Thursday, November 6, 2014

Justice Compared and Denied

Ius est ars boni et aequi. (Legal justice is the art of the good and the fair.)
A Latin Saying

The great thing about living in the United States is that if you’ve gotten caught up in the military or criminal justice system you can go to court to seek redress. That’s a lot different from the way it is in places like Iran where you can be arrested and held indefinitely without access to a lawyer or even knowing what charges you face. And while incarcerated in Iran, you may lose weight because Iranians, unlike Americans, are not concerned with weight loss of inmates. Examples of this in Iran are Jason Rezaian and Yeganeh Salehi who were arrested in Tehran.

Jason and Yeganeh were working in Tehran as correspondents for the Washington Post and the United Arab Emirate’s National newspaper when arrested on July 22, 2014. When Yeganeh’s parents visited the couple in prison in September they are reported to have said that the couple had lost a “shocking” amount of weight since their arrest. (Yeganeh has since been released on bail but her husband remains in prison.) The couple does not face any charges although the Iranian government is still looking around for something with which to charge them. While imprisoned they were not permitted to see any lawyers which makes sense since, if they are not facing any charges, there is no need for a lawyer whose goal would be to prove that they are innocent of the charges.

Samir and Jihad are lucky that they live in Guantánamo rather than Tehran. Even though they have not been charged with any crimes and never will be, they have lawyers who are helping them deal with issues that concern them. One of the issues that concerns them is the government’s efforts to make sure that if family members of either of the men come to visit, they will not be shocked at the weight loss suffered by the men.

On April 15, 2013, an op-ed piece appeared in the New York Times% written by Samir. Like Jason and Yeganeh, Samir has never been charged with a crime and, accordingly has never been tried. As of November 3, 2014, he has been held at Guantánamo for 12 years 10 months without charges. In 2010 Samir was recommended for release to Yemen or some third unnamed countries provided certain security conditions were met. They have not been met and so Samir is still at Guantánamo with no prospect of being released. In the op-ed piece Samir described in lurid detail the efforts made by the authorities in Guantánamo to make sure he doesn’t lose weight. Describing what happened when he was in the hospital because he refused to eat he said: “eight military police officers in riot gear, burst in. They tied my hands and feet to the bed. . . . I spent 26 hours in this state, tied to the bed. During this time I was not permitted to go to the toilet . . . . I was not even permitted to pray. . . I am still being force-fed.” The good thing, of course, is that he is not losing weight.

Jihad has been held at Guantánamo for 12 years 3 months as of November 3, 2014. He was recommended for transfer in January 2010 without the conditions imposed on Samir. He has been represented by lawyers in his attempts to drop out of the anti-weight loss program. On May 23, 2014, Judge Gladys Kessler ruled that the federal government could continue Jihad’s participation in the program even though he did not want to participate unless the forced feeding took place in a hospital where it could be humanely administered. As she observed, he was willing to be force-fed if “he could be spared the agony of having the feeding tubes inserted and removed for each feeding, and if he could be spared the pain and discomfort of the restraint chair.” She said if that were done the litigation over whether he could be force-fed or permitted to die could be litigated in a “civilized and legally appropriate manner. The Department of Defense refuses to make these compromises. Thanks to the intransigence of the Department of Defense, Jihad may well suffer unnecessary pain from certain enteral feeding practice and forcible cell extractions.” Another hearing was held before Judge Kessler in early October to once again address the question of the kind of treatment to which Jihad was being subject in connection with his force feeding. In a lengthy piece in the New York Times, Joe Nocera describes some of the testimony given at the hearing to enable the judge to decide whether the force-feeding procedures being used violated medical protocols and might even be considered torture. As this is written, the judge has not yet ruled. Here is what we do know.

Unlike Jason, who is nervously waiting to see what charges, if any, will be filed against him, Samir and Jihad don’t need lawyers to help defend them against charges since none will ever be filed. Unlike Jason, neither man will be losing any weight, thanks to the compassionate concern of the Guantánamo jailers. Here’s one thing all the men have in common even though Jason is being held by Iranian authorities and Samir and Jihad are being held by American authorities. None of them knows if he will ever be released alive from confinement. Some Americans are appalled by this. For good reason.

Thursday, October 30, 2014

Murder for Hire

bq.These, in the days when heaven was falling. . .
Followed their mercenary calling
And took their wages and are dead.
— A. E. Housman, Epitaph on an Army of Mercenaries

At first blush it seemed like a great idea and the only question it raises is why in the world no one in the administration suggested it. Of course its mention causes the reader to contemplate the not so savory role in Iraq of Blackwater, a firm founded and formerly headed by Erik Prince and that contemplation explains why it’s not as good an idea as it at first seemed. It also explains why Mr. Prince’s assertion that the October 22, 2014 verdict against four of his former employees was politically motivated is not believable.

A Congressional Report found Blackwater personnel were involved in almost 200 shootings in Iraq between 2005 and 2007. December 24, 2006, a drunken Blackwater guard shot one of the men guarding Iraq Vice President Adel Abdul Mahdi. February 4, 2007 an Iraqi journalist was killed%, February 7 three men guarding an Iraqi state television station were killed, September 9 five people near a government building were killed, September 12 five people were wounded in eastern Baghdad and, on September 16 seventeen Iraqis were killed in Nisour Square, shootings for which the verdicts of guilty against Blackwater employees were returned on October 22, 2014. In addition to having been accused of shooting many Iraqi civilians while in Iraq, the company earned more than $1 billion.

On February 25, 2010 Senator Carl Levin wrote a letter to Attorney General Eric Holder asking him to investigate whether Xe (Blackwater’s new name) made false or misleading statements when bidding for a contract in Afghanistan. He also wrote Secretary of Defense Robert Gates describing corrupt practices the company might have engaged in and requesting its activities be investigated. He said the Department of Defense “should review the transcript of this hearing and consider the deficiencies in Blackwater’s performance . . . before a decision is made to award the police training work [in Afghanistan] to Blackwater.” On June 21, 2010 it was reported Blackwater had been awarded a $120 million contract for providing “protective security services” at new U.S. consulates in Afghanistan.

A few days before the October verdict against the Blackwater defendants was returned, Mr. Prince came up with his good idea. He suggested that if the United States was unwilling to send in ground troops to combat the Islamic State, it should “let the private sector finish the job.” Although finishing the job seems like an optimistic description of what is required to defeat Islamic State, that does not take away from the appeal of Mr. Prince’s suggestion since it obviates the need for both U.S. and other foreign troops to get into what is sure to be a difficult task with a multitude of political problems.

Readers may wonder why the U.S. ever uses private contactors. It was all explained by then CIA Director, Leon Panetta, in a 2010 interview on ABC news. He said that in a war zone “we have needs for security. . . . Unfortunately, there are few companies that provide that kind of security. The State Department relies on them. . . . to a certain extent. So we bid out some of those contracts. They [Blackwater] outbid everyone else by about $26 million.” Private contractors are still an integral part of our efforts in Afghanistan. In an interview with Rachel Martin on NPR on October 26, 2014, one of the guests said that as recently as late summer the United States had 35,000 troops on the ground in Afghanistan and 52,000 private contractors.

Mr. Prince is now chairman of Hong Kong-listed Frontier Services Group, that operates in Africa and provides “innovative, cost-effective, sustainable solutions to [clients] logistical, infrastructure, transport, and supply chain challenges. We are bold in our approach, agile in our response, and resourceful in our solutions.” Notwithstanding his former company’s record in Iraq, he still sees the benefit of private armies such as the one he used to run. In a column he wrote entitled “Thoughts on Countering ISIS” he said: “If the old Blackwater team were still together, I have high confidence that a multi-brigade size unit of veteran American contractors or a multi-national force could be rapidly assembled and deployed to be that necessary ground combat team. The professionals would be hired for their combat skills in armor, artillery, small unit tactics, special operations, logistics, and whatever else may be needed. . . . If the Administration cannot rally the political nerve or funding to send adequate active duty ground forces to answer the call, let the private sector finish the job.”

If it were not for memory, that might seem like a great idea. Memory of Blackwater’s conduct in Iraq, however, remains with us.

Thursday, October 23, 2014

Heather and the Alfalfa Sprouts

“If the law supposes that,” said Mr. Bumble. . . “the law is a ass, a idiot.”
— Charles Dickens, Oliver Twist

As a reward for those who read my musings faithfully, I am always pleased when I can give them information that may prove to be of financial benefit to them. This week’s offering falls into that category. It will benefit those who (a) do not read legal notices in their local newspapers carefully or (b) those who live in areas where the legal notice I describe, did not appear. It pertains to the class action settlement that has been entered into by a company known as Jimmy John’s LLC and Heather Starks. Heather was the plaintiff in the lawsuit that has now been settled who, with the of help lawyers, vindicated the rights of all those, who like her, were outrageously treated by a Jimmy John’s in Los Angeles.

Jimmy John’s Gourmet Sandwiches is a store that sells gourmet sandwiches of all sorts. A review of its menus online discloses that it has such tempting offerings as “The J.J. Gargantuan® that was invented by Jimmy John’s brother Huey and is huge enough to feed the hungriest of all humans. Tons of Genoa salami, sliced smoked ham. . . .” In addition to the huge sandwich it also has an array of 8” subsandwiches” and “Plain Slims.” Summoning pictures of the sandwiches on the computer screen discloses an array of mouthwatering sandwiches that cannot fail but appeal not only to the hungry but to the viewer who anticipates being hungry at some undefined time in the future. Sad to say, one of the descriptions of its vegetarian sandwich had what turned out to be a costly error. The description said that the vegetarian sandwich it was offering customers included, among other vegetarian delicacies, alfalfa sprouts.

On a fateful day in February 2012, Heather Starks entered a Jimmy John’s looking for a vegetarian sandwich that included alfalfa sprouts. To her delight, she saw such a sandwich on the menu and proceeded to order it. Then a bad thing happened. Heather was given the vegetarian sandwich and to her surprise and dismay THERE WERE NO ALFALFA SPROUTS in the sandwich. Only someone who likes alfalfa sprouts and has ordered a vegetarian sandwich because that sandwich contained alfalfa sprouts can imagine her distress. I do not know if she ate the sandwich notwithstanding her distress or simply refused to accept it and left the store. There is one thing we do know, thanks to the legal notice in the newspaper. She went to see the law firm of Shenkman and Hughes in Malibu, California.

When Heather met the lawyers, she described the terrible thing that had happened to her at Jimmy John’s. It is not clear whether the lawyers were vegetarians but they related to Heather’s distress. Just as Jimmy John’s was creative in creating sandwiches, the lawyers she consulted were creative in deciding how best to help Heather. They concluded that if Heather’s sandwich did not include alfalfa sprouts, there were probably hundreds, if not thousands, of other customers who had ordered vegetarian sandwiches expecting to find alfalfa sprouts who had been disappointed by their absence. As soon as the lawyers came to that conclusion they did what any good lawyer would do. They filed a class action suit on behalf of everyone who had ordered a vegetarian sandwich at Jimmy John’s and not received alfalfa sprouts. According to a description of the suit and its settlement in the “National Law Journal”, they alleged that Jimmy John’s had engaged in intentional and negligent misrepresentation, interference with contract, fraud and, in addition, had violated certain California statutes. Because the lawyers were good lawyers, the suit has now been settled on terms very favorable to Heather and the lawyers who represented her, as well as all the disappointed alfalfa sprouts customers.

According to the report in the National Law Journal, the lawyers will be paid $385,000 for fees and expenses. Heather, whose righteous sense of indignation is what brought this egregious omission to the world’s attention, will receive $5000. None of that is the best part of the settlement, however. Since this was a class action, anyone who submits a claim to the court showing that he or she ordered a sandwich “listed on the menu as containing alfalfa sprouts at a Jimmy John’s between February 1, 2012 and July 21, 2014” will share in the settlement. If the claim is approved the person making the claim will “receive a voucher good for the purchase of a side order (pickle, chips, or cookie) or soda.” Readers wanting more details about the settlement and the notice they need to file can go to

Although I am sure that Jimmy John’s was represented by excellent lawyers I would, nonetheless, offer Jimmy Johns one piece of free legal advice that will help it avoid future lawsuits like the one involving the sprouts. It should change the description of the Gargantuan® so that it refers to “lots of salami” rather than “tons of salami.” Without such a change, Jimmy Johns may find itself back in court defending a claim by another dissatisfied customer.