By
Nancy Black (right) navigates the Sea Wolf II while Tony Lorenz keeps a lookout for whales in the open waters. Photo: Chad Ziemendorf, The Chronicle / SF
The huge humpback whale whose friendliness precipitated a surreal seven-year
— so far — federal hunt for criminality surely did not feel put upon.
Nevertheless, our unhinged government, with an obsession like that of
Melville’s Ahab, has crippled Nancy
Black’s scientific career, cost her more than $100,000 in legal fees — so
far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of
law enforcement began when someone whistled.
Black, 50, a marine biologist who also captains a whale-watching ship, was
with some watchers in Monterey Bay in 2005 when a member of her crew whistled at
the humpback that had approached her boat, hoping to entice the whale to linger.
Back on land, another of her employees called the National Oceanic and
Atmospheric Administration (NOAA) to ask if the whistling constituted
“harassment” of a marine mammal, which is an “environmental crime.” NOAA
requested a video of the episode, which Black sent after editing it slightly to
highlight the whistling. NOAA found no harassment — but got her indicted for
editing the tape, calling this a “material false statement” to federal
investigators, which is a felony under the 1863 False Claims Act, intended to
punish suppliers defrauding the government during the Civil War.
A year after this bizarre charge — that she lied about the interaction with
the humpback that produced no charges — more than a dozen federal agents, led by
one from NOAA, raided her home. They removed her scientific photos, business
files and computers. Call this a fishing expedition.
She has also been charged with the crime of feeding killer whales when she
and two aides were in a dinghy observing them feeding on strips of blubber torn
from their prey — a gray whale.
To facilitate photographing the killers’ feeding habits, she cut a hole in
one of the floating slabs of blubber and, through the hole, attached a rope to
stabilize the slab while a camera on a pole recorded the whales’ underwater
eating.
So she is charged with “feeding” killer whales that were already feeding on a
gray whale they had killed. She could more plausibly be accused of
interfering with the feeding.
Never mind. This pursuit of Black seems to have become a matter of
institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice
Department’s Environmental Crimes Section, has its version of Victor Hugo’s
obsessed Inspector Javert.
In any event, some of the federal government’s crime-busters seem to know
little about whales — hence the “whistle-as-harassment” nonsense.
Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues
not to talk to her and to inform them if they were contacted by her or her
lawyers. Since then she has not spoken with one of her best friends.
To finance her defense she has cashed out her life’s savings, which otherwise
might have purchased a bigger boat. The government probably has spent millions.
It delivered an administrative subpoena to her accountant, although no charge
against her has anything to do with finances.
In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450.
They continue to multiply. Often, as in Black’s case, they are untethered from
the common-law tradition of mens rea, which holds that a crime must
involve a criminal intent — a guilty mind. Legions of government lawyers
inundate targets like Black with discovery demands, producing financial burdens
that compel the innocent to surrender in order to survive.
The protracted and pointless tormenting of Black illustrates the thesis of
Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.”
Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the
mad proliferation of federal criminal laws — which often are too vague to give
fair notice of what behavior is proscribed or prescribed — means that “our
normal daily activities expose us to potential prosecution at the whim of a
government official.” Such laws, which enable government zealots to accuse
almost anyone of committing three felonies in a day, do not just enable
government misconduct, they incite prosecutors to intimidate decent people who never
had culpable intentions. And to inflict punishments without crimes.
By showing that Kafka was a realist, Black’s misfortune may improve the
nation: The more Americans learn about their government’s abuse of criminal law
for capricious bullying, the more likely they are to recoil in a libertarian
direction and put Leviathan on a short leash.
georgewill@washpost.com
No comments:
Post a Comment