself, otherwise, would have considered unconstitutional . . . constitutional. Talk about miracles! Such a feat of legalistic resurrection might amaze even Moses, Jesus, and Mohammed.

The four dissenting Justices noted that Mr. Roberts re-categorized, as a tax, the “penalty” attached to the “individual mandate”. The penalty was categorized numerous times in the legislation as such and not as a tax even though it will be administered via the Internal Revenue Service. Moreover, Mr. Obama and his Democratic supporters repeatedly denied that it is a tax,(3) and, although some of his supporters now might deny his denial, others within the White House continue to affirm it.(4) In the words of the radio-character, Chester A. Riley, “What a revoltin’ development this is!”

So, what’s America to do? Given her history, probably nothing more than passive acceptance. Isn’t it all over but the shouting?

Will Mr. Romney continue to campaign loudly for repeal of ObamaCare despite its model having been RomneyCare in Massachusetts? Such linguistic gymnastic is well within the abilities of Mr. Romney . . . after all, he is a lawyer himself.

Two lawyers campaigning for the presidency. What a sight to behold!

Admittedly, at this point in the campaigning, the consequence of Mr. Romney’s emphasizing his opposition to Obamacare might be less voters’ support not more. Whatever he chooses, in November, should the House remain Republican and, by some chance, Mr. Romney win the White House,(5) he still will be unable to repeal ObamaCare in its entirety unless the Republicans also capture a minimum of sixty seats in the Senate, unlikely, then band together into a united whole, even more unlikely given their past record of fecklessness . . . think Olympia Snowe from Maine or Arlen Specter from Pennsylvania.

Okay, other than the Republicans’ capturing the White House and both chambers of Congress, is there anything else that America can do? Yes, but she won’t . . . or might she?

As Alexis de Tocqueville noted in 1831, the real power in America, albeit currently remaining buried under the big foot of the federal government, lies with the individual States.(6) State-based governments simply could refuse to establish the “exchanges” demanded by ObamaCare. Will any? Governors Perry of Texas and Scott of Florida say, “Yes.” Talk is cheap, however . . . money, expensive. Time and politics will tell.

Wait! Even if a State so refuses, pursuant to the Act, won’t the federal government do so in its stead? Not necessarily . . . not if the U.S. House of Representatives, likely to be Republican-controlled, refuses to appropriate the necessary funds.

The U.S. Constitution is clear. Federal appropriations originate in the House not the Senate. “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”(7) No money . . . no ObamaCare.

James Madison wrote in The Federalist No. 58, “The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse – – . . . . This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

After all, if Mr. Obama can refuse to enforce the law in the form of the Defense of Marriage Act because it offends his personal or political sensibilities, why can’t the House of Representatives refuse to fund a law that a majority of its members deem unconstitutional, Mr. Roberts’s opinion notwithstanding?

What would be the consequence of such behavior? A constitutional crisis? Maybe. If so, perhaps a constitutional crisis is what America needs to save the Constitution and herself (www.inescapableconsequences.com).

References
1. Epilepsy: a recurrent, paroxysmal disorder of cerebral function marked by sudden, brief attacks of altered consciousness or abnormal motor signs or sensory symptoms. Of note, patients with epilepsy are at risk of developing psychiatric problems including anxiety, depression, and psychosis. Whether patients develop an “inter-ictal” personality remains a source of medical controversy.

Whatever the case, Mr. Roberts’s condition has raised criticism about his fitness to serve on the U.S. Supreme Court or, perhaps, any court. Some might claim that his medical condition never having become a source of national or congressional debate prior to his confirmation would seem to reflect the power of political correctness or what, alternatively, would be called Radical Maternalism.

2. Schoenholtz, JC: The Managed Healthcare Industry: A Market Failure (2nd Ed.). North Charleston, SC: CreateSpace (2011).

3. “ObamaCare and the Power to Tax”. The Wall Street Journal, 29 June 2012, page A13.

4. “A Vast New Taxing Power”. The Wall Street Journal, 02 July 2012, page A10.

5. In this election, some might characterize Mr. Romney as a lightweight in a heavyweights’ bout. One example has been his refusal to address candidly and completely two issues of substantive importance . . . namely, 1) his promoting of RomneyCare, about which Rick Santorum beat him to a pulp during the primaries and 2) his wife’s medical condition (multiple sclerosis) and her ability to meet the challenges of becoming First Lady,(A) about which, unlike his wife, he himself essentially has refused to comment.(B) His reluctance to meet these issues head-on projects a personal image lacking strength, lacking courage, and lacking conviction.

A. Multiple Sclerosis: a chronic, progressive, auto-immune, inflammatory condition of the central nervous system, marked by intermittent damage to the myelin sheath that covers all axons of nerve-cells. One of the hallmarks of the disease is chronic fatigue (90% of patients) in addition to often severe motor and sensory dysfunctions, including loss of control of bladder (90% of patients) and bowel (15% pf patients). Fifty percent of patients suffer from depression while 20% exhibit “la belle indifference”, an unrealistic degree of complacency about gross symptoms.

B. Burton, TM: “Ann Romney Talks of Her Struggle With MS”. The Wall Street Journal, 02 July 2012, page A4.

6. de Tocqueville, A: Democracy in America. Chicago, The University of Chicago Press (2000).

7. U.S. Constitution, Article 1, Section 7.

JUSTICE OR TYRANNY?

Monday, April 16th, 2012

The Founding Fathers feared mob-rule even more than they feared aristocratic rule. Mob-rule is intolerable. It leads to tyranny of the worst sort, tyranny that can last for generations.

The laws of the State of Florida contain a statute protecting members of “Community Watch”; members, according to most reports in the media, such as George Zimmerman. That statute reads as follows:

“843.20 Harassment of participant of neighborhood crime watch program prohibited; penalty; definitions.-
(1) It shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person to willfully harass, threaten, or intimidate an identifiable member of a neighborhood crime watch program while such member is engaged in, or traveling to or from, an organized neighborhood crime watch program activity or a member who is participating in an ongoing criminal investigation, as designated by a law enforcement officer.
(2) As used in this section, the term:
(a) “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress in that person and serves no legitimate purpose.
(b) “Organized neighborhood crime watch program activity” means any prearranged event, meeting, or other scheduled activity, or neighborhood patrol, conducted by or at the direction of a neighborhood crime watch program or the program’s authorized designee.
History.—s. 2, ch. 2004-18.”

First question . . . Was Mr. Zimmerman engaged in “an organized neighborhood crime watch program”?

Second question . . . By physically attacking Mr. Zimmerman, did Trayvon Martin violate this statute?

Third question . . . If Trayvon attacked George Zimmerman, was he, thereby, engaging in an illegal act …whatever advice a police-dispatcher might have given to Mr. Zimmerman and whatever the reports in the media that Trayvon was just a law-abiding youth minding his own business, who did nothing wrong?

To date, few, if any, reports or commentaries have mentioned this statute even though it clearly is one specific to the incident in question. Why the silence?

If the statute applies, mightn’t it exonerate Mr. Zimmerman on a point of law? If so, are the authorities applying and ignoring written statutes as a function of which demagogue, backed by which howling mob, is screaming the loudest … all in the name of “civil peace”; i.e., mob-rule?

Compounding the issue is a pending, secondary, federal charge against Mr. Zimmerman based upon the vague laws regarding so-called civil rights, thereby, exposing him to allowable double-jeopardy; i.e., both state-based and federal prosecutions. Is this secondary pursuit of Mr. Zimmerman an example of traditional American justice or what many view as an expanding, federal tyranny in The New America?

Context and consequences (www.inescapableconsequences.com). What will be the consequences of these two pursuits?

Will law-abiding, civically-minded Americans, for example, still want to volunteer for “Community-Watch” after having watched Mr. Zimmerman hounded by a mob threatening his life, persecuted nationwide by the media, charged by the State with murder, and charged by the USDOJ with violating “civil-rights”? Whatever the answer, one consequence of the incident is inescapable … Mr. Zimmerman’s life in the foreseeable future will be a living Hell.

Rule by Lawyers

Monday, February 14th, 2011

“Better is a little with righteousness Than great revenues with injustice.” —  Proverbs 16:8

Law American Style Consider the legal quicksand entrapping the following three men (1): In 2009, H. Beatty Chadwick, a lawyer himself, in jail for nearly 14 years; Manuel Osete, a businessman, in jail for 3 years; Martin Armstrong, an investment-manager, in jail for 6 years. What legal commonalities bind these three prisoners? None ever had been convicted of a crime. None tried for a crime. None even charged with a crime. Yet, all were imprisoned indefinitely as the consequence of pronouncements by judges who remanded them to jail for “civil contempt”.

America On Fire Lawyer-judges incarcerating Americans for 14 years without a crime having been committed should give one pause for reflection. Is there any wonder that America is a nation on fire . . . on fire with anger? An increasing number of productive, taxpaying American citizens view themselves as insidiously having been subjugated by power-hungry politicians, petty bureaucrats, and avaricious lawyers who continue to undermine the Constitution and to destroy American Tradition for their own self-aggrandizement. Some of these citizens are not just feeling angry (emotion). Some are speaking stridently and publicly (verbal behavior). More importantly, some are taking action (instrumental behavior) . . . fortunately, non-violent, in the main. Witness the Tea Party and its supporters.

Two Simple Equations To understand the position of lawyers amidst this political, economic, and social conflagration, it is helpful, if not necessary, to place the issue into a scientifically-oriented framework. Doing so involves two, simple equations.

The first is a basic law of behavioral science, the Law of Effect . . . B = f(x) under c.(2) It states that behavior is a function of its consequences in a given context. Want more of a behavior? Reward it. Want less? Don’t reward it. The controlling variables are context and consequences. [For a detailed description, see Chapter 7 in the novel, Inescapable Consequences (www.inescapableconsequences.com).]

The second is a method to resolve problems in living . . . both societal and personal. [(-4) + (4)] = 0. Minus four (i.e., Context, Antecedents, Behaviors, Consequences) plus four (i.e., Problem, Goal, Plan, Measurement) equals zero.

Minus four refers to applying the four steps of describing the situation in question . . . the negative. Plus four refers to applying the four steps of resolving the problem therein . . . the positive. The sum equals zero . . . no problem, at all. We can apply these, two equations to the American legal system.

B = f(x) under c Lawyers shoulder a professional responsibility to their clientele . . . a responsibility that many critics claim most honor in the breach. A fundamental question is, Should those administrating the law . . . lawyers . . . be creating it? Whereas it may have been advantageous for lawyers to have participated in creating the country by providing a more precise framework for a new federal government, has it become disadvantageous for contemporary lawyers to maintain the position held by their predecessors? Are they now abusing the privilege of their profession?

From a scientific point of view, American law currently represents poor contingency-management. As judges and legislators, lawyers create the context in which they themselves operate as well as the consequences governing their own operations therein.

The context of American law reflects human behavior. Behavioral science from the biobehavioral orientation describes the natural laws governing that behavior. By employing natural law in order to manage contingencies properly, we Americans can reform our legal system. How? It’s as simple as the ABC’s.

Minus Four: Context and the ABC’s CONTEXT: Lawyers dominate American society. Tens of millions of frivolous lawsuits await judicature. Thousands of arbitrary, whimsical, capricious, and contradictory judicial decisions await further pronouncements by unelected judges. American law has deteriorated to the point where predatory lawyers now file lawsuits in the United States against foreign nationals for acts committed on foreign soil against other foreign nationals . . . events having nothing to do with the United States, its citizens, or its legal system.(3) This kind of egregious behavior represents “lawyerism”. It is destructive to America.

The term, lawyerism, refers to the domination of a nation by its legal class. That domination allows lawyers to create and promote a self-serving system of positive self-reinforcement. Does America remain a nation of laws, or has it been deformed into a nation of lawyerism . . . for lawyers and by lawyers? A strong case can be made that the answer is the latter.

On the societal level, lawyerism condemns the rest of a nation to live under a system both unfair and unjust. Unfair because it creates a privileged, social class . . . a legal aristocracy that legislates and administrates laws and rulings favorable to itself at the expense of everyone else. Unjust because it flagrantly disregards the stated obligation of lawyers to protect their clients . . . not to defraud them. Worse, it allows little redress to those whom it abuses.

On the individual level, lawyerism promotes outright fraud. The scientific guidelines of specificity, objectivity, and accountability largely are missing, especially the last . . . accountability. American law denies financial accountability. Clients have no means of assessing the true time and real effort devoted to their cases by those “learned, legal professionals” whom they pay. Worse, contingencies generally operate against lawyers working efficiently and effectively . . . the less the time (i.e., “billable hours”), the lower the fees.(4)

Are there, nevertheless, some ethical lawyers? Yes. Some of them also are competent. A relative few, even outstanding. As a group, however, ethical lawyers seem to be the minority. That observation reflects the context and consequences that we Americans allowed the legal profession to create. B = f(x) under c. The behavior of lawyers is governed by the same natural law that determines the behavior of the rest of us. As it is asked in the Lord’s Prayer, lead us not into temptation.

Much to our detriment, the legal context leads lawyers into temptation. Societally and individually, it promotes self-serving, inefficient, and corrupt behavior.

More frighteningly, many of the rankest, most odious members of the most despised of all professions seek public office and become the controlling segment among, as Mark Twain characterized them, our native criminal class . . . politicians. Lawyers comprise less than 1% of the American population but 40% of the Congress.

Accordingly, might a prosecutor justifiably file a case against current American law? Mr. Twain likely would answer, “Yes.” The prosecutor’s charge might read along the following lines: “The United States of America is a democratic republic founded upon a constitution and the laws derived therefrom. The American public hereby charges that those who administrate the laws . . . namely, lawyers . . . have usurped control of the system for their own personal benefit to the detriment of their fellow citizens and, by doing so, have ignored that constitution and have enacted laws that have attacked the document that they have sworn an oath to defend.”

Having described the context and levied the charge, the prosecutor could further his case by analyzing how American law functions in terms of the ABC’s . . . Antecedents-Behaviors-Consequences. Firstly, however, he should define his terms.

An antecedent is an event preceding a behavior, an event that becomes the occasion for that behavior to occur. A behavior is an action by a living organism upon its environment. A consequence is an event following a behavior, an event that influences the future strength of that behavior. It is vital for understanding to recognize that antecedents derive their power from consequences. Having defined his terms, he now can ask, How does American law function?

ANTECEDENTS: Societally, human conflicts act as antecedents or prompts for lawyers and their agents to pass a myriad of continually changing laws and regulations amounting to “Lawyers’ Full-Employment Acts”. Individually, human conflicts act as antecedents for lawyers on behalf of clients to file lawsuits . . . many trivial if not totally unfounded. It is in the self-interest of American law to create and exacerbate human conflict not to resolve it. As the saying goes, in a town with one lawyer the lawyer starves; in a town with two, both feast.

BEHAVIORS: On a societal level, elected politicians pass an increasing number of laws and unelected bureaucrats draft an increasing number of regulations. On an individual level, tens of thousands of plaintiffs file tens of thousands of lawsuits against tens of thousands of defendants.

CONSEQUENCES: Social, political, and economic firestorms that destroy a nation. Historically, lawyerism represented a major factor in destroying the Roman empire.(5) Today, the American republic is its victim. With hundreds of thousands of often self-contradictory laws and regulations, it has turned America into a nation of criminals, witting and unwitting. It has pitted individuals against commercial enterprises; commercial enterprises against other commercial enterprises; and individuals against other individuals.

Who wins? Lawyers. For them, the consequence is positive reinforcement . . . profit, power, and position.

Who loses? Society. For the rest of us, the consequence is negative reinforcement destroying the societal and individual good upon which lawyerism feeds.

PART TWO

Part One described the Law of Effect [B = f(x) under c]; Context and the ABC’s; and the first element in the equation [(-4) + (4)] = 0. Part Two describes the second.

Plus Four: Resolving Problems in Living As previously stated, from an historical perspective, a prosecutor justifiably might charge that lawyerism is killing America. Consider the legal cases against asbestos . . . cases riddled with thousands of instances of documented fraud. These cases and others similar have bankrupted some of the largest commercial enterprises in America thanks to greedy, unscrupulous lawyers playing to gullible audiences in receptive judicial theaters of the absurd.(6) American industry now spends more on litigation than on research. Lawyerism has become a primary factor driving American industry offshore with the loss of millions of jobs.

If the charge is true, how do we change American law? The answer . . . and the only valid answer . . . lies in adhering to the scientific guidelines of specificity, objectivity, and accountability. In turn, adhering to these three guidelines requires adopting the following scientific approach: 1) Define the problem. 2) Target a goal. 3) Design a plan then put it into play. 4) Measure the consequences. [For a detailed description, see Chapter 8 in the novel, Inescapable Consequences (www.inescapableconsequences.com).]

PROBLEM: American lawyerism . . . an excess of legalistic behavior in America.

GOALS: To have a legal system that is ethical . . . one that serves the best interests of society. As is government, a legal system is necessary, but both should be limited. Ideally, they regulate behavior for the benefit of society and its citizens not lawyers.

Operationally, plaintiffs seek legal advice in order to attack someone else. Defendants seek legal advice to defend against attack . . . civilly by civilian plaintiffs or criminally by governmental prosecutors. Often, the seeking-behavior occurs under circumstances (stress) eliciting cognitive, emotional, and physiological distress (negative strain). The legal system should provide a socially-responsible, rapid, consistent, just, and fair resolution of disputes . . . civil and criminal. If the system is limited and ethical, society wins. If unlimited and unethical, society loses.

Given free rein, a legal system will take the bit into its mouth and run the societal wagon and itself off a cliff. Harness it through properly managed contingencies, and it will take a society and its members to a better place.

PLANS: No single modification can cleanse American law of its current excesses and deficits. A number of modifications, however, scream for implementation. The current, lawyer-ridden Congress is unlikely to consider even one of them, let alone pass all of them. These changes include the following (For a detailed description, see Chapter 13 in Inescapable Consequences.):

1) Prohibit lawyers from serving in the U.S. Congress. Those who administrate the laws should not create them. 2) In federal cases, implement a system requiring the prominent posting of flat fees per class of service. Some large clients already are moving in that direction.(7) 3) In federal civil cases, require the loser to pay the winner’s reasonable attorneys’ fees and court-costs; thereby, decreasing frivolous lawsuits, especially those based upon “contingent fees”. This policy is already in place in other countries. Hopefully, the fifty states would follow. 4) Place limitations onto federal “class action suits”. Firstly, bring the soliciting of clients under generally accepted, legal standards of practice. Secondly, require every such lawsuit to name every claimant, who must have given explicit, written permission for the lawyer to represent him prior to filing; that permission must state clearly the total amount of compensation demanded, the partial amount that each claimant could expect to receive, and the absolute amount and total percentage to be taken by the lawyers. Thirdly, require all such suits to be filed in the federal court located in the jurisdiction in which the headquarters of the defendant are located in order to stop lawyers from selecting districts favorably disposed toward such lawsuits.

MEASUREMENT: Without measurement, there can be no accountability. Preferably, measurement should be quantitative as well as qualitative. On the one hand, it must be an integral element of any legal system; on the other, protection of clients’ confidentiality and privileged communication between attorney and client must remain paramount.

Should the federal government publicly post wins and losses per class of federal case for each lawyer? No . . . the consequences are counterproductive. Government tried to do that sort of thing with physicians.(8) The consequence? Physicians began accepting only easier cases. Medical behavior came under the control of bureaucrats’ scorecards rather than patients’ welfare. Moreover, attempting to weight results for difficulty is inexact and ineffective.

Maintaining confidentiality and rejecting public scrutiny leave few options. Ironically, the most effective form of accountability may be the legal system itself. Lawyers who violate regulations should face harsh penalties, civilly and criminally. Civilly, triple damages for fee-gouging coupled with possible disbarment, temporary or permanent. Criminally, fines and/or imprisonment for willful misconduct.

Whereas positive control generally is preferable, in this case, negative control may be unavoidable. American lawyers and judges inside the system almost exclusively employ negative control (avoidance, escape, and punishment) against non-lawyers outside the system. Accordingly, using negative control for those under positive control inside the system seems consistent, fair, and just.

Additionally, a non-lawyer-based Congress can establish a commission to monitor legal activity in the federal courts by recommending standards of consistency, justice, and fairness then by measuring the degree to which federal cases meet the standards recommended. The standards can be scientifically-driven, evolving based upon the results of measurement. They neither should be law nor be binding on the system. The commission itself should have no legal authority other than the collection of data; which, like the standards recommended, would be public.

Conclusion Imagine a legal system scientifically-based and scientifically-driven, operating in the interest of the public as individuals and the nation as a society. Imagining, however, is one thing . . . creating, another.

The alternative? A nation on fire consuming itself in flames fueled, in part, by American lawyerism.

References
1. Jones, A: “No Charge.” The Wall Street Journal, 08 January 2009, page A10.
2. Thorndike, EL: Animal Intelligence: Experimental Studies. New York: Macmillan (1911).
3. See, for example, Finnerty III, JG and Merrigan, J: “Legal Imperialism”. The Wall Street Journal, 28 February 2007, page A15.
4. See, for example, Koppel, N: “Lawyer’s Charge Opens Window on Bill Padding”. The Wall Street Journal, 30 August 2006, page B1.
5. Gibbon, E: The History of the Decline and Fall of the Roman Empire. Initially published in 1776.
6. See, for example, 1) Glater, JD: “Civil Suits over Silica in Texas Become a Criminal Matter in New York”. The New York Times, 18 May 2005, Business Section; 2) Sparshott, J: “America’s Cutting Edge: Innovation Creates Industry, Jobs”. The Washington Times, 01 May 2006, page 12; 3) Sparshott, J: “U.S. Companies Closing Up Shop”. The Washington Times, 17 April 2006, page 1; and 4) Koppel, N: “Arcane Law Brings Conflicts From Overseas To U.S. Courts.” The Wall Street Journal, 27 August 2009, page A11.
7. See, for example, Koppel, N and Jones, A: “‘Billable Hour’ Under Attack”. The Wall Street Journal, 24 August 2009, page A1.
8. See, for example, Kolker, R: “Heartless”. New York Magazine, 24 October 2005, page 42.

-End-

Assange’s Challenge

Monday, December 27th, 2010

Diplomacy: lying in state.
– Oliver Herford (1863–1935)

Julian Abbott sat alone in the tea-room at the old and famous Brown’s Hotel in London. The weather outside was unusually miserable for early December with forecasts of worse to come. Tall, athletically-built, and showing the first hint of grey hair, he sipped Scottish Breakfast Tea colored tan by a bit of skimmed milk. Julian was the only Black in the room.

Born on the South Side of Chicago, Julian had battled his peers’ self-defeating pursuit of ignorance and rage . . . a pursuit always overt, often violent. Despite the dreadfully low level of education provided by the municipal government, he had managed to gain a basic, intellectual foundation by studying under the guidance of an elderly aunt who had been a teacher in the segregated South. Graduating high school and achieving respectable scores on his examinations for college-entrance, he had received a scholarship to Northwestern University under its program for “Affirmative Action” for “disadvantaged minorities”. Although he felt demeaned by the offer, he accepted it.

During the following four years, he proved himself more than adequate to the academic challenge while many of his fellow, black students accepted under the same program quit despite special, remedial tutoring. A system intended to help them become all that they were capable of being and, thereby, to challenge the world for the better had the consequence of impeding their ever doing so.

Following his B.A. in History, he gained his M.B.A. from the same institution. During his final year, he was deluged with offers for employment by some of the largest and most prestigious firms in the country while many of his white classmates, a few with even better grades, went begging. Again, feeling demeaned, he, nevertheless, accepted an offer from a relatively small firm that seemed to value him more for his skills than his race. He believed in himself and in his own and others’ capabilities as individuals to support the good and to challenge the bad in the world.

Having successfully completed his latest assignment, he had decided to take a few days of personal leave to enjoy London; meteorologically, an unwise decision. As he sat sipping tea while snowflakes swirled outside, he read articles about the latest consequence of Tim Berners-Lee’s having launched the World Wide Web in the 1990’s . . . this time, the uproar caused by one Julian Assange and his website, WikiLeaks.

“So, what do you think?” asked a raspy, male voice with an American accent from the table behind him.

Julian turned to see a man of late middle-age, pink-faced, balding, and bloated. The man seemed more suited to a pub than a tea-room.

Julian replied, “What do I think? A sign of our not-so-brave, new world.”

“Mind if I join you?” the man asked, already on his way.

At the time, Mr. Assange, a citizen of Australia, already had been interrogated by authorities in Sweden under its bizarre laws regarding rape then released and allowed to leave the country for the United Kingdom. Later, in a curious twist of legal position, the same authorities requested Her Majesty’s government to hold Mr. Assange for the same alleged crimes of which they previously had absolved him and to extradite him for trial. He would face several years in a Swedish prison.

Mr. Assange had fought the extradition and, after several days in jail, had been released on what some regarded as an excessive bond. An international clamor of protests arose against Sweden, vilifying it as a political pawn of the United States. Indeed, the USA did make itself appear to be manipulating the international, legal system to achieve political ends; a gambit of which it had been accused many times before Assange and would be again immediately afterwards . . . this time in Switzerland.(1)

In this context and while seating himself, Julian’s uninvited guest exploded, “I’ll tell you what I think. I agree with Sarah Palin, Joe Lieberman, and National Review.(2) I think we should bring the bastard here, give him a fair trial, then string him up by his ‘cajones’.”

“He already is here.”

“Huh?”

“He’s already in England . . . as are we.”

“Aw, Hell, you know what I mean. Bring him to the United States then give him what he deserves.”

“Which is?” Julian asked.

“To be executed . . . that’s what. Yeah, I know. We can’t do it, but we should. Show the world what we do to traitors.”

“I’m a bit confused. He’s a citizen of Australia. How can he be a traitor to America?”

“Huh? Oh, that’s just a legal technicality. We’ve got to show this anarchist and others just like him that America means business.”

“Haven’t we been doing that in Kosovo, Iraq, and Afghanistan . . . just to mention a few places?”

The man’s twisted countenance shouted anger. “What are you . . . a leftie? I should’ve guessed.”

“Guessed? How?”

“Well, just by looking at you. Your people are all lefties as far as I can tell.”

“You mean my people such as Thomas Sowell?”

“Who’s he?”

“A scholar at Stanford and a syndicated columnist. Quite conservative, actually . . . in spite of being one of . . . my people.”

With beads of sweat popping onto his forehead despite the cool temperature, the man replied, “Yeah, well . . . maybe, I misspoke.”

“Maybe, you did. Forget it. More importantly, we’re both Americans. It’s obvious that you’re proud of our country and want to defend her best interests. I do, too. Because I’m a Negro doesn’t mean I’d go down to Cuba to pal around with Fidel and his cabal of Communistic cutthroats as have some other of . . . my people.”

“I thought that we’re not supposed to use the ‘N-word’.”

“Perhaps not, if you’re PC. How about the ‘C-word’?”

“Huh?”

“The ‘C-word’. You know, Caucasian.”

“Oh, I get what you mean. Say, you’re alright.”

“Thank you. Let’s examine this current flap about Assange. Remember, regarding his disclosures, he and many others claim that he did nothing illegal. Even the Australian government agrees with them. So, did he lie? Did he blackmail, extort, or commit fraud?”

“Well, no . . . not that I know of.”

“What, then, is his alleged crime?”

The man sat silently before replying weakly, “Sedition?”

“Under what law?”

“I’m not sure.”

“You’re probably referring to the controversial Espionage Act of 1917 amended in 1918. It was enacted during a declared state of war . . . declared constitutionally by the Congress. Congress hasn’t issued a declaration of war since 1941. Even the current US Code about gathering, transmitting, or losing defense information refers explicitly to it being in time of war or in case of national emergency . . . neither of which exist constitutionally.”(3)

“Yeah, well, after ‘9-11’, the politicians passed a resolution.”

“I’ve read the Constitution of the United States of America more than a few times. Whereas it may give the Presidency military power in the context of a military emergency, it clearly implies that he’s to seek congressional approval via a declaration of war within a reasonable and appropriate period of time. There’s no mention of ‘resolutions of war’.”

“Even so, American men and women in the military are being killed.”

“Sadly. No patriotic American wants to see his fellow Americans killed or wounded in combat. The question arises, however, are our troops there constitutionally? Where’s a declaration of war by Congress pursuant to the Constitution?”

Julian continued, “You know, I always thought that it would require a peculiar set of circumstances for me to agree with Michael Moore and his ilk politically. Well, this situation just may represent that set of circumstances. Don’t you think Moore can make a case that Julian Assange, whatever his reasons, might have done the world a favor? Hasn’t Assange shown that the power of the individual . . . of one man or woman . . .  still exists to change the world while acting within generally accepted legal and ethical boundaries? The professional politicians may fear organizations less than they fear individuals . . . the so-called loose canons . . . whom they can’t control with money or favors. Couldn’t Assange be one of them?”

“Maybe . . . maybe not. Still, what about the people whose lives he’s endangered?”

“Isn’t that the chance they took . . . whatever their reasons?”

“Even so, shouldn’t we, the United States, be protecting them by whatever means necessary?”

“Means that include violating the civil rights of our own citizens and concocting schemes of questionable legality against foreign nationals who may not have violated any applicable laws? How far should our protection go? I believe it was Henry Kissinger who said that to be an enemy of the United States is dangerous . . . to be a friend is fatal. The United States failed to safeguard the information that Assange published. Does the fault lie more with Assange or with us?”

“Fault or no fault, he didn’t have the right to do what he did.”

“What did he do? Throw the light of truth on the often dark, self-serving evasions labeled ‘Secret’ by governmental officials . . . not just in the United States but around the world? Keep in mind, in doing so, he went to some lengths to shield those whose lives, otherwise, actually might have been jeopardized. Ask yourself, Do the desirable consequences of his actions outweigh the undesirable ones?”

“I . . . I don’t know. What I do know is that the undesirable ones have hurt us.”

“Unfortunately, they may have. Look, I’m probably more conservative politically, economically, and socially than even you. This government of ours, especially since George W., has been on a tirade, destroying the civil liberties of the individual in the name of protecting the nation. Well, I’m all for protecting the nation but the right way not the wrong way. The question is, Has what the federal government done since ‘9-11’ . . . and long before . . . violated the Constitution, violated American Tradition, and been just plain wrong? Has the government been destroying constitutionally-based, individual privacy and rights in the name of a failed ‘War on Drugs’ or an ill-defined ‘War Against Terrorism’? Meanwhile, has it been building a wall of secrecy around everything it itself does? Is Julian Assange’s alleged crime simply that he poked a hole in that wall? Can’t a case be made that Assange has done us all a great good in challenging an expanding tyranny by a group of governments, most labeling themselves ‘democratic’ . . . all cooperating to increase economic and political control over their respective citizenries?”

Again, the man sat silently. Eventually, he replied, “Okay, for the sake of discussion, assume the good that Assange did outweighs the bad . . . which I’m not saying I believe. How should we change things?”

“You asked the right question. The solution is not The What or The Who but The How. The How implies using science . . . specifically, scientific methodology . . . to solve our problems. We need to capitalize on Assange’s challenge, right or wrong, by analyzing scientifically what we Americans are doing then by correcting scientifically our mistakes. It’s not that complicated (www.inescapableconsequences.com).”

“Science? Sounds okay, but I doubt that many people will know what you’re talking about . . . complicated or not.”

“You’re right, and therein lies a great misfortune. The consequence of people’s deficit in learning about the scientific principles that govern their own behavior likely will be the end of us . . . as a species. Think about Iran, North Korea, and Pakistan.”

“Jesus, man, you’re going to scare people, including me.”

“Better scared and learning than ignorant and dying.”

The man contemplated the message. As Julian rose to leave, the man asked, “What’s your name, Stranger?”

“I’m tempted to say, ‘The Lone Ranger’.”

“May I suggest Don Quixote?”

References
1. “Nuclear Smuggling Probe Advances.” The Wall Street Journal, 24 December 2010, page A8.
2. “The Week.” National Review, 31 December 2010, page 6.
3. US Code – Section 793 (1970).