Monday 5 December 2016

Eilis O'Hanlon: Banging the Drumm for a banker behind bars

Fintan O'Toole wants us to sympathise with the incarcerated former Anglo Irish Bank chief. Eilis O'Hanlon declines.

Eilis O'Hanlon

Published 17/01/2016 | 02:30

STANDING TOGETHER: David Drumm, former chief executive of Anglo Irish Bank, and his wife Lorraine arriving at the US Bankruptcy Court. Photo: Chitose Suzuki
STANDING TOGETHER: David Drumm, former chief executive of Anglo Irish Bank, and his wife Lorraine arriving at the US Bankruptcy Court. Photo: Chitose Suzuki
Fintan O'Toole

Of all the people that former Anglo Irish Bank chief executive David Drumm might have expected to come to his aid as he languishes in a high-security US prison, Fintan O'Toole's name was surely near the bottom of the list.

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Resident Irish Times guru O'Toole is one of that class of right-on commentators who has made a good living for years tut-tutting at the aggressive capitalism exemplified by Drumm and his fellow gamblers in the Irish banks. He didn't just wait until it all went pear-shaped before getting in the boot either. Fintan always disapproved of the excesses of the free market.

So when he now denounces the treatment of Drumm as he awaits a hearing on whether he will be extradited back to Ireland on 33 charges arising from the financial mayhem that led to Anglo Irish Bank's €29bn nationalisation in 2009, it's worth taking a closer look at exactly what he said last week.

O'Toole's argument is that the continuing refusal of the US authorities to grant this man bail - as confirmed by the latest rejection of his pleas by the Massachusetts District Court - amounts to "cruel and undignified" treatment and that the Irish Government has "an obligation to do what it can to protect him", whatever enmity people here might feel towards him as they continue to pay the economic price for his alleged misdemeanours.

As O'Toole told the Irish Times business podcast: "I cannot for the life of me see what purpose is served by placing someone who is legally innocent in what we know to be an extremely dangerous prison."

And he's right, as far as it goes. All men should be equal under the law and there's no reason to treat him more harshly than others just because we might not like him.

But is O'Toole right in the particulars - namely, to say that Drumm faces a risk of violence in prison and that he doesn't pose a flight risk?

The truth is that he doesn't know and nor do we.

Allegations of an "ongoing threat to his safety", made by Drumm's lawyers, were contained in sealed documents. The judge saw them. O'Toole didn't.

Having done so, District Court Judge Richard Stearns ruled they did not amount to "special circumstances" for his release.

Maybe the judge is wrong. Maybe he is a hard-hearted son of a gun.

On the other hand, maybe he just doesn't think the argument that Drumm was in danger was convincingly made. To repeat, he might be wrong about that; or he might be right. It's still impossible to say without seeing the evidence to which the judge had access. That's what they're paid for. To make evidence-based decisions.

Fintan O'Toole goes on to insist that Drumm poses a low flight risk if released on bail and that, even if such a risk existed, it could be guarded against by, for example, placing him under house arrest or making him wear an electronically monitored ankle bracelet.

He, his wife and children have even agreed to all surrender their passports.

That does sound like a commonsense solution. So what's the problem?

The problem is that two separate US judges have now looked at Drumm's case and have both denied the former Anglo Irish Bank chief bail on the grounds that they do regard him as a flight risk.

Maybe they're wrong about that too, maybe they're wrong about everything; but they did not do so arbitrarily. As his own lawyers point out in their January 10 letter to Judge Stearns, there was a three-hour hearing on this issue alone involving "hundreds of pages of pleadings, exhibits and arguments on the issue of risk of flight", which they acknowledge is "far more extensive than would be common with the vast majority of the bail decisions that are routinely handled by these courts". These rulings, in other words, have not been undertaken quickly or lightly.

After all that, the courts still ruled against Drumm. In December, District Court Judge Donald Cabell concluded that he had an "incentive" to flee, given the seriousness of the charges, and that his "background and experience in international matters" and "presumed substantial assets" gave him the "ability" to do so.

The US Government's attorney pointed out last November that his home is only three hours from the Canadian border and that the fact that he lied during a previous bankruptcy hearing meant he "could not be trusted".

Let's say it one last time - they might all be wrong, every one of them, and Fintan O'Toole, despite not having access to the same weight of information, may be right. But if Drumm is of the opinion that the law in this case is an ass, then it is up this lawyers to make that case on his behalf.

They tried to do so in December. They failed. They tried again in January. They failed.

If they have been unable to do so, it's unclear what we're supposed to do about it here. Demand that American politicians directly interfere in their own independent judicial system to get Drumm freed on bail? Haul the US ambassador over the coals? Impose economic sanctions?

O'Toole couches his arguments in classic liberal colours, raising the flag for equality.

"David Drumm is as entitled to bail as anyone else," went the headline on his piece.

But David Drumm is being treated equally.

The US courts have no particular reason to be hostile towards him. They are simply treating him like every other prisoner awaiting extradition.

That's the thing which O'Toole doesn't mention. In Ireland, prisoners awaiting extradition hearings are generally granted bail. In the US, they are not. In order to get bail, they must demonstrate that "special circumstances" apply.

Drumm was free to enter that plea, but was unable to do so successfully.

He now has mob boss 'Whitey' Bulger as a neighbour and deserves every human sympathy for that. In comments sections and on social media, people were actively wishing him physical harm. It was thoroughly unpleasant to see.

Beyond condemning their visceral nastiness, it's not altogether clear what else we're supposed to do with our sympathy.

Drumm is in the US. He has to deal with the US system. He has the best lawyers that money can buy, one presumes. He's given himself the best chance.

Few of the other estimated 1,000 Irish people locked up abroad are remotely as fortunate.

If O'Toole merely wants us to demonstrate our enlightened values by empathising with Drumm on a human level, that's easily done.

Even more so more for his wife and daughters.

If, however, he's saying we must do something, then it's doubtful that we either can or should intervene.

Drumm took his chances. He calculated that America would be kinder to him than Ireland and he's now behind bars in a country which only rarely grants bail to others in his shoes.

Sorry, David, but that's how it goes.

Sunday Independent

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