Meet the New Boss, Part Two: Executive Power and Police Statism

It’s been argued by more than one person that Scott Brown defeated Martha Coakley, in part, because Coakley was such a lame and unappealing candidate.

But there’s one point that hasn’t received much attention: her cynical role, as a district attorney, in preventing the release of a man who was almost certainly innocent of the crime he’d been convicted of. George Amirault, who along with his mother and sister operated the Fell’s Acre Day School, was convicted in 1984 of serial child molestation. Child testimony in that case, which was subsequently recognized as part of a bizarre trend of runaway daycare molestations in the eighties, included accusations that Amirault inserted a butcher knife into a four-year-old’s rectum (there was no medical evidence of injury). Children also implicated two imaginary persons, “Mr. Gatt” and “Al,” as well as a therapist investigating the case. After the case was reopened eight years later, Superior Court Judge Isaac Borenstein remarked that “Every trick in the book had been used to get the children to say what the investigators wanted.” When the Board of Corrections voted 5-0 to release Amirault in 2000, prosecutor Coakley persuaded the governor to keep him imprisoned. In the words of Mark Rosenthal, “Coakley, placing more value on defending the infallibility of her office and on appearing tough on crime than on seeing that injustice be rectified, embarked on a public-relations crusade to keep Gerald Amirault behind bars.”

Think about that, and what it entails. Think about your reaction when you learn of some private citizen, like that creepy old guy in Austria, who holds someone against their will for years. There’s not a dime’s bit of moral difference between such people and the typical prosecutor, Republican or Democrat, who will almost certainly choose to knowingly keep an innocent person in prison rather than suffer political embarrassment. Those people would sooner kill Anne Frank than jeopardize their precious conviction ratios.

Police statism and executive authoritarianism are hardly Republican monopolies.

Under Barack Obama, who campaigned on a rollback of the Bush administration’s executive power grab, the new Democratic Justice Department has frequently found itself defending against challenges to powers (for example, indefinite detention without trial) asserted by Bush. Obama has publicly disavowed waterboarding and other “tough interrogation techniques” (aka torture), and intends to shut down the Guantanamo Bay prison. But he still supports indefinite detention in principle, and intends to use Bagram Air Base for essentially the same purpose as Gitmo—the difference being that it’s less visible and less controversial than a prison camp just off of Florida.

The growth of the executive National Security State and of domestic police statism has been a bipartisan trend since World War II, aside from a brief period of retrenchment after Watergate and the Church Committee. The growing police statism of the Bush years was a direct continuation of trends under Clinton, who built in turn on the creeping authoritarianism of Nixon and Reagan. The USA Patriot Act consisted, in considerable part, of provisions Clinton had sought in his 1996 counter-terrorism legislation but was unable to railroad through Congress. And one of the most dangerous powers exercised by Bush—the power to classify domestic organizations as “terrorist” by executive fiat and then subject their assets to civil forfeiture—was actually granted by the Clinton-era legislation.

Those of us who hoped for a Church Committee-style rollback of Bush’s power grabs were sadly disappointed. At best, we’re back to the incremental growth of bureaucratic Caesarism, instead of dramatically fascistic claims of total authority by monsters like Cheney and Giuliani.

For every authoritarian right-winger like Orrin Hatch or Richard Shelby, there’s an equally cop- and prosecutor-friendly Democrat like Dianne Feinstein or Charles Schumer.

Most recently, Obama’s Supreme Court nominee Elana Kagan has shown herself to be quite friendly to executive power. That really shouldn’t be a surprise coming from a Solictor General. She is not only friendly to extraordinary claims of executive national security powers, but a fairly hard-line defender of law enforcement in criminal justice issues. “In her current position,” Radley Balko writes, “Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, pro-law enforcement position in every criminal justice-related case to come before the Supreme Court since Obama took office.” She has weighed in against attempts to curtail state civil forfeiture practices more draconian than those at the federal level, against proposals to hold prosecutors civilly liable for knowingly manufacturing evidence, against a guaranteed right to confront forensic experts, and against attempts to require post-conviction DNA testing when it might exonerate a prisoner.

If you seriously expect state functionaries to make good faith efforts to reduce their own power (when they’re in office, that is), you really should stop and think about it for a while.