At the WSJ Law Blog, Nathan Koppel posts about corporate fear of the whistleblower provisions of the Dodd-Frank law. 

More than 260 companies sent a letter to the SEC warning that the whistleblower provisions could turn financial fraud into a “gold mine” for employees, according to this WSJ article.

Whistleblowers, under Dodd-Frank, stand to earn rewards of 10% to 30% of fines and settlements reached as a result of their tips.

Lawyers at such companies as Delta, FedEx, Gap and Pfizer said the new rules could work against existing internal compliance programs, because they “disincent employees from looking for ways to improve or correct corporate behaviors, and incent them to find ways to profit from corporate wrongdoing,” according to the letter, which is due to be released today.

While the obvious knee-jerk reaction is that anyone who uses the word “disincent” deserves anything they get, and few outside of upper management are likely to shed a tear over this provision, it is a problem.  Not necessarily because it impairs management’s efforts at internal compliance, but because the “rewards” can be monstrously huge. 

Historically, the problem is that internal whistleblowers haven’t been well-treated.  Tell someone that they’re ugly and, for some odd reason, they don’t tend to take it well.  Next thing you know, you’re not invited to the taco party outside Bill’s office.  Oh yeah, and your career is over.

It’s not that upper management doesn’t want to encourage employees to disclose problems so that they can be corrected, but that the complexity and numerosity of those in the command chain and working around the person complaining get in the way.  In other words, things are never as simple internally as they might appear, or one might hope, from the outside. 

At the same time, people complain about a lot of things, some of which are problems but most of which are either pet peeves of some disgruntled employee or a personal vendetta played out in a corporate format.  Distinguishing between real corporate compliance issues and things that piss Joe off can be difficult and mind-bogglingly expensive. 

And when some punk kid AUSA later decides that an issue no one with more than twelve minutes business experience would take seriously is, from his prosecutorial perch, the crime of the century, the outside world wonders how a respected corporation could have been taken over by such fools or gangster.  It can happen.

That corporate counsel doesn’t like the Dodd-Frank law comes as no surprise.  If you were in that job, you wouldn’t either.  But that doesn’t make them wrong about the incentives.  There’s very little that happens in a corporation of any size that doesn’t equate, with minimal effort, to millions upon millions of dollars in the fertile imagination of the government.  This means that the whistleblower, looking at rewards of more than 10%, could hit the lottery.  That’s a problem too.

Whether it serves to make the disgruntled employee seek out impropriety under every rock, or sit quietly by as small problems fester into big ones, or, worst still, fan the flames of impropriety in order to have something to blow the whistle about, the financial gain makes it all pay off.  Hard as it is to imagine, some employees really don’t love their company enough to ignore the potential for vast riches in favor of corporate compliance.  Go figure.

What’s missing is a rational tipping point, a place where the incentives to work within the system are in balance with the incentives to give corporate impropriety a gentle push and then blow the whistle when things get bad.  It’s unclear whether there can be a single tipping point, since corporate employees differ in their degree of integrity and loyalty, some hating the person who signs their paycheck and waiting in the shadows for the opportunity to rat them out. 

But the incentive system in Dodd-Frank seems incredibly rich, so much so that it encourages even the most loyal employee to keep budding impropriety under his hat in the hope of a huge payday down the road.  Even the most ardent populist should recognize that too much greed presents a problem.

Those inclined toward corporate conspiracy theories, where every CEO has a poster of Dr. Evil on the wall and spends his evenings scheming for new ways to cheat the public, there’s no incentive structure that’s too rich for their liking.  Experience, on the other hand, suggests that most are risk averse, recognizing that every investigation costs a corporation huge amounts of money, prestige and credibility, and gets in the way of what they really want to do: make a fortune performing the corporation’s core functions.

This isn’t to say that the fear of the whistleblower doesn’t serve the purpose of keeping the overly greedy or disreputable in line, providing a sound basis for their risk aversion. Rather, that the efficacy of the law designed to keep corporations from getting crazy, engaging in improper and criminal conduct, depends on a delicate balance. 

We need corporations.  They provide jobs that pay us. They provide the goods and services we use.  They are, at worst, a necessary evil. And we need them here, and not just in Beijing, where the whistleblower is treated somewhat differently.  It’s fine that we expect a higher degree of integrity from our corporate executives then other countries, but if we go too crazy, we’re going to be awfully unhappy with the consequences.

District Judge Howard Riddle  set bail yesterday for this year’s most notorious Aussie, Julian Assange.  And yet Assange sits in custody.  It’s not as if Judge Riddle gave him a free ride, the bail amount and conditions being rather stringent.

Mr Assange was granted bail on condition he provides a security of £200,000 to the court, with a further £40,000 guaranteed in two sureties of £20,000 each.

Mr Assange must also surrender his passport, obey a curfew at an address in Suffolk, wear an electronic tag and report to a local police station every evening.

Short of keeping his grandmother in shackles, this seemed calculated to assure his return to court, plus some.  Not wanting to be unduly naive, given who this is about, at least Judge Riddle found a way to release Assange despite the overwhelming scrutiny of the world and the less-than-secret reason for it.

And yet Assange sits in custody.

But he will remain in prison pending an appeal against the bail decision lodged by Swedish prosecutors.

Curiously, the Swedes had a voice in a British courtroom.

Lawyer Gemma Lindfield, representing the Swedish authorities, argued on Tuesday that the court had “already found that Mr Assange is a flight risk” and “nothing has changed since last week to allay the court’s fears in this regard”.

But District Judge Howard Riddle disagreed, saying that questions about Mr Assange’s place of residence and the circumstances of his arrival in the UK had both now been cleared up.

Not being a barrister, and in fact lacking even such basic accoutrements as a horsehair whig. this procedure strikes me as bizarre and inexplicable.  One might assume that there would be person speaking for the Crown as to whether Julian Assange should be allowed to walk free on British soil during the pendency of his extradition proceedings, playing the role of prosecutor.  From my mindset, that would be the person to speak out, whether for or against, bail for Assange.

Apparently, there’s a Swedish exception, with Gemma Lindfield filling the post on behalf of a foreign nation’s mouthpiece.  Perhaps some Brit lawyer can explain why they let a lawyer representing a different sovereign play second prosecutor.

That the Swedes might take issue with the decision of Judge Riddle to set bail isn’t controversial.  When they picked back up the dropped charges against Assange, it became clear that certain Swedish powers were determined to make sure that Julian Assange was nailed to the wall.  That much is clear, as the charges belying his custody just can’t explain the Swedish action or reaction.

What doesn’t make a great deal of sense is that an appeal by the Swedes of Judge Riddle’s bail decision (assuming they have any right to appeal a decision in a British court at all) keeps Assange behind bars.  That’s the whole point of bail, to not hold a person in custody.  Does the mere incantation of the words, “I appeal,” suffice to stop the process dead in its tracks and keep a human being in jail until such time as an appellate court decides?

Well, apparently so.

The idea of maintaining the status quo ante isn’t novel, but we aren’t talking about a stay of judgment here.  This is the freedom of a human being at risk, and every week, day, second, imprisoned is one that he’ll never get back.  It’s not as if the prosecution can take an elevator ride to the higher court and obtain an immediate hearing.  Assange is sitting in a cell despite the fact that the last decision is one that granted him bail.  And he waits while the lawyer for a foreign power disputes the conclusion of a British judge.

Perhaps this process seems perfectly normal to lawyers across the pond.  I realize that others take a different view of freedom and due process, and it may well be that a few more days, weeks, months in a jail cell awaiting a determination despite the fixing of rather onerous bail conditions for release remain in place. 

But to these old, Yankee eyes, this strikes me as an inexplicable process that demeans both the decision of the British judge as well as the value of a person’s liberty.  If the Brits want to let the Swedes intervene in their court system, that’s their business as much as it seems absurd to me.  The Swedes will get their chance to do damage to Assange when and if extradition is granted.

In the meantime, let Assange meet the bail conditions set and breathe free air.  Until he has to report every evening to the bobbies, of course, since an ankle bracelet obviously isn’t good enough to let them know where he is.

Update:  Julian Assange’s bail has been upheld, and assuming its posted, he’ll be off to the country for the holidays.  (I’m awaiting an invite to join him in a toddy, by the way).

On the downside, the time between the grant of bail, not to mention his initial bail application when bail should have been granted, and the rejection of the Crown Prosecution Service’s appeal is lost forever.  I can’t help but wonder whether this makes Sen. Joe Lieberman happy or sad.

Have you wondered to yourself, where can I meet the Who’s Who of [the] Legal Fraternity of India?  I know, who hasn’t?  Fortunately, the answer arrived by email today.

Cerebral Business Research is organizing a conference on the need, relevance and the implications of technology in the legal systems titled “Legal Tech India 2011” on January 22, 2011 at Hotel Imperial, New Delhi. The objective of the conference emphasizes on the growing and vast avenues prevalent for technology in the legal arena and how legal systems can evolve to a simpler, systematic and a cost effective modus operandi. The conference aims to bring together expertise, competence and technology in managing all the constituents of legal affairs including LPO.

This forum is expected to be attended by 120+ senior level delegates from leading Law Firms, Corporate Counsel, Senior Advocates and Solutions / technology providers. You will get an opportunity to meet the Who’s Who of Legal Fraternity of India.

The discussions to be delivered by the legal luminaries of India in partnership with the technology experts would extend great value to the entire legal fraternity and by participating in this conference, the whole legal value chain stands to gain from the various technology advancements. You can be a spectator to the wide range of leading thought leaders assembled at a common platform to share their views on how technology implementation and up-gradation have helped their businesses.

I care about the “need, relevance and the implications of technology.”  I write about stuff like that all the time.  So when this email arrived, I was immediately sucked in by this tickler of an opening, wondering, how can a regular guy like me join 120+ senior level delegates (?) to learn about such stuff? 

So I kept reading, down the page, down, down, to see where the good offer came in.  I scanned the email, and figured I must have missed it.  I read it again, this time more carefully.  It wasn’t there.  Nowhere to be found.  It did not say a word about their flying me to New Delhi first class, and putting me up in a suite at the Imperial Hotel, with sumptuous meals (with or without monkey brains) and maybe even an elephant ride during the conference down time.

Did these guys think I would fly to India on my own dime so that they could sell me on outsourcing?  Frankly, I don’t even like the food.  And it’s a one day conference!  What about a golf outing to give the trip a little kick?

Still, having read that much, I decided to check out the speakers.  You never know where Adrian Dayton will show up, and since he’s kind enough to show up for my presentations, would it kill me to return the favor?  But no Adrian.  In fact, no anybody, except the conference chair, who may be (or may not, since they don’t actually specify) Suhail Tak.

Now I don’t know Suhail Tak.  Maybe he knows everything there is to know about sucking savings out of a client’s pocket that can go straight into the pocket of an American lawyer.  Nothing to sneeze at there, if that’s what you’re aiming for.  And he’s got some big time support behind him.

Yup, the good old Indian Law Firms Society is backing this conference.  It’s a flat, flat world.

Sadly, I’ve decided to pass on this conference, despite my desire to be “a spectator to the wide range of leading thought leaders,” which is certainly better than the following thought leaders or the leading thought followers.

Now if only this conference was in Mumbai or Bangalore.  Maybe next year.

Via Linked In Blog, the top ten “overused” buzzwords in LinkedIn profiles.

Top 10 overused buzzwords in LinkedIn Profiles in the USA – 2010

1. Extensive experience
   
2. Innovative
   
3. Motivated
   
4. Results-oriented
   
5. Dynamic
   
6. Proven track record
   
7. Team player
   
8. Fast-paced
   
9. Problem solver
   
10. Entrepreneurial

Manu Sharma explains why this fails.

Wonder what really makes people cringe when they look at your LinkedIn Profile?  It’s those clichéd words and phrases. You know what they are — those ambiguous ones that really don’t tell you anything.

Some days, I sit and marvel at the nonsense I read online, whether from marketers or social media gurus, and sadly even fellow blawgers who purport to write about substantive issues.  I see lots of words strung together that give the impression of, what, something.  But I’ve got no clue what they actually say. 

I wonder whether I missed the memo that explained why a word that otherwise has no particular meaning is now a very important word, chock full of particularization.  Am I the only one who doesn’t understand it?  Am I the only one who reads every word, sometimes twice, and finds myself clueless as to what the point might be?

Adding to my bewilderment are the comments, applauding the string of vagaries for their brilliance, insight, illumination.  Reading the comments, my concern grows deeper.  Do these people realize that nothing whatsoever was said?  Not a single idea was transmitted, and yet they are ready to compare this with Plato. 

Am I missing something?  No seriously, am I the village idiot, the only one too dense to appreciate the depth and genius of this string of words that means absolutely nothing to me?

Obviously, I realized that the marketers and social media gurus sucked up to one another despite the wholesale absence of anything resembling thought because it was in their mutual best interest to do so.  If they didn’t spend their days thanking each other for their brilliance and retwitting, they would have nothing whatsoever to say. 

I recalled the self-proclaimed social media rockstar, Tamar Weinberg, one of the most  vapid  twinkies in the blogosphere, who  went bonkers when someone told her she was an empty bore.  It was shocking to me to learn that this wasn’t a conspiracy of the thoughtfully manipulative, a corps of schemers who realized that they were pulling the leg of every dim-witted sycophant in the digital world.  They had no idea that they were living in an intellectual void.  They believed that strings of empty words meant something.

There isn’t much to be done with people who are no deeper than a puddle. 

But it’s the blawgers and their lawyer readers that continue to trouble me.  One purpose of law school used to be to develop the skill of critical analysis, Prof. Kingsfield’s “think like a lawyer.”  Are they still doing that? 

It’s not that all young lawyers and law students are a bunch of dopes, as there are many who strike as remarkable smart, analytical and incisive.  The problem is that there are a lot who aren’t as well, Whether it’s because of their applauding content that says nothing, assertions without substance or irrational arguments, or whether they read a post that makes a clear, well-reasoned point, and completely miss it.

Buzz words are cool, happening and cutting edge.  Use them and there’s an awfully good chance that some people will respond that you are a “thought leader” and a “game changer.”  Maybe they will fear that anything short of complete approval will reveal them as unhip.  Maybe they just seek approval in return.  Maybe they’re too stupid to realize that it’s just a string of letters without any meaning.

If you’re a lawyer, however, this isn’t good enough.  You are supposed to be capable of thinking.  You should be able to discern the difference between substance and “those ambiguous ones that really don’t tell you anything.”  If you can’t, it’s a problem.  If you won’t, then that’s pathetic.

There are many of us reading, both the blawg posts as well as the comments, not to mention the twits, to see if there’s anything interesting in there.  We see that bad as well as the good.  Most won’t tell you that we’re seeing insipid reactions to vapid content.  But they will think to themselves, what a moron. 

I’m not the only one who sees this.  If you don’t, then there’s a good chance that you’re the person I’m talking about, the one who can’t distinguish between a meaningless buzzword and actual thought.  Are you on the side of thoughtful substance, or do buzzwords suffice?

In crafting a general list of things in which citizens had a right to be secure, nobody thought to include the word “email.”  Rather thoughtless in retrospect, but there were limits to even Jefferson’s prescience. 

While Congress and the courts have struggled with how to assure that our deepest thoughts would be subject to government scrutiny, just in case they were dark thoughts, the Sixth Circuit Court of Appeals has opined that our thoughts contained in emails, despite the hyper-technical path they follow as electrons through a maze of boxes and wires, are worthy of security.

Via Orin Kerr at Volokh Conspiracy, from the decision in United States v. Warshak :

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification.” Quon, 130 S. Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313; United States v. Waller, 581 F.2d 585, 587 (6th Cir. 1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”).

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.

Technology is here to stay, and every day brings yet another product to the market that alters our means of interacting.  Neither the law nor the courts have been, or will be, capable of keeping pace.  As we adopt new technologies, we do so under a generic assumption of normalcy, that we aren’t giving the government carte blanche to peer into our lives, words, thoughts or deeds.  We try not to think too hard about it, because we really don’t want to address what we fear to be true in the back reaches of our mind, that there is no privacy left.

The Warshak decision strikes a major blow against the machine, rejecting the electron path of Fourth Amendment analysis in favor of a Katzian approach.  We expect our private communicates to be private, and Warshak says that’s a reasonable thing to do.

The decision is based, however, on an unfortunately shaky foundation, noted in the emphasized language in the quote above, analogizing email to a letter or phone call.  While this would be the analogy I would chose if anybody asked me, the court could have just as easily adopted a different analogy and turned the decision upside down. 

Just as our “papers and effects” when contained in the electrons of our laptops have been analogized out of the 4th, so too could  our emails should the analogy focus on their being in the  hands of third party ISPs rather than our expectation of privacy. 

Orin is pleased with both the outcome and rationale of Warshak.

I think that is correct, for reasons I have explained before. Under the Court’s reasoning, then, 18 U.S.C. 2703(b) is unconstitutional at least in most applications– which, again, I think is correct. This is a very important opinion, and there’s a lot in there, but based on a first read it strikes me as quite persuasive and likely to be an influential decision going forward.

It’s hard to blame him, as this opinion comports with both his analysis of how electronic communications should be treated, as well as his  tech neutral approach to search and seizure law.  The gist is that courts should apply the jurisprudence developed since bootlegger says to new technology rather than reinvent the wheel.  He contends that, contrary to my skeptical assertions, this can result in a principled approach that maintains protections to our 4th Amendment rights against unreasonable search and seizure. 

I’ve contended that the exceptions have long since swallowed the rule, and importing bad law to new technology is tantamount to eviscerating the 4th Amendment before the technology is even invented.  I’ve also argued that winning the battle, under Orin’s approach, is little more than a game of rhetoric, the winning side being the one whose analogy either strikes the court’s fancy or best meets the judges’ luddite comprehension of the digital world.

Based upon the Warshak decision, it would appear my fears are unfounded, and that the court arrived at the right analogy, and therefore the right outcome, despite my cries that the sky could fall.  I’m unswayed.  It’s not that Orin’s theory hasn’t worked out in this instance; it has and it’s worked wonderfully.  Rather, one decision in one circuit is not a jurisprudence.

It’s not that the Warshak decision could be chalked up to the blind squirrel rule.  The opinion contains some wonderful language expressing what we need of a court protecting our notion of privacy.

It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.

Had this been where it ended, that our need to be capable of being secure in our communications without regard to how many digital hands held it, copied it, touched it, stored it and passed it along, this would be a different post.  What remains needed is an affirmative, unqualified holding that electronic communications, notwithstanding the mechanics of how they get from our fingers to our recipients eyeballs, are secure under the Fourth Amendment.

Whether this decision will hold up has yet to be seen.  Orin finds it persuasive, and because of its outcome, I certainly hope he’s right.  But emails aren’t the only technological issue confronting our courts, and praying that the right analogy is adopted hardly gives me the warm and fuzzies. The challenge of adopting historic search and seizure jurisprudence to new technology can’t be left to hit and miss analogy. 

We need to know that our electrons, our thoughts, our idea, no matter what form they take or mechanism they travel, remains ours.  We need better than a fortuitous choice of analogies to know that there will be some privacy left in a digital world.

Orange County deputy alternative defender (I likely got the position wrong, but feel confident that, if so, I will be swiftly corrected) Lee Stonum sent me an email to both make a point and vent a bit.  On the one hand, he came face to face with the Perpetual Listserv Conundrum: 

Stupid people ask stupid questions answered by other stupid people who either don’t have a clue or just make stuff up, making everyone the worse for participating.  I don’t want to waste my time by getting involved and enabling stupid people.

But, if no one who knows anything participates to help the stupid to learn the correct answer, then they will forever be stupid.

Columbia political science professor and HuffPo blogger, David Epstein, has been charged with incest. Information remains scant, though it’s been suggested that he’s engaged in a  three year sexual relationship with his over-18 daughter. 

Before you start gagging, Eugene Volokh raised an interesting, albeit gross, discussion about the problems with basing law primarily on the argument that it makes most people want to toss their cookies.  Accounting for the hard problems with incest, such as gene pool, offspring, control and coercion, what of, say, adult sibling choices where reproduction isn’t involved?  What about this makes it criminal?

Eugene’s point is that our disgust toward this conduct, which obviously can’t be denied or ignored, reflects our disgust toward other sexual taboos, such as interracial sex and marriage. 

Professor  Stephen Bainbridge stepped into the ring.

The arrest of Columbia professor David Epstein on charges of incest with an adult family member prompted my UCLAW friend and colleague Eugene Volokh to offer some typically erudite (but somehow abstract) thoughts on criminalizing such things. This in turn raised the question of whether law can ban something just because it is immoral, a point Eugene addressed here. Doug Mataconis then chimed in to argue that “the fact that there’s what might be called an ‘ick factor’ is not, by itself, sufficient justification to make the act illegal.”

 I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it “the wisdom of repugnance”; i.e., “emotional expression of deep wisdom, beyond reason’s power to fully articulate it.”

While the “wisdom of repugnance” raises an interesting response, Bainbridge then blows his wad by relying on  Lawprof Ann Althouse’s gut.

Yuck. Double yuck. I want it banned and the harm principle can be damned. Do I have a reasoned analysis of how to fit the yuck factor into a coherent political theory? No. And I don’t care. Some things are just too yucky for a civilized society to tolerate.

It’s not that I don’t agree with the yuck, but that I’m disinclined to base crime-worthy conduct on the number of “yucks” issued by either Bainbridge or Althouse.  Do triple yuck crimes carry the death penalty?  Don’t answer that.

Kass’ “wisdom of repugnance,” however, offers a more rational explanation for criminalizing incest, giving permission to be disgusted by things despite the inability to articulate a rational explanation.  If society maintains a sense of disgust that is so broadly accepted, even if incapable of clear, logical articulation, shouldn’t that be sufficient?

Eugene responds to the Kass argument:

In fact, Kass’s New Republic article itself notes, “Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better.” Kass of course goes on to argue that, “In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it.” But if we recognize (as I think we must) that some of yesterday’s repugnances are rightly accepted today, and that even today’s repugnances might be rightly overcome (which is Kass’s view with regard to nonmarket organ transplants), we can no longer simply rely on our repugnance. We have to reason about exactly why something might be harmful, and whether its harms are exceeded by its benefits (or by the harms of trying to criminalize it, which include both deprivations of liberty and expenditures of taxpayer money).

His ultimate point, whether the default position in cases where we all agree about the yuck factor but can’t put our finger on the harm, raises the critical issue:  Is the default position to criminalize things we all find yucky, at least for the moment, or should the default position be to suffer the yuck factor and not criminalize conduct unless we can articulate a particular harm to be stopped?

Weird how something that we would all rather not think about at all be turned on its head to match a sacred cow of criminal law, that conduct which causes no cognizable harm not be criminalized because of an excess of emotion and a dearth of reason. 

This situation more typically arises today when a tragedy strikes a child and legislators rush to enact laws to criminalize conduct already criminal or that wouldn’t impact the conduct under any circumstances.  We have little problem ridiculing such laws, and the cynical politics behind them.  Yet, an age old taboo like incest, carrying the weight of our collective repugnance, defies our ability to use only our rational brain.  The yuck factor is still there, no matter how hard we try to ignore it.

About the closest reasonable analogy can be found in homosexuality, which some still find too yucky to tolerate.  Many, hopefully most, heterosexuals have gotten past the yuck factor and accepted it.  Even though who haven’t have embraced it to the extent that it is no longer criminal and requires imprisonment.  For the benefit of you young-ins, yes, years ago people did find homosexual conduct to be that yucky, and it was a broadly held view in society sufficient to invoke the wisdom of repugnance.  And now it’s not.

By no means does this suggest that I find incest, in any variation, acceptable or less than utterly repugnant. Sorry, but I’m not the broad-minded a person.  But if we’re busy thinking, then we can’t help but do it right, and Eugene has given us cause to do some of the very hard work that make our heads hurt.  And it’s not very good for our stomachs, either.

It takes a special sort of fellow to wrap himself up in authority in order to beat the daylights out of another guy.  But what if it’s a woman?

From the Gothamist :

Ann Stanczyk, 49, was walking her terrier Psotka (Polish for prankster) near her home in Rockaway Beach on the Friday after Thanksgiving when two NYPD officers took a special interest in her dog’s business. She claims that two cops approached her and ordered her to scoop poop that wasn’t Psotka’s, and after she begrudgingly complied, they violently arrested her for talking back.

“I started to scream, ‘My dog! My dog!'” explains Stanczyk. “They punch me in my face. They punch me in my breast. They punch me in my stomach.” It’s also unclear if the poop was entered into evidence.

According to court papers obtained by the News, Stanczyk was accused of “causing a ruckus by yelling at the officers to leave her alone.”

Here’s the rub, regardless of whether Stanczyk was “causing a ruckus,” and who wouldn’t as the police were beating you, or whether they initiated the tuning up to teach her a lesson in public health, what sort of cops felt compelled to do this to this woman?

The obvious presumption that is that Stanczyk failed to demonstrate due respect for the officers’ authoritah, contempt of cop as it’s known.  We certainly can’t have woman denying that their dog pooped when police think otherwise.  Nor can we have women complaining to officers that the have fallen short of that “protect and serve” stuff written across the side of cruisers.  That could seriously impair their branding, and diminish public respect for the police. It’s no longer about dog poop, but about sustaining our way of life.

So if she spoke to the officers in a somewhat disrespectful tone, regardless of the tone used by the officers to tell her to shut up and do as she’s told, one can easily see why the officers felt constrained to take action to assure that their shields were respected and the quiet and peace of Rockaway Beach was restored.

But what kind of man beats a woman like this?  Tell us, Officers Shaun Grossweiler and Richard DeMartino.  What kind of man beats a woman like this?

The “us vs. them” mentality that sustains a police officers ability to overcome the limitations of normalcy and human restraint and act against another person without remorse requires them to dehumanize others.  There is no way that a normal person can simply beat another, inflict this sort of injury with his hands, without seeing that other person as something less than human.

While we often ignore it, or excuse it, when the person beaten is described as some heinous criminal, it cannot be rationalized when it’s a woman, about whom the worst one can claim is that she failed to scoop poop.  It is not acceptable, excusable, explainable.  This is the product of a sick mind.

And the  complaint against her was ACD’d.  You might think this is because she hadn’t suffered enough to deserve an outright dismissal, but the underlying reason is more likely that an ACD is not considered a termination in favor of the accused, just in case she might want to sue for her beating.

American corporations doing business overseas are subject to certain limitations, like the Foreign Corrupt Practices Act.  And then, maybe restrictions like enabling mind-bogglingly sick sexual abuse of little boys.  Via  Randazza and  Bennett, courtesy of Wikileaks, security contractor DynCorp provides some insight into how it networks and  genuinely engages :

Bacha boys are eight- to 15-years-old. They put on make-up, tie bells to their feet and slip into scanty women’s clothing, and then, to the whine of a harmonium and wailing vocals, they dance seductively to smoky roomfuls of leering older men.

After the show is over, their services are auctioned off to the highest bidder, who will sometimes purchase a boy outright. And by services, we mean anal sex: The State Department has called bacha bazi a “widespread, culturally accepted form of male rape.”

DynCorp, whose revenues are almost entirely paid by Uncle Sam, was contracted to recruit and train Afghanis to be police.  What better way to draw the right sort of folks than throw a party?  And obviously, half their training would already be accomplished with the proper inducement.

According to the cable published by the  Guardian UK, the Minister of the Interior, Hanif Atmar, needed the United States’ help in quashing any reporting of these bacha bazi parties.  It just wouldn’t look good.

Beyond remedial actions taken, we still hope the matter will not be blown out of proportion, an outcome which would not be good for either the U.S. or Afghanistan. A widely-anticipated newspaper article on the Kunduz scandal has not appeared but, if there is too much noise that may prompt the journalist to publish.

Certainly the anal rape of young boys at a party thrown by an American contractor to recruit Afghan police would reflect poorly on somebody.  Then again, the concealment of this happening reflects poorly on everybody, but only once it becomes publicly known. 

Atmar said he insisted the journalist be told that publication would endanger lives. His request was that the U.S. quash the article and release of the video. Amb Mussomeli responded that going to the journalist would give her the sense that there is a more terrible story to report. Atmar then disclosed the arrest of two Afghan National Police (ANP) and nine other Afghans (including RTC language assistants) as part of an MoI investigation into Afghan “facilitators” of the event. The crime he was pursuing was “purchasing a service from a child,” which in Afghanistan is illegal under both Sharia law and the civil code, and against the ANP Code of Conduct for police officers who might be involved. He said he would use the civil code and that, in this case, the institution of the ANP will be protected, but he worried about the image of foreign mentors.

As noted, this conduct violates both Sharia law as well as the Afghan civil code.  Nor, it appears, is it universally considered an acceptable thing to do.  But the fact remains that good ol’ DynCorp, whose base of business operations in the United States is in Dallas/Fort Worth, threw a little party and then needed some political muscle to cover it up.  DynCorp  denies any impropriety and says it’s all a big misunderstanding.

According to a DynCorp’s VP of communications, Ashley Vanarsdall Burke,

the company has beefed up its ethics in many ways including enhancing their code of ethics and business conduct; reviewing, revising and strengthening the company’s business practices; hiring a chief compliance officer; and setting up a 24-hour hotline for whistleblowers and a training program that focuses “specifically on behaviors that support successful teams.”

Burke granted that no “company can guarantee that their employees will behave perfectly at all times, under all conditions,” but said that the company can guarantee that expectations will be clearly defined, employees will be trained to adhere to those expectations, and people will be held accountable. “We will also act swiftly and consistently if shortcomings are identified,” which they did do in the wake of this traditional dance gone apparently awry.

So maybe then they won’t have to ask the Afghan ministry of the interior or the State Department to cover it up under the guise that revealing parties where little boys are anally raped would “endanger lives” if disclosed? 

But you probably know all this, having heard all about it in the big exposé in the newspapers and on TV.

Update:  From Mike Cernovich, here’s the Frontline program about the bacha bazi, the dancing boys of Afghanisten .

Attila Adam is a film maker in Los Angeles working on a short film on prisoner re-entry, June Gloom, in need of some angel support.  He had the good sense to ask Lawprof Doug Berman at  Sentencing Law & Policy if he would mention the project in the hope that someone might care and contribute.

Notably, for the seemingly bargain price of only a $500 supporting pledge, one can get executive producer credit on this film. I wonder if readers and regular commentors like Bill Otis or federalism or Supremacy Claus or others will be interested in having their names on the big screen. Better yet, perhaps readers can pool pledges and we can have this blog’s readers listed as a executive producer. Seems a small price to pay for a good cause and for having one’s name on a movie, no?

It hardly seems necessary to discuss why prisoner re-entry remains a huge problem, with budget shortfalls, offender registries and the societal rejection of the notion that any prisoner’s debt is ever repaid. 

But Doug does a very interesting thing, taking a good cause to a curious place.  For those who have so much to say, often strident and sometimes bizarre, let’s see if the strength of their convictions meets the depth of their wallet.

Here’s the shocking punch line:

Ever the interesting fellow, (in)famous regular commentor Supremacy Claus wrote to me to report that he was going to make a $500 pledge and was going to do so in my name so that I would get executive producer credit.  For this kind gesture (which is now reflected on this June Gloom blog), I am awed and grateful.  And I have now added another $100 pledge (and provided that the goodies that come with this pledge go to SC).

For those unaware, Supremacy Claus has been one of the louder, more outrageous commenters in the blawgosphere for a very long time.  He’s made his way around the blawgs, usually being quickly banned for his hatred of lawyers, judges and the legal system, which he argues is a vast conspiracy designed to subjugate the citizenry.  If I recall correctly, he lasted here about two days.

Berman, on the other hand, let SC have his moment in the sun and there he’s stayed, often to the chagrin of other commenters.  No doubt it’s been a disruptive experience, but Doug has been tolerant.  More so than anyone else.  And he’s now been rewarded with executive producer credit on Supremacy Claus’ dime.

While $500 doesn’t make inanity any less troubling, it does do one thing of worth.  It shows that as wacky as Supremacy Claus may be, he’s not just blowing smoke up the butt of the blawgosphere.  To his enormous credit, he’s put his money where his mouth is.  Not too many people around here do that.

Obviously, every reader isn’t in a position to kick in money every time a good cause comes around.  There are a lot of good causes, and not always a lot of money.  But then, for those who feel very strongly about something, so strongly that they can’t control themselves and must, absolutely must, speak their mind, the value of your beliefs would be greatly enhanced if there was more demonstrative evidence of your views.

Though I know not everyone is a huge fan of how Supremacy Claus sometimes seeks to take over the comment threads, I think everyone should be a huge fan of his efforts in this context. And if merely 1/10 of all the readers who dislike SC’s comments would simply make a pledge of 1/10 of what SC put up on my behalf, the June Gloom film would have extra resources for final production and promotion. (As I noted before, the  minimum pledge to support this project is a mere $10, and I hope a lot of readers might consider themselves able to pledge at least 2% of what Supremacy Claus put up.)

Hey, if SC can cough up $500 to make Doug Berman the executive producer, a 2% contribution wouldn’t break you.  Is it worth $10 (or more) to show that you’re not just tough talk?