Cohen and Nocera

Mr. Cohen loves him some war.  In “Here There is No Why” he shrieks that the Islamic State represents the counterhuman and that the human has no alternative but to fight back.  In the comments “Mark Thomasen” from Clawson, WI has this to say:  “This begins by comparing the deaths of three men to the Holocaust, with several excerpts from an account of a death camp. It ends with Hitler. Along the way it says both this enemy like Hitler is ‘non-human,’ and ‘really counter-human.’ … This is purest propaganda for war.”  Mr. Nocera takes a look at “The Hole in Holder’s Legacy” and says the Justice Department under Attorney General Eric Holder Jr. failed to prosecute cases related to the financial crisis.  Here’s Mr. Cohen:

In a famous passage from “Survival in Auschwitz,” Primo Levi relates an incident upon arrival in the Nazi death camp that captures the intersection of the human with the inhuman. He and other Italian prisoners have been held in a shed as they await their fate. Levi looks around in search of some means to quench his thirst:

“I eyed a fine icicle outside the window, within hand’s reach. I opened the window and broke off the icicle but at once a large, heavy guard prowling outside brutally snatched it away from me. ‘Warum?’ I asked him in my poor German. ‘Hier ist kein warum,’ (there is no why here), he replied, pushing me inside with a shove.”

There is no why here. The phrase has been reverberating in me since I watched a henchman of the organization that calls itself Islamic State behead two American journalists, James Foley and Steven Sotloff, and a British aid worker, David Haines. The men had been broken by their imprisonment. They had been hollowed out, a terrible thing to behold. How many times they must have asked themselves the why of their captivity, humiliation and torture right up to the moment when a small knife was applied, with a sawing motion, to their throats. Each of the three men died alone, unlike the Yazidis murdered in droves, the Shiite soldiers massacred, the women and children slaughtered during the advance of black-clad ISIS forces across northern Iraq. Abu Bakr al-Baghdadi, the leader of ISIS, has created a cult of violence that makes the elimination of all nonbelievers the cornerstone of a movement whose avowed objective is a restored Islamic caliphate but whose raison d’être is the slaughter itself.

It is human to seek for reasons. Perhaps the rise of ISIS may be seen as the culmination of decades of Arab resentment at perceived Western domination, drawing support from the same anger as the Muslim Brotherhood and Al Qaeda before it; or as an expression of the abject failure of Arab societies; or as an armed Sunni response to the Shia-bolstering American invasion of Iraq; or as brutal payback for Abu Ghraib and Guantánamo (where, it must be said, there was scant “why” for prisoners detained for years and guilty of no crime); or as a well-funded offshoot of Saudi Wahhabism interpreted in its most literal form; or as a heady alternative for disaffected young Muslims to the moral void of Western civilization; or as evidence of the crisis of Islam and the inevitable Thirty Years War of its Sunni and Shia branches; or simply as a call to arms to drive out the United States the way the infidel Crusaders were ousted from the Levant.

Yet, in the end, there is no why to the barbarism of ISIS. There is no why in Raqqa. Evil may adduce reasons; they fall short. The Nazi death machine was unique. Facile invocation of it is too frequent, belittling the phenomenon and its victims. But I was given pause by Martin Amis’ afterword to his powerful new novel, “The Zone of Interest,” where he probes the “why” of Hitler and quotes both the icicle passage and another from Levi:

“Perhaps one cannot, what is more one must not, understand what happened, because to understand is almost to justify. Let me explain: ‘understanding’ a proposal or human behavior means to ‘contain’ it, contain its author, put oneself in his place, identify with him.” Levi, referring to Hitler, Himmler and the rest, goes on: “Perhaps it is desirable that their words (and also, unfortunately, their deeds) cannot be comprehensible to us. They are non-human words and deeds, really counter-human.”

Presented with the counter-human, the human must fight back. In the joint “Statement on Atrocities” of October 1943, issued by Churchill, Roosevelt and Stalin, there was no mention of the Jews, although millions had been gassed or shot by then. A defense mechanism to the incomprehensible is to pretend it does not exist. “Leave it to the Arabs, it’s their mess, they can clean it up,” is an inadequate (if understandable) response to ISIS. It would have been the wrong one. President Obama’s coalition in the war to eradicate ISIS may be flimsy but passivity was not an option.

Hitler, of course, destroyed Germany. His fury was directed outward but its ultimate impact was inward. Al-Baghdadi with his 1,000-year caliphate targets the West, but it is a rotten Arab order that is at risk and must find a response to ISIS and the frustrations of its citizens. This is an Arab Zero Hour. One other thing: In this fight, I would say, all means are good. The Soviet Union, an ideological rival, was a key ally of the United States in defeating Nazism. It is obvious which nation today can play that role against ISIS. Its name is Iran.

“All means are good.”  So he’s telling us that the end justifies the means…  Here’s Mr. Nocera:

A few weeks ago, Attorney General Eric Holder Jr. gave a speech at the New York University School of Law on the subject of white-collar prosecutions. In it, he offered a full-throated defense of his department’s efforts in the aftermath of the 2008 financial crisis. With his resignation announcement coming eight days later, one can’t help but view his speech as a kind of valedictory.

The Justice Department, he said, had stood vigilant against financial fraud “wherever it is uncovered” — and prosecuted “criminal conduct to the fullest extent of the law.” He took credit for negotiating huge fines against financial firms, and for forcing several big banks — Credit Suisse and BNP Paribas — to accept guilty pleas.

As for the prosecution of individuals involved in the financial crisis, he claimed that the Justice Department had “taken aggressive action, nearly doubling the number of mortgage fraud indictments and criminal convictions between 2009 and 2010, then increasing them even further the following year.”

Actually, Holder’s Justice Department has been notoriously laggard in prosecuting crimes that stemmed from the financial crisis, and much of what it has done amounts to an exercise in public relations.

Take, for instance, those guilty pleas extracted from Credit Suisse and BNP Paribas. Last March, Holder said that he feared that prosecuting large financial institutions could hurt the economy. This became known as his “too big to jail” remark — which he quickly disavowed. No wonder he was eager to have some firms plead guilty! Yet, as Peter Henning notes in a New York Times DealBook article, the Justice Department made sure those guilty pleas didn’t inflict too much pain. In the case of BNP Paribas, prosecutors secured agreements from state banking regulators that they wouldn’t pull the bank’s license to do business.

Or take the claim that the Justice Department has been rigorously rooting out mortgage fraud. In fact, after a grand announcement that the department was putting together a mortgage fraud task force, U.S. attorneys around the country began aiming their fire at easy prey: small-time mortgage brokers, or homeowners who had lied on “liar loans.” None of the top executives from any of the major firms were indicted. Indeed, according to an article in The New York Times Magazine in May, only one executive of any kind — a mid-level executive with Credit Suisse — has gone to prison as a result of his actions during the financial crisis. The notion that he’s the only one who committed a crime in the mortgage-crazed run-up to the financial crisis is, quite simply, implausible.

As for those big fines against Bank of America, Citigroup and JPMorgan Chase, not only did they come very late, but their terms were such that it was impossible to know for sure the extent of their wrongdoing. And, of course, despite fines that went into the billions, no actual human was prosecuted for any wrongdoing.

So the question worth asking, as Holder plans to step down, is not what his department did but why it did so little. Why was it so reluctant to pursue the financial crimes connected to the 2008 crisis? One answer is that these are hard cases to prosecute — harder than negotiating a financial settlement with a big bank. Early on, the Justice Department tried two Bear Stearns portfolio managers whose hedge fund — stuffed with mortgage-backed securities — collapsed. The two men were found innocent. That verdict seems to have sent a chill through prosecutors, making them reluctant to go after others.

Jesse Eisinger, the author of that Times Magazine article, wrote that, over the years, the Justice Department saw “an erosion of the department’s actual trial skills,” as well as a drop in resources. In the Southern District of New York, U.S. Attorney Preet Bharara focused — with great success — on insider-trading cases, where he had wiretaps that made prosecutions relatively easy, instead of difficult-to-try financial crisis cases.

Adam Levitin, a professor at Georgetown Law School, had his own list of reasons, which he emailed me. They included fear that the Obama administration would be accused of an anti-business witch hunt if it went after Wall Street; “deep personal, cultural, financial and political ties” between the administration and Wall Street; and a lack of understanding of the products and markets involved. “What it all boils down to,” Levitin concluded, “is that we didn’t have prosecutions because no one ever really wanted to prosecute.”

Holder’s legacy is a mixed bag. As The Times’s Matt Apuzzo wrote last week, he “succeeded in reducing lengthy prison sentences, opened civil rights investigations against police departments in record numbers and challenged identification requirements for voters.” On the negative side, he subpoenaed journalists and went after their sources.

No matter how he tries to spin it, Holder’s inability — or unwillingness — to prosecute financial crimes is on the negative side of the ledger.

Of course he wasn’t going to prosecute the banksters.  And he’s heading right back to the same white shoe law firm he came from.  A firm that represents those very banksters, as well as good citizens like the NFL…

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