The Democrats Cave on Torture – posted 5/20/2018

May 20, 2018 2 comments

I think Jeanne Shaheen has been a good senator. I have voted for her numerous times both when she ran for governor and as a senate candidate. In any long political career it is likely there will be troubling votes and Shaheen has made some. But, for me, her vote, along with five other Democratic senators, for Gina Haspel as CIA Director is the worst.

It was the votes of six Democratic senators that assured Haspel would become CIA Director. Three Republican senators – Rand Paul, Jeff Flake and John McCain – all opposed Haspel’s nomination. McCain was too ill to vote but was very much on record. Without the Democrats, Haspel’s nomination would have lost.

Why is the Haspel choice so disturbing? While there is much we do not know about her career as an intelligence operative because it remains classified, we do know that Haspel was in charge of a secret black site prison in Thailand known as Cat’s Eye from October to December 2002.

She oversaw the interrogation and three-time waterboarding of a Saudi detainee named Abd al-Rahim al-Nashiri. Nashiri is a suspect in the bombing of the USS Cole in October 2000 in which 17 U.S. sailors died. Captured in Dubai, he was handed over to the CIA. The CIA first rendered him to Afghanistan and then flew him to Thailand. He now resides in Guantanamo.

After her stint in Thailand, Haspel, a career CIA officer, returned to the agency’s Counterintelligence Center where she worked for two more years while the torture program was at its height. According to the 2014 Senate torture report, at least 119 men were tortured in this time period. In her CIA Director confirmation hearing, Haspel refused to specify her role in torture during these two years.

In a 2014 book, Company Man, John Rizzo, a longtime senior CIA lawyer, wrote that Haspel was in charge of the interrogation program and was responsible for the incommunicado detention and torture of potentially dozens of men. Rizzo wrote Haspel ran the interrogation program. Supporting Haspel’s nomination, in early May this year Rizzo revised his view and said Haspel did not “run” the torture program. Rizzo would not say why he changed his mind.

In 2005, as chief of staff to the Director of National Clandestine Services, Haspel participated in the destruction of 92 videotapes documenting the torture and interrogations conducted against Nashiri and Abu Zubaydah. Sen. Tim Kaine pointed out that Haspel wrote a cable directing the CIA to destroy the interrogation videotapes, effectively destroying evidence.

There is important information in the public domain about Haspel’s actions. Jeremy Scahill, an investigative journalist for the Intercept, has reported on information provided by an American doctor and Naval Reserve Officer, Dr. Sandra Crosby. Dr. Crosby did extensive medical evaluation of almost 20 men who were tortured in U.S. custody, including Nashiri.

Dr. Crosby, who is now a professor of public health at Boston University, wrote Sen. Mark Warner, the vice chair of the Senate Intelligence Committee, to oppose Haspel’s nomination. Dr. Crosby wrote:

“I urge Senator Warner to oppose Ms. Haspel, who did not have the courage or leadership to oppose the Rendition, Detention and Interrogation program.”

While some of the techniques used against Nashiri remain classified, Dr. Crosby listed the torture techniques used against Nashiri.

  • suffocated with water (waterboarding)
  • subjected to mock executions with a drill and gun while standing naked and hooded
  • anal rape through rectal feeding
  • threatened that his mother would be sexually assaulted
  • lifted off ground by arms while they were bound behind his back (after which a medical officer opined that shoulders might be dislocated)

On May 7, in a briefing to Senate Intelligence staffers, Dr. Crosby described the torture graphically:

“The terror of being kept naked in pitch-black, shackled to the ceiling while music blared, covered in urine and feces while insects crawled on their bodies, in dank cells that were freezing cold or unbearably hot. The horrific conditions in between interrogations were in some cases as bad as the interrogation. These torture methods were inflicted for hours and days, for weeks at a time, over the course of years. The men became disoriented with no sense of when the abuse would stop. Some of the men wished for death.”

Dr. Crosby is one of the only health professionals to have ever talked to Nashiri about his torture. She concluded:

“He is irreversibly damaged by torture that was unusually cruel and designed to break him. In my over 20 years of experience treating torture victims from around the world, including Syria, Iraq, and the Democratic Republic of Congo, Mr. al-Nashiri presents as one of the most severely traumatized individuals I have ever seen.”

Torture, such as the actions committed against Nashiri, violates the U.N. Convention against Torture and is clearly illegal under international law. Because the U.S. has signed and ratified the Convention, torture is always illegal under U.S. domestic law as well.

In her public testimony at her confirmation hearing, Haspel refused to renounce torture, her role in its use and she did not condemn the practice of waterboarding. When questioned by Sen. Kamala Harris, she explicitly refused to say that the “enhanced interrogation techniques” she oversaw at the black site in Thailand were immoral.

After her hearing, in a statement explaining why he would vote against Haspel, Sen. John McCain said:

“Her refusal to acknowledge torture’s immorality is disqualifying.”

By promoting someone so intimately engaged with torture, the Trump Administration is almost guaranteeing such crimes will be committed in the future because there has been no reckoning with the past abuses. It is likely the CIA will see Haspel’s elevation as vindication of both torture and its efforts to obscure history.

Considering Trump’s unmatched amorality, his support for Haspel is hardly surprising but Democrats did not have to go along with the President.

The failure of the six Democratic senators to oppose Haspel reflects a lack of values. There is no more fundamental moral issue than torture. Torture is a dividing line between modernity and medievalism and still these Democratic senators voted the wrong way.

This vote speaks to a core identity problem for mainstream Democrats: they do not stand for anything. They think being against Trump is enough and here they are not even against him.

A part of the problem goes back to the Obama Administration and their politics of impunity toward torture. Obama said he would not punish torturers because he was looking forward, not back. What this means is a willful decision not to punish wrongful acts and a total lack of accountability.

In fairness, it must be acknowledged that Americans have demonstrated a bi-partisan inability to tackle torture that goes back at least 50 years. The Phoenix Program in Vietnam, teaching torture to Latin American militaries, and the George W. Bush-era torture have all ultimately been swept under the carpet. The historian Alfred McCoy calls it “public forgetting”.

The Haspel vote undermines respect for fundamental rights and the rule of law. Torture is evil. The vote sends a horrible message to the rest of the world about America’s lack of commitment to human rights.

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Medicaid Work Requirements Do More Harm Than Good – posted 5/14/2018

May 15, 2018 Leave a comment

It appears that for now the issue is settled: New Hampshire’s Medicaid program will have work requirements. In early May, the U.S. Center for Medicare and Medicaid Services approved the State’s plan to require most adult Medicaid recipients to work at least 25 hours per week. The plan could apply to as many as 53,200 recipients in the state although many are already working.

Medicaid beneficiaries, adults aged 19 to 64, will be required to participate 100 hours per month in “community engagement activities” such as work, education, job skills training or community service. That “engagement” will be a condition of their health care eligibility.

The new rules do offer important exemptions for the elderly, the medically frail and those people with children.

New Hampshire becomes the fourth state to introduce a Medicaid work requirement. The requirement has been instituted in Indiana, Arkansas and Kentucky and six other states have pending applications for approval. This is quite a departure for Medicaid which for over 50 years has never had any requirement like this.

While this plan sounds superficially good because it encourages work and personal responsibility, it is fraught with problems, and I expect it will do more harm than good. The idea that most people on Medicaid do not work is completely unfounded.

More than half of all adult Medicaid recipients already work and 78% live in a home where an adult works. The new rules are largely responding to stereotypes that see low income people as loafers and bums.

Considering how many people are already working, you have to ask if these new rules will do anything beyond knocking more people, who do not meet some new imposed requirement, off Medicaid.

Unfortunately, there are many ways that individuals can potentially have their Medicaid terminated that have nothing to do with a willful desire not to work.

People working lower-wage jobs are more likely to have irregular working hours or gaps in their employment. This is not because of the worker. Employers often schedule part-time hours for their own financial reasons. Workers who want to work may fall under the 100 hour a month marker because employers want them off their own health insurance coverage and they need to keep them under their own hourly threshold.

Lower-wage jobs typically offer fewer regular hours and are subject to seasonal changes. For example, food service, retail and construction jobs tend to be more volatile and less stable year-round. For instance, a holiday season may permit increased hours in retail whereas bad weather in winter can reduce hours for construction workers.

The work requirement rules assume low wage workers can find steady, regular full-time employment but the low wage job market is not like that. Many employers will not hire more than 24 hours a week because they want to avoid benefit costs. Even individuals who work substantial hours could lose coverage under the new work requirement.

Workers may not know in advance of the end of the month that they will fall under the 100 hour monthly threshold because employers may end up offering less hours. If workers fall under the threshold because of the wage-cutting actions of employers will that count against them?

How New Hampshire will interpret the failure of a worker to meet the 100 hour monthly threshold must be a matter of concern. Past experience in public benefits suggest many will be terminated from Medicaid due to a quite literal interpretation of rules and a bureaucratic approach.

Some workers will have difficulty verifying compliance with rules. For example, there are workers who may have difficulty producing pay stubs or timesheets even if they have worked.

The state will need to set up a new verification system. Red tape, backlogs and delays are a likely consequence. Many adult Medicaid beneficiaries lack internet access and will need to use snail mail or personal visits to prove compliance. It is not unusual for Medicaid beneficiaries to have transportation difficulties. The workers will still need to prove the work hours.

Homeless people will bring a unique set of issues. If you live in a shelter, you may have to choose between getting in line in the afternoon for a bed and working required hours. The lack of access to a shower or washing machines poses hygiene issues for workplaces. Also, not having a home mailing address or a working telephone can make employment success harder. Employment stability and just the ability to be in touch with an employer is compromised when there is no home.

Those with disabilities are at great risk. The term “medically frail” could mean many things and those claiming medical frailty will have to prove they qualify for an exemption. Obtaining necessary medical documents can be difficult especially if beneficiaries lack coverage. Low wage workers often may not have had any access to health care. It is much easier to get an exemption as a disabled person if you have a treating doctor.

Among those with disabilities, I would especially mention those with mental health issues. How will those with mental health issues fit under the definition of medical frailty? There are many who may not be in any disability program who have significant problems with concentration, clear thinking and social interaction. Those skills are often needed to meet documentation and reporting requirements.

The opioid crisis also must be noted. Will those with substance abuse disorders be seen as “medically frail”? How will work requirements impact recovery efforts? It is reasonable to assume that the burden of proving exemptions will cause people to lose coverage. Many people who suffer from substance abuse disorders have a hard time even acknowledging their condition.

Those who lose Medicaid or face an interruption in coverage can have very adverse health consequences. Those with chronic health conditions like diabetes or depression may require regular access to medications or other treatment. Disrupting access to care can impact the continuation of employability. Interruptions in coverage likely will mean increased emergency room visits and hospitalizations.

As a matter of public policy, I think it is a bad idea to make employment a precondition to Medicaid services. Work requirements actually block access to medically necessary services that individuals need to be able to work. The purpose of Medicaid has been to furnish medical assistance, rehabilitation, and other services that will help individuals attain and retain independence and self-care. Rather than making work a qualifying precondition, we need to see health care as a universal right.

Work requirements guarantee thousands more will be cut off health insurance. That is not the direction we as a society should be going.

According to the Center for Disease Control, over 28 million people in the U.S. under age 65 remain uninsured. That is a little over 12% of the population of those ages 18 to 64. Obamacare made some strides in reducing the number of the uninsured but not enough.

Universal coverage should remain the goal of health care advocates. Work requirements are rooted in uninformed, negative judgments about low income people. It is a safe bet these new requirements will do far more damage than good.

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A New National Monument – posted 4/29/2018

April 29, 2018 4 comments

On April 26, a new national monument came into existence. In Montgomery Alabama, the National Memorial for Peace and Justice opened. The memorial commemorates the victims of lynching in the United States.

The Equal Justice Institute, also known as EJI, a non-profit legal and civil rights group led by lawyer Bryan Stevenson, has been the moving force behind the memorial. EJI created the memorial on land where a slave warehouse once stood. The memorial is located on high ground about a mile from Alabama’s state capitol building.

The memorial, set on six acres of land, includes 805 coffin-shaped boxes of oxidized steel hanging from a square canopy. Each box is inscribed with the names of lynching victims and the county in which they were murdered. The design evokes bodies hanging from trees.

EJI has studied and documented 4,384 lynchings in the United States between 1877-1950 and they say that there were thousands more that have never been chronicled. They are still gathering information about previously unknown murders. EJI did six years of research and made numerous visits to southern states to record lynching data.

Murders of African-American people included being hanged, burned alive, shot, drowned and getting beaten to death by white mobs. The deaths were mostly lynchings but other horrible deaths are also reported.

A new accompanying Legacy Museum also created by EJI is located nearby in Montgomery. The Legacy Museum describes and exhibits our slavery history from early times to our present era of mass incarceration. It must not be forgotten that slavery lasted for centuries and caused vast, untold human suffering.

For any student of American history, the opening of this memorial must be recognized as long overdue. Our national monuments tell a story but a big part of the story has been left out. The lynching memorial is a necessary corrective.

Up until now, there has been no public acknowledgement of the wrong done. The sites of lynchings have been forgotten, ignored, and covered up. At the same time, hundreds of monuments in the South celebrate the Confederacy.

The problem here goes very deep into the way American history is taught and remembered. As a high school student at a good school, I remember my American history classes. There was a large void between the Civil War and World War I. Reconstruction was mentioned and there was that strange, close election in 1876 but my history classes passed over that era. I do not think that is uncommon in the teaching of American history.

The lynching memorial forces an honest accounting. And the truth is brutal. Lynchings were not isolated events carried out in the dark of night by renegade Klansmen. They were often public community events, attended by many thousands. People dressed in their Sunday finest and whole families went to watch the spectacle. Police, doctors, lawyers, clergy, teachers and working people – all the pillars of the community – attended.

Many photographed these events and made postcards of the images. The perpetrators sometimes distributed body parts as souvenirs.

Frequently, it was not enough to hang the victim. Mobs would torture, mutilate and set the bodies of lynching victims on fire. Then the perpetrators would sometimes drag what was left of the bodies through the streets. Women were lynched as well as men. About the lynchings, Stevenson has said,

“They actually lifted up the bodies because they wanted to terrorize. They wanted the entire community to see it.”

Those responsible were never punished and local police did not intervene to stop lynch mobs from taking the law into their own hands.

The reasons why people were lynched often bordered on the absurd. Failing to address a police officer as “mister”, drinking from a white man’s well, bumping into a white girl accidentally, attempting to vote, land ownership, an uppity look, or just being in the wrong place at the wrong time could lead to getting lynched.

If a black man so much as talked to a white woman, he could be accused of rape and could end up, lynched. Racist lynchers always claimed they were protecting white women.

Stevenson describes what he calls an advanced coping strategy of silence about lynching. To quote him:

“If I asked the question, “Name one African-American lynched between 1877 and 1950, most people can’t name one person. Thousands of black people were lynched. Can’t name one. Why?”

Lynching is a buried history, an untold story. There is a legacy of indifference to these crimes. The historian Sherrilyn Ifill, an expert on lynching, wrote that Southern whites of that era would typically lose all memory of the lynchings they attended. Afterward, they would claim they saw nothing. As Ifill has written, that silence about the lynchings and who carried them out was seen as an act of loyalty to the white community.

After the Civil War, for the Black community, expectations rose. Black men now had the right to vote. However, the white power structure wanted to send a message: for anyone who challenges white supremacy, we will kill you. And they did.

The late nineteenth century migration of Black people from the South to the northern states can, in part, be explained by the racial terrorism practiced by white communities in the South. To live in these circumstances was to live in fear. The threat of becoming the next lynch mob victim was omnipresent.

Bryan Stevenson describes the lynching memorial as “an act of ending silence and committing to truth and reconciliation”. He has said that the museum and memorial were directly inspired by the Apartheid Museum in South Africa and the Holocaust Museum in Germany.

Part of the virtue of the lynching memorial is that it entirely bypasses the bitter debate about the dismantling of Confederate statues. It is an affirmative statement that adds to historical understanding. At a time of resurgence of the alt-right and white supremacists, the memorial offers a powerful counter-narrative.

Without question, Bryan Stevenson is one of the most inspiring people in American public life. I plan a road trip to Montgomery to visit the lynching memorial and I would strongly encourage others to make the journey.

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The Scapegoating of Latinos Has A Fascist Echo – posted 4/21/2018 and published in the Concord Monitor on 4/29/2018

April 21, 2018 Leave a comment

There is a political poster that maybe some readers have seen. At the top, the poster says “Early Warning Signs of Fascism”. Underneath, there is a list of 14 items. These include: disdain for human rights, powerful and continuing nationalism, corporate power protected, and rampant cronyism and corruption.

The item on the list that jumped out at me is “identification of enemies as a unifying cause”. While hatemongering against Muslims is part of the current picture and has been widely commented on, I think President Trump’s scapegoating of Latinos deserves more mention.

As a Jewish person, I have had an uneasy feeling of deja vu. What Trump is saying about Latinos is reminiscent of the kind of things Nazis said about German Jews in the early 1930’s. Trump has been saying these things since the day he announced for President.

After the escalator ride down, who can forget these immortal words:

“When Mexico sends its people, they’re not sending their best, They’re not sending you. They’re not sending you. They’re sending people who have lots of problems, and they’re bringing their problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I guess, are good people.”

Right from the start, Trump has tried to correlate crime with Latino immigrants. In the Nazi case, they tried to associate crime with Jews.

From 1923 on, even long before the Nazis came to power, demonization of Jews was integral. it wasn’t just the use of anti-Jewish stereotypes about the Rothschilds and rich Jews. The Nazi newspaper Der Sturmer ran a regular column called Letter Box which featured readers’ accounts of Jewish crimes. Letter Box editors encouraged the reporting of alleged Jewish crimes.

The Nazis publicized phony, manufactured Jewish crimes statistics, a sort of early day fake news. The effort was designed to whip up anti-semitism and build a sense of community identity against a stigmatized group. The Nazi Ministry of Justice ordered prosecutors to forward every criminal indictment against a Jew to the ministry’s press office so it could be publicized. The singling-out of Jewish crime was part of the Nazi hate-building strategy.

Trump has similarly singled out crimes committed by undocumented immigrants as a way to unite his base against a despised out-group. He has consistently said that because of “people that should’ve never been allowed to come over the border, crime is going through the roof”.

Trump has even created a government office to stir up outrage against these immigrants. The office is called Victims of Immigration Crime Engagement (VOICE). Trump himself has frequently highlighted the immigration records of violent offenders.

At the February 2017 joint session of Congress address, Trump introduced three guests he had invited whose family members had been killed by immigrants living in the United States illegally.

Never before in my lifetime has a leader of our government separated out the crimes of one group (undocumented immigrants) for special denunciation.

You would never know that there is no data that proves undocumented immigrants are a demographic group intrinsically prone to crime. The Washington Post has written that first generation immigrants are actually predisposed to lower crime rates than native-born Americans. The reason is not too hard to figure. Undocumented immigrants have stronger incentives than native-born Americans to stay out of trouble with the law.  If they want to want to stay in the U.S. and work, brushing up against the law is a kiss of death.

Trump’s stereotyping of Latino immigrants is a propaganda ploy designed to bolster the view that Americans are threatened by a foreign horde. The propaganda is a means to justify speeded-up deportations, mass raids, the mis-use of Immigration and Customs Enforcement (ICE) and the shredding of due process.

There is no shortage of troubling Administration actions to match their propaganda. Here is my list:

  • ICE deporting and wrecking the families of many immigrants with lengthy good records
  • immigration officials at the Southern border separating more than 700 children from adults since last October with more than 100 of these under the age of four
  • the Department of Justice imposing absurd numerical quotas on immigration judges that make due process a virtual impossibility
  • U.S. Custom and Border Protection officers failing to consider legitimate asylum claims, returning would-be immigrants to great danger and possible death
  • the un-American and insecurity-inducing treatment of 800,000 young people with DACA protection even though they innocently came to this country as children
  • the unjust pardon of Sheriff Joe Arpaio, a racial profiler, who a federal court found guilty of criminal contempt of a court order

It is hardly surprising that hate crimes have spiked against Latinos and Muslims since Trump’s election. That is no accident. It is the result of the racial resentment Trump has unleashed.

Rather than simply bemoaning the immigration enforcement apparatus, I think progressives should advocate that ICE be defunded and abolished. We should advocate that states refuse to cooperate with ICE. We do not need an American Gestapo. ICE has betrayed the public trust by cruelly and wantonly breaking up families.

History, including American history, shows the danger of scapegoating and the need to forcefully oppose it. If scapegoating is not actively opposed, it has the effect of emboldening potential perpetrators of hate crimes. We run the risk of creating a climate where such perpetrators feel their actions are legitimized. The working people of Latin America are not a threat to our national security. We need to vigorously counter the hateful rhetoric Trump is using to isolate and demonize our Latino communities.

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The Shameful Story Behind the New Hampshire Women’s Prison – posted 4/8/2018 and published in the Concord Monitor on 4/15/2018

April 8, 2018 3 comments

It is strange to say it is great to see a new prison but in the case of the New Hampshire Women’s Prison, this statement rings true.

The prison, set to open in the next few months, will have vocational and educational programs and access to 24/7 healthcare services on site. There will be treatment for inmates with mental health and substance abuse problems. The programs and services will be comparable to what male inmates have had.

The story of how this prison came to be has not been told. While the Monitor editorial on March 28 justly praised Alan Linder and Elliott Berry, two New Hampshire Legal Assistance lawyers who worked on the class action lawsuit on behalf of the women state prisoners, the Monitor only got it partly right.

The saga of the New Hampshire Women’s Prison actually began in 1983, 35 years ago. It was then that Bertram Astles, a private attorney, and later New Hampshire Legal Assistance filed a class action claiming that the state of New Hampshire was violating the constitutional rights of women state prisoners to equal protection of the law.

Back in the early 1980’s, because there was no women’s state prison. New Hampshire was shipping women state prisoners to other states, including states as far away as Maryland, Colorado and South Carolina. Many of the women prisoners were held in prisons in Massachusetts, especially MCI-Framingham, while some landed in county jails in New Hampshire. Back then, Framingham was no picnic – it was hard time.

The women had no control where or when they would be sent away. If they stayed in New Hampshire in a county jail, it was basically solitary confinement. The counties offered nothing, not even outside exercise.

I had a unique vantage point. As a law student at Franklin Pierce Law Center (now UNH Law), I interned at New Hampshire Legal Assistance in 1983-84 and I helped out on the women’s prison case. I travelled to Massachusetts prisons to meet with and interview the New Hampshire women and I took their affidavits where they told their stories.

Being out-of-state, the women were far from their families and their lawyers. The distance made visits harder, rarer, and more expensive. Lack of communication and isolation contributed to depression. Clients who are out of jail often complain that it is hard to reach their lawyer on the phone but for these clients it was extremely difficult. Inmates could make only collect calls and most attorney offices would not accept them. Also, there was no confidentiality over the phone, which was monitored.

Many of the women were young mothers and they grieved the separation from their children whom the rarely if ever saw. The impact of a mother’s incarceration on children was not considered by state officials. I think it is safe to assume there were very negative developmental consequences for the children, cognitively, emotionally, and socially. It is entirely predictable that under such circumstances children would suffer significant psychological harm, a tally off all radar screens.

Conditions in the out-of-state jails were often terrible as the New Hampshire women were an after-thought. The women prisoners got none of the perks that in-state male prisoners typically received. There was no access to vocational training, no prison jobs or even access to a law library.

Women at in-state county jails had their own special hell. The county jails were not set up for long-term inmates and they had no programs or services for the women. If a vacancy opened in an out-of-state prison, the women would get shipped out with no notice.

Back then, there were 22 women state prisoners. To get to be a state prisoner, you had to be serving at least a year behind bars. Probably part of the state’s neglect was the low number of women prisoners at the time. In addition to straight-up sexism, the numbers dictated that women prisoners were a low priority. Now there are approximately 130 women state prisoners.

During my internship, I also witnessed the battle over the halfway house. Unlike the men who had a halfway house next to the state prison, the women had no facility to ease their transition back into society.

The halfway house was not just a way station next to the prison. It was integral to the path for parole. The vocational and educational programs were not just filling time. Without a job and a place to live, the women brought nothing to the parole board. They needed those programs and the halfway house to show progress since it was a ticket out. Without the halfway house, women were stuck.

While now the state’s failure to have a halfway house looks like rank sex discrimination, at the time the case was no slam dunk. The morning of the preliminary injunction hearing in federal court in Concord, none of the women prisoners showed up to testify. There was a problem with the orders of transport. The attorney general’s office ranted like the case was frivolous.

Fortunately, the plaintiffs had some aces up their sleeve. Legal Assistance had an awesome trial prison expert, Edyth Flynn, who testified persuasively and exposed the state. Legal Assistance also had excellent trial counsel.

In the early days of the case, along with Alan Linder, plaintiffs’ counsel included Alice Schierberl, a Portsmouth-based Legal Assistance lawyer. Both Alan and Alice were passionate and effective advocates.

I remember driving to Portsmouth with Alan to meet Alice and to prepare for the preliminary injunction hearing. Alan had a list of about 25 items he had prepared. His meticulous and thorough preparation was an education in good lawyering. Alice went on to do a beautiful job on her direct examination of our expert, Edyth Flynn.

Who the judge was mattered. The plaintiffs were very fortunate to have Federal Court Judge Martin Loughlin hear the case. Judge Loughlin was a down-to-earth, compassionate man who had a soft spot for the down-and-out. Even without the plaintiffs themselves testifying at the preliminary injunction hearing, he ruled in their favor. Later, in the trial on the merits, he also ruled for the plaintiffs.

It was Judge Loughlin’s initial finding back in 1987 that the state violated equal protection that tipped the balance and moved the case forward. Judge Loughlin ordered the construction of a permanent, in-state prison for plaintiffs no later than July 1, 1989. Although that 1989 date was not to be, Judge Loughlin’s role was critical. His ruling created the inevitability of an in-state prison for women.

Instead of building a new prison, the state stuffed women prisoners into the former Hillsborough County House of Correction in Goffstown. It became available when Valley Street Jail in Manchester opened in 1989. The cramped and antiquated Goffstown facility was never intended for long-term use as a prison. There was almost no space available for basic vocational training or mental health treatment. Also, space was lacking for even family visitation.

During the years after 1989, report after report was issued about the inadequacies of the Goffstown facility, including from the United States Commission on Civil Rights. A 2009 report of the Interagency Coordinating Council for Women Offenders shockingly reported that only two women had received high school diplomas during the two decades the Goffstown women’s prison had been in operation.

This abysmal record forced New Hampshire Legal Assistance to file a second class action in 2012 because the state failed to live up to its obligations.

In considering the history, I blame New Hampshire state government, particularly the Legislature, for its failure to spend money on behalf of the women prisoners. The fact that women prisoners were a weak and politically unsympathetic constituency made it easier to dump on them.

The Legislature’s procrastination and refusal to fund was not just a moral failure. It reflected blatant sexism and disrespect for the law. Judge Loughlin’s order was ignored, causing untold harm to the women prisoners. No one has to answer for that and there is no accounting for the needless suffering that happened as a result.

Amazingly, we are now three decades beyond Judge Loughlin’s ruling and the question still must be asked: why did it take the state so long to do the right thing?

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Consumer protection down the drain – posted 3/25/2018 and published in the Concord Monitor on 4/1/2018

March 25, 2018 Leave a comment

In following the actions of the Trump Administration, one area that has received insufficient attention is the dramatic weakening of consumer protection. Trump and his appointees are gutting consumer protections and opening the door to more Americans being fleeced, defrauded, and preyed on by predatory lenders.

Nowhere is this more evident than in Trump’s actions around the Consumer Financial Protection Bureau (known as the CFPB), the federal agency created after the 2008 financial meltdown. The agency has had a mission to protect the public from unfair and deceptive financial tricks and traps.

Trump and his appointees have turned a once-vibrant federal agency into a do-nothing embarrassment. During the last four years of the Obama Administration, enforcement actions averaged three-to-five each month. Since the start of the Trump Administration, there have been zero enforcement actions.

During the Obama years, the CFPB returned more than $12 billion to more than 24 million people who were cheated by banks, credit card companies and student lenders. It helped many millions more by creating new rules for mortgages, credit cards, checking accounts, prepaid cards and payday loans. Such rules made the market fairer.

I would mention the Wells Fargo scandal, when the bank cheated millions of its customers by opening fake accounts without permission. Customers got hit up with unanticipated fees and charges. The CFPB, during the Obama years, imposed a $100 million fine on Wells Fargo.

Now, under the Trump Administration, the practice of refunding dollars to consumers who were bilked as well as the practice of imposing civil penalties on bad-actor banks and corporations are things of the past. Not surprisingly, in its 2019 budget plan, the Trump Administration proposed to cut the CFPB budget and to restrict its enforcement powers.

The Trump Administration actually requested $0 in second quarter 2018 funding for the CFPB.

At the helm of CFPB, Trump placed Office of Management and Budget Director, Mick Mulvaney. Mulvaney had previously called the agency a “sick, sad joke” and as a Congressman had co-sponsored legislation to eliminate it.

This is another fox in the chicken coop situation where the President appointed an individual fundamentally opposed to the mission of the agency he is supposed to run. Matt Taibbi wrote that putting Mulvaney in charge of CFPB was worse than Vlad the Impaler running the Red Cross. Mulvaney, a former House Freedom Caucus member, has compared government regulation to a “slow cancer”.

According to the National Institute on Money in State Politics, during his six year career as a Congressman from South Carolina, Mulvaney received $57,100 in campaign contributions from the payday lending industry. That industry also gave large sums to Trump.

Advance America, the nation’s largest payday lender, donated $250,000 to Trump’s inauguration. Rod Aycox, a title loan executive, and his wife each gave Trump $500,000. The payday lending industry’s trade group, the Community Financial Services Association of America will hold its 2018 annual conference and expo at the Trump National Doral resort in Miami in April.

So as was predictable, in January, the CFPB dropped a lawsuit against four payday lenders that charged interest rates as high as 950 percent. These payday lenders had been previously fined repeatedly under the Obama Administration.

The CFPB also quietly closed a nearly four year investigation into a subprime lender from South Carolina that allegedly charged customers exorbitant interest rates. The South Carolina company, World Acceptance Corporation, had previously given Mulvaney $4500 in campaign donations between 2013-2016.

On March 23, Mulvaney announced the CFPB will drop its probe of Kansas-based National Credit Adjusters, a company that collects debt from high-interest loans issued on tribal lands. The previous CFPB Director, Richard Cordray, had been set to sue NCA before the change of administration. Reuters also reported that Mulvaney will likely end the CFPB investigation into Security Finance, Cash Express, and Triton Management Group, three other payday lenders.

Even more disturbing, the CFPB announced it is reconsidering rules governing payday lending which were finalized last October under previous Director Cordray. The rules required payday lenders to verify that borrowers could pay back the loans before lending. The rules also capped the number of times someone could take out successive loans.

The anti-consumer bent of the Trump Administration has shown up in multiple other ways. Trump’s appointees to the U.S. Consumer Product Safety Commission have consistently aligned themselves with the position of regulated industries at the expense of consumer safety. They have eased enforcement, backed off recalls and protective rule-making. The inevitable result will be less safe products. Remember exploding android phones and defective hoverboards. Dangerous products can be a matter of life and death.

Education Secretary Betsy DeVos has sided with student loan services and for-profit colleges rather than the students who have been defrauded or loaded up with debt they cannot repay. DeVos has stalled debt forgiveness to thousands of students who claim that for-profit colleges cheated them. She also revoked Obama-era directives that penalized student loan servicing companies for poor service and that required the companies to provide borrowers with accurate information about their debt.

In her most recent move, DeVos bizarrely argued that states lack the authority to oversee student loan companies operating in their states and that this regulation should be left to the federal government.

The pattern could not be clearer: welcome to predatory lenders, scam artists and all variety of shady businesspeople. We need to remember that the President is the same individual who conned hundreds of young people and their parents into paying to attend fake Trump University. As a builder, he was legendary for hiring contractors who he then stiffed and never paid after their work was completed.

Democrats, progressives, and independents need to stand strong for consumer protection. The last thing we need now is for Democrats, including corporate-friendly Democrats, to be acting like Republicans. The political choices in 2018 and 2020 must be posed as starkly as possible. If they are not, too many voters might pass on casting a ballot, feeling it does not matter.  That is an alternative we cannot afford.

Lawyers, Judges, and the Road to Fascism – posted 3/14/2018 and published in the Concord Monitor on 3/22/2018

March 14, 2018 Leave a comment

Back on February 16, the New Hampshire Bar Association held its annual mid-year meeting. This year the program was a little different. Instead of the usual continuing legal education event, the Bar brought in two historians, Anne O’Rourke and Willliam Meinecke Jr., from the United States Holocaust Museum, to look at how German lawyers and judges responded to the destruction of democracy and the establishment of the Nazi state.

Their presentation showed that the worst horrors of the Nazi regime did not arrive full-blown. Rather, the road to fascism was taken in gradual incremental steps, each one preparing the way for the next.

While German lawyers and judges might have opposed Hitler’s authority and the legitimacy of the Nazi regime, they failed to do so. Not only did they fail, they collaborated and interpreted the law in a way that broadly facilitated the Nazis’ ability to carry out their agenda.

Admittedly, there was a very narrow window to dissent. Courts interpreted every appearance of coolness toward the regime as a breach of professional standards. insufficient enthusiasm for the regime could be a basis for getting disbarred.

O’Rourke and Meinecke pointed to a number of decrees by the Nazis that they used to consolidate their power and advance their program. After the February 1933 fire in the Reichstag, the German parliament,  the Nazis suspended critical provisions of the German constitution, including right to assembly, freedom of speech and freedom of the press.

They also removed all restrictions on police investigations. They rounded up political opponents, particularly Communists, Socialists and Social Democrats, holding them in preventive detention and sometimes disappearing them altogether. Relying on the Reichstag Fire Decree, the Nazis held people without specific charges. Defendants had no right to appeal, no access to a lawyer or right to judicial review.

The German Supreme Court did not balk at the new power arrangement. Sadly, the Court failed to challenge or protest the loss of its judicial authority.

Less than one month after the Reichstag Fire Decree, the Nazis enacted an Enabling Act that allowed them to promulgate and establish laws that violated the Weimar Constitution. Under the Enabling Act, they did not need the approval of then-President von Hindenberg or the parliament. The passage of law had previously required a two-thirds majority vote in parliament.

The Nazis prevented their parliamentary opponents from taking their seats, detaining them in camps. They stationed their thugs in the parliamentary chamber to intimidate remaining representatives.

The German Supreme Court did nothing to challenge the Enabling Act. The Court saw itself as a loyal state servant, owing allegiance to Hitler. Law became a means to serve the Aryan race. What was defined as good for the race became good law.

In July 1933, the Nazis enacted another new law against the founding of new political parties. With this law, they outlawed all other political entities and made themselves the only allowed party in Germany.

When President von Hindenberg died in August 1934, Hitler assumed power as Reich Chancellor and Fuhrer. The oath of loyalty for all state officials was changed. Rather than pledging loyalty to the German constitution, a new oath required loyalty to the Fuhrer.

O’Rourke and Meinecke showed how anti-semitism and the persecution of the Jews were a centerpiece of the Nazi enterprise. During the first six years of Hitler’s dictatorship, Jews were subject to more than 400 restrictive decrees and regulations. Among other things, the Nazis removed Jews from government service, forbid their admission to the Bar, banned Jews from editorial posts, and prohibited them from marrying or having sexual relations with persons of “German or German-related blood”.

By April 1933, the state ministries of justice suspended from duty all Jewish judges, public prosecutors and district attorneys. Also all professors of law who were Jews and those few who were not conservatives were driven out of universities and dismissed.

About this time period, the Holocaust historian Raul Hilberg wrote:

“… a lawyer necessarily had to face at every turn the critical question of harmonizing peremptory measures against Jews with law. In fact this alignment was his principal task in the anti-Jewish work. Yet in the end lawyers, no less than physicians, mastered those mental somersaults.”

It is impossible to know what degree of ambivalence or conflict German lawyers and judges had with the Nazification of the law. Hilberg wrote that the Nazis were obsessed with a need for legal justification. Even with the death of due process and any semblance of individual rights, the Nazis craved the appearance of legality.

Years before the Holocaust, the German judiciary had already rationalized the absolute debasement of law at the service of the Nazis. Considering the early years, what came later cannot be too surprising. There was never any outrage about the systematic removal of Jewish lawyers and judges from the German legal world.

So what lessons can we learn from the German experience? Why did the lawyers and judges turn out to be so weak, pliable and accommodating?

First, I would cite the failure of critical thinking by both lawyers and judges. They offered themselves up to the Nazis to do their bidding. The legal profession proved to be either too conformist or careerist to take chances and rock the boat. Lawyers and judges played it safe to try and get ahead.

By going along, they gave the Nazis a big gift, what the historian Timothy Snyder has called “anticipatory obedience”. If lawyers and judges had said “no” that would have caused significant problems. The Nazis desperately wanted at least the appearance of lawyer/judge buy-in to give themselves legitimacy.

Sadly, as Snyder pointed out in his book On Tyranny, most of the power of authoritarianism was freely given. The Nazis’ rise to power relied on zealous support from German conservatives and nationalists in the courts.

There was a massive failure of professional ethics. Somehow doing the right thing was replaced by subordination to a demagogue. We should remember that lawyers were vastly over-represented among the commanders of the Einsatzgruppen. The Einsatzgruppen were the death squads of Nazi Germany who were responsible for mass murder of Jews, Gypsies, Polish elites, Communists and the handicapped.

The experience of German lawyers and judges shows the need for a genuinely independent judiciary, regardless of what political party holds power. Without genuine independence, justice as an ideal disappears. What is left is glorification of power.

In all that has been written about the Nazis, I find it surprising how little attention has been paid to the collaborationist role of lawyers and judges. In an allegedly rule-of-law state, the Nazis needed lawyers and judges. For Americans today, the German experience provides a sobering example of how a nation’s legal and judicial systems can be made to aid and abet a rogue regime’s gradual descent into barbarism.