Bruce Fein & Associates, Inc.
722 12th Street, N.W., 4th Floor
Washington, D.C. 20005
July 26, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Re: Civil Disobedience, Edward J. Snowden, and the Constitution
Dear Mr. President:
You are acutely aware that the history of liberty is a history of civil disobedience to unjust laws or practices. As Edmund Burke sermonized, “All that is necessary for the triumph of evil is that good men do nothing.”
Civil disobedience is not the first, but the last option. Henry David Thoreau wrote with profound restraint in Civil Disobedience: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine.”
Thoreau’s moral philosophy found expression during the Nuremburg trials in which “following orders” was rejected as a defense. Indeed, military law requires disobedience to clearly illegal orders.
A dark chapter in America’s World War II history would not have been written if the then United States Attorney General had resigned rather than participate in racist concentration camps imprisoning 120,000 Japanese American citizens and resident aliens.
Civil disobedience to the Fugitive Slave Act and Jim Crow laws provoked the end of slavery and the modern civil rights revolution.
We submit that Edward J. Snowden’s disclosures of dragnet surveillance of Americans under § 215 of the Patriot Act, § 702 of the Foreign Intelligence Surveillance Act Amendments, or otherwise were sanctioned by Thoreau’s time-honored moral philosophy and justifications for civil disobedience. Since 2005, Mr. Snowden had been employed by the intelligence community. He found himself complicit in secret, indiscriminate spying on millions of innocent citizens contrary to the spirit if not the letter of the First and Fourth Amendments and the transparency indispensable to self-government. Members of Congress entrusted with oversight remained silent or Delphic. Mr. Snowden confronted a choice between civic duty and passivity. He may have recalled the injunction of Martin Luther King, Jr.: “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.” Mr. Snowden chose duty. Your administration vindictively responded with a criminal complaint alleging violations of the Espionage Act.
From the commencement of your administration, your secrecy of the National Security Agency’s Orwellian surveillance programs had frustrated a national conversation over their legality, necessity, or morality. That secrecy (combined with congressional nonfeasance) provoked Edward’s disclosures, which sparked a national conversation which you have belatedly and cynically embraced. Legislation has been introduced in both the House of Representatives and Senate to curtail or terminate the NSA’s programs, and the American people are being educated to the public policy choices at hand. A commanding majority now voice concerns over the dragnet surveillance of Americans that Edward exposed and you concealed. It seems mystifying to us that you are prosecuting Edward for accomplishing what you have said urgently needed to be done!
The right to be left alone from government snooping–the most cherished right among civilized people—is the cornerstone of liberty. Supreme Court Justice Robert Jackson served as Chief Prosecutor at Nuremburg. He came to learn of the dynamics of the Third Reich that crushed a free society, and which have lessons for the United States today.
Writing in Brinegar v. United States, Justice Jackson elaborated:
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”
These, I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so
effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the
first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance
disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
We thus find your administration’s zeal to punish Mr. Snowden’s discharge of civic duty to protect democratic processes and to safeguard liberty to be unconscionable and indefensible.
We are also appalled at your administration’s scorn for due process, the rule of law, fairness, and the presumption of innocence as regards Edward.
On June 27, 2013, Mr. Fein wrote a letter to the Attorney General stating that Edward’s father was substantially convinced that he would return to the United States to confront the charges that have been lodged against him if three cornerstones of due process were guaranteed. The letter was not an ultimatum, but an invitation to discuss fair trial imperatives. The Attorney General has sneered at the overture with studied silence.
We thus suspect your administration wishes to avoid a trial because of constitutional doubts about application of the Espionage Act in these circumstances, and obligations to disclose to the public potentially embarrassing classified information under the Classified Information Procedures Act.
Your decision to force down a civilian airliner carrying Bolivian President Eva Morales in hopes of kidnapping Edward also does not inspire confidence that you are committed to providing him a fair trial. Neither does your refusal to remind the American people and prominent Democrats and Republicans in the House and Senate like House Speaker John Boehner, Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann,and Senator Dianne Feinstein that Edward enjoys a presumption of innocence. He should not be convicted before trial. Yet Speaker Boehner has denounced Edward as a “traitor.”
Ms. Pelosi has pontificated that Edward “did violate the law in terms of releasing those documents.” Ms. Bachmann has pronounced that, “This was not the act of a patriot; this was an act of a traitor.” And Ms. Feinstein has decreed that Edward was guilty of “treason,” which is defined in Article III of the Constitution as “levying war” against the United States, “or in adhering to their enemies, giving them aid and comfort.”
You have let those quadruple affronts to due process pass unrebuked, while you have disparaged Edward as a “hacker” to cast aspersion on his motivations and talents. Have you forgotten the Supreme Court’s gospel in Berger v. United States that the interests of the government “in a criminal prosecution is not that it shall win a case, but that justice shall be done?”
We also find reprehensible your administration’s Espionage Act prosecution of Edward for disclosures indistinguishable from those which routinely find their way into the public domain via your high level appointees for partisan political advantage. Classified details of your predator drone protocols, for instance, were shared with the New York Times with impunity to bolster your national security credentials. Justice Jackson observed in Railway Express Agency, Inc. v. New York: “The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”
In light of the circumstances amplified above, we urge you to order the Attorney General to move to dismiss the outstanding criminal complaint against Edward, and to support legislation to remedy the NSA surveillance abuses he revealed. Such presidential directives would mark your finest constitutional and moral hour.
Counsel for Lon Snowden
Americans are now more likely to die by their own hands than from a car accident or a murder-related incident, a grim statistic that shines a light on abusive corporate practices.
Judging by the latest data by the Center for Disease Control, something is driving Americans to become their own worst enemies: From 1999 to 2010, the suicide rate among US citizens between the ages of 35 to 64 soared by about 30 per cent, to 17.6 deaths per 100,000 people.
Suicide now ranks higher than death by automobile: in 2010, there were 33,687 deaths from motor vehicle crashes compared with 38,364 suicides.
Although suicide tends to be viewed as a problem inflicting teenagers and the elderly, the recent study shows a marked rise in the number of suicides among the Baby Boom generation (a demographic group born between the years 1946 and 1964, when the annual birthrate rose dramatically in the US).
Suicide rates soared across all four geographic areas and in 39 states. The state of Wyoming recorded the highest increase in suicides with a 78.8 per cent jump (31.1 per 100,000). Even the paradise state of Hawaii witnessed a 61.2 per cent increase (21.9 per 100,000).
Yet some believe even these shocking numbers are too low since many deaths are not treated as actual suicides.
“It’s vastly under-reported,” Julie Phillips, an associate professor of sociology at Rutgers University, told The New York Times. “We know we’re not counting all suicides.”
What’s going on here? What is suddenly pushing so many Americans to take their own lives?
The striking thing about the data is that the suicide rates really began to surge just as the Global Financial Crisis was making landfall in late 2008. While suicide rates increased slowly between 1999 and 2007, the rate of increase more than quadrupled from 2008 to 2010.
“There is a clear need to implement policies to promote mental health resilience during the ongoing recession,” said Aaron Reeves of Britain’s University of Cambridge, who submitted his findings to The Lancet medical journal.
Reeves went so far as to suggest that the Democrats and Republicans are partially to blame for failing to mention the issue during the latest presidential campaign.
“In the run-up to the US presidential election, President Obama and Mitt Romney are debating how best to spur economic recovery, [but] missing from this discussion is consideration of how to protect Americans’ health during these hard times,” Reeves warned.
Where’s the democracy?
So what else is responsible for driving up American suicide rates? Could it be the loss of democratic representation inside our corporate fortresses, those medieval-style fiefdoms that are now working overtime to control the US political process as well?
Thanks largely to the passage of the Citizens United vs. Federal Election Commission ruling (2010), transnational corporations are now entitled to donate unlimited amounts of hard cash to the political campaign of their choice without having to come clean on the expenditures. The ruling even applies to foreign corporations!
So great is the corporate footprint in the halls of power that I fear the day is close at hand when we will actually see a corporation make a run for political office. Why not? They have already been designated as bona fide individuals by our craven Supreme Court (In the book, “Unequal Protection,” Thom Hartmann persuasively explains how the 1886 US Supreme Court decision in Santa Clara County v. Southern Pacific Railroad Company case wrongfully granted corporations personhood).
“Businesses have won,” David Macaray, a labor columnist, wrote in his Huffington Post blog. “They’ve increased their production demands, they’ve extended employees’ work hours (after having-laid off a segment of the workforce), they’ve taken to issuing ultimatums, and they’ve done all of it while, simultaneously, having kept wages relatively stagnant.”
As for traditional benefits such as pensions, bonuses, sick leave and paid vacations, forget about it. Most of those have been abolished, Macaray added.
Did somebody mention a vacation? Despite all the hyped-up talk about freedom and liberty, American workers receive the stingiest vacation packages in the free – and oppressed – world. That is not because Americans have some sort of masochistic attachment to their desks, as some like to argue, but rather because we lack any sort of labor law that forces corporations to remove our chains more than once a year.
Incredibly, the United States is the only country in the world where corporations are under no legal obligation to provide their workers with a break from their jobs. Compare that sad statistic with any other country in the world, even the most totalitarian. This Scrooge mentality must change, or all of our boastful talk about democracy and freedom will be revealed as nothing more than a diversionary smokescreen to conceal what can only be described as an attack on human rights.
Why is it that other countries can readily afford to give their people a break from their jobs and still maintain high living standards?
“Germany is among more than two dozen industrialized countries from Australia to Slovenia to Japan – that require employers to offer four weeks or more of paid vacation to their workers, according to a 2009 study by the human resources consulting company Mercer,” reported CNN.
Still other countries, including Finland, Brazil and France, guarantee their workers up to six weeks off.
It seems fair to ask whether America’s lack of time away from the office is contributing to high stress levels and even sporadic episodes of domestic and workplace violence, up to and including suicide. Shouldn’t the world’s most heavily armed and medicated nation allow its people to hit the beach more than once a year?
This question brings us back to the issue of democratic representation in the workplace, which is presently missing in action.
Although organized labor is itself fraught with problems, it is nevertheless the last line of defense when it comes to protecting US workers against the insatiable greed of the corporate overlords. Thus, it should come as no surprise that US wages have been plummeting over the last 30 years at the very same time that unions are being decimated.
The total number of union workers fell by 400,000 last year, to 14.3 million, even though the nation’s overall employment rose by 2.4 million, according to data from the Bureau of Labor Statistics.
Just 11.3 per cent of the US workforce is enrolled in a union, the lowest recorded levels since 1916, when it was 11.2 percent, according to a study by two Rutgers economists, Leo Troy and Neil Sheflin, as reported in The New York Times.
Never before has the wealth divide been greater in the United States, a land that was built on the foundation of opportunity.
Between 2009 and 2011, the top 7 per cent of wealthy Americans saw their average net worth explode by 28 per cent, while the wealth of the remaining 93 per cent of the population steadily declined during the same period, according to a study by the Pew Research Center.
The average net worth of the country’s 8 million wealthiest households surged from an estimated $2.7 million to $3.2 million, the Pew study said. For the 111 million households that make up the bottom 93 per cent, average net worth plunged 4 per cent, from $140,000 to an estimated $134,000.
In 2010, the first supposed year of economic recovery, 93 per cent of all pre-tax income gains went to the top 1 per cent of the American population (that is, any household earning more than $358,000).
Meanwhile, the most affluent 7 per cent of households owned 63 per cent of the nation’s household wealth in 2011, up from 56 per cent in 2009.
These mind-numbing statistics are a mere reflection of millions of individual cases of pain and suffering wrought by the economic crisis, which seems to have only affected the middle and lower classes.
One consequence of the economic fallout is the record number of foreclosures on homes. Since 2007, almost 4 million homes have been lost in the foreclosure crisis, according to Forbes. At the same time, US home prices – except in the most affluent neighborhoods – remain essentially flat.
On top of this pummeling, Americans must digest the incredible news that many US corporations, some of which were rescued by taxpayer-funded bailout, are not paying any taxes on their earnings.
General Electric, for example, reported global profits of $14.2 billion for the year 2010, with $5.1 billion of the total deriving from its operations in the United States.
So how much did the granddaddy of US corporations pay in taxes to Uncle Sam? Nothing. Nada. Zilch. In fact, GE actually claimed a tax benefit of $3.2 billion.
How was GE able to pull off that disappearing act?
“Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore,” tooted The New York Times.
Is the rash of suicides across a broad spectrum of the American population a direct result of the wealth hoarding by the top income earners – many of them US corporate ‘individuals’? Since it is clear that Monsters Inc. have all but hijacked the American dream, not to mention the US political process, the evidence seems to point in that dark direction.
Clearly it is time for the United States to tame the beast of corporate power, and as was the case with the separation of church and state, we must prohibit business from unduly influencing our political leaders.
Our government representation is a precious and limited resource. It cannot be allowed to be squandered on entities that are already enjoying great wealth and power as it is.
Robert Bridge is the author of the book, Midnight in the American Empire, which discusses the dangerous consequences of excessive corporate power in the United States.
America is returning to what it once was. Unfortunately, I’m not referring to its former dominance as the world’s only super power or its economic peak, but rather its racist roots. How can I say that when we have a (half) black president? Just read the news.
The Supreme Court just undid 48 years of racial progress by dismantling the 1965 Voting Rights Act. It took the great state of Texas less than two hours to enact the most stringent voter ID law in the country. And now they are working furiously at redistricting their voting maps to further disenfranchise minorities. These measures were previously considered in violation of the now defunct Voting Rights Act.
Turn the page of your newspaper (or nook) and you can read about the George Zimmerman trial. Unless you are one of the 6 women jurors in the case, you’ll recall that an armed man (Zimmerman) told 911 that he was pursuing an unarmed teenager (Trayvon Martin) who happened to have wound up dead by Zimmerman’s gun. He also happened to be black. Incredulously, the police did not hold Zimmerman or even take his gun until a month of public outrage embarrassed them into arresting him.
Now the prosecution is claiming self-defense and trying to paint the 17-year-old victim as a dangerously aggressive drugged out hoodlum. I admit that I’ve been accused of painting the situation too far in the other direction in my piece “A Tale Of Two Hoodies.” But then I’m an artist visually representing the overall problem of racism, not a lawyer in a court of law distorting facts to misrepresent the actual events.
The fact that Zimmerman called Martin “a suspicious person” with nothing more to go on other than he was a black youth wearing a hood suggests racial profiling by an individual. The fact that the police initially chose not to even charge Zimmerman suggests racism in the police force. The fact that the Supreme Court made it possible for Texas, along with many other states, to create voting restrictions aimed to suppress minorities from voting suggests a racist government. Sadly, it seems America is becoming a shining example of backwards progress in social and racial justice.
The question of whether genetic material can or should be patented by pharmaceutical companies is being tested in courts both in the U.S. and overseas.
On Monday, the U.S. Supreme Court heard an appeal by the American Civil Liberties Union and the Public Patent Foundation against Myriad Genetics Inc., a Utah-based private biotechnology company that holds patents on the BRCA1 and BRCA2 genes, two genetic mutations associated with breast and ovarian cancer.
The case pits groups that want freer access to gene mutations against companies who argue that they need patent protection to recoup research and development costs.
According to Myriad’s website, approximately 7 percent of breast cancer cases and up to 15 percent of ovarian cancer cases are caused by mutations in the BRCA1 and BRCA2 genes. It says people with mutations of either gene have “risks of up to 87 percent for breast cancer and up to 44 percent for ovarian cancer by age 70.” The company’s $3,340 BRACAnalysis test identifies the mutations.
The Supreme Court decision is expected by June, and Credit Suisse analysts have said other firms would quickly enter the market if the company loses patent protection, forcing Myriad to lower prices.
“The frustration that many in the medical community have toward the way (Myriad) has profited from its BRCA patents should not be underestimated when they are given an opportunity to help find an alternative to using (Myriad) for their BRCA tests going forward,” Credit Suisse analysts Vamil Divan and Jeremy Joseph wrote in a note entitled “Assessing How SCOTUS May Move MYGN.”
Under U.S. law, a DNA sequence can be considered for patenting by the U.S. Patent and Trademark Office if the patentee alters its environment or structure. Myriad’s patents were approved because the BRCA genes were isolated from their natural environment, giving Myriad the right to prevent anyone else from testing, studying or even looking at the genes.
The American Civil Liberties Union (ACLU), which represents the Association for Molecular Pathology, argues that patents on human genes violate the First Amendment and U.S. patent law because genes are “products of nature” and therefore can’t be patented.
“By patenting the genes, Myriad obtained the rights to exclude all other medical and scientific work on the genes,” ACLU attorney Sandra Park told The Financialist. “It enforced its patents to create a monopoly on BRCA genetic testing offered to patients. It therefore faces no competition for its genetic testing services, even when other laboratories could provide testing that is more comprehensive or lower-priced.”
Myriad declined to comment, but argued on its blog that patent protection encourages innovation. In its most recent quarterly earnings report, Myriad said revenue from the BRACAnalysis test, which represented 74 percent of the company’s total quarterly revenue, was $110.3 million, a 9 percent increase over the same period of the prior year.
“Without the patents, our work would not have been possible,” the company said. “We would not have been able to raise the funds necessary to decode the genes, design and deliver the tests, interpret the results, and help patients.”
“We did not patent the genes in your body, and neither does any other company,” it continued. “Instead, we patented synthetic molecules based on the genes that were created in the lab in order to deliver life-saving tests to patients.”
In February, Australian Federal Court Justice John Nicholas dismissed a 2010 lawsuit brought by advocacy group Cancer Voices Australia and breast cancer patient Yvonne D’Arcy against Melbourne-based Myriad and Genetic Technologies, which has exclusive rights to the testing in Australia and New Zealand. The plaintiffs attempted to block the companies’ Australian patent, which covers mutations of BRCA1. No Australian court had ever been asked to consider the question of whether isolated human genes are patentable, and Justice Nicholas decided that the process of isolating the BRCA1 gene for testing constitutes a patentable action. But in his ruling, Nicholas said there was “no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent.”
The ruling means that in Australia, only Myriad can continue carrying out tests with the gene mutation. Genetic Technologies is not currently enforcing its ownership rights under patent laws, though it could at any time, potentially halting medical research and testing in Australia.
Lawyer Rebecca Gilsenan, who represented Cancer Voices Australia and D’Arcy, has said her clients would appeal. That appeal is likely to be heard later this month.
The ACLU contends that unless gene patents are overturned, scientists at universities, laboratories, and biotechnology companies will continue to face difficulty developing new tests, drugs and other information based on genetic information and sequencing.
“Genetic tests currently exist to screen the multiple genes now associated with breast and ovarian cancer, but these clinical tests cannot include the BRCA genes because geneticists would be legally liable,” Park said. “Scientists are aware of which genes are patented and choose not to pursue research on those genes for fear of patent liability. Moreover, gene patents allow a single laboratory to use its patents to control most of the data about a gene.”
Steven L. Salzberg, Professor of Medicine, Biostatistics, and Computer Science at
Johns Hopkins University, told The Financialist the argument that isolating DNA means it’s somehow different is a “very unscientific argument.”
Salzberg said there are patents on thousands of human genes already, but only a few have such a significant influence on the chance of developing cancer.
“The outcome of this case might see a whole lot of companies come out and enforce [their patents],” said Salzberg.
GAP Files Supreme Court Amicus as Detained, Tortured Whistleblowers take on Rumsfeld – Government Accountability Project
On March 11, 2013, GAP filed an amicus brief in support of a petition for certiorari to the Supreme Court in the case of Vance v. Rumsfeld. Petitioners Donald Vance and Nathan Ertel are U.S. citizens who worked as private security contractors in Iraq. Beginning in 2005, they witnessed corruption by U.S. and Iraqi officials and, from October 2005 until April 2006, reported these abuses to the FBI. When U.S. officials learned in April 2006 that Vance and Ertel had blown the whistle, the two were arrested and held at a U.S. military prison in Iraq.
Vance was imprisoned for more than three months, and Ertel for six weeks. During that time, the U.S. military detained them incommunicado in solitary confinement and subjected to enhanced interrogation techniques (aka torture), which then-Secretary of Defense Donald Rumsfeld had approved for use against detainees. Specifically, Vance and Ertel were not permitted to sleep, kept in extremely cold cells, forced to listen to loud music, deprived of food and water, denied medical care, hooded, slammed into walls, and threatened. After their torture and detention for months at hands of our government, the military eventually released them without charge. Vance and Ertel brought a lawsuit for damages against the officials responsible for their torture.
In November 2012, the United States Court of Appeals for the Seventh Circuit dismissed the suit holding that U.S. citizens are not entitled to bring constitutional damages claims against military officials. On Feb. 5, 2013, Loevy & Loevy, a Chicago-based civil rights law firm representing Vance and Ertel, submitted a petition for certiorari to the U.S. Supreme Court. GAP submitted an amicus brief – prepared in conjunction with the Emory Law School Supreme Court Advocacy Project and signed by seven other organizations – urging the high Court to grant the petition.
The brief points out the dangers in refusing to permit individual-capacity actions. Primarily, it argues that the Seventh Circuit decision leaves U.S. citizens – working abroad or at home – with no means of redress if the government tortures them, thereby granting the military absolute immunity. Given other federal statutes in place, the Seventh Circuit’s decision also means that U.S. citizens who are tortured would have less access to judicial review than non-citizens. The brief warns that if civilians are not afforded adequate judicial protections, they may choose not to serve their country abroad as military contractors. It notes that the United States relies heavily upon contractors and cannot afford to create such a disincentive. Finally, GAP’s brief argues that overturning the Seventh’s Circuit decision will reinforce the military’s adherence to the Constitution and ensure military discipline.
Right or wrong?
The ban on ‘whatever is in the seas and waters that does not have fins or scales’ is passionately supported by conservatives.
However it faces opposition from Americans who experimented with shellfish in their youth, or have relatives or friends who have eaten shrimp.
Meanwhile, Republicans are accused of making political capital by fomenting hatred against so-called ‘Godless big-city mollusc-munchers’.
But Tom Booker, from Pasadena, said: “We’re not forcing anyone to do anything they don’t want to. Why can’t you enjoy your chicken just because I’m lustily devouring a big shiny red lobster?”
Nikki Hollis, from Chicago, added: “If my friends and I want to munch on a juicy oyster, that’s what we’re going to do.
“These small-minded people are just losing their shit because secretly they want to feast on bivalves.”
The pro-shellfish lobby has accused their opponents of ignoring other verses of Leviticus which prohibit tattoos, wearing garments of mixed fabric, and homosexuality.
Norman Steele said: “Shit, I don’t care if a couple o’ dudes want to ride each other’s assholes all night – ain’t none of my beeswax. Long as they ain’t eatin’ no scallops at the same time.”
Here’s a bit of positive news for a class-action lawsuit against Goldman Sachs:
The U.S. Supreme Court on Monday refused to consider an appeal by subsidiaries of Goldman Sachs Group Inc. (GS) that sought to derail a class-action lawsuit alleging the company provided false and misleading information about mortgage-backed securities it underwrote and issued.
Institutional investor NECA-IBEW Health & Welfare Fund alleged Goldman Sachs’ investment materials for 17 offerings of mortgage-backed certificates provided a variety of misleading information, including on the practices of mortgage lenders and the appraisals of the properties backing the securities.
Goldman Sachs argued that NECA didn’t have the right to bring legal claims on all 17 offerings because it made an investment in only two of them.
Last year, the New York-based Second U.S. Circuit Court of Appeals ruled that NECA had legal standing to bring a class action against Goldman Sachs on several of the other 15 offerings even though it didn’t invest in them.
The appeals court noted that several of the Goldman Sachs’ offerings had attributes common to the ones NECA purchased.
The Supreme Court, in a short written order, let that ruling stand and rejected Goldman Sachs’ appeal without comment.
A History of Iniquity, II: How Irish Governments behaved unconstitutionally, serving the EU agenda – Indymedia Ireland
Irish Referendum Practice from McKenna (1995) to McCrystal (2012).
This is part two of a two part series.
“We will fix that Stalinist body” … Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum.
And How They Fixed It:
In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.
1. Irish Citizens as Legislators:
Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution which has been put before them by the Government of the day. Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas by the Government.
Once the Government has put a Bill before the People by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side. International best practice in referendums recognizes this.
For Governments to act otherwise is like using public money to induce parliamentarians to vote in a particular way, or offering a metaphorical box of chocolates to each voter at general election time in return for their votes. It is constitutionally quite legitimate of Governments to spend public money on the independent Referendum Commission to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was emasculated by the Fianna Fail Government in 2001 when its function of setting out the pros and cons of proposed constitutional changes was taken from it.
2. No Publically Funded Government “Information Campaigns” in the 11 Referendums Held Between 1937 and 1987:
In the 11 constitutional referendums which the Irish State held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result.
Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to wishes to bring about. But that is quite different from spending taxpayers’ money for that purpose. Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to extend its own lifetime indefinitely or to abolish the judiciary.
Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid. Clearly once a constitutional amendment has been put before the People for decision the Government which does that should be scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them regarding the implications of the constitutional change which it is within the People’s absolute right to accept or reject.
3. The Haughey Government Was the First to Act Unconstitutionally in Referendums:
The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act(SEA) referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The FitzGerald-Spring Government of the time had attempted to ratify the SEA without a referendum.
The Supreme Court forbade that and laid down the any EU treaty which provides for a significant further surrender of sovereignty to the EU had to be put to referendum, for the Irish people are the repositories of State sovereignty and only they can therefore surrender it.
The constitutional amendment to permit the ratification of the SEA would quite probably have gone through without difficulty at the time, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out “Ten Reasons for Voting Yes”. These were placed by the Government Information Bureau.
4. The McKenna Case 1995… Citizens’ Rights to Fairness, Equality and Democracy in Referendums:
In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Fianna Fail Government of the time farmed out its “Vote Yes” campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes vote, among them one which proclaimed: “A Vote No Disempowers Women” !
Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure. Her case was dismissed by Mr Justice Declan Costello in the High Court. As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.
With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on the divorce issue as the then Bruton-Spring Government.
Again she lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello’s High Court judgement of 1992. On appeal to the Supreme Court however Patricia McKenna won her case and that Court laid down the “McKenna principles” setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.
5. The Coughlan Case on Referendum Broadcasts:
The Supreme Court judgement in McKenna was given just one week before the 1995 Divorce poll and the Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to the voting.
This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign. As all the Oireachtas political parties were on the Yes-side on divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll, as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most Dail political parties were on the Yes side in these.
Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and “fair to all interests concerned” in their coverage of all issues of public controversy and debate at all times. In a referendum every citizen is naturally an “interest concerned”.
Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the days leading up to the Divorce poll. The Broadcasting Complaints Commission rejected his complaint. He sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court.
In the subsequent trial of the action in that Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and ruled that there should be broad equality in the broadcast treatment of both sides in referendums so far as free or uncontested broadcasts were concerned.
6. Dr. Garret Fitzgerald and Mr. Bob Collins… No “Stop-Watch Principle” Required:
RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Mr Justice Carney’s judgement in the Coughlan case.
However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time and old political opponents of Anthony Coughlan’s on EU matters, persuaded the Authority to insist that RTE Management should lodge an appeal. Their reasons are described by Mr Bob Quinn, who was also on the RTE Authority, in his book “Maverick: A Dissident View of Broadcasting Today” (Brandon Press, 2001). In the event RTE’s appeal failed and the Supreme Court upheld Justice Carney’s High Court judgement in favour of Coughlan.
Commentators sometimes misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by stop-watch between Yes-side and No-side proponents in referendums. This is a misunderstanding of what the judgement requires. The Coughlan case related to free or uncontested broadcasts – “party political” broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in all their current affairs programming at all times, and not just in referendums.
Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.
7. The Original Referendum Commission… The 1998 Referendum Act:
The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported.
The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums. Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions:
(a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed;
(b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and
(c) to foster and facilitate public debate and discussion on the proposal.
The Act laid down that these three functions should be carried out by the Commission in a manner which was “fair to all interests concerned”.
For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum. It needed sufficient public resources to finance that work, and common sense suggests that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However the politicians in the then Fianna Fail Government, having put through the 1998 Referendum Act, had second thoughts about the Commission’s remit when it came to its first outing, for they set the Commission an impossible task from the start.
8. The Referendum Commission’s First Outing… The Amsterdam Treaty and Good Friday Agreement Rerendums 1998:
The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed A.Coughlan some years later that Mr Justice Finlay had in mind to fulfil the Commission’s task of fostering debate and discussion by holding a grand national debate on the Amsterdam Treaty in Dublin Castle between leading proponents of the Yes and No sides and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens’ attention.
But then Taoiseach Bertie Ahern’s Government gave the Referendum Commission the Good Friday Agreement referendum – a wholly different issue – to publicise on the same day and such imaginative plans had to be scrapped. Similarly in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court.
Former Taoiseach Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: “Is not the Government looking for another constitutional amendment to give to the Referendum Commission?” This idea of a fourth proposition was dropped as the Labour Party would not support it.
There is little doubt that the Government’s motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues.
In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.
9. Removing the Referendum Commission’s Function of Setting Out the Relevant Pros and Cons of Constitutional Change … The 2001 Referendum Act:
Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern’s Fianna Fail Government decided to remove altogether the Yes/No function from the Referendum Commission and to remove also the Commission’s function of fostering and facilitating public discussion of the issues. They saw the Commission’s Yes/No function as an obstacle to reversing the People’s vote on the Nice Treaty.
Taoiseach Ahern gave a commitment to do this to the other EU Governments at the European Council meeting in Gothenburg, Sweden, in the week following the referendum when he urged them to continue with ratifying the treaty – for most EU countries had not yet done that – despite Irish voters’ No.
“We will fix that Stalinist body,” said Brian Lenihan TD to Anthony Coughlan following a debate on the Nice Treaty in Athlone College of Technology in autumn 2001. The “Stalinism” seemingly consisted in the Referendum Commission having to be satisfied that the arguments for and against in referendums had to be validly rooted in the actual amendment proposed.
To minimize public attention to their assault on the Referendum Commission the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.
This removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums. It left the Commission with its original function of publicizing a statement on what the referendum was about. And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission still has.
The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael, Labour, the Green Party and Sinn Fein voted against the Fianna Fail Government’s proposal. Those voting against included 10 deputies who became Ministers in the Fine Gael-Labour Government which assumed office in 2011.
10. The Democratic Value of the Referendum Commission’s Yes/No Function:
The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition had necessarily to be excluded from the Commission’s information material.
The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it. Obvious fallacies, irrelevancies or “ad hominem” arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.
In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change. From a democratic standpoint it is presumptuous to seek to prejudge the referendum result and predetermine the outcome by effectively taking money from one side for the benefit of the other.
There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on such grounds as cost.
A further consequence of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission’s advertisements, big-league private money had no incentive to intervene. At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all Irish referendums since 1937.
The first referendum to be held following the removal of the Referendum Commission’s function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. The Irish Government held this second referendum to reverse the result of the first, for the Nice Treaty itself remained unchanged. On this second occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that the cost of advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.
On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence – both issues being put forward as one consolidated proposition to which citizens had to vote either Yes or No, for they could not vote on each of its elements separately. If citizens wished to prevent the State joining an EU defence pact, they had to vote Yes to ratify the Nice Treaty. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to inform citizens how this dual proposition would affect the Constitution.
Quite possibly this two-propositions-in-one amendment was itself unconstitutional, but no one came forward to challenge it. The Commission carried out its new functions fairly, but the dual character of its explanations necessarily helped pile up votes for the Yes side. This was how the No vote of Nice One in 2001 was turned into the Yes vote of Nice Two in 2002.
11. Tax-payer Financed Government “Information Campaigns” Separate from the Referendum Commission’s … The 2008 and 2009 Lisbon Treaty Referendums:
In the 11 constitutional referendums which were held between the Supreme Court’s 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run information campaigns parallel to the independent Referendum Commission’s statutory-based campaigns to inform citizens what the referendums were about.
The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On that occasion the then Fianna Fail Government through the Department of Foreign Affairs issued a booklet with the title “EU Reform Treaty”. The ”Reform Treaty” was the Department’s name for the Lisbon Treaty which the booklet purported to describe. This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: “effective democratic union”, “progress and prosperity”, “peace and justice in the wider world”, “a union of values”.
Inside it summarised the provisions of the Lisbon Treaty under such headings as “increased democratic controls” and “equality between Member States”. The Foreign Affairs Department also placed newspaper advertisements featuring the booklet’s cover. These possibly had more influence on voters than the booklet itself. There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly “Vote Yes”.
Similar material was produced for Lisbon Two in 2009. Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the time that these actions did not breach the McKenna principles. Presumably too its Fine Gael-Labour successor decided to follow the Fianna Fail Government’s partisan “information campaign” when it came to the next Irish referendums. And presumably its Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher’s advice in relation to the taxpayer-financed information booklet, brochure and web-site which sought to influence the “Fiscal Treaty/Fiscal Compact.” referendum in May 2012 and the Children’s referendum in November that same year.
The booklet issued by the Department of Foreign Affairs in the Fiscal Treaty/Fiscal Compact referendum in May 2012, which was posted at public expense to all households in the State, was tendentiously selective like its Lisbon Treaty predecessor. It purported to describe the so-called “Stability Treaty”, even though the Treaty in question was generally referred to across the EU as the “Fiscal Treaty” or the “Fiscal Compact”, its full title being the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”.
The first page of this booklet was titled “What is the Stability Treaty?”. Inside it was described as a Treaty which aimed “to support growth and employment…to protect the public’s money… and to be part of a toolkit to avoid another economic crisis”. Again these were tendentious phrases which clearly amounted to advocacy rather than objective information and were legitimately open to being questioned by No-side proponents who took a different view to the Government’s on the content and effects of that treaty.
12. Re-Affirmation of the McKenna Principles as Best International Practice … The 2012 McCrystal Case:
These partisan Government “information campaigns” using public money unconstitutionally were not challenged in the Courts at the time of the 2008 and 2009 Lisbon Treaty and the 2012 “Fiscal Treaty” referendums. They were successfully challenged by Mr Mark McCrystal in the 2012 Children’s referendum.
On the eve of that referendum the Supreme Court ruled unanimously that the booklet, advertisements and web-site issued by the Government on that occasion were in breach of the Court’s 1995 judgement in McKenna. In setting out their reasons the Supreme Court judges strongly reaffirmed the McKenna principles. Irish Governments could certainly spend public money in informing citizens of the main arguments for and against particular referendum propositions, but any partisan presentation was a violation of citizens’ rights to fairness, equality, and democracy on these occasions.
The Referendum Commission was clearly the most competent body to provide citizens with neutral information which accorded with the McKenna principles. As Chief Justice Mrs Susan Denham put it:
“It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a ‘Yes’ vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.”
The Chief Justice noted favourably the recommendation of previous Referendum Commissions for the establishment of “a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.”
The Supreme Court made clear in the McCrystal case that the McKenna principles accorded with best international practice regarding referendums. In their judgements the Chief Justice and Mr Justice John Murray referred to the “Code of Good Practice in Referendums” which was adopted by the Venice Commission for Democracy through Law, an advisory body of the Council of Europe, and the Council for Democratic Elections in 2006 and 2007.
This Code included the statement that
“Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to … public funding of a campaign and its actors.”
“There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion.”
The Chief Justice also referred to Australia, where pamphlets distributed to citizens by that country’s Electoral Commissioner set out the arguments for and against proposals to amend the Australian Constitution. And she referred to UK referendum practice where an Electoral Commission can provide equal sums of public money to umbrella groups on each side in referendums. By challenging the Government’s brazen flouting of the Supreme Court’s McKenna judgement Mark McCrystal, like Ms McKenna before him, has clearly struck a significant blow for Irish democracy.
Note on Author: Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions on Irish referendums in 1987 and 1995 respectively. He was himself plaintiff in the 2000 Coughlan case on partisan referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned above. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.
Mr Quinn has decided to begin the term imposed on him now despite the fact he is to appeal to the Supreme Court against findings he acted in outrageous contempt of court orders, his lawyer said.
Having been given time to consider the matter, Eugene Grant QC, for Mr Quinn, said his client wanted to begin his jail term now as, while he was maintaining his appeal, he was also conscious of the Supreme Court’s recent decision dismissing his son’s finding against a three month sentence for contempt.
Counsel said Mr Quinn was a 66-year-old grandfather and was anxious to attend a grandchild’s christening on December 22nd next but was not eligible for remission as this was a sentence for contempt. He asked that the court agree to release him for that event.
Miss Justice Elizabeth Dunne said an application for compassionate release would have to be made to the prison authorities.
Miss Justice Dunne earlier said Mr Quinn’s contempt was so serious that she could come to no other conclusion that it mandated a term of imprisonment.
She could not ignore the extent and degree of contempt by Mr Quinn and, taking all various matters into account, including his health problems, she would impose a nine-week term.
While Mr Quinn had spoken about how the court proceedings had negatively consumed his life and that of his family, she said: “In my view, he has only himself to blame.”
It was not disputed significant assets had been put beyond the reach of IBRC, the former Anglo Irish Bank, and the position of the Quinn defendants appeared to be they were so successful in that regard, they themselves could not retrieve the assets, the judge said. However, she did not have to decide that issue now.
The situation was IBRC claimed it was owed €2.8 billion by the Quinns and, while there was dispute about that, it was accepted €455 million was owed.
The judge had said she was imposing a nine-week term but the issue of whether there would be a serious dispute about that, it was accepted the Quinns owed €455 million to the bank, she said. Putting assets beyond the reach of the bank in defiance of the court’s orders was, as she had previously found, “nothing short of outrageous”.
It was important to ensure court orders were complied with and the integrity of the court system was not set at naught by “an egregious breach of court orders”.
A stay on the nine-week term pending an appeal against the findings of contempt was adjourned earlier today after Mr Quinn’s lawyer said he wanted time to consider whether to go to jail immediately or proceed with the appeal.
Shane Murphy SC, for IBRC, had said it would agree to a stay provided Mr Quinn’s lawyers progressed any appeal urgently.
However, at 12.50 today, Mr Grant said his client would begin his term now while maintaining the appeal.
In her decision today, the judge referred to her previous findings of contempt against Mr Quinn and her rejection of his evidence in the contempt hearing as not credible, evasive and uncooperative. She had also found he had given his imprimatur to the asset-stripping scheme.
She stressed the only issue she was dealing with today was the punitive aspect of the case as coercive matters have been adjourned. She was dealing with punitive issues arising from past non-compliance with court orders.
The judge delivered her ruling in a courtroom packed with lawyers, journalists and supporters of Mr Quinn. Mr Quinn’s son Sean and sons in law Niall McPartland and Stephen Kelly were also in court.
IBRC was represented in court today by its chief executive Mike Aynsley and senior executive Richard Woodhouse.
Mr Quinn was jailed arising from the judge’s findings last June that acted in contempt of court orders made in June and July 2011 restraining stripping of assets valued up to US$430 million from companies in the IPG.
Mr Quinn told reporters following the sentence that he just wanted to get on with the sentence. He intends to appeal the ruling to the Supreme Court.
Members of the family of bankrupt businessman Seán Quinn have told the Commercial Court they are at their “wits’ end” dealing with the former Anglo Irish Bank, feel “crucified”, and want a mediation of the bitter legal dispute over the location of millions of euro of assets of the Quinn international property group.
The Quinns yesterday opposed an application by Irish Bank Resolution Corporation, formerly Anglo, for a court cross-examination of the Quinn offspring and some of their extended family to establish if they have disclosed full details of asset-stripping measures.
The Quinns contend they have but the bank claims otherwise. That matter has been adjourned to November 29th.
Mr Justice Peter Kelly said yesterday that, while he is a strong supporter of mediation, it was not appropriate at this stage given the bank’s opposition due to its belief the Quinns had not complied with court orders to fully disclose assets.
If mediation became an option later, he would do all he could to assist a mediated resolution.
Barry O’Donnell, for IBRC, said there was “no proper environment” for mediation. Some of the Quinns had sworn matters that turned out to be materially untrue and there continued to be “strong non-compliance” with disclosure orders.
It was wrong to say the bank had not engaged with the family. It had, but the engagement was “unproductive”. The bank had also set out in detail the failures of the Quinns in terms of compliance, he added.
Several of the family were in court, including Seán Quinn jnr, who was freed from Mountjoy Prison last Friday on expiry of a three-month detention period imposed for contempt of court orders of June/July 2011 restraining asset stripping.
Speaking on behalf of the Quinns, Niall McPartland, a son-in-law of Mr Quinn, objected to cross-examination and said mediation was a cheaper and faster way of addressing the issues.
The family had told the bank “for the past year and a half” that “we do not have the assets and we can’t get them”, he said.
“We are at our wits’ end” and in a very difficult position, he said. They had offered to assist the bank in its effort to recover assets. It had not taken that up and the “constant bombardment” of court orders was not helping.
While the Quinns accept they have questions to answer in the general litigation, a Supreme Court judge said earlier this week the bank also had questions to answer, he said.
The impression was being given that it was “all the Quinns’ fault” but there was “more going on than meets the eye” and the bank would not have to answer questions as long as it pursued efforts to jail the Quinns. The bank had not spelt out exactly what deficiencies were being alleged against the Quinns, he said. That was not acceptable as any cross-examination could lead to “grave consequences” such as contempt proceedings and possibly incarceration.
FOUR out of five Supreme Court judges today agreed the High Court was entitled to conclude there was “outrageous” contempt by Sean Quinn Jnr of court orders restraining stripping of assets form the Quinn’s international property group (IPG).
There was “ample” evidence to justify the High Court finding “beyond reasonable doubt” that Sean Quinn Jnr was involved in a US$500,000 payment to a Ukrainian woman, Larissa Puga, in contempt of those same orders, and it was entitled to jail him for three months concerning that transaction, Mr Justice Nial Fennelly said when giving the majority 4/1 judgment today.
Dissenting, Mr Justice Adrian Hardiman said there was no direct evidence to support the finding of contempt against Quinn Jnr and “no legally recognisable basis” for granting a request by Irish Bank Resolution Corporation to jail him so as to put pressure on his father to reverse asset-stripping measures.
The proceedings in the High Court leading to Quinn Jnr being jailed were in the nature of “a summary criminal trial conducted by a judge sitting alone”, he said.
The High Court failed to focus on the specific case made against Quinn Jnr, as opposed to his father and cousin and was not entitled, in the absence of direct evidence of the single charge against him, to lock him up on foot of evidence of a general nature he was “up to no good”.
The legal actions between IBRC, the former Anglo Irish Bank, and the Quinn family are being fought with “extraordinary bitterness” with each side considering the other had perpetrated grave injustices against it, the judge also observed. In those actions, both sides “have questions to answer”.
All five judges agreed the High Court was not entitled to jail Qunn Jnr indefinitely in an effort to procure his compliance with some 30 coercive orders aimed at reversing a wide range of asset-stripping measures when there was no finding against him concerning those other measures. The court has set aside almost all of the coercive orders insofar as they relate to Quinn Jnr.
The court today delivered judgments outlining the reasons for its 4/1 ruling last week dismissing the appeal by Quinn Jnr against the High Court finding he acted in contempt arising from the payment to Ms Puga, general director of Quinn Properties Ukraine, on the eve of the bank’s takeover of that company.
They dismissed Quinn Jnr’s appeal against the finding he was in contempt over the Puga payment and his appeal against the imposition of three months imprisonment for that but set aside her order jailing him indefinitely for failing to comply with the terms of some 30 coercive orders.
The coercive orders were sought by the bank with a view to procuring the reversal of a wide range of measures designed to strip up to $430m assets from the Quinn’s international property group so as to put them beyond the reach of IBRC, which is pursuing the Quinn family over some €2.8bn loans.
Mr Justice Hardiman disagreed and said he would have allowed the appeal in its entirety.
Next week, Ms Justice Dunne is due to review whether Mr Quinn, his father and cousin Peter Darragh Quinn have made adequate efforts to purge their contempt. Sean Quinn Jnr was freed from Mountjoy Prison training unit last Friday on expiry of the three-month detention period.