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Kopel on Gitmo and other things, Krause on the law. It goes beyond CO

Discussion in 'Legal' started by alan, Jun 25, 2005.

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  1. alan

    alan Member

    Dec 24, 2002
    sowest pa.
    The following from The Independence Institute.

    Kopel: Hyperbole taints Gitmo coverage
    Comparing death-free Guantanamo to murderous gulags grossly misleading

    June 4, 2005

    Suppose that on a Monday morning this fall, you read a story that said "many hundreds of people attended yesterday's Broncos game." If the crowd were 76,000 people, you might suspect the writer's phrasing was an attempt to minimize public perceptions of Broncos attendance - even though, technically speaking, the term "many hundreds" could include the 76,000 fans at a typical game.

    Another story with a formally accurate but extremely misleading estimate of numbers came from the Associated Press' Paisley Dodds in the May 26 Denver Post. Dodds accurately reported Amnesty International's claim that Guantanamo Bay is the "gulag for our time." Perhaps attempting to give some credibility to the charge, Dodds explained that "gulag" refers to "the extensive system of prison camps in the former Soviet Union," where "untold thousands of prisoners died."

    The Encyclopedia Britannica estimates that 15 million to 30 million people died in the gulags, while Anne Applebaum, in Gulag: A History, suggests that 2 million died. Had the AP supplied the scholarly figures or said "untold millions" rather than the misleading but technically accurate "untold thousands," the data would have highlighted what preposterous hyperbole Amnesty International was using. A more informative AP story might also have noted (as does Time magazine's May 31 issue) that no one has died at Guantanamo.

    The Rocky Mountain News blended Dodds' AP text into a New York Times story on the Amnesty accusation. The News version explained that the gulags were part of an "extensive system of prison camps" for "political prisoners," but failed to acknowledge that anyone died in those "prison camps" - which would more accurately be described as slave labor camps.

    It would be unrealistic to expect local newspapers to be neutral about the success of hometown teams. Although sportswriters might criticize local coaches or players, the local papers are expected to hope that the local teams win. Thus, before the start of last year's professional hockey playoffs, a News headline (April 7, 2004) read "Dear Abby, can we win?"

    In news stories, the papers are sometimes scrupulous about not taking sides. For example, in most of the newspaper coverage of the battle of Fallujah last November, or this month's "Operation Lightning" around Baghdad, a reader would find few, if any, hints that the writer wanted U.S. forces to beat the Abu Musab al-Zarqawi forces.

    But in the culture wars, the traditional media plainly favor gay rights advocates over their opponents. Consider, for example, the May 28 News headline reporting on Gov. Bill Owens' veto of one gay rights law and his signing of another: "1 veto, 1 victory/Setback for gay workers; gain on hate-crimes law."

    The "victory," "gain" and "setback" were entirely in the eyes of the beholder. The headline just as well could have read "Victory for employers; loss for free- speech advocates." The latter headline would have reflected the viewpoint of business interests who are afraid of government investigations triggered by fired employees who claim discrimination, and of free-speech advocates such as New York University professor James Jacobs whose book on "hate crimes" points out that such laws are mainly used to impose severe punishment on petty offenders who hurl nasty epithets.

    But, in a sense, the News headline was admirably candid, since the headline made it clear that the newsroom culture at the News (like the similar culture at the Post) considers the merits of pro-gay lawmaking to be self-evident.

    Both Denver papers occasionally run news stories on diplomatic negotiations in which the European Union has vainly tried to persuade the Iranian theocracy to curtail its nuclear program. The stories never attempt to resolve the tension between Western concerns that Iran is building nuclear weapons and the official denials from the Iranian government. But other English language news media, which the News and Post ignore, make the answer very clear.

    For example, the Italian news outlet Andkronosinternational (www.adnki.com) reported in its May 27 English edition that a representative of Iran's dictator Ayatollah Khamenei promised that if voters supported Khamenei's candidate for president in the June elections, Iran would develop nuclear weapons. He also denounced democracy as evil and unislamic. Knowledge of such statements is essential for readers to have an intelligent opinion about policy toward Iran.

    The Web site regimechange iran.blogspot.com provides good coverage of the situation in Iran, which is far more dangerous than articles in the News and the Post admit. After Sept. 11, there was much media hand-wringing about the media's failure to report the warning signs of danger from Islamic extremists. Yet in 2005, the imminent production of nuclear weapons by the world's major terrorist state garners, at best, a few paragraphs buried deep in the international pages of the newspapers.

    Correction: Despite what I wrote in my previous column, the 1992 anti-gay rights initiative, Amendment 2, never went into effect. After the secretary of state certified the election results on Dec. 16, 1992, Gov. Roy Romer was required to proclaim the new law in effect within the next 30 days. Jean Dubofsky, the lawyer for the plaintiffs who sued to overturn Amendment 2, explained to me that on the day before Romer was required to put the law into effect, a Denver district judge issued an order forbidding him to do so.

    Dave Kopel is research director at the Independence Institute, an attorney and author of 10 books. He can be reached at davekopel@RockyMountainNews.com


    How many laws did you break this week?

    By Mike Krause and Chelsea Johnson June 24th, 2005

    If you consider yourself a "law-abiding" citizen, here is a question: How do you know?

    Over the last century, not only has there been a vast increase in the number of new laws--both state and federal, but the definition of a criminal act has drastically changed.

    The result is that the citizen going about his or her business cannot reasonably know what is, and what is not, against the law.

    In the book "Drug War Addiction," San Miguel County, Colorado Sheriff Bill Masters describes his discovery of the Colorado Statutes of 1908, "All of the laws of the state fit into one volume. Murder, rape, assault, stealing, and trespassing were all against the law in 1908."

    Today, Colorado has over 30,000 laws, with new laws passed every year. Some are not just unnecessary, but downright silly. According to the Colorado Statutes, it is illegal to sell a mattress without a tag that is at least 2 inches by 3 inches.

    This drastic increase in the quantity of laws has failed to put an end to the crimes from 1908. Indeed, as Sheriff Masters puts it, today, "lawlessness is commonplace, even in vogue."

    Having lawlessness "in vogue" is a logical outcome of over criminalization.

    In the Cato Institute book Go Directly to Jail: The Criminalization of Almost Everything author James V. DeLong writes, "When the government criminalizes almost everything, it also trivializes the very concept of criminality." As described in Go Directly to Jail, there are now over 4,000 federal crimes filling some 27,000 pages of the U.S. Code, including violations of the regulations expressed in the tens of thousands of pages of the Code of Federal Regulations.

    In other words, while you are trying to comply with state law, you may well be breaking a federal law. Many laws and regulations are so complicated that only legal scholars understand them. The sheer number of laws means that people often have no idea they are in violation of any of the laws.

    At its inception, criminal law required both actus reus--the guilty act--and mens rea---a guilty mind, or intent. The fundamental nature of a crime also required conduct recognized by society to be inherently wrongful--malum in se--and, in some sense, immoral.

    But criminal law has been widely expanded into conduct that is illegal, not because of its intrinsic nature, but because it is a prohibited wrong--malum prohibitum-, creating so called "public welfare" laws. These crimes are created by legislative declaration in pursuit of some perceived public good and they cover an array of behavior from drug offenses to environmental violations.

    Legislators have become far too comfortable with public welfare lawmaking. 2005 found the Colorado Legislature debating statewide smoking bans, primary seat belt laws, and the mandating of time off for private sector employees to attend their children's school activities.

    Are some behaviors the state's business in the first place? In stead of looking to the free market or to a private cause of action (bringing a civil suit), the private sector has given way to the police powers of the state as the answer to most problems, real or perceived.

    In 1985, the Colorado Legislature doubled the maximum penalties for felony crimes, and Colorado's prison population quickly doubled within five years. Punishing felons is perfectly fine, but what constitutes a felony has also changed.

    University of Tennessee Law Professor Glenn Reynolds, writing for Tech Central Station, notes that felonies used to be a fairly rare class of crime, "Where once 'felony' meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be 'wetlands.'"

    In April, police arrested more than 20 consenting adults in a Palmer Lake, Colorado restaurant on misdemeanor gambling charges for playing small stakes poker. But the restaurant owner, Jeff Hulsman, faces the felony charge of allegedly running an illegal gambling operation.

    The investigating officer told the Colorado Springs Gazette that it was a complex case because, "We were uncertain whether it was legal or not."

    You would think a crime for which a person can be ruined for life would be clearly defined and obvious to those who enforce the law.

    As Professor Reynolds continues, "if you haven't been convicted of some felony or other, it's probably because no prosecutor has tried to put you away, not because you haven't committed one, whether you realized it at the time or not."

    A criminal code that regulates nearly everything gives enormous discretionary power to government to pick targets it thinks are appropriate, rather than to go after those offenses that indeed must to be prosecuted.
    And the biggest loser here, is the rule of law itself.
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