Archives for July 2012

Federalist Society’s Engage Journal: When Politics Gets Personal, Does the Public Have a Right to Know?

Engage: When Politics Gets Personal, Does the Public Have a Right to Know? When Politics Gets Personal, Does the Public Have a Right to Know?

Washington Post: Blowing the whistle on the federal Leviathan

Blowing the whistle on the federal Leviathan

By George F. Will


The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert.

In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

Lars Larson Show: Dan Epstein Discussing the Free Market System

Dan Epstein – Lars Larson Show, July 18, 2012

Dan Epstein, Executive Director of Cause of Action joined Lars Larson to discuss the Free Market System. The show also focused on recent comments by Mitt Romney and President Obama on what makes a successful business. Watchdog Group Calls on IRS to Investigate Re-Branded TX ACORN Branch

Read the full article here. Breitbart

“The latest, according to the taxpayer watchdog group Cause of Action, is ACORN’s former Texas chapter, which is using “a new name and a scheme to collect donations and divert them for political use in a way that abuses tax laws governing charitable organizations.” Cause of Action has called on the I.R.S. to formally investigate the Texas Organizing Project Education Fund (TOP ED) for funneling money to the Texas Organizing Project (TOP), the former ACORN chapter, that was used to fund political activity, like soliciting support for Democrats in Texas who are running for office like Mary Ann Perez, as reported by FOX News. This, according to Cause of Action, potentially violates the group’s tax exempt status, which forbids them from engaging in any direct political activity.

In a letter to the I.R.S., Cause of Action officials wrote that “TOP is the reconstituted ACORN in Texas,” and formed “after ACORN became subject to public scrutiny, and eventually filed for bankruptcy.” According to Cause of Action, ACORN “re-branded many of its state chapters in order that those organizations could continue pursuing ACORN’s goals…”

WSAU: Wisconsin Morning News: Dan Epstein Discusses the Free Market System

Dan Epstein – Wisconsin Morning News, July 20, 2012

Dan Epstein, Executive Director of Cause of Action joined the Wisconsin Morning News to discuss the Free Market System. The show also focused on recent comments by Mitt Romney and President Obama on what makes a successful business.

Fox News: Taxpayer watchdog calls on IRS to probe re-branded Texas ACORN branch

Read the full story here/ Fox News

“Cause of Action, a nonprofit taxpayer watchdog, charged in a letter to the Treasury Inspector General for Tax Administration that the tax-exempt Texas Organizing Project (TOP), formed from the ashes of scandal-ridden ACORN, is using money funneled to it by a closely associated group called the Texas Organizing Project Education Fund for political activity.

The fund gave nearly 80 percent of its revenues — approximately $640,000 — to the advocacy group in 2010, leading Cause of Action officials to believe its reason for being is to raise charitable donations to send to TOP, which is permitted to fund political activity. TOP has used its website to solicit support for Mary Ann Perez, a Democrat running for state representative.

“Fiscal sponsorship [has allowed TOP and TOP ED] to use a loophole in the tax code to engage in improper political activities under the radar of the IRS,” Dan Epstein, executive director of Cause of Action, said to “Cause of Action is asking the IRS to investigate these groups for potential abuses of their tax-exempt status, and to hold them accountable for any violations they find.”

ABC News Reports On Cause of Action’s Suit Against the FDA

Read the full article here. ABC News

“This means the FDA can reach into your bedroom and tell you how to procreate,” said her lawyer, Amber Abbasi, chief counsel for regulatory affairs at government accountability advocacy organization Cause of Action.”The FDA taking the position that donors, even when there’s no commercial element, are ‘an establishment,’ just like a sperm bank and have to register,” said Abbasi, “this is a serious burden on the reproductive freedoms of both the recipient and the donor.”

Abbasi said her client wanted to obtain fresh donor sperm from an individual she selected and implant it herself in a process known as intracervical artificial insemination — injecting the semen into her cervix — using a syringe, which does not require medical supervision. According to the lawsuit, Doe felt it was important for the biological father to be present in her child’s life, if he or she so desired. Doe did not want to visit a sperm bank for an anonymous sample, a process noted to be “costly and burdensome” for couples looking to get pregnant…”It is a real problem for [the FDA] to treat women like Ms. Doe, who has to become pregnant by artificial insemination because she’s in a lesbian relationship,” said Abbasi…”