law and economics redux
No case for Iraq attack say lawyers Michael White and Patrick Wintour Friday March 7, 2003 The Guardian Tony Blair last night faced fresh pressure to abandon the threat of war against Iraq when 16 eminent academic lawyers warned him that the White House doctrine of pre-emptive self-defence has no justification under international law. Not only do all the UN security council's existing resolutions on Iraq - including 1441 passed unanimously in November to enforce disarmament on Saddam Hussein - fail to provide such authority, there are currently no grounds for passing a new one to give the clearly expressed assent to a war that Mr Blair still seeks, the lawyers declare. In a letter sent to Downing Street and published in today's Guardian, the signatories - specialists who include James Crawford, Whewell Professor of International Law at Cambridge, and Vaughan Lowe, Chichele Professor at Oxford - also take a sideswipe at the prime minister for saying that he and President Bush would ignore an unreasonable veto in the security council. Noting that Britain itself has exercised the veto 32 times since the UN was founded in 1945, the 16 say the prime minister's assertion that in certain circumstances a veto becomes 'unreasonable' and may be disregarded has no basis in international law either. The 16 do leave themselves some wriggle room by pronouncing their verdict on the basis of information publicly available so that a major disclosure of Iraqi non-compliance with the UN weapons inspection - or other subterfuge - might change their stance. But US-UK dossiers have so far failed to persuade wary voters. Not content with telling Mr Blair that a second resolution is legally necessary as well as politically vital if Downing Street is to stem growing dissent among Labour and Liberal Democrat MPs, the lawyers, mostly British-based but of many nationalities, add a further sting. A decision to undertake military action in Iraq without proper security council authorisation will seriously undermine the international rule of law, they say. Of course, even with that authorisation, serious questions would remain. A lawful war is not necessarily a just, prudent or humanitarian war. That amounts to a blanket thumbs-down. The letter's signatories include six leading international lawyers from Oxford, three from Cambridge and three from the London School of Economics. Also among them are Professor Phillipe Sands, a member of Cherie Blair QC's Matrix chambers who teaches at University College London, and Professor Pierre-Marie Dupuy of the Sorbonne. The substance of the letter, however, is certain to be disputed by other senior lawyers. Some argue that, if 1441 is not deemed strong enough, resolution 678, passed in 1990, will be deployed by the US and UK to justify an attack. Mr Blair, himself a lawyer, again insisted he will only act in a manner consistent with international law when cross-examined by European young voters in an MTV TV debate yesterday. Some senior ministers have been alarmed that legal opinions circulated within the cabinet challenge the legality of the looming scenario for war, not least the prospect of a US-led reconstruction of a post-Saddam Iraq. It would be illegal, Whitehall lawyers say, without direct UN authority. The warning from legal advisers shown to ministers, including foreign secretary Jack Straw and Clare Short, the international development secretary, makes it clear why Britain has been pushing a reluctant US to bring the UN into running a post-war regime as soon as possible. Ministers and officials are acutely aware of the problem which has led to informal talks with UN officials to draft options. But they fear that Mr Blair is not pressing Washington hard enough. This adds to pressure to delay military action, now expected in the second half of March. In the MTV debate, Mr Blair implicitly acknowledged the problem when he stressed that Iraqi oil supplies would be placed under UN supervision, though he pointedly drew attention to Iraq's outstanding debts and contracts to France and Russia. Some Blairites say the debts explain the two states' attitude to war. Equally significantly Mr Blair appeared to admit that either - or both - could veto the resolution now being redrafted to win wavering security council resolutions. If there was a veto applied by one of the countries with a veto, or by countries that I thought were applying the veto unreasonably, in those circumstances we would (go ahead), he said. Aides later stressed that Mr Blair still expects to win the second resolution. A further sign of planning jitters emerged yesterday from a secret session at Westminster, where a UN official told the Commons international development committee that its financial resources for a proper humanitarian operation in Iraq are totally inadequate. Ross Mountain, director of UN humanitarian affairs, told MPs that 470,000 tonnes of food were available, with most Iraqis probably
Re: Re: law and economics redux
On 1/30/03, andie nachgeborenen [EMAIL PROTECTED] wrote: When I was clerking on the federal district court in Chicago, there was an insurance dispute . . . whether the insurer would pay under a director's and officer's liability policy for the defense of a firm that had pleaded guilty to a criminal antitrust violation and, as part of the settlement of a interstate transportation of stolen property (a custimer list) against two officers, paid a lot of money to the gov't. I drafted the opinion, referring to the firm as a beehive of criminal activity, talking about the general atmosphere of criminal disregard of the law, and referring often to the criminal liability and criminal violations. It may be interesting that you neglect to report how/why this characterization was important (or, indeed, even relevant) to the decision at hand compared with whether the wrong at issue (even if: a crime) was/wasn't a covered occurrence as the policy defined that (or whatever was its like) term. It was a summary judgment motion, granted in part, denied in part, they settled, and then the firm asked the judge to _withdraw her published opinion_ (with this language). She said, I don't issue advisory opinions.
law and economics redux
Hide and Seek By Russell Mokhiber and Robert Weissman For corporations, reputation is everything. If they lose it, they stand to lose everything. See Andersen, Worldcom and Enron. If they can keep their dirty laundry out of the public eye, all the better. They do this by destroying incriminating documents, by lying, by covering up. If they are caught red-handed by the cops, there's another way -- plead guilty or negotiate a deferred prosecution agreement and ask the government not to publicize the agreement. We've always suspected that these kinds of secret settlement side deals are happening, but never could put our finger on it. Until earlier this week, when we attended a media nosh at the Washington Legal Foundation. That's the group that takes out ads in the New York Times ripping into the Justice Department for prosecuting corporate criminals. The title of the session: Is Creative Enforcement of White Collar Criminal Laws in the Public Interest? The message that the corporate-funded think tank wanted to get out, as one paper put it: criminalizing business judgment could stagnate the U.S. economy. In the question-and-answer session, we asked the distinguished panel of white collar crime defense lawyers whether they could name a recent criminal prosecution of a corporation that should not have been brought because the theory of enforcement was too creative. Ira Raphaelson, a former federal prosecutor, and now a white collar defense attorney at O'Melveny Myers, said he had one, but couldn't talk about it. What do you mean, you can't talk about it? I promised my client that I won't talk about it, he says. It was a criminal prosecution and it's on the public record, right? Yes, but I'm not going to tell you any more about it. Was the case settled? Yes, he says. Did the Justice Department notify the press that the case was settled? No, he says. The company completed the negotiations. A lot of money was paid. I could tell you about the case, but it would be to the detriment of my client, so I won't, he says. Raphaelson said that the case involved a corporation that was charged with crimes under the collective knowledge doctrine. That's a doctrine that holds that a corporation can be held criminally liable for the collective knowledge of its employees -- even though no one individual has sufficient knowledge to hold that individual culpable. Raphaelson said that use of the collective knowledge doctrine is on the increase. And that's a bad thing, he says. So, it's a good thing that the Justice Department didn't publicize the case, because it would make the Department look bad. Raphaelson said that there have always been these kind of side deals between the government and defense attorneys not to publicize a case. There are settled criminal cases that the government and the defense attorneys agree not to talk about in public, he says. There always have been these side deals. If there is a prosecution that is a bad prosecution that is settled, and I have a side deal with the prosecutors not to talk about the prosecution, I'm not going to talk about it. In my case, the government put out no press release. There was no publicity to the case. Lanny Breuer, the former special counsel to President Clinton and currently a partner at Covington Burling, agreed with Raphaelson that such a secret settlement practice exists. There is this kind of practice of keeping information about criminal cases out of the press, Breuer said. Breuer says he's seeing it increasingly with deferred prosecution agreements. That's where the government will tell a defendant -- if you are a good boy for a year, the charges will be dropped. The criminal slate will be wiped clean. The U.S. Attorney's Manual says that a major objective of deferred prosecutions -- also known as pretrial diversion -- is to save prosecutive and judicial resources for concentration on major cases. Deferred prosecution agreements were never intended for serious corporate crime cases. But that's where they are increasingly being applied. Hardly anybody knows about them, Breuer said. In fact, these are settled very quietly. Lawyers find out through the rumor mill about these settled cases that have no publicity, they'll be tipped off to it, and they'll start digging in the court records to try and find them. Breuer said that a defense attorney will go into the Department of Justice and say -- okay, we can't prevent you from giving this to the press, but we are going to say nothing, and we're hopeful that you will say nothing. And often they don't. Justice Department spokesperson Bryan Sierra confirmed that the Department doesn't always put out a press release announcing a criminal settlement -- even with a major corporation. Sierra, who called our line of questioning relatively stupid, said that we decide when to make public announcements and reporters like yourself have to check with court documents. If a defense attorney and a
Re: law and economics redux
When I was clerking on the federal district court in Chicago, there was an insurance dispute involving whether the insurer would pay under a director's and officer's liability policy for the defense of a firm that had pleaded guilty to a criminal antitrust violation and, as part of the settlement of a interstate transportation of stolen property (a custimer list) against two officers, paid a lot of money to the gov't. I drafted the opinion, referring to the firm as a beehive of criminal activity, talking about the general atmosphere of criminal disregard of the law, and referring often to the criminal liability and criminal violations. It was a summary judgment motion, granted in part, denied in part, they settled, and then the firm asked the judge to _withdraw her published opinion_ (with this language). She said, I don't issue advisory opinions. It's in the F.Supp. 2d., Richardson Electronics v. some or other insurance co. jks If they are caught red-handed by the cops, there's another way -- plead guilty or negotiate a deferred prosecution agreement and ask the government not to publicize the agreement. We've always suspected that these kinds of secret settlement side deals are happening, but never could put our finger on it. Until earlier this week, when we attended a media nosh at the Washington Legal Foundation. That's the group that takes out ads in the New York Times ripping into the Justice Department for prosecuting corporate criminals. The title of the session: Is Creative Enforcement of White Collar Criminal Laws in the Public Interest? The message that the corporate-funded think tank wanted to get out, as one paper put it: criminalizing business judgment could stagnate the U.S. economy. In the question-and-answer session, we asked the distinguished panel of white collar crime defense lawyers whether they could name a recent criminal prosecution of a corporation that should not have been brought because the theory of enforcement was too creative. Ira Raphaelson, a former federal prosecutor, and now a white collar defense attorney at O'Melveny Myers, said he had one, but couldn't talk about it. What do you mean, you can't talk about it? I promised my client that I won't talk about it, he says. It was a criminal prosecution and it's on the public record, right? Yes, but I'm not going to tell you any more about it. Was the case settled? Yes, he says. Did the Justice Department notify the press that the case was settled? No, he says. The company completed the negotiations. A lot of money was paid. I could tell you about the case, but it would be to the detriment of my client, so I won't, he says. __ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com
