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Wednesday, 12 July 2006 00:00 |
The U.S. Department of Justice exploited the September 11 attacks to expand its prosecutorial power in areas completely unrelated to terrorism. Indeed, the U.S. has created perhaps the largest class of unaccountable prosecutors in history—people who seek retribution for the slightest challenge to the state’s authority. Among the targets of the post-September 11 prosecutorial rampage is Ian Norris, a retired British executive sought for trial on antitrust charges.
Norris formerly headed Morgan Crucible, a manufacturer of electrical carbon products. In November 2002, Morgan and its U.S. subsidiary pleaded guilty to criminal “price fixing” and paid fines totaling $11 million. In 2003, the DOJ’s Antitrust Division indicted Norris for his alleged role in the “price fixing”—or more accurately, having meetings and conversations with other businesses without the U.S. government’s permission.
Criminal antitrust probes are a staple of the Bush Justice Department. The Wall Street Journal reported during former Attorney General John Ashcroft’s tenure that more than 60 grand juries were convened just to investigate “price fixing”.
After a Philadelphia grand jury indicted Norris, the DOJ demanded his extradition from the United Kingdom. The 1972 U.S.-Britain extradition treaty requires the U.S. to present prima facie evidence that a crime has been committed, and defendants have a right to challenge that evidence pre-extradition. But in 2003, Tony Blair’s Labour government agreed to a new extradition treaty that, in effect, authorizes the unrestricted kidnapping of British citizens by U.S. prosecutors.
The Bush and Blair governments said new rules were needed to expedite the extradition of terrorism suspects. The new treaty eliminated the evidentiary requirements. Now, simply making an accusation is sufficient to remove a British citizen and imprison him indefinitely in the U.S. while awaiting trial. (Foreign citizens are often denied bail as “flight risks”.)
The Blair government implemented the 2003 treaty without a full parliamentary debate or vote. The U.S. Senate has yet to ratify the deal, however. Irish-American groups have objected to the new rules because they fear extradition of Irish Republican Army supporters living in the U.S. Despite the lack of U.S. ratification, the Blair government used its regulatory powers to unilaterally implement the new rules without a debate or vote in Parliament. Thus, Britain must extradite U.S. citizens under the 1972 that requires evidence, while the U.S. is free to extradite British citizens without doing the same.
It’s also worth mentioning that the actual crime Norris is charged with—price fixing—wasn’t illegal in Britain at the time the alleged activities took place. Normally, one can’t extradite someone for acts that aren’t illegal in both countries. But DOJ prosecutors argued that price fixing was the equivalent of the English common law crime of “conspiracy to defraud.” The British government has never made such an argument, however, and even in the U.S., the elements of fraud and “price fixing” are disparate.
Furthermore, the DOJ’s case against Norris is based principally on hearsay, and Norris himself was never interviewed by U.S. prosecutors, nor has he been allowed to see the evidence against him, most of which was obtained by pleas coerced from Morgan employees in the U.S.
Under the 1972 treaty, a crime had to appear on a list of major offenses to be extraditable. But under the 2003 treaty, any crime common to both countries and punishable by at least one year in prison is extraditable. This means many non-terrorism, business-related offenses are now extraditable. To that end, more than half of the U.S. extradition requests to Britain post-2003 have been for non-violent business offenses. This directly contradicts both governments’ position that the primary purpose of the new treaty was to deal with terrorism cases.
Despite all this, a British court ordered Norris’s extradition under the 2003 rules. Norris’s lawyers have appealed this decision, but the prospects aren’t good. Last month, the British House of Lords and the European Court of Human Rights denied the appeals of three other British citizens—known as the “NatWest Three”—who are being extradited to the U.S. on charges of defrauding NatWest, a British bank, in a business deal with the now-defunct Enron. DOJ lawyers are expected to seize the NatWest Three’s assets upon extradition to ensure they are unable to pay their legal bills, increasing the likelihood of guilty pleas.
The Blair government has come under intense criticism from the British press and business community over the new extradition rules. London’s Daily Telegraph led a petition drive that gathered nearly 7,500 signatures against the 2003 treaty. A committee of Scotland’s parliament denounced the treaty. And on July 12, the House of Lords voted to block future extraditions to the U.S. until the Senate ratified the treaty. (In the House of Commons, the speaker allowed an emergency debate on the issue.) Nonetheless, Prime Minister Blair has refused to block any pending extraditions and insists, falsely, that the new rules are equitable and afford accused persons due process.
Restitution, Retribution, Retaliation – and Justice
There are three possible objectives of a judicial system: restitution, retaliation, and retribution. Restitution is the ideal—compensate the actual victims whose rights have been violated by another’s conduct. Retaliation involves the broader goal of protecting society at-large from a violator, particularly in the case of physical violence. Retribution is simply vengeance, unconcerned with making the victims whole; indeed, unconcerned with the victims at all.
Retribution is based on the subjective values of the person exacting the punishment. It is about “making an example” out of someone, or simply hurting them until the prosecutor has derived satisfaction. In a libertarian system, there is no place for retribution, because it is a pretext for the initiation of force against an individual, not an act of self-defense.
The American system is far from libertarian. Indeed, retribution is now the primary objective of a government that, regardless of political party, is run by prosecutors and their adjuncts in the courts and the legislatures. Prosecutors seek to maximize their conviction rates and total sentences without regard for the justice of such actions or the effect on society. When challenged, prosecutors hide behind the “rule of law” to justify their aggression while denouncing any attempt to curtail their immense, arbitrary power.
Ian Norris is not accused of a crime, as that term is objectively defined: He is not accused of violating anyone’s rights. Instead, he is accused of not selling his company’s products in a manner approved by the DOJ. But for Morgan Crucible’s “collusion”, the DOJ argues, customers might have paid less for the company’s products. But there is no right to pay a particular price for any product. To guarantee such a “right” amounts to a government price control. To imprison individuals who refuse to honor such controls is tyranny.
Even if one defends the illegality of “price fixing”, the prosecution of Norris will not provide restitution to the purported victims—purchasers of electrical carbon products. Norris has already retired from Morgan, so he is no threat to resume his wicked “anticompetitive” activities. In fact, Norris is 63 and in reportedly poor health, having recently undergone treatment for cancer. In all likelihood, any substantial prison term would be a death sentence for Norris.
Frankly, we have to consider the possibility that hastening Norris’s death is a motive of the DOJ’s Antitrust Division, particularly Assistant Attorney General Thomas Barnett and his top criminal prosecutor, Scott Hammond. They know Norris’s case contributes nothing to their overall antitrust enforcement regime—Morgan’s guilty plea and fine was the primary objective. They know Norris is in poor health. And they also know that imprisoning Norris would be an act of torture, an act of violence designed to degrade and humiliate a fellow human being. If Norris dies in prison—or even awaiting trial—the Antitrust Division will have sent a powerful message to future targets: Challenge our authority, and you’ll end up dead.
If you think this is melodramatic, consider the behavior of U.S. officials in other policy areas. In drug policy, for example, it’s a crime for a person to use marijuana to relieve chronic pain. This is a form of torture—deliberately forcing pain upon a person to enforce compliance with a political agenda. Governments are ultimately nothing more than the exercise of force, and force generally leads to pain, suffering, and ultimately death.
Conclusion
It’s been a constant refrain post-September 11 that terrorism cannot be treated as a crime. In a sense, that’s correct, because the definition of “crime” has been watered down so much as to render it worthless. When unsubstantiated charges of “price fixing” justify kidnapping a man from his home country and imprisoning him in the U.S. for the final years of his life, “crime” is absolutely inadequate to describe the acts of depraved mass murder that took place five years ago. But that does not reflect the exceptional evil of the murderers; it demonstrates the immorality of the prosecutors who have debased the judicial system. As the Norris case demonstrates, abolishing due process in extradition cases is wicked enough, but to do so under the pretense of avenging the September 11 victims throws society into a hole from which it may not climb out of.
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