Tuesday, May 27, 2008

Illegal Wiretapping, Indeed

Glenn Greenwald's trial conduct found "unethical"

Glenn Greenwald is a self-made blogging phenomenon, for which you have to respect him, even though he is probably the single most obnoxious writer on the Internet. His prose style is a groaning Frankenstein of juvenile syntax -- Tourettic scare quotes, volume-11 hyperbole -- bolted onto sentences that have the grace of nose-diving zeppelins. And his ego is galactic.

The worldly avatar of Greenwald's ego takes the shape of the Jew who will ostentatiously disregard his Jewishness to defend our country's founding principles. His public career began with him defending in a series of civil suits the First Amendment rights of the leader of the World Church of the Creator, a white-supremacist named Matthew Hale, who is presently serving a 40-year sentence for soliciting the murder of "Jew rat" Judge Joan Lefkow. Of the plaintiffs in two of these suits -- the Center for Constitutional Rights, William Kunstler's legal advocacy group that focuses on human rights litigation, and the Reverend Stacy William Anderson, a pastor who was shot by a rampaging follower of Hale's -- Greenwald observed, "I find that the people behind these lawsuits are truly so odious and repugnant, that creates its own motivation for me."

Now he's on a crusade to prevent war with Iran, and he's sounding the reveille that "neocons" -- ahem -- and "the Israelis... [are] as transparent as they are dishonest and bloodthirsty."

And there's a whole bunch more in between, such as praise for Walt and Mearsheimer (their book was "important, richly documented") and Israel-hating spook journalist James Bamford (he's "superb"), outrage over Israel's refusal to welcome Norman "Holocaust Industry" Finkelstein, a falsification of Mahmoud Ahmadinejad's call for Israel's destruction, and a decree that the Israeli occupation is the primary cause of radical foment in the Muslim world. He offers the latter diagnosis prescriptively, of course, as he is a Paulite non-interventionist dressed up as a Left Democrat, seeking to disentangle us from that shitty, little country.

On the other side of the coin, Greenwald can be spot-on when he's taking down right-wing hypocrisy, such as here, and especially when mocking the office pantomime of masculinity performed by that doughy chorus of pundits led by Jonah Goldberg and James Taranto. He's also voluminous on the subject of Constitutional Law and its antagonist in the Bush Administration. I'm not able to judge these writings, but I trust them a lot more than his flatulent emanations on foreign policy, as Greenwald is a former Wachtell litigator. In particular, he's had a lot to say about the Bush Administration's extensive, illegal wiretapping.

Which is why I note with a sense of irony that during his defense of Matthew Hale, Greenwald was found in court to have illegally recorded conversations he had with various of Hale's associates. I have no clue how to properly cite cases, but the document is entitled:


No. 00 C 2021


159 F. Supp. 2d 1116; 2001 U.S. Dist. LEXIS 13001

and in it we find the following

I. Background

On October 13, 2000, Defendants' counsel's telephone rang. [**3] To Defendant's counsel's apparent pleasure, Kenneth Dippold, one of Plaintiff's witnesses, was on the line. Dippold voluntarily called Defendants' counsel in New York from a location in Illinois to answer any questions regarding Dippold's involvement in the underlying litigation. Dippold had received a subpoena from Defendants' counsel earlier that day.

Defendants' counsel served the subpoena on Dippold immediately upon discovering his identity on October 7, 2000. At that time, Plaintiff identified Dippold as the sole witness to support the allegation that Hale encouraged Smith to engage in the July 1999 shooting spree. Before that date, Plaintiff [*551] had not identified a witness to support this allegation.

Seizing the opportunity, Defendants' counsel hit the record button and commenced surreptitiously taping the conversation with Dippold. The conversation lasted for some time, covering in detail Dippold's contacts with Hale, the WCOTC, and various other parties having an interest in the underlying litigation. Dippold never asked if Defendants' counsel was taping the conversation. Nor did Defendants' counsel make any representations to Dippold suggesting that the conversation was or [**4] was not being taped.

The existence of the tape remained undiscovered by Dippold and Plaintiff until Dippold's deposition approximately two months later. After three hours of questioning, and allegedly a few too many inconsistent statements, Defendants' counsel revealed that the October telephone conversation was surreptitiously taped. Because Defendants' counsel proceeded to use a transcript of the tape to impeach Dippold, Defendants' counsel immediately provided Plaintiff's counsel with a copy of the tape. Any work-product protection no longer applied.

Approximately one month later, Plaintiff discovered the existence of another tape. This tape pertained to a conversation between Defendants' counsel and Ian Sigel, another witness in the case. Similar to the circumstances surrounding Dippold's tape, Sigel was in Illinois at the time of the telephone conversation, while Defendants' counsel was in New York. Sigel had also received a subpoena from Defendants' counsel.

In view of Defendants' counsel's tactics, Plaintiff served a Fourth Request for the Production of Documents and Things on Defendant. Among other things, Plaintiff requested "any and all audio tapes and/or written transcripts [**5] reflecting any conversation(s) between [Defendants] and/or [Defendants] attorney(s) and any third-party referring or relating to the [underlying lawsuit]." (Pl.'s Consolidated Mem. Supp. Mot. Compel & Protective Order at 4.) Days later Defendants responded, asserting the work product doctrine and refusing to produce any tapes.


As it turned out, Plaintiff quickly determined that it was necessary to brief the issue. More tapes, in fact, existed. Moreover, Defendants' counsel refused to discontinue making additional tapes...

Greenwald and Hale lost both motions relating to Greenwald's misconduct, and lost again on appeal.

Plaintiff moved to compel disclosure of these tapes, arguing that this conduct was unethical and therefore vitiated any attorney work-product privilege that may have attached to these recordings, and sought a protective order prohibiting any further recordings. The magistrate judge granted both motions, finding defense counsel's conduct unethical under two separate rules: Local Rule 83.58.4(a)(4), prohibiting "dishonesty, fraud, deceit or misrepresentation;" and Local Rule 83.54.4, stating "a lawyer shall not … use methods of obtaining evidence that violate the legal rights of [another] person." [Emphasis mine]

After disclosure was eventually made, the elaborateness of Greenwald's deceit came to light:

A 52-page transcript of one conversation showed defendants' counsel steered the conversation by eliciting particular responses to detailed questions, leading to more detailed questions, to lure the witness into damning statements for later use.

This hardly raises to the level of a Constitutional violation of privacy by the Executive, but Greenwald is never so strident as he is when exposing what he perceives to be hypocrisy. I suppose, though, we wouldn't receive the bounty of our self-anointed protectors if they were encumbered by the lofty sense of ethics they bear down on others.


Tuesday, May 13, 2008

Obama, the Jews and Israel

There's a persistent, nasty notion that Barack Obama is bad for the Jews. It crests and falls rhythmically in public discourse, and I hear it expressed by Jews I know. The sense is Obama places somewhere on a spectrum between a latte-drinking, liberal milquetoast and a black anti-Semite. Wherever the dart sticks, it will be bad for Israel.

As someone who has spent years writing about foes of Israel, subtle and overt, and specifically these two types that supposedly bookend Obama, I'd like to go on record saying this is top-shelf, triple-distilled horseshit.

Over the next months, we'll come to see the fullness of Obama's foreign policy vision. We already have a fairly good sense of what it will be like. Some of it strikes me as vaporous, some of it seems groan-inducingly soft. Some of it makes sense. Most of it -- even stuff I don't agree with -- is fair enough after seven years of calamity at home and abroad.

As a policy package, it may ultimately fail, but none of it will be inimical to the Jews or Israel. Understandably, a lot of Obama supporters wanted to brush aside the Jeremiah Wright kerfuffle, but I thought it was fair to ask why the hell he would associate himself with a half-crazy demagogue like that. However, I'm satisfied that Obama was simply trying to shore up his cred with African-Americans, understand their milieu better, and above all find his faith. I simply don't think he has the slightest time for the victimology, the street-scholarship or the Jew-baiting buffoonery of the incredibly selfish man who was his pastor.

Jeffrey Goldberg, the New Yorker staff writer, is one of the more interesting working journalists. He's got a new Atlantic blog that I'll be reading (link added, left). Here's Obama speaking to him about this issue.

Look, we don’t do nuance well in politics and especially don’t do it well on Middle East policy. We look at things as black and white, and not gray. It’s conceivable that there are those in the Arab world who say to themselves, “This is a guy who spent some time in the Muslim world, has a middle name of Hussein, and appears more worldly and has called for talks with people, and so he’s not going to be engaging in the same sort of cowboy diplomacy as George Bush,” and that’s something they’re hopeful about. I think that’s a perfectly legitimate perception as long as they’re not confused about my unyielding support for Israel’s security.

Obama also says some considerably heartening things about the complimentarity of the African-American and Zionist narratives. Think about that for a moment. This blog's abiding theme is that for a variety of reasons, utopian politics lead algorithmically to anti-Semitism. Victimology and identity politics are powered off that grid. This is the marrow of Jew-hatred among African-Americans, who can see themselves as domestic Palestinians, preyed upon by owner-Jews or upstaged by the moral legatees of the Holocaust. Obama, however, invokes a classic, American liberalism:

So when I became more politically conscious, my starting point when I think about the Middle East is this enormous emotional attachment and sympathy for Israel, mindful of its history, mindful of the hardship and pain and suffering that the Jewish people have undergone, but also mindful of the incredible opportunity that is presented when people finally return to a land and are able to try to excavate their best traditions and their best selves. And obviously it’s something that has great resonance with the African-American experience.

One of the things that is frustrating about the recent conversations on Israel is the loss of what I think is the natural affinity between the African-American community and the Jewish community, one that was deeply understood by Jewish and black leaders in the early civil-rights movement but has been estranged for a whole host of reasons that you and I don’t need to elaborate.

Obama, in his perspicacious and articulate way that is an elixir after 8 years of Bush's cud-chewing, rhetorical chyme, has turned this precisely on its head. This is no accident. If Obama becomes President, his foreign policy might fail, but he's no enemy of the Jews or Israel.

Labels: , , ,

Sunday, May 11, 2008

Israel Turns 60

As you must expect, I could not be more gratified by Israel reaching its 60th anniversary, in spite of its bringing many unanswered questions and unresolved dangers to the celebration.

In contrast to the good will, an array of opposition masses in the middle distance. There is the soulful concern of the Tony Judt class of left-liberals, whose embarrassment by even the mildest Jewish particularism resounds in their rush to amplify Israeli Arabs' feelings of disenfranchisement. And there is the naked hatred of those who gleefully anticipate the destruction of the Jewish state, to borrow Oliver Kamm's apposite phrase.

Speaking of Kamm, here are two reactions to the anniversary, by him and the historian Marko Attila Hoare. Kamm's mostly communicates my own feelings (unlike him, I am concerned with the fortunes of Judaism, although this is unrelated to my concern for Israel). Hoare, who is no less celebratory than Kamm, shows concern about current Israeli nationalism, but with a view toward evolving the Jewish state rather than guiltily slouching toward its disintegration into a secular binational war zone.

Oliver Kamm:

My position on this is not complex. I have no interest in the fortunes of Judaism but a great interest in the resilience of persecuted peoples. There is no people more historically persecuted than the Jews, and a Jewish state is their guarantor. It also represents the intrusion of Western constitutional principles into a region where these are not widely observed. Though there are organised religious extremists in the Israeli political system, they have never attained power - unlike, say, their counterparts in Iran.

I am no uncritical supporter of Israeli government policies. Some - such as the attempt to implement regime change in Lebanon in the 1980s - I have strongly opposed. I hope for, without expecting any time soon, a pacific two-state territorial settlement of the Israeli-Palestinian conflict. But the fact and the independence -- not merely, in the demeaning phrase grudgingly advanced by her enemies, the "existence" -- of Israel, a Jewish state and a vibrant democracy, are causes for celebration.

Marko Attila Hoare:

So far as Israel is concerned, its record of democracy and human rights concerning its own citizens compares very favourably with most other Middle Eastern countries, but very badly with just about any West European country, because its stage of national development more closely resembles Turkey or Greece than France or the Netherlands. The two deformations resulting from the nature of Israel’s birth are, firstly, a failure to embrace the concept of a multi-ethnic citizenry and accord equal rights to all its citizens regardless of ethnicity, resulting in suffering and injustice for Israeli Arabs; and, secondly, a continued policy of colonisation in the West Bank, resulting in massive suffering for the occupied Palestinians. These deformations are, of course, linked to the behaviour of the Arab states and the refusal of most of them to recognise Israel, as well as to the Palestinians’ own behaviour - but this is not ultimately a question of apportioning blame. Like every nation-state, Israel needs to develop a post-nationalist national ideology if it is to complete its national and democratic development. This means becoming a genuinely Israeli nation-state, i.e. a state of the Israeli nation; a state of the citizens of Israel - rather than simply a Jewish state in which non-Jews are second-class citizens. Jews would still form a comfortable majority in Israel, thereby guaranteeing Jewish national self-determination. But a Jewish ethnic majority can comfortably exist with a concept of citizenship blind to ethnicity - as all concepts of citizenship should be, from the US and France to Israel and the Arab states. And as the American and French models show, a concept of citizenship blind to ethnicity rests upon identification with the state’s legal borders - hence no colonisation projects directed against neighbouring peoples.

Postscript: I wish neither to suggest that the Israeli Arab reaction is not newsworthy, nor to pass judgment on it. I am not an Israeli Arab living in Israel. It's just instructive what people choose to notice and when.