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July 28, 2012

George Will assails "abuse of criminal law for capricious bullying" in whale of federal tale

George Will has this notable new commentary in the Washington Post , headlined "Blowing the whistle on the federal Leviathan," about one extreme federal prosecution.  Here are excerpts:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon.  Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison.  This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger.  Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition. She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale....

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert. In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers.  Since then she has not spoken with one of her best friends.  To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat.  The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

July 28, 2012 at 11:57 AM | Permalink

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Because the government lawyer enemy has the moral standing of the Mafia, working only for the rent, and government make work jobs, there is a moral duty to refuse to cooperate with the internal enemy. The best legal advice is to remain absolutely silent. To refuse to provide any evidence unless a court order is served, and to always claim the Fifth Amendment privilege.

Meanwhile the lawyer enemy allows illegal alien gangs to behead people who have offended them, with impunity. That is because they are minority parasites. Apparently, the lawyer enemy is now going after the productive female. The prosecutors should lose their tort immunity, and should be sued, and resign. They protect mass murdering illegal aliens, and go after productive people.

Posted by: Supremacy Claus | Jul 29, 2012 1:25:05 AM

This is what happens when political correctness and its entourage of causes (here, fruitcake environmentalism) take over criminal law. The thing this most reminded me of was the Duke lacrosse prosecution, another episode in which political correctness (there, fruitcake feminism and racial pandering) brought about the indictment of three Duke lacorsse players (all white and -- even more sinfully -- from well-off families) for a non-existent rape.

In the instant case, the entry of ideology into law gets illustrated by the fact that an environmental "offense," if that's the right word, gets pursued to the ends of the earth, far beyond what any sane prosecutor could think it's worth to public order. This could not happen unless environmentalism had become a Holy Cow -- just as the Duke lacrosse hoax could not have happened unless White Guilt had become a Holy Cow.

Moral of story: Keep politically correct ideology away from criminal law. Maybe we can start by eliminating the Environmental Crimes Section at DOJ -- or, if not eliminating it, putting someone in charge who's not flat-out nuts.

Eric Holder, are you listening?

Posted by: Bill Otis | Jul 29, 2012 8:17:23 AM

"The government probably has spent millions." That is the driving force, with ideology and Democrat Party extremism as a mask. PC, feminism, environmental extremism are pretexts. They are false justifications for the theft of tax payer money.

No lawyer should be allowed in any responsible policy position because of the inherent criminal nature of their indoctrination into supernatural central doctrines. It has no remedy save the death penalty for the internal traitors.

This case is the Inquisition 2.0.

"You have blasphemed by eating meat on Friday, (a phony rule enacted after the fishing industry paid the church to enact it). Now you must burn at the stake. If you give your estates to the Church, we can spare you the stake." Nice plea bargain that no one can refuse. Yes the Inquisition had a business plan that sustained it for 700 years. 1.0 ended only when French patriots beheaded and expelled 10,000 high church officials.

When dealing with such an entrenched criminal class, only mass eradication of the hierarchy will work. Set up a special Inquisition extermination squad. Hunt them, try them, behead them. To deter.

Posted by: Supremacy Claus | Jul 29, 2012 10:35:41 AM

So what is this woman's remedy? Should she just have to take this life-ruining exercise? Is that what society demands?

Interested everyone's thoughts.

Posted by: federalist | Jul 29, 2012 12:05:03 PM

The Supremacy was going to be investigated by the DEA thug. The Supremacy demanded all training manuals, the names and home addresses of all local agents, and of all their supervisors, so it could have addresses to serve the Section 1983 lawsuit, all electronic and paper communication relevant. The Supremacy accused the DEA of bias and played the race card. It said, subpoena all government worker work and personal computers. The DEA stonewalled as well as the Supremacy or better.

Finally, two very well mannered black ladies showed up, looked at summary, redacted records. The Supremacy had its personal lawyer, who understands and partially supports the Supremacy. He interrupted any further questions. They left after about 15 minutes, were refused any information not in the public record. The Supremacy never heard from the DEA again. It is possible the Supremacy over-reacted, and felt bad about being such an ass. It really wanted a fight, to destroy the lives of a bunch of lawyer enemies, just as they are destroying the nation. To deter. But the DEA was too smart, and mooted any claim.

The government is a rent seeking Mafia. It is nearly worthless. Always attack the government worker personally. Make life unbearable just as they are trying to destroy the family, prosecuting our warriors for killing the enemy, and attacking all productive sectors of the economy. They have no mercy, none should be shown to them.

They are an internal enemy, and should be treated that way. Make the government worker suffer personally. Start with total e-discovery, as a minimum. Demonize the lawyer enemy in his community. And always resist. The resistance to this, history's biggest criminal syndicate, in total control of the three branches of government, is a patriotic duty. Never go down alone.

Posted by: Supremacy Claus | Jul 29, 2012 1:25:33 PM

Eventually legal measures will not suffice. Judges are totally biased in favor of the government, the writer of their paychecks. The economic conflict of interest of judges should be a disclaimer at the start of each day of a trial, and is insurmountable. Judges are puppets of the legislature, which is 100% controlled by lawyers, even if the elected official is not one.

Eventually, public self-help against the lawyer enemy will be necessary. It can start with an all out boycott of all internal enemies by all service and product providers. Violence is fully justified in formal logic by their self-dealt immunities, being its contra-positive.

Posted by: Supremacy Claus | Jul 29, 2012 1:41:39 PM

Volokh Conspiracy flagged this case & the comments flagged some nuances that suggest we should take what George Will says with a grain of salt.

The "fruitcake environmentalism" comment fits the trend. The government investigated a concern that she was harassing whales (just what the details are would require more than Will's summary) and didn't prosecute. We have international responsibilities, in part based on a majority liking whales (are they all "fruitcakes"?) and the laws passed by the people were applied.

Any large city has lots of investigations and cases, some which are misguided, so the federal government is going to as well. Don't know if this specific one is one but protecting whales and other matters of an international scope is something (as compared to pot or watching dirty movies) the feds reasonably can regulated. It is not a grand example of overcriminalization.

If only the concern for possible prosecutorial overreaching was consistent.

Posted by: Joe | Jul 29, 2012 1:48:04 PM

[To forestall possible criticisms, I realize that the feds can regulate marijuana and even film to some degree, partially given their international sale, but as a whole, harming animals on the high seas & allegedly not properly working with the authorities during the investigation is not of the same caliber as the government interfering as much as it does with the personal use of drugs or certain types of film.]

Posted by: Joe | Jul 29, 2012 1:51:00 PM

I knew someone here -- probably Bill -- would seize on the environmental-extremism aspect, but it's silly to imply the federal system isn't rife with ridiculous, overreaching, needlessly ruinous prosecutions in other areas of law.

Fact is I could easily match the whale story with numerous instances in which ordinary business people doing business as usual were set upon by the feds, cast as white-collar gangsters, broken financially in the process of defending themselves and, ultimately, coerced to confess to phantom violations of sweeping statutes stretched to cover actions most normal people wouldn't recognize as criminal.

Instead of shutting the environmental-crimes unit of DOJ, some of our rabid small-government conservatives should set about reigning in Commerce Claus abuses and once again limiting the national police force to busting pirates and counterfeiters.

Posted by: John K | Jul 29, 2012 2:47:44 PM

pity she didn't just invite the investigators on the boat....then while they were investigating moved OUTSIDE U.S. jurisdiction then exercised her role as a captain of a ship on the high seas and simply executed a few mutiniers!

Posted by: rodsmith | Jul 29, 2012 4:19:49 PM

Joe --

"Harrassing whales" -- are you serious? Would you mind describing the injury done to the whale by whistling at it? Then, would you mind describing why that "injury" justifies the extent of the government's actions against Ms. Black?

A lot of people like whales, that's true. I'm one of them. But somehow I managed to refrain, in my personal and professional capacities, from going after a human being for whistling at a whale. I know what a legitimate and sensible investigation looks like. This one doesn't qualify. I have experience in the business. What's yours?

The idea that this government marathon (seven years so far) was required or even supported by international law is absurd. Would you please specify the international organization that asked for it? Or asked for any action at all? Which foreign nation did?

Your response exemplifies exactly the problem I'm talking about. For the Aurora mass killer, you ooze sympathy, and have sternly warned us against imposing the only punishment that even vaguely fits the crime. But for an oceanographer whose interaction (whistling) with a whale -- an interaction that was not criminal under any normal person's understanding of that word (and that, as you concede, did not result in a prosecution even from this bunch) -- your reaction is, "Hey lady, don't you care about our 'international obligations'?"

It takes willful blindness not to see this case as the thrall of Political Correctness -- yup, fruitcake environmentalism. But fruitcake environmentalism can bring in some votes (I know, I went to law school in the Bay Area where it brings in a lot of votes), so that's what we get from this Justice Department.

Eric Holder, Mike Nifong, whatever. I'm all for going after real criminals. I'm not for manufacturing criminality from the mere failure to fall in line with whatever fruitcake campaign -- race huckstering or environmentalism -- the party in power is pushing this week.

Posted by: Bill Otis | Jul 29, 2012 4:21:57 PM

John K --

I would respectfully submit that there's a difference between some rapacious investment banker lying and swindling his way to a mansion in Aruba, and someone out in a boat whistling at a whale.

Posted by: Bill Otis | Jul 29, 2012 4:31:30 PM

Bill, Joe is a statist. He believes in the power to ruin someone's life over a triviality, but thinks the government shouldn't execute a murderer. Funny where the sympathies lie.

And by the way, the NOAA trolls who threatened Ms. Black's friends--assuming Will is correct, they should spend 20 years in prison. And that's only because I am in a good mood today.

Posted by: federalist | Jul 29, 2012 5:22:47 PM

federalist --

And that's the whole problem with liberalism. It doesn't want to use state power where it's legitimate -- like executing mass killers -- but is happy to use it to extinguish normal private life in order to advance the goals of the collective.

Oh, well. Glad you're in a good mood today, anyway.

Posted by: Bill Otis | Jul 29, 2012 6:02:19 PM

Florida man who lost hand charged with feeding gator

EVERGLADES CITY, Fla. – A Florida airboat captain whose hand was bitten off by a 9-foot alligator faces charges of feeding of the animal.


Posted by: George | Jul 29, 2012 8:38:17 PM

My charges were buying a boat, lending my sister money, and "allowing" my spouse's name to be taken off of a joint account. For each count associated with these transactions, I faced a possible ten years in prison. Even after being acquitted in a 2011 trial, here I am nearly 4 years later, still fighting with the Government---they have no pain threshold.

Posted by: folly | Jul 29, 2012 9:05:59 PM

I don't know the detailes of that law, so I think there sis no use to advice you something

Posted by: book reviews | Jul 30, 2012 5:54:30 AM

folly's case comes closer to what's typically wrong with the system than what happened to the whale whistler. We hear more about outliers -- the whale whistler and the alligator feeder (I assume the later was made up but these days who knows) -- because they're more entertaining, less complex and therefore easier for sleepy readers/viewers to grasp.

Yet the folly case is what sometimes happens when absurdly vague, sweeping laws unfettered by meaningful criminal-intent requirements are put in the hands of dreadfully powerful bureaucrats (agents, prosecutors) honored and rewarded for grabbing headlines and filling prisons.

Cases like folly's often start with a tip (from a coerced/coddled snitch, a business rival or vengeful acquaintance). Agents/prosecutors then seem to work backward from the assumption the tip is true. At their disposal are tens of thousands of malleable criminal statutes and regulatory violations including, almost always, one or more that can be shaped/stretched to apply to the suspect.

Then some prosecutor like Bill colors the government's story with incendiary, demonizing narrative ("...rapacious investment banker lying and swindling his way to a mansion in Aruba...").

At that point, the government's fangs are set in like a (insert your favorite cliche here...terrier on a t-bone, perhaps). And its jaws remain clinched no matter what exculpatory facts or evidence might emerge to suggest its prey has been wrongly accused.

I bet folly was once among those sleepy readers/viewers who believed the system only targets the guilty...that innocent citizens have nothing to fear from their government.

Posted by: John KJ | Jul 30, 2012 9:29:01 AM

John K...not JohnKJ

Posted by: John KJ | Jul 30, 2012 9:35:00 AM

There was a really strange case involving the importing of lobsters from Honduras awhile ago that fits into the general mode of what George Will describes. If anyone is interested in looking at another example like this, google for information on the matter. I bet some people on this blog already know the details and can set them forth. Disclaimer: I do not know the accuracy of the reporting on the lobster case (or, for that matter, the one Will describes); but it seems awful strange.

Posted by: Tim Holloway | Jul 30, 2012 9:52:08 AM

John K --

Neither of us knows anything close to enough about folly's case to make a judgment about it, so I don't. Neither should you. There are bound to be dozens more details, plus another side to that story.

After the banking/housing collapse/subprime/swindle of 2008, and Madoff and numerous other filthy (and I use that word advisedly) rich white collar crooks, many of whom Doug has blogged about, I don't see that you have any legitimate gripe with my phrase, "...rapacious investment banker lying and swindling his way to a mansion in Aruba..." Do you have any doubt there are such people?

Finally, I can't help remarking on the irony of your criticism. The liberals on this site complain when I support DOJ, but now in this whale case, when I criticize it, they STILL complain. And they complain that I am a mere shill for rich businessmen, but when I point out that some of them are swindlers who belong in the slammer, they complain about that too.

One might think that what it's really about is complaining.

Posted by: Bill Otis | Jul 30, 2012 10:19:16 AM

it's things like this!

"I knew someone here -- probably Bill -- would seize on the environmental-extremism aspect, but it's silly to imply the federal system isn't rife with ridiculous, overreaching, needlessly ruinous prosecutions in other areas of law.

Fact is I could easily match the whale story with numerous instances in which ordinary business people doing business as usual were set upon by the feds, cast as white-collar gangsters, broken financially in the process of defending themselves and, ultimately, coerced to confess to phantom violations of sweeping statutes stretched to cover actions most normal people wouldn't recognize as criminal.

Instead of shutting the environmental-crimes unit of DOJ, some of our rabid small-government conservatives should set about reigning in Commerce Claus abuses and once again limiting the national police force to busting pirates and counterfeiters."

that cause me to respond the way i do!

this is american you have the right to be just as "holier than thou" as you want. But the MIN you try and force it on me. I have every legal and moral right to KILL YOUR ASS!

Posted by: rodsmith | Jul 30, 2012 11:13:09 AM

The charges I describe are accurate (buying a boat, lending $ to sister, etc)--they were characterized as "money laundering"--the "knowing use" of criminal proceeds (USC 18 1956) However, EVERY BODY spends money all the time. So I found myself in a bizarre situation where, YES, I did do that financial transaction, but NO I didn't know or even SUSPECT that the money could be connected to a crime or that I could face a criminal charge with a 10 year prison penalty for "allowing" my spouse to remove his name off of a joint account, for instance. There was certainly no direct proof that I knew what was going on, so it was entirely circumstancial--such as "several bank accounts were used"--again, common every day occurences (Do YOU have more than 3 bank accounts? you might be a suspicious party ) Before the DOJ happened to me, I thought money laundering was something somebody did to hide lots of drug cash or Mafia shake down money--not accepting a check from my spouse of 20 + years and then spending it! Even though I was acquitted at trial, I am approaching the 4 year mark with the DOJ because we are fighting over MY assets they seized and want to keep.

Posted by: folly | Jul 30, 2012 7:35:28 PM

John K, it is understandable why you thought a FoxNews story is fiction.

Posted by: George | Jul 30, 2012 7:43:09 PM

George --

If you want a great example of fiction, try the notion that anyone other than James Holmes was the shooter at the Aurora theater.

You would agree that such a notion is fiction -- wouldn't you?

Posted by: Bill Otis | Jul 30, 2012 8:31:52 PM

well folly i'd find out the name of the federal fucktard pushing the seizure and walk up and shoot his ass as a THIEF! and tell him/her so as i pulled the trigger!

sorry in my book ANY seizure BEFORE a CRIMINAL CONVICTION is in FACT and LAW .....THEFT!

and since it's the govt doing the THEFT....only an exturnal source can issure PUNISHMENT the CITIZEN!

Posted by: rodsmith | Jul 31, 2012 1:53:00 AM

Bill, assuming the two key facts folly provided are true -- namely that she was charged with money laundering (which together with wire fraud function as the post-Nixon Justice Department's Waltham Black laws) but acquitted at trial -- my assertion (that she was wrongly accused) seems a bit stronger than yours (that the jury is still out). Wouldn't you say?

My objection to your rapacious banker in Aruba comment is that it amounts to typical, tub-thumping prosecutor-speak and applies, in one iteration or another, pretty much to every white-collar suspect the DOJ chooses to stalk.

Do I have any doubts rapacious bankers deserving of prison time exist? No. Neither do I doubt that prosecutors as a group have too much unchecked power and that some of them are reckless with that power.

It seems pretty clear, too, that a Constitution crafted to protect citizens from government tyranny no longer works...if it ever did.

Posted by: John K | Jul 31, 2012 6:06:39 AM

C'mon, rodsmith. If you can get 10 years for buying a boat, just imagine what the penalty would be for shooting a federal fucktard.

Posted by: John K | Jul 31, 2012 6:27:58 AM

Bill, the feds did not prosecute her for "whistling," they were not even the ones who started things rolling. A report from someone on the ship led them to look into it. I don't have the details there. I won't assume them because George Will was upset about it. They determined she was not liable there.

My point was that protecting whales is something we are required to do under treaty obligations. They are required to investigate. They might be wrong in this specific case somehow. But, they have the general power to protect whales, more appropriate than targeting petty pot users, which results in lots of problems too.

I also don't 'ooze sympathy' for the alleged murder in question, but if you want to use a mass murder to vent at me, go right ahead.

Bill, Joe is a statist. He believes in the power to ruin someone's life over a triviality, but thinks the government shouldn't execute a murderer. Funny where the sympathies lie.

I repeatedly am concerned with the reach of the government, repeatedly you lashing at me for not being concerned enough for victims, but when it suits you, I'm a "statist." I specifically, if you read it, said that I'm agnostic about the details here. If she has a case, fine. Perhaps, a list though of what federal laws should not be prosecuted, since high lawyer bills etc. will "ruin" people.

Most murderers are not executed. Over U.S. history, only a small number of murderers were executed because we as a nation are very hesitant to do so. Are they "sympathetic" to murderers too? Meanwhile, the people are in prison cells for decades on end, some wanting to die (for some reason, some death penalty supporters wanting to help them out) to get out of it.

Posted by: Joe | Jul 31, 2012 12:25:43 PM

"It seems pretty clear, too, that a Constitution crafted to protect citizens from government tyranny no longer works...if it ever did."

"Citizens" voted for people who wrote these laws and prosecuted them. "Tough on crime" -- in some fashion -- is something each party pushes in their own fashion. "The government" isn't the ultimate source of such "tyranny," a term that is often overused, it is the people who stock the government.

Posted by: Joe | Jul 31, 2012 12:31:08 PM

Joe --

"My point was that protecting whales is something we are required to do under treaty obligations."

If the government had done absolutely nothing about this case -- to use that word loosely -- not one nation or international organization would have complained. It's the international law equivalent of overtime parking. The only reason it got pushed has nothing to do with interntional law (indeed, so far as I know, no one at DOJ has even claimed such a rationale'). It had to do with the Administration pandering to its environmentalist base. I was in the federal law enforcement business for almost two decades, under administrations of both parties, and I can tell you that NO non-ideological prosecutor would have pushed things anywhere like this far.

"They are required to investigate."

Could you quote the treaty lanugage that requires this country to investigate every reported instance of whistling at a whale? I doubt there is any such thing, but if you quote it, I will stand to be corrected.

"They might be wrong in this specific case somehow. But, they have the general power to protect whales..."

Assuming arguendo that they have the power, that hardly answers the question whether this escapade was a wise USE of that power.

"...more appropriate than targeting petty pot users, which results in lots of problems too."

When I was in the USAO, cases against "petty pot users" were prosecuted, if you want to call it that, by giving them a ticket (like a traffic ticket), followed by their paying a nominal fine. It's off the wall to compare that to this case.

"I also don't 'ooze sympathy' for the alleged murder in question, but if you want to use a mass murder to vent at me, go right ahead."

My use of the phrase "ooze sympathy" was over the top. You are correct and I retract it. That said, you have been 100% taking his side, and opposing the use of the DP against HIM based on the utterly illogical reason that the DP might be used in a case where the identity of the killer is not known with 100% certainty, as it is here. But anyone who has actually done litigation knows that it's a big mistake to either adopt or reject a remedy for the present case based on the always different facts of a past case, or cases.


Posted by: Bill Otis | Jul 31, 2012 9:03:31 PM

hmm

if this is the case bill!

"They might be wrong in this specific case somehow. But, they have the general power to protect whales..."

where are all the news reports about the navy sinking all those japanese so-called scientific research ships that are nothing but INDUSTRIAL whale dismemberment ships!

Posted by: rodsmith | Aug 1, 2012 11:47:35 PM

In an environmental resume you must highlight the experience field.Because it play a very important role to increase your chances to selection of interview.

Posted by: Environmental CV | Aug 3, 2012 1:11:44 AM

well enviromental i see you have already FLUNKED the FIRST TEST. your in the wrong damn forum with your spammer crap.

put the website doesn't have a set of autoresponse software that would back track your ass and fry your machine!

Posted by: rodsmith | Aug 3, 2012 5:22:23 PM

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