TED Talks to Julian Assange

font=3 If you aren’t familiar with TED Talks yet, I am about to change that.

TED started in 1984, the year I graduated from college, as a conference to bring together people from the fields of Technology, Entertainment, and Design. It is a nonprofit that holds annual conferences in both Long Beach and in Palm Springs each spring, and has grown to hold the TEDGlobal conference in Oxford UK each summer. The TED Talks are published on the TED Talks video site, which has the capability of translating the talks into up to 27 different languages at this point. More are planned. TED does much more each year to facilitate advancement of the arts and sciences.

The video site on the web offers hundreds of 18 minute talks – not lectures – on subjects as diverse as Cassini’s discovery of the surface tectonics on Saturn’s moon Titan to Sam Harris’s explanation of how morality is hardwired into humans and other animals. The speakers are challenged to give the talk of their lives in 18 minutes.

The spelunker who plans to lead the expedition to mine moon ice is absolutely riveting. Watch him. How can cave exploration and space exploration be related? How can a spelunker think that he can go into space and mine water on the moon as a propellant for space vehicles to then go to Europa? Is this science fiction? Not the way he tells it. Watch the video. If it doesn’t make your jaw drop, you aren’t paying attention.

TED isn’t just about science.A pair of  beautiful dancers perform Symbiosis – and it is understandable. Isabel Allende tells  true tales of passion, Natalie Merchant sings nearly forgotten children’s poems from the 19th and 20th century from her recent album Leave Your Sleep.

TED is on the edge of what is happening in the world. In July 2010. Chris Anderson of TED interviewed Julian Assange of WikiLeaks. WikiLeaks had just released the documents related to the Afghanistan and Iraq wars, and there were rumors that it had still more documents that would set the US government on its ear.

Consider what Julian Assange says in this interview. He explains how the site operates, what it has accomplished, and what drives him. The interview includes graphic footage of a recent US airstrike in Baghdad in which a number of civilians and two Reuters reporters were killed.

Did you note that Assange specifically denies having the embassy cables? In the same breath he said assertively that if WikiLeaks had them, it has a duty to release them so that the world knows.

Assange asserted that “it’s a worry that the rest of the world’s media is doing such a bad job that a little group of activists is able to release more of that type of information than the rest of the world press combined”? Mainstream media does not release documents like  these – not since the Pentagon Papers, that is. One has to wonder if our corporate media even would release such explosive news in this day and age. The news we do get is slanted in such a way as to suit the editorial desires of the publisher, and so often one publisher publishes numerous large newspapers, owns numerous television stations, and even owns radio stations. The news is the same on each one. We no longer have news. We have propaganda. The days of Walter Cronkite are gone.

What does WikiLeaks seek to publish? According to Assange, anything that an organization wants to keep secret. If there is an economic reason for keeping a secret, then it is in the best interest of the world to expose that secret in order to level the playing field. That, he says, is what journalism is.

That is what investigative journalism should be.

Assange pointed out that releasing the video of the Apache helicopter firing on the group of civilians that included the Reuters reporters was not done to inform the Afghans or the Iraqis. They see it every day,” he claimed. “But it will change the perception and opinion of the people who are paying for it all. And that is our hope.” Knowing in advance that innocents were killed in that incident may color our perception of what happened. We hear the soldiers in the helicopter talking and laughing, but to know that the firing was indiscriminate changed how we feel about their demeanor. Is this incident isolated? Or is it typical? We do not know We know this incident happened. We saw it; We do not know if more, similar incidents have happened. We hope not; we fear so.

WikiLeaks’s activities around the globe have resulted in major changes for the better, and for human rights and freedom. The Kenyan election was one example, and recently the Iceland legislature’s passage of a law allowing freedom of speech for journalists that is perhaps the broadest in the world is another.

Americans are divided on the issue of the Embassy documents, and on the war documents. WikiLeaks released them to show abuses. Our country is committing those abuses. It is natural to defend our country, but at the same time, we should not be committing the abuses. We have been caught, Our misdeeds have been exposed by our own words. Yes, it is embarrassing. Yes, we have lost face on the world stage.

Perhaps had we not committed those abuses, our faces would not be so red right now.

Thank you, WikiLeaks, for showing us; the truth.

Medical Malpractice and Tort “Reform”

I’m riding my white horse today.

As a lawyer, I know that people get harmed through no fault of their own by other’s people’s negligence and failure to pay attention to what is important. Whether it’s a car accident, a doctor who ignores symptoms, or a vicious dog who attacks a child, the person who is hurt should not have to pay the price for the injury. The court system cannot give back the things these people have lost: time away from work which leads to the loss of their careers, the pretty face that existed before the dog mauled the four year old girl, the mother who was killed by a drunk driver, living without constant pain caused by the injuries in the accident, the cheerful contributions to her family that the coma patient used to make before the doctor ignored the pulmonary thrombosis that led to her vegetative state.

When lawyers screw up a case, clients want to sue them and recover their losses. And they should. They should also be able to sue doctors, negligent drivers, and other people whose failure to pay attention has hurt them.

Unfortunately, “tort reform” usually means “medical malpractice lawsuit reform.” People think that lawyers are mean to doctors, who are just doing their best to heal people who probably can’t be healed in the first place.

That is not the case.

Look at the statistics in a recent Huffington Post article. Only 2-3% of ALL medical malpractice results in a lawsuit. That’s not 2-3% of medical care cases; that’s 2-3% of actual malpractice situations. Is such a number of lawsuits really excessive?

Caps on punitive damages is the issue Obama is expected to embrace, though. Punitive damages don’t reimburse someone for money they are out. Compensatory damages cover that. Punitive damages are intended as punishment – hence, the name “punitive.”

Why would someone require punishment for a screw-up? Think about how we decide how and whether to punish our children for negligence. Let’s say that Susie and Jenny are at a birthday party for one of their classmates and it’s cake and ice cream time. Susie gets excited explaining something and throws her arms wide, knocking over Jenny’s glass of punch, spilling it on her and ruining her party dress. Of course, Susie has to apologize to Jenny, and she has to get Jenny another glass of punch. She has to help clean up the mess, and if Jenny’s party dress is expensive Susie’s mom might offer to pay for it to be cleaned. These actions are compensatory in nature. They compensate Jenny for the loss of her glass of punch, her clean and dry dress, and her hurt feelings.

If Susie knocks the punch over because she was dancing on the table, though, Susie will be punished. Punitive action will be taken to ensure she doesn’t dance on the table and spill someone’s punch again.

Maybe we put Susie in time-out. Maybe Susie gets a spanking. Maybe Susie is grounded from her Barbies, or she is not allowed to go to any parties for the next month.

The point is not that Susie is being punished for doing something intentionally. She did not. She did spill the punch while being grossly negligent, though. She should have known that if she danced on the table where Jenny’s punch sat, the punch would spill.

Punitive damages in these cases are intended to stop gross negligence. They are not appropriate where there is no gross negligence – where the punch spills accidentally due to something unforeseen or where the negligence was minor. Punitive damages are for those egregious cases where the doctor ignored clear warning signs of his patient’s impending doom and did nothing.

Punitive damages are not awarded lightly by any jury. If a jury awards an amount in the millions, it is because the defendant in those medical malpractice actions has the resources to pay such an amount, even if it hurts. Punishment is not intended to kill, and punitive damages that bankrupt a company or a doctor aren’t appropriate. Punitive damages are supposed to hurt, though – just like being grounded from birthday parties hurts. And just like Susie, the idea is that punitive damages will hurt for a little while, but the defendant will get over it – hopefully to go forth more carefully in the future.

Freethinkers Win Lawsuit and Get Their Seasonal Display

Yesterday in Little Rock, ground was broken on something amazing.

I say it’s amazing, because here in the Bible Belt, there is precious little tolerance for non-Christian points of view. If one isn’t Christian, one is unknowably alien, and to some, one is completely suspect.

Isn’t this a Christian nation? (Well, no, actually this country isn’t a theocracy at all.) Without Christian values, aren’t we likely to devolve into moral depravity? (No. Christians don’t have a monopoly on moral behavior – never have had and never will have.) But we all should accept Jesus Christ as our personal Lord and Savior! (Says who? Jesus? That has all the logic of a parent whose justification is, “Because I said so!”)

“Anne, you’re an atheist.” I hear the condemnation, and I take umbrage. I prefer the term “polyatheist.” There are a lot of gods I don’t believe in. And no doubt, anyone reading this is also a polyatheist. There are lots of gods that have been worshipped over the eons of humanity, and I’d bet my money that not a single reader of this essay believes in very many of them.

Christianity adopted many pagan traditions as it evolved. Celebration of the solstices and equinoxes are among those traditions. Christmas falls within a few days of the winter solstice, as does Hanukkah. Likewise, do the celebrations called Saturnalia, Maruaroa o Takurua, Deuorius Riuri, Amaterasu, Yule, Bodhi Day (also known in Buddhism as Rohatsu), Hogmanay, Soyal, Zagmuk, Beiwe, Shabe-Yalda, Lussi Night, Meán Geimhridh, Brumalia, Lenaea (the ancient Greek Festival of Wild Women), Alban Arthuan, Choimus, Inti Raymi, Maidyarem, Karachun, Makara Sankranti, Ziemassvētki, and Perchta. This list is by no means exhaustive. We will never know the many ways the winter solstice and the days surrounding it were marked by paleo-humans, but they left unwritten records of the fact that the event was noted and celebrated. Places like Stonehenge make drawing this conclusion inescapable.

So what is so groundbreaking in Little Rock?

The fact that a group of non-Christians have been allowed to place a display on the capitol grounds explaining the significance of the winter solstice. Last year the Arkansas Society of Freethinkers asked the Arkansas Secretary of State for permission to erect a display and were refused the opportunity. This year, they again asked permission and again, were denied. So they filed suit through the ACLU.

And WON!

This, in a place where the State Constitution makes discrimination against atheists legal!

You don’t believe me? See Article 19, Section 1 of the Arkansas Constitution:

“No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.”

Last February a rational thinking legislator tried to get a resolution passed to pave the way to repealing that section of the Constitution, but, sadly, it went nowhere.

But hope springs eternal. Perhaps even Arkansas will someday be seen as progressive, or at least not medieval.

Zionist Fallout and an Independent Press

Anna Baltzer, author, and Haithem El-Zabri, founder of the Palestine Online Store. Austin, TX, November 2008. (Photographer unknown.)

I found this photo on Mondoweiss.net, a site devoted to US policy in the Middle East. Adam Horowitz and Philip Weiss, whose articles frequently appear in The Nation and Huffington Post among others, maintain the blog as a project of The Nation Institute.

The people in the photo are Anna Baltzer, a Jewish-American author and champion of the rights of Palestinians in their home lands, and Haithem El-Zabri, a Palestinian-American. This isn’t the kind of photo we would expect to see in the mainstream national media.

Given the blatant horrors of Israel’s treatment and subjugation of Palestinians in Israel, the American press should be astounded at our Israeli foreign policy. Instead, Zionism reigns supreme, no matter the fact that natives of the regions are imprisoned, starved, refused work, refused permission to reunite with their families, and then attacked by Israel’s army for complaining about it.  Granted, Palestinians have complained with shells and mortars, but if Americans were denied these basic human rights, would we sit complacently in our ghettos without fighting back? I think not. I saw Red Dawn, and I approved. (May Patrick Swayze’s soul rest in peace.)

Some of my friends have asked where to find independent news sources. The Nation is a good place to start, and has been around for a long time – 145 years – and its mission of unbiased, non-hysterical reporting of news should be the custom of all journalists, not just an ideal or aspiration.

The Nation will not be the organ of any party, sect, or body. It will, on the contrary, make an earnest effort to bring to the discussion of political and social questions a really critical spirit, and to wage war upon the vices of violence, exaggeration, and misrepresentation by which so much of the political writing of the day is marred.

— from The Nation’s founding prospectus, July 6, 1865

The Nation Institute was founded about 100 years after the weekly news magazine. Its website says that “[t]he Institute places particular importance on strengthening the independent press in the face of America’s increasingly corporate-controlled flow of information, and through its programs the Institute promotes progressive values on a variety of media platforms. The Institute sponsors conferences, investigative research, seminars, televised town-hall meetings, original web content, book publishing, film production, fellowships, internships, and awards for truth-telling and social activism.”

I cannot conceive of higher ideals in journalism.

Some of my more conservative friends may claim that The Nation is a left-leaning rag that spends its time bashing Sarah Palin and wringing its hands about mythical global warming. It isn’t. Yes, it supports logical, reasoned debate and yes, it reports scientific conclusions.

Frankly, I do not understand the logic for supporting Palin’s self-professed ignorance of current events (I can assure you, The Nation is not among the news sources she regularly reads) or for dismissing the empirical data provided by science on the issue of climate change, so I don’t have a problem with that. I blast illogical, histrionic, and patently silly pretenders to political thrones whenever I get the opportunity. I revel in exposing foolish denial of scientific proof because it presents an inconvenience to something the denier holds dear, be it the existence of dinosaurs or the depletion of fossil fuels.

We owe it to ourselves to educate ourselves.

I Just Solved All Our Problems

In response to the blog post of a friend who is understandably bemoaning the state of the nation, I got a wee bit windy.

I know, I know – it’s hard for anyone to believe that I – moi – would spew opinions unrestrained against the drums of ears attached to mouths that were asking rhetoricals, not practicals. Nevertheless, I have the answer, and if the president would only sit down and pay attention to me, all the country’s problems – yea, even all the world’s! – would be solved.

The economy is not going to be fixed overnight, and right now Obama is listening to the experts who advise throwing more money at the economy in all the wrong places – at least IMHO. But, in response to those who are nodding sagely, saying “We told you that Obama would bring socialism and liberalism to the country, but did you listen?  Nooooo,” I say that (ahem) this started on the Republican watch. Obama inherited this disaster; he did not create it. And since no one has ever dealt with such a staggering world-wide economic crisis before, that means he is inventing this wheel as he goes along.  Will he get it all right?  Of course not.  But he won’t be likely to get it all wrong, either.

From what I hear and read, the economy isn’t going to start upward on any consistent basis until at least next year, and maybe not until 2011. Whenever in history the economy has tanked as suddenly and as severely as it did last summer and fall, the recovery has always been slow. That’s why they call them “depressions.”

Consumer confidence is badly shaken, and as more and more jobs are lost and more and more foreclosure notices are mailed, it’s not as if Dick and Jane are suddenly going to decide to splurge on that vacation home, lavish gifts for their status-conscious kids, or a pricey new automobile. Their businesses aren’t going to be hell-bent to hire new employees, either, because if sales are down, and no one is getting the services they offer, the employers simply can’t justify it.

The economy is, believe it or not, depressed.  And Economic Abilify has not yet been invented.

My opinion (and one or two of you might possibly be aware that I have one or two opinions, even though I rarely mention them in polite company) is that Obama would be better off to give stimulus money to the people and entities that are best in a position to turn this thing around, i.e., all of us, but in different ways.

Money should go to the homeowners trying to stave off foreclosure as a condition of and part of the debt renegotiation with the lenders – that way the lenders get paid directly by the government on behalf of the homeowners, the homeowners and their children aren’t sleeping on the streets, and the banks don’t own homes they can’t sell.

If a home is undervalued for the debt the homeowner has against it, the government should pay the difference as soon as new terms for the remainder are worked out between the borrower and the lender. If the borrower can’t afford to continue making the original payments – not the juiced-up interest payments – then there can be a second tier of incentives for the lenders to extend the debts to a 40 year amortization as opposed to the customary 30 year schedule.

And NO MORE INTEREST-ONLY long term debt!  Whose idiotic notion was that, anyway?  “Here, Joe Bob and Sally Sue, take this money that you never have to pay back. Just pay us interest and we’ll all be happy.”  The hell, they say! Morons.

Next, apply stimulus funds to the remaking of the American infrastructure, especially rural and smaller urban areas without reasonable public transit. Make light rail, high speed rail, and buses reach more places and serve more people on better schedules. One of the worst things we ever did was allow our railroads to be dismantled in favor of three cars in every driveway and five lanes on every freeway. Refurbishing and improving our infrastructure will employ hundreds of thousands of people in various positions throughout the country. From engineers to draftsmen to laborers to porters, we can get this country moving at a much more economical rate, and faster, if we’ll commit the funds to do it. And those jobs won’t go away when the projects are complete – they will need to be maintained, too.

Simultaneously, pour money into scientific research and development of alternative energy as well as into to cleaning up and maintain the environment. I’m not talking about just reducing greenhouse gases, although that is certainly a big concern, but (for example) about making reasonable accommodations for heavy metals that are the by-product of mining and drilling. A rocket laden with nuclear waste, arsenic, mercury and lead headed for the dark side of the moon might not be a bad use of NASA’s funding.

Put people to work cleaning up the environmental damage we’ve done to the planet, and making sure we’ve still got a planet to leave to our great-grandchildren. Clean water, clean air, and fewer chemicals artificially enhancing the soil and crops will go a long way toward making us all healthier – not to mention the possibility that our grandchildren might be able to play with frogs in their back yards some day.

And while we’re at it, quit giving chickens and cows all those damn hormones!  I have yet to meet a teenage girl whose double-D’s don’t put my paltry gifts to shame.  Why are their adolescent mammaries the size of a Holstein’s udders? Hormones!

Reduce the employer’s share of employment taxes. With the matching amounts that employers pay for health insurance, medicaid, unemployment, and social security, the cost of hiring an employee is a lot more than just what the employee sees in his check. This would be a real, dollar amount of savings for employers and would probably allow businesses to hire more workers across the board and at all levels.

Nationalized health care? Bring it on. Insurance companies will always provide coverage to people who choose to pay more for less care.  Those of us who have survived cancer (twice, thankyouverymuch) or who are on certain costly medications can’t get health insurance without staggering pre-existing conditions clauses that make our health insurance worthless and excruciatingly expensive – if we can get it at all.

When health insurance benefits dictate whether a parent can open a business of his or her own or must stay with an employer who provides health coverage the family can’t get elsewhere, entrepreneurialism is stifled. This country is dependent on small business and entrepreneurs. We absolutely must break down the barriers that prevent people from making an attempt to achieve their dreams. I don’t know about you, but I work a lot harder for myself than I do for someone else. I don’t think failed businesses should be propped up by the government (Detroit, are you listening?), but when something like paying for childbirth determines whether a family can start a small business, there’s something desperately wrong.

Where, O Where will the money come from to do all this?

(clearing my throat)

The same place the last two trillion dollars came from.  And the next trillion will actually make a difference. It will put people to work, shore up the foundation of the country, and stabilize the economy. It will also have the added benefit of making the world a better place.  And if any of you out there are thinking there won’t be more stimulus money forthcoming, you just hide and watch. It’ll come, I promise, whether the president takes my incontrovertible advice or not.

Now that I have solved the problems of the environment, the economy, health care, and reliance on fossil fuels, are there any other problems you’d like me to take a look at?  My rates are reasonable, and I’m in a spewing mood.

Breaking Up

It’s all the talk.

At cocktail parties and in the small talk before business meetings, we’re all talking about that certain Russian prediction of the breakup of the American union and the new countries that will take its place.

With Governor Perry in Texas talking secession, and Japanese having bought up Hawaii, and the Northwest’s own secessionist movement, maybe professor Igor Panarin’s prediction isn’t all that far fetched.

In case you haven’t heard, the Wall Street Journal ran an article in late December 2008 in which Professor Panarin was quoted as saying that there was about a fifty percent chance that the United States of America would break up by July of 2010.  That’s fourteen months from now.

According to him, we won’t be able to hold together as a nation until the end of the world – or the new era – predicted by the Maya. Brash and impulsive, we’ll disintegrate into six different countries, each under the influence of a different foreign power.  The economy and unimpeded immigration will be major causes of our downfall.  Being Russian, Panarin also attributes the coming civil war to our “moral degradation.”

But those two words, “moral degradation,” are awfully subjective.  Our morals, which the Soviets never thought we had in the first place, have actually gotten worse?  This is the result of the rabidly conservative administration we had until January? George Bush’s administration was closer to Putin’s than any other administration in history – yet our morals are fatally degraded?

I’m just glad that Putin’s Evil Twin is no longer in the highest office in the land. That man scared me.  He left us with a constitution in tatters and a reputation sullied worldwide.  He left us with an economic disaster of pestilential proportions. Under his watch an unnecessary war was started and a war that maybe should have been over by now may never be.  We are indeed following in the footsteps of the Soviets in Afghanistan. There’s a reason that country cannot stay conquered.

Russia’s economy tanked – a solitary tank, by the way, and not as part of a worldwide economic downturn – because communism, while perhaps a lofty ideal, is just an ideal.  In practice it can never work because of the avarice of humans and the specialization of society.  Like it or not, capitalism started with the rise of the medieval merchant class, and capitalism is here to stay. China’s gradual embrace of capitalism is much better than the free-for-all Russia and its satellites endured, but that embrace is tantamount to an admission that as much as we might all like to be equal, some will always be more equal than others.

I don’t see the US breaking up.  I see a future in which some secessionist movements might succeed. Perhaps in the Northwest, where politics and civil rights are far more liberal than in, say, Arkansas, a new country could rise. I don’t see it becoming part of Russia or Japan or China.  The cultures are just too different, and the survivalists are just too adamant. Instead of this secessionist entity clinging to the coast like in Panarin’s notion, Montana will allow it to flex its muscle eastward.

Now, Texas has been an independent country before and, as a former resident of the only state with a school in the Southwest Conference that wasn’t located in Texas, I say let ’em be again.  (My ex-husband never mentions the University of Texas at Austin without an exaggerated spit of disgust.)  We don’t need Texas. If we built a fence around its borders, it might help a great deal with the illegal immigration issue. In fact, give Texas New Mexico and Arizona, too.

The South, as they have always said, will rise again.  The Southern economy, lifestyle, and outlook just doesn’t quite mesh with that of those folks up East. Atlanta can be our capital, or New Orleans, at least until it washes away again.  Now, despite Panarin’s model, I just don’t see West Virginia, Kentucky, Tennessee, or the Carolinas joining some urban Atlantic nation-state. We’ll keep them in the South, as well as the Southern two-thirds of Virginia. Washington D.C. is not a Southern city, and Maryland, despite its location south of the Mason-Dixon line, just doesn’t feel Southern. The damn Yankees can have them both.  The South will also take the Florida panhandle, because we need our “Redneck Riviera.” Disney can have the rest of the state and no one will miss it.

That city that stretches from the Chesapeake to Boston Harbor will become a country unto itself.  To give it arable farmland we’ll donate western Pennsylvania and Ohio to its holdings. It’ll eventually sort of have that “Escape From New York” feel to it.  With any luck it’ll turn into “I am Legend” and we can build a fence around it, too, to keep the zombies corralled.

New England will revert to its colonial status, with the exception of Western Massachusetts, which is part of that Atlantic city-state. Its capitol will be Hanover, New Hampshire, that venerable seat of learning that is crowned by Dartmouth University.

The twin capitals of the landlocked Midwest will be Chicago and port city of St. Louis. With the fall of the Atlantic city-state to zombies, Indiana, Illinois, and Michigan will become the industrial hub of the continent.

Wisconsin, the Dakotas, and Minnesota will join Canada.  People there sound like Canadians already, so the cultural assimilation won’t be difficult for them.  Likewise Alaska will become Canadian, just because Canada needs more tundra.  Although, come to think of it, with global warming, that tundra will turn into bog by the next century.

That takes care of every place except Hawaii.  Since Japan already owns Hawaii, we won’t be able to do much with it.  Vulcanism will render the Hawaii question moot in another few thousand years, anyway.

So, I guess I can see the US breaking up, but not the way that Russian Panarin conceives of it. I have to take the cultural inclinations into consideration, whereas he just looked at state lines.  And other than those northern states that defect to Canada, Japanese Hawaii, and maybe a Cuban or Bahamian Florida, I just don’t see any other country taking control of the nations that result.

And now that I have frittered away a couple of otherwise billable hours on these mental gymnastics, I really should get back to work.

Guantanamo Detainees

It seems, despite Dick Cheney’s assertion that all that are left in Guantánamo are the “worst of the worst,” there was at least one completely innocent guy detained there until three days ago as an “enemy combatant.” Haji Bismullah was so innocent, in fact, that that he actually fought against the Taliban and was a member of the post-Taliban government in Afghanistan. Thanks to George Bush’s suspension of habeas corpus, Haji Bismullah has spent the last six years locked up in that wretched concentration camp anyway.

A military panel, not a habeas proceeding, cleared Bismullah of his status as an “enemy combatant” last week, and over the weekend he was flown back to Afghanistan.

I’m sure he’s not bitter. It was an honest mistake, right? They all look alike under those turbans.

Between January 2002 and May 2006, 759 individuals classified as “enemy combatants” were treated to an all-expense-paid vacation to balmy Cuba, courtesy of the U.S. Government.

The Office for the Administrative Review of the Detention of Enemy Combatants has now done two annual reviews.  It took several years to get the Administrative Review Board in place. When the Combatant Status Review Tribunals geared up July 30, 2004, nearly every detainee was designated a “keeper.” In less than six months, 558 detainees had had their cases heard before the tribunal. Assuming a five-day, forty-hour work week for the 25 weeks between Friday, July 30, 2004, and Thursday, January 20, 2005 (and assuming that no holidays such as Thanksgiving, Christmas or New Year’s were observed and work just continued), that’s less than two hours per case.

Two hours is plenty of time to review whether someone needs to be held as an enemy combatant when the detainee is not permitted to know the evidence against him, or to have the help of a legal professional, or otherwise to defend himself.

As one Washington Times commentator put it, “Detentions of alleged enemy combatants at Guantanamo Bay (Gitmo) and extraordinary renditions smack more of Franz Kafka’s The Trial than of Alexander Solzhenitsyn’s The Gulag Archipelago.”  I would expect that the men imprisoned there without any recourse and without notice of what they did wrong might feel a surreal quality to their experience. Haji Bismullah is not the only one.

Only thirty-eight men were freed by that first round of reviews by the Office of Administrative Review, and 520 continued to be held as “enemy combatants.” It’s no surprise to me that these 520 men continued to be held at Guantánamo when one considers that they were not permitted access to all of the allegations that initially gave rise to their status as enemy combatants, and that they were not given the benefit of legal representation.  What’s equally bad, though, is that only 37 of those first 558 tribunals were attended by the media.

The media weren’t turned away from any of the reviews, insisted a spokesman for the Office of Administrative Review. All the media had to do if they wanted to attend a review hearing was 1) be on the island the day the review happened and 2) ask to go.  Of course, the Office of Administrative review didn’t tell anyone in advance when the hearings were.  Dumb luck seems to be the device by which those 37 hearings were attended.  Even when the transcripts of the hearings are released, the names are redacted from them – the public has no way of knowing who the detainees were or who any of the other players are in the decision to hold or release them.

In 2005, there were 463 recommendations that resulted in 14 releases, 119 transfers of prisoners to other facilities. The Administrative Review Board decided to continue to detain 330 of the prisoners remaining in Guantánamo.  In 2006, two prisoners were released, 55 became eligible for transfer, and 273 continued to be detained at Guantánamo.

Since a Supreme Court decision in June 2008 gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them. Three! Not surprisingly, Bush’s Department of Justice has appealed some of the rulings it lost.

As The Decider and his waterboarding cronies prepared leave Washington, they speeded up the release of many men held at Guantánamo over the last seven years.

Nearly ten percent of the “worst of the worst” have been released in the last three months. One of them, a poor kid from Chad, who spent the first two thirds of his life in Saudi Arabia with his parents, was accused of being a member of an Al-Qaeda cell in London when he was 11. He was sent to Guantánamo when he was 14, where he stayed until last week. He says that he was tortured during his imprisonment there.

If young Muhammad Hamid Al Qarani was not an enemy of the United States before his capture and designation as an enemy combatant, you can bet he’s one now, having grown up subject to the loving nurture of the prison camp at Guantánamo Bay.  He spent nearly one third of his life being held indefinitely there.  Do you think that might give a kid some issues?

In September, the Department of Defense admitted that a dozen teenagers had been held at Guantánamo over the last six years, four of whom were still there. Five of these kids were released, but one commited suicide. If my own child were held in a foreign prison, not even as a Prisoner of War but under a nebulous designation that prevents any treaties from applying to him, I would be advocating strongly for the war crimes of the country holding him to be punished – and punished severely.

There’s still another problem, though.  About 50 of the detainees who have been cleared for release have no place to go.  Either their homelands won’t accept them or they don’t have a homeland.  Some who fall under the latter status are Palestinian.  Yemen won’t accept its natives back. And even as the numbers in Gitmo dwindle, there are still thousands of detainees held in military prisons in other countries, including Afghanistan, Iraq, Ethiopia, and  the joint US/UK base on the Indian Ocean atoll of Diego Garcia.

President Barack Obama has said consistently over the last two years that he intends to close the Guantánamo Bay as a detention center. Last week it was reported that he might issue the executive order closing the prison camp as soon as today, although other reports are that closing the prison might not be accomplished even within the first 100 days that he is in office.

I hope he does more than just close the prison camp. I hope he repatriates each and every person held there. If they are terrorists, their own countries can deal with them. The United States government has refused to do anything but warehouse them.

Sources:

Rulings of Improper Detentions as the Bush Era Closes (NY Times, January 19, 2009)
Obama Vows to Close Guantanamo (Al Jazeera English, November 18, 2008)
Obama Closing Guantanamo: Preparing Order in First Week (The Huffington Post, January 12, 2009)
24 Gitmo Prisoners Ruled Wrongfully Held in Last three Months (The Washington Independent, January 19, 2009)
Obama: Guantanamo Center Might Not Close Within First 100 Days (Baltimore Sun, January 20, 2009)
Annual Administrative Review Boards for Enemy Combatants Held at Guantanamo Attributable to Senior Defense Officials (DoD, March 6, 2007)
List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006 (DoD, May 15, 2006)

Strange Maps

One of my favorite blogs is “Strange Maps.” I admit: I’m a map geek. The maps are really fascinating, I promise. Each map is accompanied by a well written, well researched article that lists its sources. I’ve never failed to learn something from these posts.

For instance, there’s the one that shows how King Cotton picks Presidents, something near and dear to my heart since my family has grown cotton in Arkansas since before the Civil War and is pleased to hold sway still over national politics. (Sorry, I will not entertain questions about how many slaves my ancestors owned. I hate to be prickly, but that is usually the tactless question immediately asked when I mention our history of cotton farming.)

Also on the political front was the map that showed clearly what illegal immigrants were aiming for when it came to the Absolut Perfect Mexico. Scary, huh?

Believe it or not, though, there’s humor in maps, too.

The “Strange Maps” blog featured a very special post on The Semi-Colonial State of San Serriffe, a place that is near and dear to my writing, punctuation-loving heart.

There are maps of strange and wonderful places such as Elleore, a kingdom 12 minutes ahead of Copenhagen. I never discerned whether they have Daylight Savings Time in Elleore, or if at some point they fall 48 minutes behind Copenhagen.

Then there are the bizarre maps of the modern world, such as the “Smart Medicine” infomercial map that located Australia off the coast of Baja California and situated Africa between Maine and Ireland, eliminating Iceland and Greenland entirely, and
a map of the “Special World” that only the hospitality industry inhabits.

Wonderful antique maps crop up occasionally, like the map that inspired Christopher Columbus to believe he could sail from Spain to Cathay in three weeks, overlaid on the true map of the world.

Maps on the site show useful things, too, like where to find goblins in Europe or what to ask for when one wishes to order a non-alcoholic carbonated beverage in a different part of the country.

I have to admit, though, that yesterday’s featured map, from xckd.com (a webcomic of romance, sarcasm, math and language) is one of my favorites, just for the sheer fun of it:

Gridlock: The American Way

Often as not, politicians and pundits decry gridlock as something negative.  Nothing could be further from the truth, as an OpEd piece in the Wall Street Journal points out today.

In my opinion, political parties are designed to create “gridlock.”  This is actually a good thing, and the framers of the U.S. Constitution hoped that checks and balances among the three branches of government would prevent silly laws.

Far too much legislation gets passed even when there is gridlock.  Just to gather additional votes, lawmakers append pork to bills completely unrelated to the primary subject of the bill.  The long-winded, convoluted language of most bills (yes, a lawyer is saying this!) obfuscates the intent of the drafters.

With a majority of the president’s party in both the Senate and the House, a dangerous atmosphere builds into a tempest that takes far too long to stuff back into its metaphorical teapot.

The point of having a balance of power between the executive and legislative branches is so that over-reaching legislation doesn’t get passed and signed into law.  With one party effectively running these two branches, we should expect abuses of power.  It matters not which party is in power.  Both parties – as well as any hypothetical third party in such a position – would be unable to resist the temptation to press their agendas unchecked by other points of view.

The problem with our current tax-subsidized two-party system is that a single party can indeed obtain a majority relatively easily.  Legislation can get passed, and then a supermajority isn’t as much of a hurdle when there is a veto. Politicians will tell us that this is a good thing, because “things get done.”

But is majority rule really a fair way to go about things?  Fifty one percent to pass a bill means that 49% are effectively disenfranchised. A simple majority does not constitute a mandate, no matter what certain politicians may tell us.  A simple majority means simply that there are a few more for something than against it.

And “getting things done” isn’t always the best thing, either.  Think about how fast the USAPatriot Act was passed in the hysteria following 9/11.  Think about how fast the economic bailout was passed despite the fact that its details remain poorly understood by “Joe the Plumber” as well as “Joe Six-Pack,” and – dare I suggest? – by the rank and file in Congress as well.  Bad laws get passed for good reasons.  Generally, getting rid of bad laws is much harder than passing a good one to begin with.

Clueless

Not only is he likely to die by the end of his first term in office (see the actuarial tables if you think I’m kidding), he’s clueless.

Yes, the wars in central Asia are a problem.  But even bigger and more worrisome is our country’s fiscal well-being.  To quote James Carville’s “war room” reminder from 1992, “It’s the economy, stupid.”  Sixteen years later, it’s the economy again.  And that’s stupid.
As if it wasn’t bad enough before, the past two weeks have seen our economy positively reeling from blows repeatedly delivered to it over the past several years.

First, September 7 it was announced that Fannie Mae and Freddie Mac were insolvent and had to be taken over by the government.  These two publicly owned companies either own or guarantee fully half of the mortgages in America. That’s right: of the twelve trillion dollars – that’s 12 followed by a dozen zeroes, for those of you who don’t know –  in money borrowed to finance the American Dream, $6 trillion of it was, in one form or another, the ultimate responsibility of these two companies.

Fannie and Freddie are, according to Fortune’s listing of the “Global 500,” the 161st and 162nd largest companies in the world respectively. The ranking is based on their annual revenue, which for each company is a little over $43 billion. Their profits, however, are in the negatives.  Fannie Mae reports losses of $2.05 billion and Freddie Mac, even worse, reports losses of $3.094 billion. And together they were on the hook for six trillion dollars in debt, over one percent of which was delinquent. That’s a recipe for bankruptcy in anyone’s pocketbook.

Are these companies even the biggest losers on the scale of gargantuan companies posting gargantuan losses?  No.  General Motors (yes, another cornerstone of the American economy and a major employer worldwide) boasts that honor.  With revenues of more than $182 billion, GM is posting a loss of $38.732 billion.   Ford Motor Company isn’t quite as desperate.  It comes in at #10 on the list of losers at a loss of $1.8 billion.  A loss like that seems manageable in comparison to GM’s, doesn’t  it?

Another US company, Sprint/Nextel, which is the third largest among the telecom giants, is posting losses exceeding $26 trillion this year.  Staggering losses like these do more than cause a company to go bankrupt.  Companies vaporize due to losses like these.  Then there’s the domino effect of the fallout: lost jobs, unpaid debts to other companies, and a gap in the economy that no amount of politicking can fill.

Will the government rescue GM like it rescued the Chrysler Corporation in the 1970’s? Our automakers employ an awful lot of people.  It will be very hard for the United States, competing with Indian and Chinese workers who charge pennies to the dollars charged by American workers for their time, to fill a manufacturing hole of that size.

It’s a big jump from these staggering losses to the next bracket of the biggest losers on Fortune’s list.  A German bank, in the red because it helped bail out a German competitor that had tanked because it had invested heavily in American subprime mortgages, is next in line with losses of $8.4 billion, but then, when we look to the next giant losers, we’re back on American soil.

Merrill Lynch is the fourth biggest money loser worldwide right now. Merrill Lynch was in the news this weekend because Bank of America became its white knight, dashing in to rescue the failing investment giant, whose offices fill all 34 floors of the Four World Financial Center Building in Manhattan’s famous financial district.  We might note here that the same subprime lending crisis has led to the failure of this icon of investing.  We might also note that Merrill Lynch is one of the relative handful of investment companies that survived the Great Depression of the 1930’s.  News of its failure is ominous, indeed.

Four of the top five money losers in the world are American, and the one that isn’t had losses caused entirely by the American subprime crisis. And get this: one of the top five losers is an agency of the American government!  Did that sentence get your attention? It should have.  Yes, the United States Postal Service is number five on the list of losers.

Now, I could wax lyrical about the mismanagement of the postal service here, but I’ll save my rant for another time.  Maybe I’ll mention something in the comments to this blog about how much freaking money the USPS spends to advertise its monopoly. But for now I’ll pass.  There’s a lot of complex analysis that goes into that discussion, and I’m talking about the economy in general, here.  I’m talking about a certain presidential candidate’s understanding of the economy in particular.

You see, despite Fannie Mae and Freddie Mac, despite the subprime and credit crises, despite the failure of Merrill Lynch and AIG, which the Federal Reserve decided to help yesterday with an $85 billion bailout loan, despite the bankruptcy filing this weekend of Lehman Brothers, another huge investment firm, John McCain believes our economy is fundamentally sound.

Now, keep in mind that we have a federal budget deficit of $9 trillion that has grown by well over $400 billion a year since the current administration has been in control. We’re fighting two wars in central Asia at an annual cost of $200 billion, which we have borrowed from China – China! – to finance. The Federal Reserve just lent AIG $85 billion, and that money has to come from somewhere.  Internationally, our currency is weak.

When the wars started, President Bush expanded the government in an unprecedented move by creating a Department of Homeland Security.  (Excuse me, but wasn’t that what the already-existing National Security Agency for?  Wasn’t Homeland Security redundant?  I feel another rant coming on.  I’ll stop here.)

The biggest financial  losers globally are either American companies or driven to their staggering losses by American economic policies and practices, and John McCain thinks that the economy is fundamentally sound.

John McCain thinks that America’s big employers and investors can sustain staggering losses and the economy is still fundamentally sound.

Something in that jungle prison over there did more than make him unable to comprehend how to send an email.  Something in that jungle prison over there robbed him of his ability to see what is obviously an unfolding financial disaster on a scale with the Great Depression.

John McCain thinks the economy is fundamentally sound. He said so on Monday, the same day Lehman Brothers declared bankruptcy.

The emperor is wearing no clothes, and his consort is a redneck rodeo queen.

Tens of thousands of jobs on Wall Street are at risk, as are hundreds of thousands of jobs in the automotive industry.  Monday was the worst day for the stock market since the 9/11 terrorist attacks. The dollar is weak against foreign currencies. We’re fighting two wars. Oil, which we depend upon as much as we depend upon water, is three times as costly as it ought to be. Worker productivity has increased, but wages have not.

Our government isn’t financially sound.  It has debt it can’t possibly repay and it has pushed a pro-credit, pro-housing agenda among the populace until consumers no longer can pay for what they buy. Unemployment is rising, and job creation is ridiculously low, a dangerous situation when we look at the potential for both white collar and blue collar job losses.

McCain thinks the government is fundamentally sound? You’ve got to be kidding me.

Gun Control

In the last couple of years I’ve changed my stance on gun control.

I don’t like guns.  They scare the hell out of me, and I see nothing “sporting” about attacking unarmed animals with them in the woods. I don’t own one and I’ve never been comfortable with the notion of having one in my house, despite the fact that my ex-husband had a hunting rifle and a boyfriend had a pistol.

I’ve represented kids with criminal charges involving guns.  I’ve seen bullet holes in children’s bedroom walls from drive-by shootings. I’ve represented women who were threatened with guns by their husbands, boyfriends, and even their sons. I’ve been to funerals of people killed by guns.  I’ve held and hugged a weeping grandmother when a stray bullet in a gang shooting left her favorite grandson, a good boy with an “A” average and college-bound, dead on a dark street in a small town in southeast Arkansas.

I don’t like the attitude of the NRA. It comes across as arrogant, shrill, and combative – not the kind of attitude a responsible gun owner/handler should display, especially around guns.

This is going to sound stupid, probably, but one of the things that tipped the scales for me against gun control was a movie.  It wasn’t just any movie.  It was a movie based on a comic book. Bear with me.  I’ve watched V for Vendetta, a film by the incomparable Wachowski Brothers, multiple times, and I find no fault with its future history philosophy.

Perhaps the helium in my brain is showing, but the point that disarming a populace oppresses the citizens makes sense to me.

One of the very best quotes from the movie is, “People should not be afraid of their governments. Governments should be afraid of their people.”  Why?  Because the power to change government, to oversee government, and to demand that government be accountable lies with the people.

There is a poignant scene in this movie in which thousands of unarmed citizens in Guy Fawkes masks confront the well-armed military. As they pour into the open areas on this auspicious night, the astonished military doesn’t open fire. Perhaps it is the sheer numbers of people; perhaps it is the eerie, surreal fact that they are costumed like that seditionist of the past, but for whatever reason, the armed forces of the government holds its fire and allows itself to be overrun. Perhaps it is because the members of the armed forces are citizens, too, and the whole point of the movie is that citizens must require and compel change in the government.

And then there’s this quote, the source of which I’m desperately seeking:

“An armed society is a polite society.
An unarmed society is a police state.
A disarmed society is a tyranny.”

Perspectives on War

I was talking recently with a couple of friends who have experience in military and foreign relations. As sometimes happens with us, the discussion turned to politics.

The question was asked, “What do you think about Russia and China conducting joint military training?”

One friend, who has a military background, dismissed the exercises as “showing off.”

“So you don’t think they can amass the power to oppose the US in world military matters?” I asked.

“I think the trainings were a desperation move,” my other friend responded. This friend has worked with the American diplomatic corps in international locations for years.

“Why do you say that?”

“China and Russia consider themselves decision makers along with US on international levels, but in recent years, they have found themselves out the picture and being ignored. They are trying to drawn some attention hoping the world will remember their presences.”

“As though the world doesn’t remember that they are both serious nuclear powers?” I was skeptical.

“They hope, among other things, that if they make a display of comradeship and display their combined military might, other countries will look to them with more respect,” said my diplomatic friend.

“They can only do so much, though,” agreed my military friend. “In the end, they know and everyone knows that we could crush them and their entire military in less than 24 hours.”

“Yeah, right,” I said sarcastically. “Like we crushed Iraq.”

“No war has ever been won faster than Iraq,” declared my military friend.

“What about the Arab-Israeli Six-Day War?”

“No. We won the war in less than eight hours and then we invaded to take out the remaining resistance. It took time to cover the land and actually get to Baghdad, but by then the war had been won.”

“What do you mean, eight hours? Eight hours from when we got to Baghdad, or eight hours from when we crossed the Kuwait border initially?”

“By military definition, a war is won when one side destroys the enemy’s military and renders it unable to fight. That only took us less than eight hours with airstrikes, before we ever crossed the border,” my military friend explained.

I repeated one of my initial questions. “Could we cripple the combined military of Russia and China as quickly, without nuclear reprisal?”

“Easily,” my military friend asserted. My diplomat friend agreed with a nod.

“Without inviting a nuclear attack from them?” I was very skeptical.

“There is no assurance that we could avoid nuclear missiles getting into our territories,” said my diplomat friend. “Desperation may lead the losing countries to try using their nuclear power, and they might get missiles through before we could destroy them.”

My military friend added, “But we have jets that have never been used in any war, sophisticated weapons…”

“Do you really believe that we are 100% capable of taking out any nuclear warhead directed at the US or its allies?” I demanded. No matter what the technology might be, error-prone humans create the equipment, program it, and operate it.

“Nothing is one hundred percent assured,” agreed my diplomat friend.

“Do you think any country would actually use nuclear weapons?”

“Yes,” asserted my military friend without hesitation. “Any Muslim country that obtains nuclear weapons will use them against us.”

I was still skeptical, but thoughtful. “I prefer to think that the lessons of Japan and even of Chernobyl would cause leaders not to use them, but if the nuclear arsenal of a country got into the hands of fanatics, I don’t think we would be able to judge what might happen. Fanatics just don’t think like we do.”

“Consider, too, that the world population is increasing and there are not enough natural resources to satisfy everyone. It won’t be long before the countries of the world will be fighting over resources as basic to sustaining life as water.” My diplomat friend has already been at the negotiating table on matters of resources and the environment.

“That is definitely true,” I agreed. “But if nuclear weapons are used, then the land affected by them becomes uninhabitable, and resources like water that pass through contaminated lands will be unusable.”

“Right, but some countries may see themselves as having no choice but to destroy more powerful countries just so they can survive. They believe the historically powerful countries are dominating the world and they need to be taken out. For instance, that is what many Muslims believe. They think the only way for Islam and their way of life to survive is if there is no powerful Western influence over their government or their culture.” My military friend feels strongly about this, in case that fact escaped anyone.

“There are plenty of countries that resent our interference in their policies. Venezuela is one. Obviously the Muslim world thinks that of any non-Muslim power. China has been careful to prevent foreign influence and accused England of causing their population to become addicted to opium in the 19th century in an effort to control them,” my diplomat friend pointed out.

“No country appreciates the interference of outside forces,” I agreed, “unless they see that country as an ally that has been invited for a particular purpose – like Kuwait during the Gulf War.”

“The bottom line,” declared my military friend, grinning, “is that we need to destroy the rest of the world sooner rather than later if we want to stay in the driver’s seat.”

“Now you’re thinking clearly!” I laughed.

“Right,” said my diplomat friend. “Instead of annexing the rest of the world, we should just annihilate those other countries. We should learn from the mistakes Rome made.”

“Not to mention the Soviet Union,” I added. “Ancient Greece, ancient Persia, Hitler, Napoleon – all made the same mistake of trying to conquer the world when they should have just destroyed it.”

“Finally you two are talking like people who know what they are talking about,” my military friend chuckled.

What’s disconcerting is that I’m not sure he wasn’t just a little bit serious.

The Clintons on Torture

Vodpod videos no longer available.

For the record, here’s Bill Clinton on the issue, from the transcript of the September 24, 2006 edition of Meet the Press:

MR. RUSSERT: What did you think when Colin Powell said, “The world is beginning to doubt the moral basis of our fight against terrorism”?

MR. CLINTON: I think he was referring to the, the questions that have been raised about the original evidence, which plagues him and in which he was, I think, unwittingly complicit. I don’t think—I think it’s pretty clear, based on what all the people that worked for him have said. I think he was most worried about the question of torture and the conduct of the prisons at Guantanamo and Abu Ghraib. And of course, he weighed in in this debate about the extent to which the CIA or others could engage in conduct which clearly violates the Geneva Convention.

Now, we—as you and I talk, and we hear that they’ve reached an agreement, the senators and the White House, and I hope they have. But Colin pointed out that, you know, we’ve got soldiers all over the world. If we get a reputation for torturing people, the following bad things are going to happen: We’re as likely going to get bad information is good, just for people to just quit getting beat on; two, we’re likely to create two or three or five enemies for every one we break; and three, we make our own soldiers much more vulnerable to conduct which violates the Geneva Convention. That is, we can’t expect our friends, much less our enemies, to accept the fact that because we’re the good guys, we get to have a different standard of conduct. And most people think the definition of a good guy is someone who voluntarily observes a different standard of conduct, not someone who claims the right to do things others can’t do.

MR. RUSSERT: Would you outlaw waterboarding and sleep deprivation, loud music, all those kinds of tactics?

MR. CLINTON: Well, I—here’s what I would do. I would figure out what the, what the generally accepted definitions of the Geneva Convention are, and I would honor them. I would also talk to people who do this kind of work about what is generally most effective, and they will—they’re almost always not advocate of torture, and I wouldn’t do anything that would put our own people at risk.

Now, the thing that drives—that, that gives the president’s position a little edge is that every one of us can imagine the following scenario: We get lucky, we get the number three guy in al-Qaeda, and we know there’s a big bomb going off in America in three days and we know this guy knows where it is. Don’t we have the right and the responsibility to beat it out of him? But keep in mind, in 99 percent of the interrogations, you don’t know those things.

Now, it happens like even in the military regulations, in a case like that, they do have the power to use extreme force because there is an imminent threat to the United States, and then to live with the consequences. The president—they could set up a law where the president could make a finding or could guarantee a pardon or could guarantee the submission of that sort of thing ex post facto to the intelligence court, just like we do now with wire taps.

So I, I don’t think that hard case justifies the sweeping authority for waterboarding and all the other stuff that, that was sought in this legislation. And I think, you know, if that circumstance comes up—we all know what we’d do to keep our country from going through another 9/11 if we could. But to—but to claim in advance the right to do this whenever someone takes a notion to engage in conduct that plainly violates the Geneva Convention, that, I think, is a mistake.

Thanks, Bill. Now, that having been said, I think “Geneva Convention” is too much to have to remember when we’re talking about Safewords.

The Patriot Act Is Dealt a Blow

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – U.S. Const. Amend. IV.

On March 11, 2004, 191 people were killed and more than 1600 were injured when bombs placed by terrorists exploded on a Madrid, Spain, commuter train. Latent fingerprints were lifted from a suspicious plastic bag, and Interpol sent digital photos of them to the FBI in Quantico, Virginia.

No matches were found in the FBI’s database until higher resolution digital photos were sent the next day. This time, 20 potential matches were returned with respect to one of the latent prints. The FBI was able to pull names, addresses, sex, race, birth dates, and Social Security numbers for the 20 potential matches, and performed background checks on each of them.

Brandon Mayfield, a 38 year old practicing lawyer living near Portland, Oregon with his wife and three children, was ranked number 4 on the list of potential matches for the latent print. Mayfield had not been outside the US since 1994 (he didn’t even have a current passport), and had never been arrested for a crime.

A supervisor in the department that matches fingerprints decided that Mayfield’s prints matched the latent print. For verification, as the FBI sometimes does, independent confirmation was sought. The person who confirmed the match was a former FBI employee who had been reprimanded several times for falsely or erroneously matching fingerprints. He knew that the FBI had already made the match, and he was aware that Mayfield was a practicing Muslim. Because there were less than 12 points at which the latent print and Mayfield’s prints matched, a third analyst also reconfirmed the match. The second reconfirmation was also tainted by the fact that the third examiners knew that the first two had made the match and by the knowledge that Mayfield was Muslim.

The FBI began surveillance of Mayfield and his family. They followed then to the mosque they attended, to the children’s school, to Mayfield’s law office, and to family activities. Attorney General John Ashcroft personally applied to the Foreign Intelligence Security Court (FISC) for an order to permit placing bugs in the private rooms of the Mayfields’ home. While waiting for the FISC order, the FBI went ahead and placed the taps on phones both in the home and in Brandon Mayfield’s law office. They began gathering information about the Mayfields from other people. They also did “sneak and peek” entries into the home and law office, entering, but not removing anything. The Mayfields detected the entry and believed they had been burglarized.

Three weeks later the FBI sent Mayfield’s prints to Spain. In the meantime, several Moroccan immigrants to Spain had been arrested in connection with the bombing. There was no connection between the Moroccans and Mayfield. The Spanish authorities examined the fingerprints and found too many dissimilarities, so notified the FBI that there was no match. The Spanish authorities had the original latent prints, not digital photos of them, for comparison purposes. A formal report from Spain to the FBI followed. Not to be deterred, the FBI sent agents to Spain, but the Spanish authorities were firm. There was no match of Mayfield’s prints to the latent print.

The FBI was still determined to connect Brandon Mayfield to the Madrid bombing. In support of its request for a warrant to arrest Mayfield as a material witness to the bombing, an FBI agent swore in an affidavit that the FBI had determined Mayfield’s prints and the latent print were a 100% match. No mention was made of the Spanish conclusion that the prints were not a match. The affidavit also emphasized Mayfield’s religion and ties to the Muslim community.

Once he was arrested, Mayfield vehemently protested his innocence, but an independent fingerprint examiner selected by Mayfield and his lawyers also determined that the prints were a match.

Thanks to broad search warrants for the Mayfield home and law office, computer files, papers, and even the Mayfield children’s homework was seized by the FBI. Mayfield was held incommunicado in a detention facility, and he and his family were told that he was to be charged with crimes punishable by death. They were told that there was a 100% match between his fingerprints and those found in Madrid. The FBI and the Department of Justice leaked information about the arrest to the press, and there were international headlines proclaiming Brandon Mayfield to be involved in the Madrid bombing.

Two weeks after his arrest, Spain notified the FBI that it had matched the latent print in question with an Algerian. Spain specifically notified the news media that the print did not match Mayfield’s. Mayfield was released from detention the next day, but was ordered to remain on home detention for the next several days.

At least eight federal agencies, the CIA, the National Security Council, the Department of Defense, Homeland Security, the Department of Justice, the FBI, the Department of the Treasury, and the NSA, now have “photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.” – Mayfield v. United States (CIV. 04-1427-AA, p. 23), ___ F.Supp. ___ (26 Sept., 2007).

It’s not surprising given this chain of events that Brandon Mayfield, his wife, and their three children sued the federal government.

The USA PATRIOT Act allowed the federal government to conduct secret surveillance of Brandon Mayfield and his family based entirely on the misidentification of that latent fingerprint, even after Spain had determined there was no match. The unconstitutionality of the Foreign Intelligence Security Act (FISA) as amended by the USAPATRIOT Act was the subject of a decision by one of Oregon’s federal judges this week.

The USAPATRIOT Act modified the FISA, 50 USC §§ 1801 et seq., to allow the federal government to conduct secret surveillance of U.S. citizens without having to meet the requirements of the 4th Amendment to the U.S. Constitution against unreasonable search and seizure, and against warrantless searches and seizures.

Until 2001, when the federal government sought a warrant under FISA, a high ranking member of the intelligence community, such as the Director of the FBI, was required to certify that the primary purpose of the surveillance was to obtain foreign intelligence information. With passage of the USAPATRIOT Act, that standard is changed. The government now needs only to claim that foreign intelligence gathering is merely a significant purpose of the surveillance. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). Because of the USAPATRIOT Act, FISA surveillance orders can be obtained even if the government’s primary purpose is to gather evidence of local, domestic criminal activity.

What does this mean? Passage of the USAPATRIOT Act meant that for the first time since 1791, when the Bill of Rights was adopted, the government could conduct searches and seizures without showing that a crime was either contemplated or had already been committed. It means that the federal government can avoid the probable cause requirement of the Fourth Amendment by merely alleging that part of the reason for the search and seizure is related to foreign intelligence gathering.

The government doesn’t have to suspect its target of any criminal activity at all, so long as gathering foreign intelligence is claimed as part of the reason for the search. The government only has to make a nexus of some sort between foreign terrorism or international espionage and the targeted person or place, and the approval for surveillance is granted under FISA. There doesn’t have to be any specific activity that the government is concerned about, unlike in the Fourth Amendment searches and seizures, where the affidavits and resulting warrants have to be specific as to the information to be sought and seized.

FISA allows surveillance to continue for four months at a time, whereas similar activity in the context of a normal criminal investigation is only allowed to continue for 30 days.

Furthermore, the government can retain the information obtained in the search without notifying the target of the search. Under the Fourth Amendment, the target of the search not only knows there has been a search but has been officially served with a warrant for it, and can challenge the validity of the warrant and the underlying affidavits in court. No such judicial challenge is available under FISA. Unless there is a criminal prosecution under FISA, the target may never know that the government has been watching him, tapping his phones, following him to work, or copying documents or records he thought were private.

The Oregon Federal District Court was mindful of the conflict between preserving the constitutional rights of Americans and the need for national safety and security. It was also mindful that the United States Supreme Court had already determined that the Executive Branch’s arguments to be specious “that ‘internal security matters are too subtle and complex for judicial evaluation’ and that ‘prior judicial approval will fracture the secrecy essential to official intelligence gathering.’” United States v. United States District Court, 407 U.S. 297, 320 (1972).

In 2002, the seven federal judges who are allowed to issue warrants for FISA surveillance – the only seven people in the country who have that power – issued a unanimous opinion finding that the procedures for obtaining approval for surveillance under FISA after passage of the USAPATRIOT Act were improper because they appeared to be geared toward law enforcement purposes rather than toward foreign intelligence gathering.

The U.S. government appealed. The FISCR, the court that reviews any appeals from the FISA court, reversed the unanimous decision of those seven judges. The government was the only party allowed to argue the case even though a number of entities had filed briefs as amicus curiae (friends of the court), urging the appellate court to uphold the ruling of the FISC judges. Only the government is allowed to ask the United States Supreme Court to review appeals from the FISCR.

This week, in striking down the relevant portions of FISA as amended by the USAPATRIOT Act, the Oregon District Court said:

It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.
. . .
[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

Thank you, Judge Ann Aiken.

Read the entire decision here: Mayfield v. United States

Bush’s Approval Ratings Hit an All-Time Low

In May President Bush’s job approval ratings, at an average of 30%, hit the lowest of any president in a generation, and since then have kept dropping lower. In a poll conducted July 18-21 by American Research Group, Bush’s approval rating is 25%. A staggering 71% of those polled reported that they disapproved of his job performance, and 4% were undecided.

Of the 1100 people responding to the poll, 30% identified themselves as Republicans, 37% identified themselves as Democrats, and 33% identified themselves as independents.

Among the Republicans, 68% approve of the way Bush is handling his job and 26% disapprove. Of those claiming to be Democrats 1% approve and 97% disapprove. The Independents had 18% approve and 79% disapprove.

I would expect the people identifying themselves as Republicans to be predisposed in favor of the President, since he is a member of their party, and I would expect the Democrats to be predisposed against him. I was staggered by the fact that a mere 1% of Democrats were willing to say they approved, though.

The poll results don’t say whether the independents identified themselves with another political party or with no party at all. Nevertheless, I thought it quite telling that of that one-third of the respondents, 18% thought the president was doing well. It seems that the only people who like this president are the loyal members of his own party.

The poll primarily targeted opinion regarding the economy. The numbers regarding the President’s handling of the economy are even lower than his overall approval rating. Only 23% of those polled approved, and 72% disapproved. The division among Republican, Democrat, and Independent was similar to the division they demonstrated in the overall approval rating. Interestingly enough, more Democrats (3%) approved on his handling of the economy and of his overall job performance, whereas fewer Republicans (61%) thought he was doing well with the economy. Independents (11%) were likewise less enamored of his economic performance.

Resources:

American Research Group – The National Economy

Prof. Stephen Ruggles, Univ. of Minnesota – Bush Approval Graph