David Bumham's Above the Law
Rule, James B.
ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES, AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE, by David Burnham. Scribner, 1996. 444 pp. $27.50. avid Burnham is one of America's...
...The McGrath-Hoover detention plan did not require the FBI to obtain individual arrest warrants and it would have denied detainees the right to appeal their arrest in federal court...
...But for a long time, nothing seemed to work...
...Matta led a charmed life...
...One of these might be that we drop demands that the federal establishment do the undoable—notably, win an unconditional "victory" in the "war on drugs...
...Burnham is careful to note that even Hoover, one of the author's least beloved figures, generally sought top-level clearance for his repressive schemes—and that he usually received it...
...Nonetheless, I would like to add one of my own—which may seem to some an even more wishful thought...
...attorney to pursue exactly the same legal agenda...
...avid Burnham is one of America's most distinguished investigative writers...
...justice" establishment is too fundamental to be ascribed to any one personality or political moment...
...The fine was $15,000, small change to a company like Puregro...
...In fact, though officially appointed by the president, U.S...
...The first thing to note about Above the Law is its sheer scope...
...The feds had helped finance his club, in exchange for information about drug-related activities...
...attorneys are doing in the state and the scattered criminal and civil actions that in fact are taken appear to be random events...
...His work with Karen Silkwood marked a major chapter in the exposure of the dangers posed by the nuclear power industry...
...The neighbors mobilized against him, securing the help of the Boston police...
...It is simply one of dozens of stories in which Justice Department officials either neglect the interests of the weak or actually plunder them in the course of pursuing some ulterior end...
...Consider the damage wrought by Charlie Matta of Dorchester, Massachusetts...
...One would not expect to find high levels of immigration-related prosecutions, for example, in states and localities where foreigners are rare...
...Clearly his handlers had had no interest in seeing their carefully cultivated source eliminated...
...Implicitly, however, there are some promising ideas...
...atWINTER • 1997 • 129 Books torneys' offices throughout the country...
...During his years as a reporter for the New York Times, his work with Frank Serpico opened the eyes of the country to institutionalized corruption in the New York City Police Department...
...But the FBI still has its headquarters in the J. Edgar Hoover building...
...The accounts of abuse and manipulation that constitute most of the book leave one wondering how even a vestige of such values have survived in this country to the end of the twentieth century...
...A watch list of those who would be detained—along with detailed information about what they looked like, where they lived and their place of employment—was developed by the FBI...
...It is not enough that federal officials be moved to desist— from time to time—from spying on innocent Americans or undermining their neighborhoods or condoning environmental violations...
...This passage evokes another of Burnham's themes—the relative independence of each U.S...
...But the feds scaled down their case to the point where the company was allowed to plead guilty to a misdemeanor charge...
...Nor were they simply a personal caprice of J. Edgar Hoover...
...He has dug into the historical record of the department, way back to the establishment of the position of attorney general under President George Washington in 1789...
...One senses that Burnham himself is hard pressed to offer any programmatic response...
...To be sure, this was just one case...
...attorneys are normally chosen by senators from the states in which they are to serve...
...Burnham has obviously sifted the records of hundreds, if not thousands, of Justice Department actions—and recorded and analyzed scores of them in the text...
...We need open declarations from the highest officials that such actions are intolerable in our system...
...Surely it would help, for example, if the appointment of U.S...
...A third is the extraordinary personal expense and difficulty experienced by those unfortunate enough to get in the way of these forces...
...He ran an illegal club that threatened and disrupted the stable blue-collar neighborhood around it...
...Burnham writes: From 1981 to 1990, the federal prosecutors in the Northern District of California, an area with a population of 6.8 million, failed to bring a single criminal case under the nation's environmental laws— the Clean Air Act, the National Environmental Act, the Rivers and Harbors Act, the Water Pollution Control Act and an assortment of other statutes...
...Years slipped by...
...His The Rise of the Computer State (1983) distilled that reportage into a hardhitting indictment of the social and political implications of computerization...
...Note that these plans were laid not in time of war, nor indeed during the McCarthy period...
...When Puregro dumped dangerous waste chemicals next to the Downs's property, they were so seriously stricken that their health was never restored...
...Another organizing theme in Above the Law is the readiness of U.S...
...For years, Matta maintained his raucous, menacing establishment, where drug transactions, heavy drinking, and a variety of other noxious activities went on at all hours of the day and night...
...attorneys appointed through overtly political processes—and such desiderata as separation of powers, due process, and equal protection under the law...
...The leitmotif of the work is the tension between the relentlessly political character of the department—with both attorneys general and U.S...
...Another is the abuse of such power triggered by the "war" on drugs...
...his brushes with the local authorities never led to a conviction that would get him out of the neighborhood...
...Another response might be to search for ways of limiting the politicization of the administration of justice...
...He familiarizes the reader as much with the technology and management of Justice Department operations as with the legal and political issues involved...
...But his defense played an unexpected card...
...Matta had long been an informer for the FBI and DEA...
...True, the culprits are more often businessfriendly Republicans than liberal Democrats...
...The sense I make of Burnham's message is that the concentration of power necessary even to pretend to such an end poses too great a risk to other key public values...
...Although we all know that the people of northern California are a very special and caring breed, can anyone believe that the lumber companies, the mining corporations, the oil drillers and the waste disposal specialists for a booming district with almost 7 million people never violated any environmental laws...
...True, of course, one would not wish for each U.S...
...indeed, it is hard to discern any consistent rationale for where they do go...
...One is the stunning lack of accountability of Justice Department power...
...Among the more disturbing cases he cites is that of the Puregro Company, Inc.—and Jack and Veda Downs, an elderly couple unfortunate enough to farm near some Puregro property near Pasco, Washington...
...The Justice Department opened a case against Puregro, and the company initially offered to plead guilty to a felony charge that could have led to a large fine...
...But even the simplest analyses of frequencies of different sorts of prosecutions make it plain that something far less reassuring than response to differing local conditions is at work...
...For now, it would seem, even that is too much...
...the region was up in arms against the company...
...The Matta story incorporates a number of Burnham's themes...
...Working independently since the 1980s, he published in 1990 the award-winning A Law unto Itself, a thorough analysis of the Internal Revenue Service and its corrosive effects on American liberties...
...In the context ofAbove the Law this account is not so much egregious as typical...
...Fourth is the vast overemphasis in Justice Department activity on highprofile drug use and organized-crime cases, as against environmental and white-collar crime...
...Even the late Robert Kennedy, a former attorney general, and the writerAnthony Lewis— simultaneously Kennedy's confidant and public commentator on actions as attorney general— come in for critical comment...
...His indictment is structural and programmatic...
...But no political coloration provides immunity to the temptation to tilt the application of power...
...And in addition to these more traditional forms of reportage, he and his associates have carried out a massive (and unprecedented) statistical examination of rates of Justice Department activity, some initial findings from which are reported here...
...Other neighbors suffered nearly as much...
...The Justice Department's nonexistent effort to develop a balanced, area-wide program to enforce the environmental statutes in California's four federal districts might stand as a perfect example of "adhocracy" at work . . . . The responsible attorneys general develop no national programs, the responsible attorneys general make no effort to comprehend what the four U.S...
...Attorney General J. Howard McGrath and FBI Director J. Edgar Hoover agreed upon a plan by which President Harry Truman could suspend many of the key safeguards of the Constitution...
...They don't go where one might expect...
...Now Above the Law directs the same relentless critical attention to the U.S...
...Under the top-secret agreement, code-named "Security Portfolio," the bureau was authorized, in the event of an ill-defined emergency, to summarily arrest up to 20,000 persons and place them in national security detention camps...
...The decision as to who was placed on the watch list was left to the FBI and included many whose only crime was to openly criticize some aspect of American life...
...Russia can renounce Leninism and South Africa can turn away from apartheid...
...Once electronically assembled, these data permit computer analysis of where the vast resources consumed by the Justice Department actually go...
...Burnham acknowledges that no single instance of this kind can establish a pattern...
...long-time residents began to leave in dejection...
...The effect of these arrangements on federal justice in the states hardly requires a political scientist to interpret...
...officialdom—from the Justice Department up and down—to bring the full weight of official repression to bear against those whose only crime is dissent—or suspected propensity to dissent...
...Thus his massive effort, along with associates at Syracuse University, to create a system of statistical reckoning of Justice Department activity—aimed particularly at comparing the work of the ninety-three U.S...
...Department of Justice, including its many sub-agencies such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the 128 • DISSENT Books Immigration and Naturalization Service (INS), and the Bureau of Prisons...
...For Burnham, the drift toward abuse in the U.S...
...attorneys could be taken out of senatorial discretion, and if more narrowly professional qualifications could be mandated for attorneys general...
...On August 3, 1948...
...Throughout the 1970s and 1980s, he provided the most searching coverage of high technology available in any American newspaper...
...It would be a worthy goal of the democratic left to seek from the nation's top politicians an overt and public declaration that abuses like those detailed in Burnham's book are profoundly wrong and dangerous to key American values...
...What sort of response, either in policy, leg130 • DISSENT Books islation, or public action, can one reasonably entertain to the litany of dangers that Burnham documents...
...Finally, Matta was brought to trial on a charge that could have landed him in prison...
...Even these basic suggestions may strike some readers as utopian...
...Yet the cost of all this was the systematic degradation of a decent, stable neighborhood...
...Good politics as well as elementary justice, one might think...
...Matta was a crook and an old-fashioned bully...
...attorney from central policy direction by Washington, and their over sensitivity to the political climates of the states in which they are appointed...
Vol. 44 • January 1997 • No. 1
