Monday, August 29, 2005

Given a Choice Between Science and GOP Primary Voters, McCain Chooses GOP Primary Voters

My editor ran a cartoon with my column (Pat Robertson holding a gun, licensed to kill, the 007 Club; hey, it was his choice, not mine) even though Robertson was just the appetizer for the column's McCain main course. That meant he cut out the tag line at the end, but I think I'll reinsert it. You can see the cartoon (and the newspaper version of the column) here. Weird headline, too.

Now that Arizona's senior senator has endorsed teaching "intelligent design" and come out in favor of a state constitutional amendment to ban gay marriage, does all this pandering to right-wing GOP primary voters finally mean that we can stop with the hagiography? Please?

East Valley Tribune, Aug. 28, 2005

The Palm Beach (Fla.) Post had the best reaction to Rev. Pat Robertson’s most recent foray into foreign policy, his televised comments last week that it would be “a whole lot cheaper” to assassinate Venezuelan president Hugo Chavez than to spend billions to invade the country. They called their editorial, “Who Would Jesus Whack?

There are at least two different business books lauding management principles supposedly gleaned from watching The Sopranos. But I didn’t realize that the Reverend was working on a companion volume, which would be the second version of “The Gospel According to Tony” (as preached to the Bada Bing congregation.)

Robertson first tried to explain away his comments by noting that he never used the magic word “assassinate,” instead calling on U.S. Special Forces to “take him out,” which could mean lots of things instead of murder, like kidnapping, or hosting him for dinner at Applebee’s. Of course, that was a lie; the video shows Robertson saying, “If he thinks we’re trying to assassinate him, I think we really ought to go ahead and do it.”

Lying having failed, Robertson grudgingly apologized, blaming his remarks on frustration with the democratically-elected leader of another country who keeps doing things of which Robertson disapproves. But at least we now know that according to Robertson (and thus, under the Michael Moore-Ward Churchill rules of civic discourse demanded by the right wing, to every other Republican and conservative as well) that democracy isn’t nearly as important as doing what Robertson wants.

Can we Democrats avoid responsibility for Michael Moore as easily as the Bush administration did with Robertson, merely by calling his remarks “inappropriate”? Let me know.

But the silliest thing said by a Republican last week wasn’t Robertson’s soon-disavowed remarks, but rather our very own Arizona Sen. John McCain’s endorsement of teaching of “intelligent design” in schools.

Yes, the Ol’ "Straight Talking" Maverick himself has thrown in with those who believe science should be a matter of public opinion polls and the least common denominator. In an interview with editors and reporters from the Arizona Daily Star in Tucson (hat tip: Political Wire), McCain sided with President Bush in supporting teaching ID, on the justification that “all points of view” should be available to students studying the origins of mankind.

It’s not disclosed in the Daily Star article if McCain also thinks students should learn about ID while waving the Confederate flag, which is a “point of view” as well, and one that can help presidential contenders in the South Carolina GOP primary. Just like McCain did in 2000, if you get queasy that your personal ambitions require shameless pandering to the worst voters’ worst instincts, you can always apologize after the election is over -- when it doesn’t matter anymore. If you can crawl into bed with the worst race-baiters around, it becomes a very simple matter to throw in with the anti-science know-nothings.

McCain’s view of making “all points of view” available is a case-by-case matter, however. He wants to make junk science mandatory in classrooms, but having a debate over the war in Iraq is a real problem for him. Naturally, Cindy Sheehan is allowed to have her views -- but she should only be allowed to express them in ways to which no one will pay attention. Disagreeing with the Bush administration is constitutionally permissible, of course, but as a matter of good taste and prudence, any dissenting opinions should be expressed only where and when nobody actually notices.

Can we treat ID the same way as Bush and McCain want to treat Sheehan? Of course ID supporters are decent people. We feel their pain. But they are being used by groups opposed to the U.S. having a first-class education system and leading the world in science and technology. They’re “a symptom, not a cause” -- but just like Gold Star mothers opposed to the war, they must be stopped.

It’s exactly what the right kind of “higher power” would want.

Thursday, August 25, 2005

We Are All Wildcat Fans Now

At least those of us related to the new Vice Dean for Administration, UA College of Medicine-Phoenix. (The Tribune ran an article on the appointment; the Republic has not.) I am now too busy supporting the new medical school to consider writing about it.
More Estate Tax Fun and Games (And It's a Video!)

The Protecting Arizona's Family Coalition has a new "iFilm" on repeal of the estate tax here. Take a look. Then complete the email at the end.

Monday, August 22, 2005

Wake Up, America! (to this estate tax nonsense)

I used up all my brownie points by filing early the previous week by needing an extra day this week, so my column ran on Monday instead of Sunday. The newspaper version is available here.

The Washington Post article mentioned in the column by Birnbaum and Weisman, "The 1% Split Over Estate Taxes; The Few at the Top of the Heap Disagree on How to Keep the Most," appeared on Aug. 12, 2005, at D1.

East Valley Tribune, Aug. 22, 2005

Last month, Arizona state workers learned that when it comes to making their lives (and jobs) more difficult, nobody’s more creative than the Arizona Legislature. In their most recent and creative trick yet, lawmakers found a new way to reduce employees’ take-home pay: by giving them a raise.

This spring, state workers faced a significant hike in required contributions to the state retirement system; poor stock market results and some legislatively required benefit increases for public-safety employees meant that employee contributions for retirement would increase by nearly 50 percent.

So the Legislature gave employees a “targeted” 1.7 percent raise, designed to pay, to the dollar, only the expected increase in retirement-system deductions so take-home pay wouldn’t decline. But the budgeters forgot about the tax implications. But the slight pay increase, even though all of it disappears in required deductions, means slightly higher federal -- and state -- income, Social Security, and Medicare taxes. Thus, the pay “increase” actually reduces take-home pay for virtually all employees. A state worker making $25,000 annually now has each biweekly check reduced by this pay raise by some $2.25, while an employee making $60,000 a year sees about $140 less annually.

This kind of problem only affects the middle-class and working stiffs, of course. When big corporations decide to give already exceedingly-well-paid CEOs new benefits or raises, they always make sure to “gross up” the increase with an additional payment to cover the increased taxes, including those on the gross-up payment.

Apparently, treating most employees like dirt is part of “running government like a business.” It’s not enough for politicians to denigrate what these employees do; by giving them a raise that means less pay, it helps maintain a turnover rate calculated by the Department of Administration at 17.6 percent annually -- which costs taxpayers over $50 million a year in lost productivity and higher training costs.

So, naturally, with the current tax system meaning that $35,000-a-year employees face lower take home pay, what’s the debate on taxes in Washington today? It’s all about the estate tax, which has become a battle between what reporters Jeffrey Birnbaum and Jonathan Weisman of the Washington Post called the “very rich” and the “merely rich.”

Lobbying groups representing so-called “small business” owners (the “merely rich”) want to exempt from tax inheritances of up to $10 million. But people with estates worth tens or hundreds of millions, or even billions, are lobbying Congress for a reduced tax rate with a lower exemption, because $10 million just isn’t nearly enough for them.

Arizona Sen. Jon Kyl is siding with the very rich, with a “compromise” plan that would lower the top tax rate on inheritances from 47 percent to 15 percent. But, unfortunately for the merely rich, the exemption would cover estates up to only $3.5 million (estate taxes being one of the few endeavors where you can say “only $3.5 million”). It will save really, really big estates millions or even billions, but will leave many “small” estates (to these people, $5 million is “small”) still subject to tax.

What’s really “small” here is the number of people affected by the estate tax -- and what’s miniscule, according to the Congressional Budget Office, is the number of businesses that had to liquidate assets to pay any tax (only 0.007 percent of adult deaths in 2000). Of the 2.4 million adults who died in 2003, less than 29,000 left estates that were large enough to pay any tax at all. By contrast, more than 43,000 state employees, just in Arizona, just got their taxes raised, but they aren’t on Kyl’s radar at all. Instead, his estate tax plan is “targeted” -- at the richest 1.2 percent of taxpayers.

But it all makes sense when you ask yourself who’s more likely to give campaign contributions or take politicians on golf junkets, state employees making $25,000 a year, or the heirs to the Wal-Mart, Mars candies, or Campbell Soup fortunes?

That’s Washington these days, where the middle class doesn’t matter, because politicians are way too busy taking care of the top 1.2 percent.

Friday, August 19, 2005

Where's My Trip to Saipan?

I always wanted to use the phrase "knickers-twisting" in a family newspaper.

For those of you not familiar with Arizona politics, this column might be a bit obscure, but for this columnist (and lawyer), Fife Symington is the gift that keeps on giving. It also was fun that Republic columnist MacEachern published yet another piece on the Air America "scandal" in the competing paper the same day. We'll see if his outrage continues. I originally described him as "Tribune alumnus Doug MacEachern, now with some other newspaper," but my editor doesn't like snark as much as I do.

I didn't have enough room, but in line with the other guys always getting something out their side's corruption, I couldn't find the article on the Washington Post website using my weak wi-fi connection in Barcelona. Of course, the problem was that the article I remembered actually appeared in the New York Times which reported how Arizona's very own Institute for Justice head Clint Bolick got one of the Abramoff's client's trips to the Northern Marianas, then wrote an op-ed supporting their legislation in The Washington Times.

East Valley Tribune, Aug. 14, 2005

The latest cause of knickers-twisting in ‘winger circles is the culpability of every liberal, everywhere, in the embezzlement of funds from the Gloria Wise Boys and Girls Club in The Bronx, N.Y. It’s not just the amateurs, but even so-called “professional” journalists like Arizona Republic columnist Doug MacEachern, flogging this one. And, they always scold, you haven’t seen any coverage of this important scandal in The New York Times!

Here’s how the story works. Evan Cohen, then the development director at the club, also was director of the previous corporate entity behind Air America. The accounting trail is somewhat confusing, to say the least, but it appears that Cohen caused the club to loan himself and the Air America entity as much as $800,000. Most came from club accounts, but some came from club donors directly. It’s not clear how much went to Cohen and how much to Air America directly.

Air America, the attempt to create a radio network for liberals that would be just as one-sided politically and unfair to its opponents as, say, right-wing talk radio, certainly is a juicy target. After all, in two years it hasn’t come close to duplicating the “overnight success” Rush Limbaugh took two decades to achieve.

The first incarnation of Air America was poorly capitalized, and famously thrown off the air in key markets for failing to pay radio station bills. It quickly and loudly failed, amid talk that Evan Cohen wasn’t exactly the world’s greatest businessman. A new group of investors created Air America, version 2.0. The new entity acquired only the failed version’s assets, including its trade name, but didn’t assume its liabilities. The new group also excluded Cohen, who was viewed as a liability as well.

This happens all the time in business; entrepreneurs try, fail, and get to try again (and perhaps succeed eventually) because each new venture doesn’t have to repay all of the mistakes of its principals’ previous attempts. But the new Air America entity, according to ‘wingers, is different, because it -- and its key players -- have “moral liability” for everything the prior entity did.

Conservatives’ insistence on acknowledging such moral obligations appears to be somewhat selective, however. They’re demanding that the different Air America entity repay the club (or its successors; the club itself faces closure) all the money that the prior entity got -- which Air America has announced it will do -- and that everybody at Air America should acknowledge that they knew what was going on at the time, when even today the New York City Department of Investigation still hasn’t figured out what exactly happened.

Of course, these same people had no problem with Fife Symington remaining governor for years after he stopped paying his debts, which then, because of his bankruptcy, he no longer had a legal obligation to repay. They never demanded that Symington, and his political and business successors, repay the money he borrowed before his bankruptcy from the retirement pensions of those hard-working blue-collar engineers and laborers.

These critics never insisted that Fife must have known what was going on years before he finally as forced to admit his financial collapse. Apparently, only Republicans may avoid repaying debts by legal stratagems like filing bankruptcy, and their business failures must catch everybody by surprise.

But the real leap of logic is that even if the second version of Air America gets held to a higher moral standard than every other business, this failing somehow may be attributed to every liberal in America.

‘Wingers believe in collective guilt -- for liberals, anyway. But if I’m somehow responsible for what The New York Times hasn’t written about money invested in a business entity that no longer exists, then aren’t all conservatives similarly complicit in Fife’s bankruptcy, the Ohio and Illinois pension fund scandals, or Jack Abramoff’s shakedowns of Indian tribes?

Shouldn’t I get something out of the deal? Where’s my free trip to the Northern Marianas Islands or Guam (home of the original Air America investment entity!), paid for by Abramoff’s clients?

Instead, all I get are these ranting emails.

Wednesday, August 17, 2005

It's Late, But It Finally Arrived

Here's the Arizona ADL statement (issued August 3; I first saw it on August 7) on the Haab case. "Sends Wrong Message?" I'd have used "Is Wrong," but at last the local ADL is on the right side of this issue. I would argue that they used a flawed procedural process--the chief deputy to the County Attorney is a local board member, and they let him participate in the decision-making process despite his huge conflict of interest--and that led them to reach a bad substantive decision, but it's a bad decision that they (unlike Andrew Thomas) reconsidered and corrected.


Phoenix, AZ, August 3, 2005…The Arizona Office of the Anti-Defamation League (ADL) today expressed disappointment with the refusal of Maricopa County Attorney Andrew Thomas to reconsider his decision not to prosecute Patrick Haab.

Before making any public statement about the case, ADL had sought a meeting with Thomas in order to raise the League’s serious concerns over the decision not to prosecute Patrick Haab for holding seven illegal immigrants at gunpoint. At a meeting with members of Thomas’ staff, ADL representatives both questioned the legal basis for the County Attorney’s action and stressed the dangerous message that such action had already sent to potentially violent, anti-immigration activists and vigilantes.

Following the meeting, Bill Straus, Arizona Regional Director of the Anti-Defamation League stated:

“We are disappointed that the Maricopa County Attorney’s Office showed so little empathy for our concerns. The Haab decision sets a dangerous precedent and could set the stage for increasing anti-Hispanic violence and civil rights violations. We are already seeing dozens of references to Haab on the websites of neo-Nazi and white supremacist groups. The thought of armed individuals using the Haab decision as an excuse to draw down on anyone who, in their opinion, looks like an undocumented immigrant, is frightening, to say the least."

ADL has expressed alarm at the involvement of extremists and white supremacists in the anti-illegal immigration issue for several years, dating back to its 2003 report, Border Disputes: Armed Vigilantes in Arizona.
Bush Endorses Intelligent Design

This column appeared last Sunday, which meant that when I was in Barcelona, I could walk over to a nearby Internet café, just down the street from the Museo Picasso, and inhale the cigarette smoke, sip café amb llet (Catalan for coffee with milk, about half espresso and half milk), and read angry emails from creationists. Excuse me -- "intelligent designers." I got paired with one from the Discovery Institute; if you want to read his bit, it's available here.

Responding to ID emails didn't interfere any with enjoyment of Barcelona or Madrid, which both were fabulous. As for the column, I offer one word of advice if you bump into one of these ID types, and they pull the old "if you find a watch in the road, eliminate all the other possibilities and you can only conclude that there was a watchmaker" shtick. Say that the thought experiment shouldn't use a watch, but a clam. It's a pretty complex organism--it's mechanical (the shell opens and closes) and chemical (converts food into energy). Are you saying that only an intelligent designer could make the clam? That apparently makes the ID folks uncertain, because there are lots of fossil shellfish, and they don't want to assert that clams couldn't have evolved from earlier organism. However, you can make nice by admitting that it did take an intelligent designer to recognize that the proper thing to do with a clam is steam it, then dip it in drawn butter with lemon (and not take microscopic particles of the clam and convert them into TenderSweet clam strips, for those of you old enough to remember Howard Johnson's).

In Patrick Haab developments (the Maricopa County Attorney's legally-flawed decision to excuse from prosecution a guy who pulled a gun on 6 men who turned out to be illegal aliens), the Arizona ADL chapter finally came, however late, to the party and issued a statement "[expressing] disappointment" at the County Attorney's refusal to "reconsider" his decision not to prosecute. ADL's executive director, Bill Straus, said that ADL wanted to meet with Thomas first before taking a position, which meant that ADL missed the press conference, and that the ADL statement made the local Hispanic media, but not either daily paper or any local electronic media. I'll post the full ADL statement later today.

Teaching 'Intelligent Design'
Even Supporters Lack Any Evidence

East Valley Tribune, Aug. 7, 2005

Ah, science, we hardly knew ye!

Last week, President Bush endorsed teaching “intelligent design,” the somewhat downsized-version of creationism that’s the newest religiously-based supposed alternative to the theory of evolution. Bush said that “both sides should be properly taught,” which means he not only considers ID an actual theory, but one worthy of equal standing with evolutionary biology.

Despite the hubbub, as The Washington Monthly’s Kevin Drum noted, Bush supporting ID shouldn’t have surprised anybody. As governor, and while running for president in 1999, Bush supported teaching actual creationism, so ID is an improvement for him.

For those of you coming late to this party, creationism is basically the William Jennings Bryan position in Inherit the Wind, that everything happened as it says in the Bible -- 6,000 year old earth, fossils are fakes or confusion sown by a malevolent deity, dinosaurs and men walked the earth together. ID instead claims that things we can’t explain by evolution today are proof of the existence of an intelligent designer -- at least until we figure them out, then ID applies only to the remaining unsolved puzzles.

For people, like Bush, willing to swallow high-caloric creationism, ID is merely a diet soda. But, hey -- if you’re willing to ignore the broad-based scientific consensus on global warming based on “research” sponsored by companies with a financial stake in ignoring global warming, then what chance would biology have?

What’s even more amusing is that more sophisticated ID proponents, like Sen. Rick Santorum, of “Mommies shouldn’t work” fame, have switched tactics. Now they don’t call ID a scientific theory fit for the school curriculum; instead, they claim just want to make sure students learn about certain gaps in evolutionary theory.
However, this is the same Santorum who, as Chris C. Mooney noted, wrote in The Washington Times in 2002 that “intelligent design is a legitimate scientific theory that should be taught in science classes.” Apparently the Kansas and Dover, Pennsylvania curriculum battles haven’t worked out as well as the ID people had hoped, so they’ve retreated to the “merely-examine-problems-with-evolution” position -- but Bush apparently missed the memo.

The best evidence that ID isn’t a scientific theory -- aside from how some previous gaps in the evolutionary record, which ID supporters formerly called “irreducibly complex” evidence of an intelligent designer, have been solved with new evidence and removed from the ID stockpile of anecdotes -- is that ID supporters don’t press their case in the scientific arena, but rather the political one. You don’t see ID supporters gathering biological samples, unearthing fossils, crunching numbers, or submitting papers to scientific journals. You instead see them lobbying elected officials and writing op-eds. If that’s science, then make sure you go to one of those people whenever you need medical help or a new vaccine, and not a real scientist.

Maybe Republicans think Bush’s infatuation with ID is meaningless, or just the price of getting big tax cuts and regime change in Iraq. But the price of such "junk science" may be pretty high. There’s already a pretty substantial minority of Americans who don’t believe in evolution -- a Pew Center poll showed only 53% of Americans agreed that humans developed from earlier animal species, and a majority has no problem with “teaching the controversy,” even if the so-called “controversy” makes real scientists snort coffee out their noses.

There are lots of scientific issues less theoretical than evolution where a majority would happily have the controversy “taught,” and not just in classrooms, but in courtrooms, too?

If at least four major, statistically-robust studies say thimerosol in vaccines does not cause autism, but some anecdotal evidence or inconclusive studies say it might, then shouldn’t we let juries hear both sides?

If there’s some sort of conspiracy by scientists to push evolution and ignore ID, then why shouldn’t residents of Nevada believe a similar conspiracy is suppressing the dangers of storing nuclear waste at Yucca Mountain, no matter how many studies indicate otherwise?

Bush is very good at politics. He is very bad, and very dangerous, at science. He should stick to politics.

Wednesday, August 03, 2005

Rules Only Apply When We Want Them To Apply

Here's the column that ran this past Sunday. One interesting editing note is that I went to great lengths not to use the outed CIA agent's name in the column--but then the editor's headline used her name anyway. I guess it's old news at this point, but it seemed somehow indiscreet to refer to her by her maiden/professional name, even if it's all part of the fun-and-games now. I also don't quite understand the main headline and don't think it fits the column, but maybe that's why I'm not an editor. Anyway, due to being out of town I filed late, so my editor didn't have the usual amount of time to figure out how to describe what I'm saying in 10 words or less.

For those of you still interested in the previous week's column about flat-out-wrong legal reasoning that County Attorney Andrew Thomas used to justify Patrick Haab's behavior as a citizen's arrest, the Arizona Republic today carried an above-the-fold front-page story describing how contrary to Haab's self-description, he never served in Iraq, and he was "on the verge of being removed from the military because he was paranoid, threatened to kill himself and pulled a knife in an altercation with fellow soldiers." So we have faulty legal reasoning being used to justify an aggravated assault by a paranoid and a liar. Hooray for the Arizona ADL chapter in backing Thomas on this one! They sure choose their heroes well. Why bother speaking truth to power when you can suck up to a right-wing officeholder instead? It's so much more fun!

The Valerie Plame Affair

East Valley Tribune, July 31, 2005

An anonymous angry Republican wrote in response to my column 2 weeks ago about Karl Rove and his disclosure of the covert CIA agent’s identity by saying, basically, “Nyah, nyah, what about Sandy Berger?”

So let’s recall how Berger, President Clinton’s National Security Advisor, violated rules on handling classified information -- and it’s worth recalling, if only for the story’s weirdness.

In 2003, to prepare for his testimony before the 9/11 Commission, Berger went to the National Archives Annex to review classified documents from his time in office. Berger removed five copies of classified documents, hiding them in his briefcase, jacket, and (most strangely) his pants, and later destroyed three of the copies at his office. He also took his handwritten notes with him, which also violated classified information rules. Berger returned his notes, along with two copies, to Archives staff after they confronted him, but initially denied having destroyed the other three copies.

Even without the hiding-secret-documents-in-his-pants part, Berger’s behavior was bizarre and pointless. Berger received only copies and never had the originals; anyway, as that’s how a bureaucracy functions, there were other copies anyway. He also forgot that everyone working in the classified Archives facility is monitored, and that employees kept track of each piece of paper he touched, and thus had an exact paper trail of Berger’s violations.

Berger’s initial stonewall crumbled and, faced with the evidence, he admitted his fault, pled guilty to a misdemeanor, and took his punishment, which included a $10,000 fine and revocation of his security clearance for 3 years. But he did take his medicine.

You didn’t get orchestrated media attacks on the Archives employees as secret Republicans out to embarrass anyone associated with the Clinton administration, or pundits claiming that the copies Berger took really weren’t classified, or planning Senate hearings to argue that they shouldn’t have been classified originally.

You didn’t have the liberal equivalent of The Wall Street Journal editorial page arguing that by destroying the extra copies Berger was really acting in the national interest by reducing paperwork, for which he should get an award.

I certainly could argue that what Berger did wasn’t as serious as what Karl Rove and Lewis Libby did in leaking the covert CIA agent’s name -- which would let anyone with access to Google track her back to any foreigners she had worked with or to any current CIA activities still using the “Boston consulting firm” she used as cover. Berger destroyed copies of documents; as the originals and other copies of the documents still existed, the three destroyed copies were easily replaced and no information was lost. Berger also didn’t leak the document to selected members of the media, putting classified information into public circulation.

So even if what Rove and Libby did was arguably worse than Berger’s bizarre behavior, I’d settle if they settled for the same plea agreement as Berger. If Rove and Libby each admit fault, pay a $10,000 fine, and lose their security clearances for 3 years, we’ll call it even. But of course, we won’t; rather than ever admit a mistake, much less pay the price for a mistake, we instead get the usual Rove Formula: Deny, delay, distract, and demonize.

Maybe the CIA agent’s husband, former Ambassador Joseph Wilson, is a self-important, self-promoting, blowhard -- but that’s hardly a valid criticism from supporters of J.D. Hayworth. And ultimately, the argument shouldn’t be over personalities, but rather over whether Iraq really was “reconstituting” its nuclear programs and seeking to purchase uranium from Niger -- and on the substance (does anyone still care about substance?), Joe Wilson was right and the Bush administration was wrong. Maybe Wilson was lucky, but he was right -- and the Bush administration could have argued its case against Wilson’s conclusions without ever mentioning his wife’s name.

Remember when you could fight a political battle without needing to smear the guy’s wife? That used to be off limits; no more. Maybe we shouldn’t worry so much about the effects of Grand Theft Auto on teenagers, and more about the effects of Karl Rove on adults.

Monday, August 01, 2005

Andrew Thomas: If the Polls Disagree with the Law, Go with the Polls

This column was published on July 24, but I was out of the office all last week. Once again, our local ADL whiffs big time on an important issue--their board decided to support Thomas without ever hearing any legal analysis except from Thomas's chief deputy. Don't get me started on ADL's double standards for Republicans; just don't give them any money. Newspaper version is available here.

East Valley Tribune, July 24, 2005

Maricopa County Attorney Andrew Thomas made his political base happy by deciding not to prosecute Army Reservist Patrick Haab for detaining, at gunpoint, seven illegal aliens. But in justifying his decision, one opposed by GOP Sheriff Joe Arpaio and U.S. Attorney Paul Charlton, Thomas just didn’t anger a wide-ranging coalition of Hispanic and community groups. He also twisted the law like a pretzel -- in ways that might prove very interesting in the right hands, namely anybody with a plausible story and a gun.

On April 10, Haab saw 7 Mexican nationals at an Interstate 8 rest area, concluded (correctly) that they were undocumented aliens, drew his .45, forced the men to the ground, and then called the sheriff’s office. When the deputies arrived, they arrested Haab for aggravated assault, which is the crime when someone without authority pulls a gun on someone else. Haab was never in any personal danger -- although he later claimed he acted in self-defense, a claim even Thomas couldn’t swallow.

Haab then claimed he was enforcing the law by making a citizen’s arrest, and Thomas ultimately agreed. Thomas said he declined to prosecute Haab because (1) one of the 7 was a coyote smuggler, who was violating U.S. immigration law, and (2) the other 6 men were “conspiring” with the coyote to smuggle themselves, and (3) Arizona law lets a private citizen make a “citizen’s arrest” if he or she observes a felony being committed, or if a felony actually was committed and there’s reasonable grounds to believe the person arrested committed it.

This may be good politics, but it’s seriously bad law. First, immigration is a federal responsibility, and Congress wrote the law so that only federal immigration officials and state or local police officers can make any arrests under the alien smuggling statute.

Private citizens like Haab, according to the actual law (8 U.S.C. §1324), have no authority to make arrests under the statute, and because the federal government controls immigration law entirely, the state citizen’s arrest statute can’t grant authority that the feds have explicitly denied.

Second, even if the anti-smuggling statute allowed citizen’s arrests, that wouldn’t cover the 6 aliens being smuggled. There’s no law -- and Thomas most certainly didn’t cite any -- that makes individuals guilty of conspiracy or of aiding and abetting their own smuggling. There’s actual case law on this point; passengers who aren’t doing the transporting can’t be charged under the anti-smuggling statute. This principle goes back to Mann Act prosecutions, where the U.S. Supreme Court held that the woman transported across state lines for immoral purposes couldn’t be charged with conspiring with her transporter.

Third, Thomas also misread the Arizona citizen’s arrest statute, A.R.S. §13-3884, because it allows an arrest for a felony -- but another Arizona statute defines “felony” as a state criminal offense, punishable by imprisonment in a state prison, and purely federal immigration statutes aren’t state law offenses and aren’t punishable in state prison.

But under Andrew Thomas, the law, in its majesty, must yield to opinion polls, so he’s now officially on record that private individuals can make citizen’s arrests, even for entirely federal crimes where enforcement is restricted to authorized officials. Heck, Thomas even believes that you can justify a citizen’s arrest as a conspiracy if someone is with somebody else committing a federal crime.

But there’s another body of federal law where the state plays no role and where enforcement is limited to authorized federal officers: The Internal Revenue Code. According to Thomas, if I have a reasonable basis to believe some business or accounting firm is committing criminal tax fraud, I can pull a gun on ‘em, and Thomas won’t prosecute.

Or federal bank fraud -- why merely write columns attacking Fife Symington when I could have arrested him instead?

That’s our county attorney, who supports people taking the law into their own hands if it’s politically popular. But there are other laws besides immigration, and it won’t always be true that the people threatened have the wrong color skin or ethnicity.

Andrew Thomas is wrong on the law -- blatantly and dangerously wrong.