Archive for the ‘Law’ Category

Indonesia court awards Suharto damages in Time defamation suit

Turns out I was wrong about the Suharto family:

US magazine giant Time has been ordered to pay $106m (£52m) in damages to the former Indonesian President Suharto.

Indonesia’s highest court overturned the decision of two lower courts and ruled that the Time article, published in 1999, defamed the former ruler.

Ha. Like bloody fun I was.

Suharto, who has also been accused of widespread rights abuses, filed a lawsuit with the Central District Jakarta and later the Jakarta High Court, both of which ruled in Time’s favor.

A panel of three Supreme Court judges, including a retired general who rose in the military ranks during Suharto’s administration, overturned the decisions on Aug. 31. The ruling ordered Time Inc. Asia and six employees to apologize in leading Indonesian magazines and newspapers as well as Time’s Asian, European and America editions.

I wonder who the other 2 were? Actually it’s hard to make that sort of complaint. We managed to keep Suharto in power for a good long while – I imagine most of Indonesia’s retired generals rose in the military ranks during Suharto’s administration (as the Associated Press is kind enough to characterise it).

Still and all, though. I wonder what Time does. Are they obliged to pay a fine ordered by an Indonesian court? They went to the trouble of appealing and will, it seems, try for the final move (Judicial review). I’d say I feel that I ought to learn more international law, except I’m really not that fussed.


“The safety of the whales must be weighed, and so must the safety of our warriors. And of our country.”

No, I’m not kidding. That was a quote from a 3-person panel of the 9th Circuit Court of Appeals. It seems the on-again-off-again (ad infinitum) resumption of low-frequency active sonar is on again. For now.

Seriously, our warriors? I can guarantee the safety of our warriors. Don’t make them. I ran through a small collection of the immorality of this, last time (opinions differ, of course). Since then the move was halted, and has now been un-halted. Or rather, un-re-un-halted. God knows.

I give you your judiciary (it was 2-1. I say the 2 were Bush recess appointments. I’m cynical, like that):

“We are currently engaged in war, in two countries,” said Judge Andrew Kleinfeld in the majority opinion, joined by Judge Consuelo Callahan. “There are no guarantees extending from 2007 to 2009 or at any other time against other countries deciding to engage us, or our determining that it is necessary to engage other countries.

“We customarily give considerable deference to the executive branch’s judgment regarding foreign policy and national defense,” the court said.

In dissent, Judge Milan Smith said the nation’s environmental laws apply to the armed forces. He said the Navy is conducting similar tests all over the world and would suffer no hardship by delaying its Southern California exercises until it adopts adequate protective measures.

“There is no ‘national security trump card’ that allows the Navy to ignore (the environmental law) to achieve other objectives,” Smith said.

Anyone who can say, in earnest, that they “give considerable deference to the executive branch’s judgment regarding foreign policy and national defense” ought to be placed a million goddamn miles from any sort of decision-making. They shouldn’t even be trusted to feed themselves.

The ruling can be read here (.pdf).

I think when your country is engaged in war in two countries and, say, Hitler and Hirohito aren’t around, your executive has pretty much fucked up on diplomacy and national defense. In this instance, though, the judges get to be the judge. Literally. Also hilarious was the reason for over-turning the ruling of the lower court:

In her ruling, U.S. District Judge Florence-Marie Cooper said the underwater sound waves could harm nearly 30 species of marine mammals, including five species of endangered whales. She said the Navy’s planned protective measures were “woefully inadequate and ineffectual,” and cited the Navy’s estimate that the tests would cause 466 permanent injuries to whales.

The appeals court said Cooper had failed to consider the need for military preparedness.

Finally, someone is being criticised for failing to consider the need for military preparedness. Wait…

Just to round out:

There are many steps the Navy could take to lessen the harm to the whales and other marine life, Jasny said, including measures that foreign navies and even the U.S. Navy itself have used in the past.

The Navy had been allowed to conduct sonar tests in the area in previous years while taking such steps as using lookouts and reducing sound levels when whales were spotted, or during conditions that allowed sound waves to travel farther than usual.

Navy officials have dropped most of those measures from the current tests, apart from the continued posting of lookouts. The California Coastal Commission, which reviewed the testing plans, concluded in January that additional protections were needed, such as steering clear of the Channel Islands National Marine Sanctuary and the annual migration path of the gray whales.

The Navy said it was not bound by those conditions and declared that its tests would cause no harm to marine mammal populations.

Gureck, the Pacific Fleet spokesman, said the Navy “employs extensive mitigation measures, approved by the National Marine Fisheries Service, to minimize the risk to marine life whenever active sonar is used.”

That’s the same National Marine Fisheries Service, by the by, that’s being sued by the Natural Resources Defense Council, “about an incident of mass stranding of whales under the Freedom of Information Act because the Council thought it had to do with navy sonar use. The Service did not want to release the materials, saying they were protected from disclosure because they were discussions of agency decision-making.

Hey, look on the bright side. At least you’re not a whale.

John Howard needs at least 2 more terrorist attacks and he might win

That, at any rate, is my reading of the latest poll by Roy Morgan International.

The latest face-to-face Morgan Poll finds that primary support for the Coalition Government is up 4.5% to 40.5%. Primary support for the ALP is down 3% to 47.5%.

With preferences distributed as they were at the 2004 election, the two-party preferred vote is ALP 55% (down 4%), L-NP 45% (up 4%).

If an election had been held during the last fortnight the ALP would have won.

On the important question of who the electorate “think will win” the next Federal election, 52% (up 2%) think the ALP will win, 34.5% (down 2.5%) think the L-NP will win and 13.5% (up 0.5%) can’t say.

Among the minor parties support for The Greens is 5.5% (down 1.5%), Family First 2% (up 0.5%), Australian Democrats 1.5% (up 1%), and Other Parties and Independent Candidates 3% (down 0.5%).

Now, 55.5% (up 4%) of electors think Australia is heading in the “right direction”, 30% (down 1%) think Australia is heading in the “wrong direction” and 14.5% (down 3%) are undecided.

Currently, 19.5% (down 1%) of all electors are Soft ALP voters: Soft ALP voters are defined as those who said Australia is “heading in the right direction” as well as saying they would vote Labor if an election were held today.

Roy Morgan numbers

Using a national cross-section of 1,780 electors (enrolled to vote), and an interview dates 5 days after, and 12 days after, the arrest of Mohamed Haneef. That Howard benefitted from that arrest is not surprising – but he didn’t benefit much, and that benefit will wash away by an election (an election that the majority still expect Labor will win). Moreover, from today’s Sydney Morning Herald,

Commissioner Mick Keelty has defended the Australian Federal Police (AFP) against allegations of incompetence following apparent flaws in the prosecution case against Mohamed Haneef.

Mr Keelty today urged lawyers and the media to stop commenting on the case against the Indian doctor charged with recklessly providing support to a terrorist organisation.

Mick Keelty is the AFO boss, by the way – this isn’t independent defence, or anything. First, though, and I cannot believe this is required, “recklessly providing support to a terrorist organisation”? Are you fucking kidding me? Is there a lesser charge of providing support non-recklessly, or is that not even illegal? He wasn’t picked up for speeding through a red light, for Cliff’s sake. Please, please tell me this is just terrible ‘journalism’ and not the actual charge.

Secondly, and relevantly, Keelty is asking newspapers to stop criticising them? Touchy. Howard, however, should be watching his polling bump flatten out a little with each such story – especially if the case comes to look ever weaker, or is mis-handled further. Any government can arrest a man. It’s the ability to prosecute them that will make us feel safer. Meanwhile, criticism flies: here, here, here, etc. Howard must be sitting in a corner, crying heigh ho for Phillip Ruddock to have his old job back.

Meanwhile, another little piece in the Roy Morgan numbers:

Special Roy Morgan Qualitative research, released earlier this week, found a large number of Liberal Party supporters continue to refer to wanting a stable, experienced Government as the main reason for their support, whereas a significant proportion of ALP supporters said they intend to vote for Labor because they are dissatisfied with the industrial relations laws, the War in Iraq, with many saying it is ‘time for a change’.

It’s hard to know what to make of this. Obviously if one not supporting the Liberals there are reasons aplenty why not. If one is, one is going to need/want a reason – stability is as good, and non-specific, as anything. But stability? Even leaving aside entirely the economic numbers: inflation, food, fuel, mortgages, rent (equals “not stable”), what about Team Howard/Costello itself?

A new biography on the Prime Minister has dug up some tremendous stuff on just how petulant the Treasurer is.

That is mild compared with the frank assessment the Treasurer gave of Mr Howard’s fiscal abilities in two interviews for a prime ministerial biography.

In it, he says that the Howard treasurership was not a success in terms of interest rates and inflation, and adds that Mr Howard had not been a great reformer.

But that’s nothing. Did you know Howard has never invited the Treasurer to dinner? And re-vented about it to said biographer. The Age’s perspective matches that of most people:

But there has always been the unspoken understanding that though a treasurer might seethe, he either keeps it within or, like Mr Keating, tosses aside all pretence and goes for the kill.

Mr Costello has taken neither path. In stripping away the facade of harmony at the top, he had most of all harmed his own standing within the terror-stricken ranks of the party.

Crikey’s matches mine:

We did not need Peter Costello to tell us that he’s not like Paul Keating. If he was he would be Prime Minister today.

Paul Keating, for the uninitiated, was Bob Hawke’s Treasurer, until he challanged for leadership, won, and because Prime Minister. Costello’s lot is similar to that of Gordon Brown. Eventually you are gutless. If you want the top job badly enough, take it. If you haven’t the courage, shut up and do the job you do have, and stop making trouble. Stability, you were saying? What the biography presents is a picture of a child who would be Prime Minister. Who’d want him?

UPDATE: Rather than write anew: Peter Hartcher of the Sydney Morning Herald has written quite a good piece about this, in relation to the election.

The downfall of Citizen Black

While I was busying myself being lazy, Conrad Black was indeed convicted, on four counts of fraud. Not on racketeering, unfortunately – seriously, if I was to go to gaol for fraud, at least send me in as a gangster. He still faces, in this story, up to 20 years. In the article(s) I saw yesterday, he was facing up to 20 to 30 years, so. The lack of the racketeering conviction, an anomaly of being tried in the US anyway, may not make a difference to him being in gaol for the remainder of his life.

The Guardian today is suggesting that prosecutors are asking for 15 to 20 years, but that he may get as few as 5. They are running quite a good show on the aftermath. This blog-post heading is theirs, and I suspect the Citizen Kane reference is, given the life and crimes of Lord Black, deliberate.

Good for Patrick Fitzgerald, anyway. At least it might take his mind of the circus-like Libby Pardon, etc. saga in Washington.

The sentencing will be the interesting part. That he embezzled piles of money from Hollinger International was a given, as far as I could tell. My previous posts about this have compared his crimes to the likes of Jeffrey Skilling at Enron, as well as mafia bosses specifically, and how differences in the crime, the motive and the victims could nevertheless land them with similar sentences.

The big question was, is the crime (i.e. the impact on victims) to be punished, or the intent? The explanation of his sentence will reveal the Judges’ views on that question. In the end, though, Black has been convicted of neither tax evasion nor racketeering – the big-penalty charges – and of embezzling only USD6.5m, rather than the USD60m claimed in the suit. Meaning Lord Black is to be punished for far fewer crimes than the rest of us probably think he committed (and isn’t that always the way?).

Sadly, sentencing is not until late November. The way we are these days, we’ll forget who Conrad Black even is by then.

Conrad Black is no mafia boss – but he does have the world’s most deliberative jury…

Jurors in Chicago will reconvene on Monday morning – for what will be their eighth day of deliberations.

Lord Black is facing nine counts of fraud, one of obstruction of justice and one of racketeering.

I don’t know how long it should take a jury to decide these things. It seems like a lot of charges, but they all relate to the same behaviour (and the racketeering is an American thing).

Again, nobody in the US gives a shit. The Canadian and UK media are all over this (think Enron, for scale of interest). I wouldn’t expect too many US journalists to be amongst these crowds:

BBC pic

freemedia pic

In fact the reason Lord Black is being tried in Chicago is because his former company, Hollinger International, was based there. Funnily enough, being in Chicago, he’s downstairs from a far more interesting trial – the mafia!

…while the former chief executive of the Hollinger press empire waits to hear whether he will go to jail, a new trial has begun in the same court building.

Four former mafia bosses stand accused of a lifetime of involvement in organised crime.

They are all in their 60s and 70s. The oldest – Joey “the Clown” Lombardo – is 78.

The offences alleged include 18 murders.

Yeah, that’s way more interesting. If convicted on the racketeering charge, though, Black goes to gaol for just as long – I compared Black to Jeffrey Skilling a few days ago, for the same reasons. This makes that racketeering charge a cool one, because it carries with it the big penalty (20 years), which is why Black and Skilling, for all the differences in their crimes, face similar penalties.

Lord Black must wish by now that he had based his company somewhere else. In the UK, they might have just given him Jeffrey Archer’s old room in Hollesley Bay for a few years…

The suing of critics. Or, bloggers being seen in court.

Being Australian, I’m of course aware of ‘the’ story about lawsuits against critics – an Australian restaurant critic sued, successfully, by his target:

In 2003 the food critic Matthew Evans gave a Sydney restaurant nine out of 20. Particularly affronted by the limoncello oysters, he’d used adjectives including “unpalatable” and “wretched”. When the owners sued, a four-person jury found the comments weren’t defamatory; but on appeal the NSW Court of Appeal found the jury’s verdict unreasonable. Last week the High Court agreed.

Harsh – why the lawsuit?

The restaurant closed within months of the review, with its owners blaming the comments for its demise.

In a 6-1 decision, the High Court decided that the review was an attack on the restaurant as a business.

“Business capacity and reputation are different from personal reputation,” the court judgement said.

Americans will be more than familiar with the line about “chilling effects.” In fact, this was a particular kind of lawsuit, principally because it went to the High Court and the speaker of the words lost. Australia does not have a bill of rights, like the Americans used to have (a cheap shot, but a dead-accurate one), so it would play out a little differently, perhaps, here? Hard to say. You can (and will) be sued for calling for a boycott of a given commercial enterprise, for the same reasons that our High Court found in favour of the restaurant: attacks on businesses are not cool (apparently).

The other kind of lawsuit, including bloggers (as opposed to ‘real’ journalists, like food critics in newspapers), is the silencing attempt. This includes (so far)

The list continues, but I will not. I’m already bored with looking stuff up online. That last one, though, included a general call for ‘the courts’ to ‘crack down’ on bloggers. We dangerous anarchist … whatevers (now that Bill O’Reilly is more concerned with lesbian gangs than our vast left-wing conspiracy, I can’t raise the energy to maintain the appearance either).

This all occurred to me today, as my wife and I went to a very odd exhibition downtown. Now I’m an economist, so I won’t comment on whatever the hell it was – it was a long, long way from my thing. My wife is an Arts student, though, so she did. Try not to share that link too much. The mere words ‘conjugal’ and ‘visit’ brighten the missus’ eyes, but it doesn’t appeal to me terribly.

Fortunately this exhibition is free – so the artist would be hard-pressed demonstrating any great injury (also my wife’s blog is not a newspaper, so there’s an audience issue – basically I don’t fear a lawsuit). The essential question, however, remains. In the initial case of the Australian food critic, for example. He visited the restaurant twice, and had some very unkind things to say about their food both times. Like don’t eat it. They did poorly, and he we are. Two things here are relevant:

One: Causality

Can the restaurant demonstrate that the people who didn’t come to their restaurant did so because of this reviewer? Frankly, I’d be surprised. Judges (in countries where they aren’t political appointees – United States, I’m looking in your direction) are smart, but they aren’t likely to be economists or econometricians, so they’re probably light on the amount of skepticism I would prescribe for this sort of claim. Many visitors to the restaurant could have told their friends that it was terrible.

Two: The markets vs. Command and Control

This is where my economist…ness (?) really comes to the fore. The High Court’s decision says to food critics, “don’t call food at a restaurant unpalatable or it’s your ass.” It isn’t about freedom of speech – they’re bloody critics, and I have little respect at all for professional critics, I have to say. If you as a restaurant don’t want to be reviewed, don’t. Surely critics dine either at your invitation or with your permission, professionally. The response was predictable:

Critics have cried foul, saying their opinions could now become as banal as the food at the heart of the case was reported to be.

“If a poor review leads to diminished returns at the box office of the theatre, are we now going to say that it is due to the review and not to the quality of the work?” veteran critic Leo Schofield told reporters.

I agree, almost for the same reason. More importantly, this is regulation where I don’t think it is warranted, which is inherently a bad thing. Here’s the market solution:

  1. Critic gives a bad review, generating two sets of information: Good signals from the Restaurant, bad signals from the critic.
  2. Consumers will start here, and aquire more information. Ask around, read other sources. Other critics may go to the restaurant – they may agree with the first critic, or disagree.
  3. If the consensus is that the restaurant is bad, it will fail. If the consensus is that the restaurant is good, that critic will fail.
  4. Repeat.

That is rather grossly simplified, for purposes of exposition. It is also a very neo-classical perspective on the market, and takes a very long-term view.

If the critic’s claim was wrong, people will figure that out. The restaurant went under, though, suggesting people worked out that the critic’s claim was correct. Didn’t the restaurante invite other critics as soon as they saw a problem? If they knew he was wrong, why not? They could have balanced the signals in the market, properly informing consumers. Ultimately the restaurant probably failed because a source of information arose that identified a poor product to potential consumers, and no contra-indicating signals came along to save them.

This probably seems cruel, and it is – in ‘my’ system, critics will get too much clout, certainly amongst easily swayed readers (the ‘smart’ metropolitan newspapers, I’m looking in your direction), and restaurants will fail when they couldn’t overcome a bad review. That’s the way it goes. We don’t sue our lecturers (thank God!) for giving us an ‘F’ when we had a bad day for the final exam – having a bad break is the chance you take with any endeavour.

That’s how the market works, it is how it has always worked. The High Court cannot tell you good or bad places to eat. On aggregate, restaurante reviews (possibly) can. As I said, I can barely tolerate critics in newspapers I don’t read, so none of this affects me directly, but it is illogical from the perspective I/we have on the interactions of consumers and producers (i.e. the market).

Remember Christopher Walken’s immortal lines from the Suicide Kings:

That phone call I got, it came from outside high walls and fancy gates; it comes from a place you know about maybe from the movies. But I come from out there, and everybody out there knows, everybody lies: cops lie, newspapers lie, parents lie. The one thing you can count on: word on the street … yeah, that’s solid.