New Year's Resolution

I am not afraid of terrorism, and I want you to stop being afraid on my behalf. Please start scaling back the official government war on terror. Please replace it with a smaller, more focused anti-terrorist police effort in keeping with the rule of law. Please stop overreacting. I understand that it will not be possible to stop all terrorist acts. I accept that. I am not afraid.

The Strange Saga of Kurt Eichenwald

I was first introduced to New York Times reporter, Kurt Eichenwald when I read his book The Informant. The book is a detailed account of a price fixing scheme by Archer Daniels Midland, and the informant/cooperating witness named Mark Whiteacre who, in the words of Audophile, turned out be “a horrible liability [for the FBI and] a psychotic liar who stole millions from his employer.” Eichenwald has a mastery of the arcane details involved in an intricate plot by ADM to fix the price of Lysene, an important agricultural product. Eichenwald narrates this story through the bizarre machinations of the Government’s top witness, Mark Whiteacre. Eichenwald’s account is insightful as it makes sense not only of the arcane conspiracy, but of the various complex actors and their motivations. This is first-rate reporting by a gifted writer and a brilliant analyst.

I followed Eichenwald’s writings on white collar crime in the pages of The New York Times. He was without question their best reporter on the subject of white collar crime. The subject of white collar crime demands an understanding of arcane transactions that are often hard for laypeople to comprehend. Eichenwald managed to convey the nature of these offenses in a way that was eminently understandable.

When the corporate scandals of the late 90s broke out, it was Eichenwald to whom I turned for detailed, understandable accounts. Enron, that fine hairball of an accounting mess, was perfect fodder for Eichenwald. His book, Conspiracy of Fools, managed to convey the nature of the offenses and the parties who perpetrated them. It is probably the best and most comprehensive account of the Enron debacle.

All of Eichenwald’s books and his reporting are the products of a very keen mind. Few people can master such mountains of intricate detail and transpose it into readable form. I continue to believe that Eichenwald has a finely honed mind, attuned to the subtle details hidden in the volumes of information he has access to.

That is why the Justin Berry scandal is so distressing. This strange episode began on December 19, 2005. when The New York Times published a rather bizarre piece on child pornography written by Eichenwald. The piece was odd for a number of reasons, not the least of which was the fact that Eichenwald’s beat was normally confined to business crime. This new piece took Eichenwald to an area that did not involve white-shoe businessmen concocting complex, and illegal, ways to get more money. Instead it took Eichenwald into an even more sordid world: Child pornography.

I was perplexed by the story at the time of its publication, but I had no idea that this episode would become even more bizarre. In January of 2006 it was revealed that Eichenwald was more than just a disinterested journalist. It was also revealed that he had intervened to get the subject of the child pornography story, Justin Berry, off drugs, and out of porn, and was involved in assisting a police investigation of the purveyors. This prompted the Times’ public editor, Byron Calame, to defend Eichenwald’s actions as journalistically ethical.

In March it was revealed that Eichenwald had paid Berry two thousand dollars. Various explanations have been put forward by Eichenwald as to why he did this: it was a loan; it was to help him get out of the business, he had forgotten that he paid him; etc. The problem was that none of these rationales was defensible under journalistic ethics. Suddenly The Times had a big problem. Then it was reported that Eichenwald had made other payments to other parties connected to the story, including Berry’s business partners, under pseudonyms. Eichenwald plead faulty memory. Does this sound like the guy that made sense out of the Enron mess? Not on your life. This would not fly from any reporter in the Newspaper of Record, much less from one of its most brilliant white collar crime reporters. In October 2006 Kurt Eichenwald resigned from his position at the Times.

All this would have been bizarre enough were it not for another Journalistic institution, National Public Radio, giving voice to Eichenwald’s defense. On October 19, 2007, NPR ran a softball story by David Folkenflik that tried to tie the whole sordid affair to a secret history of “severe seizures that according to [Eichenwald’s] neurologist, he suffers from ‘significant memory disruptions.’” No effort was made to explain how Eichenwald could have employed such a sharp mental scalpel when dissecting the complexities of white collar crime while simultaneously suffering from such sloppy—but oh-so-convenient— memory lapses in regard to the Berry episode.

Eichenwald is now represented by the same criminal defense attorney that represented Berry and there is some anticipation that he will be criminally charged with violating some of the same laws that he championed.

What I find so distressing it is that the best face I can put on this episode is to others the worst possible face. As a reporter on crime Eichenwald has to go down some rat holes. Perhaps he ran into a rat hole that held too much fascination for him. Which is to say that perhaps Eichenwhald draws pleasure from this illicit practice and that he thus (foolishly) incorporated it into his reporting. Had he kept it illicit he would have continued, as did J. Edgar Hoover, to have enjoyed a respected (and well deserved) post as a NY Times reporter, albeit one with an abhorrent habit. Perhaps he wished to be exposed… all this is sheer speculation… only Eichenwald can make this clear. Unfortunately, he is not in a position to do so.

The fact is that Kurt Eichenwald is caught in a spiders’ web of lies and deceit. It is really very sad, because I respect (or respected) his reporting prior to this whole ugly episode. It may well be that Eichenwald is completely innocent and just got sloppy—perhaps out of hubris. But then, beyond the sloppiness, what would explain the lies, distortions and failure to disclose to his editors? In some cases circumstantial evidence alone can be enough to convict an accused. This appears to be one of them.

For a more detailed account of this episode a number of excellent pieces have dissected the matter in more detail than is available here:

“New York Times reporter was a member of an illegal underage porn site, claims he was only ‘posing as online predator.’” By Debbie Nathan, Sept. 14, 2007, CounterPunch. http://www.counterpunch.org/nathan09142007

“When Kurt and Justin Met Debbie,” Susie Bright’s Journal, Sept. 27, 2007, http://susiebright.blogs.com/susie_brights_journal_/2007/09/once-upon-a-tim

“Why I Need to See Child Porn,” by Debbie Nathan, Aug. 25, 2006, Salon Magazine, http://www.salon.com/opinion/feature/2006/08/25/eichenwald/

Watada Protected by Right Denied to Others

In a tightly worded opinion, U.S. District Court Judge Benjamin Settle issued an injunction precluding the Government from retrying Lt. Ehren Watada from being brought forth for a second proceeding of court-martial. The basis of the Judge's decision rested on the Constitution's Fifth amendment protection of double jeopardy which holds that an accused may not be tried twice for the same offense. Much ink will flow on the issue of whether Watada is actually entitled to the defense of double jeopardy. Lost in most of the analyses is the fact that Watada was able to invoke the aid of the Federal Courts by the writ of habeas corpus. Before any court can exercise power over a case it must have jurisdiction -- that is the legal power to entertain the claims advanced by the parties. In this instance, the entire basis for jurisdiction was the writ of habeas corpus. Were Watada considered an "enemy combatant" he would have no such right. In fact, many conservative commentators will argue that Watada did not enjoy this right given his status in the military. Kudos to Judge Settle for invoking this right in taking Watada's case. There are a great many Federal Judges who would have deferred to the military and would have refused to hear the case much less issue an injunction in favor of Watada.

Many procedural hurdles remain to be jumped before Watada is out of the woods but some observations are in order. First and foremost is the fact that Lt. Watada is taking a principled stance against an extremely unpopular war. Disenchantment with the war is not limited to the chattering classes or to the liberal left -- many in the military despise this war. Had Watada taken this stand during the first gulf war or during the so-called "Panama incursion" would he have been granted relief? I hardly think so. The reality is that he has attracted top notch legal talent and the backing of the public precisely because this war is so wretchedly wrong and appropriately unpopular. Even so I salute Lt. Watada for acting on his convictions. Many others failed to do likewise and gave this administration the tools to carry on this disastrous war.