Time to Prosecute Corporate Criminals at Massey, BP

Minuscule fines ,comparatively speaking, aren't  getting the job done. Maybe jail time will get corporate attention.

By Ruth Conniff, May 5, 2010

Nothing prevents the government from criminally prosecuting corporate CEOs who willfully ignore health and safety standards, killing workers, as in Massey Energy's Upper Big Branch Mine disaster, and causing environmental catastrophe, as in BP’s massive oil spill in the Gulf of Mexico.

For years, we haven't seen many corporate criminals prosecuted in the United States, thanks to the power of corporate lobbyists and the reluctance of government officials to take on business interests.

A PBS Frontline show "A Dangerous Business"—notes that, in the 32 years since OSHA was created, there have been over 200,000 workplace deaths. But OSHA has referred only 151 of these cases to the Justice Department for criminal prosecution. Of these, only eight have resulted in prison sentences for company officials.


There is a lot of political pressure not to seek prison terms for CEOs of unscrupulous companies, and little public sentiment pushing the government and prosecutors to get tough on corporate criminals.
But that may be changing.

The explosion at the Deepwater Horizon rig off the coast of Louisiana that killed eleven people and led to an oil spill that will soon surpass Exxon Valdez in its size and destructiveness led Attorney General Eric Holder to announce a Justice Department investigation into health and safety protocol aboard the BP-leased the rig.

BP was involved in a Texas oil refinery explosion that killed 15 people in 2005. And the company seems to have foregone the safety systems that allow deep-water oil rigs off the coast in Northern Europe to avoid catastrophic accidents.

Public patience with accidents caused by lax safety and environmental standards is wearing thin.

This became clear after the Massey Energy mine disaster.

"I live in West Virginia, and my sense is the tide is turning politically [in the wake of the mine disaster]," Russell Mokhiber, editor of Corporate Crime Reporter told me. "With the oil spill in the Gulf and with the deaths of the mine workers, there is fertile ground for a renewed social movement against corporate crime."

Mokhiber points to a raft of opinion pieces calling for criminal charges against Massey Energy CEO Don Blankenship.

Blankenship is a particularly odious character. A heavyweight in Republican politics in his state, he ran a justice off the West Virginia Supreme Court and installed his own coal-friendly judge. Under his leadership, Massey Energy has been cited for safety violations again and again-with 1,300 violations in the Upper Big Branch Mine alone since 2005, and 50 in the last month for poor ventilation--the apparent cause of the recent disaster.

After 29 people died at the Upper Big Branch mine last week, Bob Franken of The Hill newspaper in Washington, DC, wrote:

"Perhaps it's time for Don Blankenship to get involved with the courts again. This time, as a defendant. The charge: murder."

Franken points out that the sentence for involuntary manslaughter in West Virginia is one year in prison per case--or a possible 29 years for Blankenship.

It's not such a far-fetched notion. In a 2005 memo to deep mine supervisors, Blankenship ordered the miners not to work on anything but "running coal." They were not to "build overcasts, do construction jobs, or whatever." When a deadly fire broke out at Massey's Aracoma mine, killing two men, the memo became Exhibit A at a trial that ultimately resulted in a $2.5 million fine for the company.

That sort of direct complicity in flouting safety standards could form the basis for a criminal prosecution of Blankenship.

There is important legal precedent for bringing such charges.

Mokhiber cites the Ford Pinto case: In 1978, three teenage girls driving in a Ford Pinto were hit from behind on Highway 33 in northern Indiana. All three died from terrible burns after their car burst into flames. An Indiana grand jury indicted the Ford Motor Company for reckless homicide for making and selling the Pinto with an unsafe fuel tank.

"Although Ford was ultimately acquitted, the criminal prosecution of Ford Motor Company reestablished an important precedent: In certain cases involving human health and safety, corporations and their executives could be required to submit not only to the scrutiny and sanctions of traditional federal agencies, but to state criminal courts as well," The Corporate Crime Reporter notes.

Mokhiber sees parallels to the Massey Energy mine disaster.


Despite the intimidation factor of taking on a politically powerful figure like Blankenship and a big company like Massey, the Pinto case sets a precedent for an underfunded, public-interest-minded prosecutor to do just that.

"The Pinto case was brought by a Republican state prosecutor in Indiana," Mokhiber notes. "He was totally outgunned for resources by Ford. He relied on law students for support. Even thought the company was ultimately found not guilty, it set an important precedent."
Another role model Mokhiber cites is Ira Reiner, who was the LA County district attorney in the early 1980s. Reiner made it a practice to open an involuntary manslaughter investigation of a company every time there was a death on the job. This resulted in many criminal prosecutions and justice for the families of dead and injured workers.

The current political climate might produce more Ira Reiners.

Kristen Keller, the prosecuting attorney for Raleigh County, and the only prosecutor in West Virginia who has the power to press charges in the case, recently told Corporate Crime Reporter: “If there is evidence to support a homicide prosecution, I would not hesitate to prosecute."

In the last week, several news outlets, including NPR, the Washington Post, and Reuters, have reported that a Federal criminal investigation is underway against Massey Energy.
NPR also reported that the government was looking into possible bribery of officials at the Mine Health and Safety Administration.

"Most people aren't familiar with the history of criminal prosecution for worker deaths," Mokhiber says. "There is a whole generation that has forgotten the Ford Pinto prosecution, and just thinks workers die on the job sometimes and no one is responsible"

But that is not the case "if the prosecution can make a case that Blankenship knew the situation at the mine and if it meets the legal definition of involuntary manslaughter."

Back in the 1980s, Mokhiber says, Congressman John Conyers proposed a "public endangerment" law that would have held corporate executives criminally liable if they knew of a product or process that could cause harm and failed to report it. But corporate lobbyists tied up the proposed legislation and it died.
Now is a good time for a renewed effort of that kind.
Meanwhile, prosecutors at both the federal and state level have the power to prosecute executives who have direct involvement in negligent practices by their companies that lead to worker deaths and environmental damage.
The only thing holding them back is politics. That's where the renewed social movement comes in.
Ruth Conniff is the political editor of The Progressive magazine.
Let The Sun Shine In......

Why the Bush torture architects must be prosecuted:

 A counter-terror expert speaks out

By Malcolm Nance

Sunday, April 19th 2009, 4:00 AM

Reading the Bush Administration torture documents released last Thursday by the Department of Justice - documents all about inflicting pain, suffering and discomfort - I felt plenty of my own.
America is truly about to go through the looking glass. But it's a task that must be accomplished if we are to stand before the world and destroy al-Qaeda.

I have been engaged in the hunt for al-Qaeda for almost two decades. And, as I once wrote in the Daily News, I have personally led, witnessed and supervised waterboarding of hundreds of people - as we trained our own fighting men and women to endure and resist the interrogation tactics they might be subjected to by our enemies. I know waterboarding is torture because I have been on the giving and receiving end of the practice.

This was during the last four years of my military career, when I served at the U.S. Navy Survival, Evasion, Resistance and Escape (SERE) school. Working there, and helping protect our servicemen and women, was my greatest pride. We especially emphasized escape, because captivity by al-Qaeda's Jihadis would be severe, if not, final.  Our methods of instruction were intense, but realistic and safe.

Now, at long last, six years of denials can now be swept aside, and we can say definitively: America engaged in torture and legalized it through paperwork.

Despite all the gyrations - the ducking, dodging and hiding from the facts - there is no way to say that these people were not authorizing torture. Worse yet, they seem to have not cared a wit that these techniques came from the actual manuals of communist, fascist and totalitarian torturers.  It is now clear how clearly - how coldly - Bush's lawyers could authorize individual techniques from past torture chambers, claim they came from the safe SERE program, and not even wet their beds at night. That many U.S. service members over the years have died as a result of these same techniques was never considered.

This is about more than one tactic, waterboarding, that has gotten the lion's share of attention. As a general rule, interrogations without clearly defined legal limits are brutal.  Particularly when they have an imperative to get information out of a captive immediately.  Wearing prisoners out to the point of mental breakdown; forcing confessions through sleep deprivation; inflicting pain by standing for days on end (not minutes like in SERE); beating them against flexing walls until concussion; applying humiliation slaps (two at a time), and repeating these methods over and over.

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Let The Sun Shine In......

On Bush, Cheney Crimes: Seek Truth and Accountability

There will never be reconciliation without accountability!

posted by John Nichols on 03/04/2009 (The Nation)

Senate Judiciary Committee chair Patrick Leahy, D-Vermont, deserves credit for pressing ahead with his modest proposal to establish a truth and reconciliation commission to review the assaults on the Constitution and general lawlessness of the Bush-Cheney administration.

As Leahy said at the opening of Wednesday's Judiciary Committee hearing on "Getting To The Truth Through A Nonpartisan Commission Of Inquiry":

Nothing has done more to damage America's place in the world than the revelation that this Nation stretched the law and the bounds of executive power to authorize torture and cruel treatment. The Bush administration chose this course, but tried to keep its policies and actions secret, knowing that they could not withstand scrutiny in the light of day. How many times did President Bush go before the world and say that we did not torture and that we acted in accordance with law?

There are some who resist any effort to look back at all, while others are fixated on prosecution, even if it takes all of the next eight years, or more, and further divides this country.

Over the last month, I have suggested a middle ground to get to the truth of what went on during the last several years, in a way that invites cooperation. I believe that that might best be accomplished though a nonpartisan commission of inquiry. I would like to see this done in a manner removed from partisan politics. Such a commission of inquiry would shed light on what mistakes were made so that we can learn from these errors and not repeat them.

That is a reasoned and responsible stance, of the sort we have come to expect from Leahy.

There is no question that the chairman is pushing further into the constitutional thicket than President Obama or Attorney General Eric Holder seem to be willing to go. And there is certainly some merit in borrowing from the wise experiments in accountability initiated by other countries -- especially South Africa, which used the truth-and-reconciliation-commission model to get those responsible for Apartheid-era crimes to acknowledge where the bodies were buried in return for the promise of immunity.

Unfortunately, Leahy's proposal to remove from the table the prospect of prosecution of officials who have committed crimes goes against the fundamental American precept that the rule of law must apply to all of us -- even presidents, vice presidents, attorneys general and White House aides.

Justice Anthony Kennedy was correct when he observed in the Supreme Court decision restoring the writ of habeas corpus that was undermined by the Bush administration and its congressional amen corner, that the Constitution is not something an administration is able "to switch... on and off at will."

Even Leahy admits that: "We must not be afraid to look at what we have done, to hold ourselves accountable as we do other nations who make mistakes. We must understand that national security means protecting our country by advancing our laws and values, not discarding them."

Unfortunately, the chairman's proposal for a commission switches off the rule of law by suggesting that the prospect of legal prosecution even in cases of extreme lawlessness -- and congressional action to address gross assaults on the Constitution -- in favor of "developing a process to reach a mutual understanding of what went wrong and learn from it."

The chairman of the Constitution subcommittee of the Judiciary Committee, Wisconsin Democrat Russ Feingold, suggests that it is unwise to simply give up on the prospect of prosecuting lawbreakers.

While Feingold compliments Leahy's initiative and says that "getting all the facts out about what happened over the last eight years is a crucial part of restoring the rule of law," the Senate's most outspoken defender of the Constitution warned today against going too far in surrendering the essential tools of the accountability process.

"On the question of immunity, I think we should tread carefully," told Wednesday's hearing. "There are cases that may require prosecution, and I wouldn't want a commission of inquiry to preclude that. Those who clearly violated the law and can be prosecuted should be prosecuted. On the other hand, the country will really benefit from having as complete a telling of this story as possible, so the ability of the commission to seek immunity for lower level participants certainly needs to be considered. How to do this is one of the complex questions that I hope can be explored in this hearing."

The American Civil Liberties Union agrees with Feingold's view that prosecutions should not be ruled out. The group is urging Holder and the Department of Justice to appoint a special prosecutor to conduct an investigation and, if warranted by the facts, to bring criminal charges against members of the Bush-Cheney administration who broke the law.

Additionally, the ACLU is calling for the creation of a congressional Select Committee that would work in conjunction with Leahy's truth and reconciliation commission. "(The)combination of both committees would be an effective format for congressional review of Bush administration policies," explains an ACLU statement on the issue, which recalls the important work of a committee headed by Idaho Senator Frank Church that investigated executive abuses in the 1970s. "The Select Committee would have the ability to allocate the necessary time and resources outside of the day-to-day demands of the standing committee structure. It would also bring together members from the relevant committees with jurisdiction over the relevant issues to share their expertise concerning the programs under review."

Says ACLU Washington Legislative Office director Caroline Fredrickson: "Americans' faith in government has been deeply. While a truth commission is a valid and admirable suggestion, Congress must go further. Congress' complacent approach to oversight has done our country irreparable harm and legitimized illegal and counter-productive intelligence programs. It's time for Congress to step up in a very real way and assert its role of oversight."

Leahy is not a bad player here.

He understands that there must be a measure of accountability if we are going to renew this country's commitment to the rule of law and to constitutional governance.

The Vermonter is asking the right questions: "(How) did we get to a point where we were holding a legal U.S. resident for more than five years in a military brig without ever bringing charges against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the United States Government tried to make Guantanamo Bay a law-free zone, in order to try to deny accountability for our actions? How did we get to a point where our premier intelligence agency, the CIA, destroyed nearly 100 videotapes with evidence of how detainees were being interrogated? How do we make sure it never happens, again?"

But the answer to those questions must, necessarily, be bolder.

It will take a greater measure of accountability than just Leahy's truth commission to "make sure it never happens again."

The ACLU's Fredrickson is right when she says: "The truth commission is a beginning for Congress to reassert its power, but it must go further."

Let The Sun Shine In......