[FoRK] Obstruction

Owen Byrne owen at permafrost.net
Thu May 6 13:53:49 PDT 2004


The first article via the boingster works quite well with the opinion 
piece from slate.
Owen

http://www.nytimes.com/2004/05/06/national/06CND-TAPE.html?ex=1084868200&ei=1&en=58b7913934987a31

>
>     F.A.A. Official Scrapped Tape of 9/11 Controllers' Statements
>
> *By MATTHEW L. WALD*
>
> Published: May 6, 2004
>
> ASHINGTON, May 6 — At least six air traffic controllers who dealt with 
> two of the hijacked airliners on Sept. 11, 2001, made a tape recording 
> that day describing the events, but the tape was destroyed by a 
> supervisor without anyone making a transcript or even listening to it, 
> the Transportation Department said today.
>
> The taping began before noon on Sept. 11 at the New York Air Route 
> Traffic Control Center, in Ronkonkoma, on Long Island, but it was 
> later destroyed by an F.A.A. quality-assurance manager, who crushed 
> the cassette in his hand, cut the tape into little pieces and dropped 
> them in different trash cans around the building, according to a 
> report made public today by the inspector general of the 
> Transportation Department.
>
> The inspector general, Kenneth M. Mead, had been asked by Senator John 
> McCain, chairman of the Senate Commerce Committee, to look into how 
> well the Federal Aviation Administration had cooperated with the 9/11 
> Commission.
>
> The quality-assurance manager told investigators that he had destroyed 
> the tape because he thought making it was contrary to F.A.A. policy, 
> which calls for written statements, and because he felt that the 
> controllers "were not in the correct frame of mind to have properly 
> consented to the taping" because of the stress of the day, Mr. Mead 
> reported.
>
> Another official, the center's manager, asked the controllers to make 
> the tape because "he wanted a contemporaneous recordation of 
> controller accounts to be immediately available for law enforcement," 
> according to the Mead report, and was concerned that the controllers 
> would take a leave of absence immediately, which is standard procedure 
> after a crash.
>
> On the tape, the controllers, some of whom had spoken by radio to 
> people on the planes and some who had tracked the aircraft on radar, 
> gave statements of 5 to 10 minutes each, according to the Mead report.
>
> The center manager had agreed with the president of the local union 
> chapter that the tapes would be destroyed once the standard written 
> statements were obtained, Mr. Mead reported.
>
> Neither the center manager nor the quality-assurance manager disclosed 
> the tape's existence to their superiors at the F.A.A. region that 
> covers New York, or to the agency's Washington headquarters, according 
> to the report.
>
> None of the officials or controllers were identified in the inspector 
> general's report.
>
> Other tapes were preserved, including conversations on the radio 
> frequencies used by the planes that day, and the radar tapes. In 
> addition, the controllers later made written statements to the F.A.A., 
> per standard procedure, and in this case, to the F.B.I. as well.
>
> But when one of the controllers asked if she could review her portion 
> of the audiotape to refresh her memory before giving her witness 
> statement, she was told she could not, according to Mr. Mead's report.
>
> The quality-assurance manager destroyed the tape despite an e-mail 
> message sent by the F.A.A. instructing officials to safeguard all 
> records and adding, "If a question arises whether or not you should 
> retain data, RETAIN IT."
>
> The inspector general ascribed the destruction to "poor judgment."
>
> "The destruction of evidence in the government's possession, in this 
> case an audiotape particularly during times of a national crisis, has 
> the effect of fostering an appearance that information is being 
> withheld from the public," the Mead report said. "We do not ascribe 
> motivations to the mangers in this case of attempting to cover up, and 
> we have no indication that there was anything on the tape that would 
> lead anyone to conclude that they had something to hide or that the 
> controllers did not carry out their duties."
>
> But keeping the tape's existence a secret, and then destroying it did 
> not "serve the interests of the F.A.A., the department, or the 
> public," the report said.
>
> The inspector general also noted that the official who destroyed the 
> tape had no regrets or second thoughts: "The quality-assurance manager 
> told us that if presented with similar circumstances, he would again 
> take the same course of action."
>
> Mr. Mead wrote that this attitude was "especially troubling" and that 
> supervisors should take "appropriate administrative action."
>
> Although the matter had been referred to the Justice Department, the 
> Mead report added, prosecutors said they had found no basis for 
> criminal charges.
>
> An F.A.A. spokesman, Greg Martin, said that his agency had cooperated 
> with the 9/11 commission and that that was how the tape's existence 
> had become known at the agency's headquarters.
>
> "We believe it would not have added in any way to the information 
> contained in all of the other materials that have already been 
> provided to the investigators and the members of the 9/11 commission," 
> he said.
>
> Nonetheless, Mr. Martin said that "we have taken appropriate 
> disciplinary action" against the quality-assurance manager. For 
> privacy reasons, he said, he could not say what those actions were or 
> identify any of the employees involved.
>
http://slate.msn.com/id/2100066/
=====================================================================

> *Everyday Obstruction*
> The government finds a new way to nail old tax evaders.
> By David Feige
> Posted Thursday, May 6, 2004, at 12:38 PM PT
>
> With Frank Quattrone and Jayson Williams joining Martha Stewart in the 
> club of convicted felons this week, it has become painfully obvious 
> that if there were ever a time for an innocent person to rest easy in 
> the face of government investigations, that time is no longer.
>
> Quattrone was, of course, convicted of obstruction of justice despite 
> the fact that the stock allocation investigation he allegedly 
> obstructed resulted in no substantive criminal charges being brought 
> against him or his employer, Credit Suisse First Boston. Sound 
> familiar? That's because Martha Stewart was recently convicted of 
> lying to federal agents in an unrecorded, unsworn, and voluntary 
> interview she gave about an insider trade for which she was never 
> criminally charged, either. And retired NBA star Jayson Williams just 
> went down on cover-up charges, too—evidence and witness tampering—even 
> though the jury acquitted him of aggravated manslaughter and hung on 
> reckless manslaughter—the substantive crimes he tried to hide.
>
> Getting nailed for the cover-up is nothing new. It's happened for 
> years, Watergate being a memorable example. But the degree to which 
> almost any behavior the government doesn't like can be recast as 
> obstructionist is new. Watergate, after all, involved an actual 
> burglary. The government has always hated being thwarted and has often 
> reacted with bullying aggression. But in recent months it's gotten 
> significantly worse. The message from the government is clearer than 
> ever: Submit or we'll nail you, innocent or otherwise, for even the 
> most picayune dodging and weaving.
>
> Continue Article <http://slate.msn.com/id/2100066/#ContinueArticle>
> ------------------------------------------------------------------------
> <http://g.msn.com/0AD0000M/595520.1?%2111568?&&PID=2257005&UIT=G&TargetID=1015524&AN=11568&PG=SLANPR>
> ------------------------------------------------------------------------
>
> Obstruction of justice has basically cemented its place in the 
> law-enforcement playbook as the new tax evasion. It was on tax 
> charges, after all, that Al Capone was famously convicted, ushering in 
> an era of law-enforcement tactics premised on getting the bad guys on 
> anything that would stick.
>
> In one way, this tactic seems both just and sensible. It's hard to 
> argue that punishing someone for a crime they've actually committed is 
> anything but good. And if you can't get them for what you really want 
> to get them for, why not convict them of something else? The answer, 
> like so many in the criminal justice system, is about the 
> discretionary power and politics of prosecution.
>
> The war on obstruction represents an extremely authoritarian way of 
> thinking (not a terrible surprise given that prosecutors are the ones 
> doing the thinking). And it is a mind-set that might be well-suited 
> for attacking a corporate entity. Arthur Andersen, for example, was 
> convicted of obstruction, but not for any substantive crimes 
> concerning its Enron audits. But it is significantly less palatable, 
> and far more dangerous, when it's deployed against individuals.
>
> The ugly truth of our world is that pretty much everyone obstructs 
> everything all the time. Ever been pulled over for speeding and told 
> the officer you didn't see the sign, or that you didn't think you were 
> going that fast? Ever hidden that really embarrassing preliminary 
> draft of a memo—the one rife with typos—even though your boss asked to 
> see all of your prep work? If your boss is Ms. Fed, get ready to feel 
> the steel now. Not because of any illegal typos, but because the 
> embarrassment, or fear, or panic made you deep-six the draft.
>
> Obstruction is a knee-jerk reaction, an almost conditioned response to 
> the fear that comes from an accusation, baseless or justified. 
> Obstruction is a reflexive reaction to that horrible tightness in your 
> throat, the paranoid fear that magnifies whatever crisis you happen to 
> face—blowing it up into life or death proportions. The reality is, 
> most of us are obstructionist almost every day; and never more so than 
> when dealing with the threat of criminal prosecution. That's not to 
> suggest there is nothing wrong with this obstruction; it's just that a 
> little bit of understanding—or proportion—might be in order before 
> sending people up the river for it.
>
> Martha, Frank, and Jayson panicked. Most of us would have too. That 
> panic is human—and though it might be something we punish, it doesn't 
> merit the kind of witch hunts the government has recently engaged in.
>
> Prosecutors will argue that obstruction is a horrible crime in itself, 
> and they'll insist, as they do publicly after almost every obstruction 
> conviction, that they are enemies of deception and obstruction 
> everywhere.
>
> Hokum. When the federal government received videotapes that revealed 
> the brutalization of Muslim detainees at Brooklyn's Metropolitan 
> Detention Center shortly after Sept. 11, they had precisely the kind 
> of evidence prosecutors long for—audio and video showing the planning 
> and execution of jailhouse brutality. But just as important, the tapes 
> caught a lieutenant who had denied to investigators any knowledge of 
> the mistreatment of prisoners, talking about abusing them. More 
> obstructionist still, another prison official had ordered that the 
> incriminating tapes be destroyed.
>
> The tapes that survive revealed that many federal officers lied to 
> investigators when they denied knowledge of the abuse. These tapes are 
> far more damaging than the nonverbatim notes supposedly taken by an 
> FBI agent and ultimately used to convict Martha Stewart. Of course it 
> stands to reason that prosecutors horrified at obstruction anywhere 
> would, good to their public pronouncements, aggressively prosecute it 
> everywhere. But the Department of Justice recently decided to turn a 
> blind eye, opting not to prosecute the guards for either the 
> substantive civil rights violations, nor for the obstruction itself. 
> As it turns out, it's not really about obstruction at all—it's about 
> power and politics, and whether one will submit to both.
>
> The reality is, when it comes to prosecution, and especially the 
> prosecution of obstruction offenses, the government picks and chooses 
> among targets, satisfying goals that have little to do with the 
> underlying substantive offenses, or even the magnitude of the 
> obstruction itself. The problem is, when the criminal law holds 
> ordinary people to superhuman standards, we all become vulnerable to 
> this picking and choosing. And when the government falls in love with 
> a crime for which it can pretty much arrest, prosecute, and 
> incarcerate anyone at any time, we are none of us safer for it.
>
> /David Feige is a public defender in the South Bronx and a Soros media 
> fellow. He is currently at work on a book about the criminal justice 
> system./




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