Monday, December 20, 2004

Spectacular, Spectacular (is there a Thesaurus in the House?)

spec·tac·u·lar( P) adj. Of the nature of a spectacle; impressive or sensational.

Agency that OK'd Celebrex doing 'spectacular job'
WASHINGTON -- The federal drug safety agency is doing a ''spectacular job'' of protecting the public, the White House chief of staff said Sunday. Card said, ''They do a spectacular job. When you think about all of the new technologies and the new drugs that are coming into the marketplace, and they have to review them all to make sure that when they come into the marketplace, they live up to the expectation of improving health care.''

White House Says Rumsfeld doing "a Spectacular Job"

White House Chief of Staff Andrew H. Card Jr. said that President Bush fully supported his Defense secretary.
"Secretary Rumsfeld is doing a spectacular job, and the president has great confidence in him," Card said on ABC's "This Week."


IS the ol' Adjective Bin at the White House getting a mite empty? Perhaps Andy meant the second meaning of the word, that they were making spectacles of themselves. But somehow I doubt it.

I know that a staple of Neo-con thinking is a contempt for government and its employees; so perhaps the bar of expectations on these guys is set pretty low at the White House. Still one has to think that Approving dozens of dangerous or potentially fatal drugs in the last 4 years
pissing off Senators, rank and file soldiers, and their families in nearly every way imaginable Has to qualify as a less than stellar performance even on the most generously curved grading system.

Maybe, if we are lucky the White House will next express Their full confidence in both officials

Take the Red Pill, Take the Blue Pill

Its that time of year again, time for end of year lists, Lists of the Best, Worst, Weirdest, Whatever.

This gem is cobbled together by the folks who still think the corporate owned media is somehow still a liberal bastionThe Ten Worst media Distortions of 2004

This list would be laughable if it weren't so dangerous. We Leftists lately joke about being part of the "reality based" community, but that joke hides a dangerous rift developing in our country.

Its one thing to filter news through your own partisan lense, giving more weight to things told to you by people that agree with your politics; it's a natural human impulse. However this impulse is being manipulated by consevative media and political leaders into a much more powerful weapon. Instead of just trusting them, Conservative leaders want their followers to drink a much more potent brand of cool-aid, and accept that reality is no more or less than exactly what they say it is.

They no longer want them to have to filter at all. They simply want them to ignore inconvienent facts altogether. By politicizing news, they are undermining the very notion of truth, facts, and the existance of a common basis for rational political arguments.

Once upon a time, we could argue about what the news meant ( eg Ollie North-felon or hero?) but we were constrained by the basic facts of the issue ( ie arms were sold to Iran to finance the Contras and it was illegal at the time). Not anymore, now, we have a framework where the facts themselves are as slippery and dependant on viewpoint as opinions were a decade ago. Facts (especially as reported by the media) are mere means of achieving a political agenda and therefore ignorable by anyone opposed to that agenda
Like good deconstructionist literature students, Conservatives ignore the text of any statement and instead analyze the assumed biases and motives of the reporter. They microanalyze psyche of the speaker and totally ignore the Speech itself. (Ironic, in that this is a technique originally developed as part of critical theory by Marxist scholars in the same academia they claim to so despise)

For example, suppose tomorrow it were reported that a Marine regiment had been ambushed and wiped out in Iraq. In a rational culture, this might lead to a debate over the objectives of the war, the effectiveness of the tactics being used to fight it, the cost of the war and the veracity of the Pentagon officials who insist the insurgency is weakened and on the run.

In Neo-con world, even reporting the story is considered ineffable proof that the reporter and the network, hate W and Freedom(tm) and therefore cannot be trusted. To them the War is a success, so any speaker that suggests otherwise has a partisan agenda. Their calculus starts with This War=good (We never invaded Iraq to look for WMD's; we always invaded to spread freedom justice and the American Way) + America Infailable(Always right+always wins) therefore American is winning a just and good war. If this is FACT(tm), then anyone who reports otherwise is "ignoring the good news out of Iraq" and maliciously "accentuating the negative" for their own agenda and can be safely ignored while the winning of the war continues apace.

Friday, December 17, 2004

G-ROD Runs for president and Makes army recruiting illegal?

Illnois Governor, Democrat Rod Blagojevich ((blah-goy-oh-vich for you out of staters, or G-rod as the press likes to call him) gave off one of those unmistakable signs that he is seriously considering an '08 presidential run, by calling for a Red-state friendly beatdown on the first amendment. The Governor wants to make it a crime to sell or rent sexually explicit or violent video games to minors

This is an unmistakable signal that the Democratic governor from the big red state (in Chicago, Blue Island is more than a suburb its an accurate political description) is seriously considering a run for the roses in the '08 election cycle.

This is one of those no lose moves by the Gov. It's a lovely gesture to all those cultural conservatives that he too is one of them, shaking disgusted head at the lax moral standards of modern media, and Very Concerned About Our Children. At the same time there's no risk that he'll alienate his base. Even if the law passes, its not worth the paper its written on legally speaking. Significantly Richard Posner himself wrote the majority opinion in the St Louis case. To those of us who study law Posner is well known as a very influential judge and possibly the only jurist in America more conservative than Nino Scalia. If he's willing to toss it, most judges will strike it down so quick they'll sprain their wrist banging the gavel. Thus the law will never actually be enforced, and he doesn't have to worry about alienating Hollywood donor types who will have long forgotten about it come '06 and 07.

Its depressing to see a fairly well respected political figure engaging in such a cynical positioning ploy, especially at the expense of my all time favorite Constitutional Amendment (its been #1 for 200 years for a reason.) I suppose its the nature of the current politcal game but I don't have to like it.

There is one funny thing that could come of this little grandstanding ploy though; since the law specifically bans distribution to minors games depicting "realistic human on human violence". It seems that Illinois law would make criminals of every US Army recruiter in Illinois since they give away free copies of This gem

Thursday, December 16, 2004

Using the Kerik Affair to Save the Supreme Court

Update [2004-12-17 12:16:28 by Magorn]:
in addition to Kerik's mysterious 3rd wife uncovered last week. The NY Times is now questioning whether Kerik even HAD a nanny Stay tuned

In nominating Kerik to be head of Homeland Security, the Bush administration has just given Congressional Democrats, the greatest Christmas present of all time; it remains to be seen if they will have the guts to use it.

As nearly the entire free world knows by now Kerik's past was such that he should have trouble getting vetted for municipal dog-catcher, much less head of the biggest law-enforcement agency in the country.  Even better, the person doing the vetting was none-other than Attorney general nominee Alberto "torture memo" Gonzales doing the same fine job here as he did Reviewing death row cases for GW in Texas.   The nature and extent of Kerik's problems and the slapdash way the Whitehouse vetted, him has given Congressional Democrats an opening a mile wide to the question is, will they  hit this hole and run for daylight?

Its no secret that a nasty fight  is brewing in the Senate over second term nominees  particularly to the judiciary.  Bush has all but vowed to nominate clones of the evil genius Antonin Scalia to take over the federal bench, and , if he's lucky, the Supreme court.  Meanwhile,  republicans are talking about "going nuclear" and getting tricky Dick Cheney to make a ruling that removes the filibuster privilege for presidential nominees   making the argument that failing to confirm 10 out of 290 judges was proof the democrats are "obstructionist".  They seek the moral high ground by claiming that they are simply enforcing the "will of the people" and the "president has a right to his own nominees".  

    Ah. But that was last week.  That was BK, before Kerick.   That was before the White House put forward a man with Mob connections, abuse of power complaints, questionable financial dealings, multiple mistresses, a hidden wife, and an illegal immigrant Nanny, to head the largest, most powerful, and most sensitive Cabinet post in the entire federal government.  That was before the White house gave itself a serious case of lack of credibility.

Right now, this is merely a major embarrassment to the President,  something that will blow over in a week or two and be quietly forgotten.   But it shouldn't be.  It should be used as the weapon it is to stall every other major Bush nominee for the remainder of his term.   Every time a nominee is put forward a democratic Senator on the appropriate committee should publicly demand (on the Sunday morning talk show circuit ) that the committee re-vet the nominee and the White House make the candidate available to committee staffs for a completely new  background investigation.  

Of course the White house will refuse as will the Republican controlled Chairs.  Trap Sprung.   Cue  Said senator taking to the floor to begin a filibuster.  When the GOP starts criticizing the Senator he can, in clear conscience say, "the filibuster isn't about politics, its about protecting the American people;   we all remember how close we came to letting a man with ties to organized crime run our border security and protect us from terrorists.  I'm simply trying to make sure that it never happens again"  he can strike a pose of righteous indignation and say "the White house has proven they can't be trusted with investigations this kind  and if the nominee has nothing to hide, why are they refusing to make him available?".

Eventually the Administration will be left with 1 of three unsavory choices: withdraw the Nominee, Allow the Dems to pour over his life (again) with a fine toothed comb (done properly this alone could take months, and dig up all sorts of potentially disqualifying stuff).  Or use procedural tricks to break the filibuster, whereupon the come across a) looking like they have something to hide and B) looking like  bullies who don't care about the ethics of the nominee

The opportunity has been handed to us on a silver platter. Kerik is not the first nominee to have trouble passing a background check.  But he is the first to nominated to such an important post to be  dripping with   serious ethical, legal and moral problems This shouldn't be a seven day-wonder of a story, It  should be the Whitewater of the Bush administration.

 In a single nomination he has given the Dems a legitimate reason to discard the deference traditionally given  to presidential nominees, and demand the right to scrutinize each under a microscope.   The big question is will the Dems under, with that noted Firebrand Harry Reid  calling the shots, seize on this opportunity to Make GW's life hell for the next four years, and possibly delay at least one Supreme Court appointment?  Or will they once again let W. Teflon bush slide out from under another huge mistake?

Monday, December 13, 2004

FCC Drops its Fig Leaf

Has it really come to this? According to a Washington Post report this morning, the FCC is now investigating NBC over its coverage of The Olympic Games! because it has received at least one complaint about their broadcast.  And no, the issue isn't those excessively lingering closeups during the women's beach volleyball competition (don't pretend you don't know what I'm talking about), nor the celebration of homoerotic imagery that is televised Water Polo.

No, no the issue this time is  those oh-so salacious Opening Ceremonies.   Now for everyone but the six of you who watched this riveting spectacle; the Ceremonies featured dancers dressed liked Classical Greek Statutes   Ya know, like the ones display at every art museum in the Western world, the ones thousands of schoo lkids see every year as they troop through those museums on marathon field trips that resemble the Bataan Culture March?

Now this story would be laughable if it weren't  for the spotlight it shines on a very scary fact.  One of the most powerful agencies in the federal government is being held captive by Puritan Zealots
According to a now famous FCC Study  99.8% of all complaints received by FCC last year were from a single advocacy group and only 4! Complaints about the now infamous Janet Jackson exposure during the super bowl were from unique individuals and not form e-mails from this group. (I suspect the rest of the public was a little too stunned about the side-effect voiceover on the Levitra commercials (4hours?!) to be outraged by Ms. Jackson's micro exposure, pretty much only  seen by teen aged boys who know how to operate Tivo's super slo-mo feature)

Now this is America and every self-important advocacy group has the right to hyperventilate and generally work themselves into a tizzy about any issue they choose no matter how ridiculous the rest of us find them (PETA anyone?).    The difference this time, is  that the  federal agency that  has the largest influence on your day-to day life; has essentially turned itself into a lapdog for this particular flavor of the lunatic fringe.     ;Never before, in the history of this country,  has such a small fringe group (PTC has no more than 125-150 active members)  had so much power over what the rest of the country sees thinks and hears.  

    It wasn't supposed to be this way, the very rules designed to protect us from the ravages of overzealous "morals police" have now been used (with the assistance of a friendly chairman) to enforce their sphincter-puckering idea of what morality should be.   The FCC is prohibited from acting unless a complaint is recieved. This is because Congress figured that someone should actually be offended before the FCC took action.  It was a way of  allowing the standard of broadcast decency to evolve as the public became more tolerant without having to re-codify it every time.  It used to be that the FCC, understanding this,  didn't act unless there was significant outrage, over an incident, not a sole complaint.

  Not anymore,  enter Michael Powell, and the new puritan revolution is now on.  Things that wouldn't have raised an eyebrow on Jerry Springer or NYPD Blue 5 years ago, are now considered mortal sins.   Pixilated naughtiness on Fox?  Fine it to the tune of a couple hundred G's.  Micro-second exposure of 1/16" more of the female breast than was on display by the sideline cheerleaders all night?  Million dollar fines.  Exposure of bare Back above the waist?  Declare yourself "deeply troubled and outraged"   Exposure of a woman's unclothed ankle in a public place?  Wait, that's next year,  watch this space.  

The FCC was given power over the public airwaves because they are a limited public resource (there is after all only so much spectrum)  that should be used for the public good.  Ironically the current Chairman, Young Mr. Powell (who seems to have received a defective copy of the integrity gene from his father), has turned that role on its head. He is crusading against the popular culture, while falling asleep in confronting real and serious dangers to our airwaves.

Massive media consolidation that puts two large corporations in charge of ¾ of the public radio spectrum?  yawn So sorry Can't even be bothered to show up for The public forums  his own commission convened to air public concerns.  How about a media conglomerate using its monopoly power to try to swing the election?   Sorry, can't really comment on that, have to see if there is a complaint.  (note ABC's exposure of a bareback on MNF, draws an editorial condemnation, but try to throw an election  and Mikey boy doesn't really think its his place to comment)

We've now reached the point the depictions of Greek Statuary, which haven't  struck most of us as prurient since we were reprimanded for giggling at them by our third grade teacher, may cost NBC millions in fines.  Classical ART! For pity's sake.  (wasn't there a Simpson's episode mocking that very idea once upon a when?)

It would be tragicomic if not for the chilling effect its already had on broadcasters .  ABC affiliates refuse to air saving private Ryan ( a meditation on the costs and horrors of war that might help start a healthy discussion in this country about the Iraqi War), not for the horrific 1st twenty minutes realistically depicting the slaughter of  the  D-day landings, but because the "f-word" is used on occasion by the actors.   Schindler's List, a masterpiece by almost any estimation, can't  be shown anymore because it has scenes of unclothed people being herded like cattle into concentration camps (if you are capable of finding prurient interest in such an image, I strongly suggest you check yourself in to you local mental hospital and tell them you are a sociopath).  What's next?  What if a network news  reporter embedded with the troops films a bloody combat scene or witnesses a  war crime?  Will the network refuse to air it if one of the soldiers uses profanity? (Remember the Powell rule is that the word is actionable   regardless of context

We're being hit with a massive bait and switch by the current commission.   They appear to be protecting the public by concentrating on the part of their mandate that 99.999% of could frankly care less about.  Meanwhile, they are turning a blind eye to a give away of a public resource into the hands of a few super-rich corporations, that will have a destructive effect on the amount and quality of unbiased information the public receives everyday.  Be outraged over the decency crusade, but don't take you eye off the consolidation ball.  Both are the first attempts of small minorities (rich corporate owners, and ultra-right wing religious zealots)  to control American culture, and what you are allowed to think, hear and say.

Thursday, December 09, 2004

Innocent Man Dying: How Texas executed a man who committed no crime

Once again the Chicago Tribune is examining the death Penalty and once again it is coming up wanting ( a previous series of Trib articles showed that in a ten year period in Illinois as many inmates had been exonerated and released from death row (12) as had been executed. This series touched the conscience of then Governor Ryan(R)so much that he mass-commuted the sentences of everyone on death row to life in prison and imposed a state-wide moratorium on the death penalty)

Now they examine the case of a Texas man almost certainly innocent who was nonetheless put to death:
Prosecutors relied on disproven scientific evidence to convict executed Texas inmate

To those of use who have spent time on the defense side of the criminal justice system, its axiomatic that innocent people have been put to death by our justice system. However proof of that assertion has been hard to come by since most re-examination of capital cases stop when the prisoner dies. This case provides the clearest evidence yet that the flaws in our capital punishment system have killed innocent people.

What Happened in this Case is Tragic enough, three little girls Killed in a fire, what the criminal justice system di to their father is sickening however. Consider his version of events first:
Willingham told investigators that he was awakened about an hour after his wife left by Amber's cries of "Daddy, Daddy."

The house, he said, was so full of smoke that he could not see the doorway leading out of the bedroom. Crouching low, he went into the hall. He said he saw that there was not much smoke in the kitchen but "couldn't see anything but black" toward the front of the house.

With the electrical circuits popping, Willingham said he made his way to the girls' bedroom. He saw an orange glow on the ceiling, but little else because the smoke was so heavy. He said he stood up to step over the childproof gate, and his hair caught fire.

He crouched back down, he told investigators, and felt along the floor for the twins but could not find them. He said he called out for Amber and felt on top of her bed, but she was not there.

When debris began to fall from the ceiling, burning his shoulder, he said he fled through the hall and out the front door.

He tried to go back into the house, he said, but it was too hot. He saw neighbors and told them to call the Fire Department, screaming, "My babies is in there and I can't get them out."

Neighbor Mary Barbee told police she saw Willingham in the front yard and she ran to ask a neighbor to call for help because her telephone was disconnected.

Meanwhile, Willingham told investigators, he took a pool cue and knocked out two windows overlooking the front porch to try to get into the bedroom.

Barbee said that when she returned, Willingham was standing by a chain-link fence as heavy smoke billowed from the house. Just as she neared his yard, "large fire suddenly bellowed out from around the front of the house," she told investigators, then the windows blew out.

She said that was when Willingham rushed to his garage and pushed his car away from the fire scene.

At that moment, Burvin Smith arrived after hearing the fire call over a radio scanner. Smith told police that Willingham was yelling that his "babies were in the house" and "acting real hysterical."

He said he restrained Willingham from going onto the porch.

Not Good enough for the neighbors apparently:
Willingham became a suspect almost immediately, when neighbors such as Barbee told investigators they didn't believe he tried hard enough to rescue his children.
The day after the fire, police said, Willingham complained that he could not find a dartboard as he walked through the wreckage. Neighbors said they heard loud music coming from the truck of a friend who came to help salvage belongings.

well that clearly makes him a murder doesn;t it? That he has a non-standard grief reaction? apparently the Police Chaplain also believed he had a PHD in psychology:

"Eleven days after the fire, a police chaplain who had responded to the blaze said he had grown suspicious that Willingham's emotions were not genuine.

"It seemed to me that Cameron was too distraught," said the chaplain, George Monaghan.

and on that basis he was charged with murder and a chain of supposition and inference led directly to his execution without a shred of solid evidence
How can this happen? well first you have investigators who ignore the latest in scientific knowledge:
A groundbreaking document in fire investigation, the National Fire Protection Association's NFPA 921, was published on Feb. 10, 1992, less than two months after the fatal fire at the Willingham house.

Filled with the new revelations about fire science, NFPA 921 was developed by 30 fire experts, including Lentini and DeHaan, and was written as a guideline for fire investigators. It is considered the standard on fire investigation and is a key reference text for the Texas fire marshal's office. Some investigators, however, have refused to acknowledge it, preferring to stick to the old ways

The you use that dubious outdated information to produce a favorable, but untrue result:
"There's nothing to suggest to any reasonable arson investigator that this was an arson fire," said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. "It was just a fire."

Ryland, chief of the Effie Fire Department and a former fire instructor at Louisiana State University, said that, in his workshop, he tried to re-create the conditions the original fire investigators described. When he could not, he said, it "made me sick to think this guy was executed based on this investigation. ... They executed this guy and they've just got no idea--at least not scientifically--if he set the fire, or if the fire was even intentionally set."

Now You get to go to trial. So you start with the prosecution's favorite flavor of suborned perjury the Jailhouse snitch with the unbelievable story:

Prosecutors presented as their first witness jail inmate Johnny E. Webb, a drug addict who said he took psychiatric medication for post-traumatic stress syndrome, the result of being raped behind bars.
Webb testified that Willingham, after repeatedly denying he had caused the fire, confessed to Webb one day as they spoke through a chuckhole in a steel door at the county jail.
Webb said Willingham told him he set the fire to cover up his wife's physical abuse of one of the girls. The girls, however, had no injuries other than those suffered in the fire.

Now add an "investigator" who is basically a prosecution Lapdog
The fire tells a story," Vasquez testified. "I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells me the truth."

Vasquez testified that of the 1,200 to 1,500 fires he had investigated, nearly all had been arson, and he had never been wrong.


except in this case "All four consultants said Vasquez made serious errors in his testimony. For example, when he said an accelerant must have been used to set the fire because wood could not burn hot enough to melt an aluminum threshold, he was wrong. It can."

now add an unsympathetic defendant and microanalyze every decision he makes under extreme stress:
Willingham also had been in trouble with the law. A 10th-grade dropout from Ardmore, Okla., he had sniffed glue and paint, and he had committed a string of crimes, including burglary, grand larceny and car theft.

Patrick Batchelor, then the district attorney, told reporters Willingham set the fire because he wanted more time for beer-drinking and dart throwing. The children got in the way.

The prosecution's case also relied on the neighbors who said Willingham could have done more to save his family.

The experts who reviewed the case didn't put any stock in the claims that Willingham's behavior was damning. They say experience shows that there is no way to predict how people will react in a fire or to the grief of losing loved ones.

Then pack your jury with gullible pro-prosecution jurors who disobey their oath to uphold the reasonable doubt standard and substitute their own made up judgments and add TWO HOURS to determine a Man's life:
The jurors deliberated a little over an hour before finding Willingham guilty. In interviews, they said there was never a question.

Laura Marx said she would have found Willingham guilty even without the arson finding solely because he did not try to save his children.
{not an actual crime anywhere but in the Juror's mind}
Jurors deliberated only slightly longer in handing out the death penalty

Presto! one defendant Sent to death Row!

"Wait, hang on what about the appeals process", you say, "it would certainly catch these glaring errors wouldn't it?" Glad you asked:

By January 2004, Willingham's appellate lawyer had all but given up hope. Willingham was scheduled to be executed on Feb. 17, and Walter Reaves knew that in Texas, stays are rarely granted.

Then Pat Cox, one of Willingham's cousins, called Reaves. Cox, a retired nurse who lives in Ardmore, Okla., had seen Gerald Hurst on television and thought he could help save Willingham.

concluded it was riddled with "critical errors in interpreting the evidence." But, he added, the mistakes were not malicious; they simply reflected the state of fire science at the time.

He went on in the report to systematically dismiss all the indicators Fogg and Vasquez cited as proof of arson. According to Hurst's report, "most of the conclusions reached by the fire marshal would be considered invalid in light of current knowledge."

Four days before the scheduled execution, Reaves attached Hurst's report to a petition seeking relief from Texas' highest court, the Court of Criminal Appeals, and from the governor.

"I didn't see any way the court was going to deny us a hearing on it," Reaves said. "No one could in good conscience go forward with that evidence."

day saved right? Science triumphs and an innocent man is spared! Nope: a little more prosecutorial misconduct took care of that:
The response from local prosecutors included a two-paragraph affidavit from Ronnie Kuykendall, the brother of Willingham's former wife. He said that Stacy, who had divorced Willingham while he was on Death Row, had recently visited him, then gathered the family to say that he had confessed.

But she said in an interview that was untrue. At the time of the trial, she said she had believed in her husband's innocence, but over the years, after studying the evidence and the trial testimony, she became convinced he was guilty.

In their final meeting, however, he did not confess, she told the Tribune
that and the neat procedural trick of claiming this information wasn't newly discovered evidence since the techniques and knowledge were available at time of trial (even though it was THEIR OWN INVESTIGATORS who ignored them)
and this being Teaxas and all, this doesn;t have a happy ending:
The courts and Gov. Rick Perry declined to halt the execution.
On the day of Willingham's execution, his father and step-mother, Gene and Eugenia Willingham, spent four hours with him, then said their goodbyes.

At 6 p.m., Willingham was brought to the death chamber at the prison at Huntsville. In a final statement, he avowed his innocence, said goodbye to friends and hurled expletives at his former wife, who had come to witness the execution.

and there you have it, An innocent man dead. Not a saint, not maybe even a nice guy, but a man who did not commit a crime for which he was executed.

I've met several people on death row, and too many of them are either innocent or certainly not proven guilty. They are victims of a system that is heavily biased towards prosecutors (most judges are ex-prosecutors, never PD's) and badly flawed. Life an death in this country is too often dependant on the spin of a roulette wheel of justice, rather than any articulable principle. And if it happened once it would be too often, but it happens far more than we'd like to admit. The system makes mistakes and some people pay for those mistakes with their lives

Sunday, December 05, 2004

Welcome to 1935

: Government Using evidence obtained from Torture in Gitmo "Hearings"

Now I'm getting really depressed. Yesterday I discussed how the Judicial system seems to be slipping backwards into our regressive past. Well today it is not merely Slipping but Skiing full throttle. we're now less advanced then they were in Mississippi in 1936. Oh Joy

BROWN v. STATE OF MISSISSIPPI, 297 U.S. 278 (1936) is one of those Landmark cases that every Lawyer can quote by name, it involved two black men who were whipped and hung until they confessed to crime for which they were then convicted (SOP for police of the day in the US South, follow the link and read the case, not only was the abuse shocking, but so was the readiness with which the officers admitted to it on the stand they were almost bragging of it)
This was enough to outrage even the ultra-conservative Supreme Court of the day In striking down their convictions the Supreme Court thundered:
" The rack and torture chamber may not be substituted for the witness stand.. {a}trial is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence.."
they also said "The due process clause requires that state action, .. shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process"

Well, what was obvious even to moral sensibilites of the Court of 1936 (who had previously struck down anti-child labor laws, Minimum wage laws etc), is once again back in play. 68 years later, we have this exchange, on the record, between a US Circuit Judge and a Lawyer for the DOD:
Judge Leon asked whether a detention based solely on evidence gathered by torture would be illegal, because "torture is illegal. We all know that."

Boyle replied that if the military's combatant status review tribunals "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."

Judge Leon asked whether there were any restrictions on using torture-induced evidence.

Boyle replied that the United States never would adopt a policy that would have barred it from acting on evidence that could have prevented the Sept. 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power.

Was it so naive of me to believe that a principle that had stood for 68 years was a settled part of our law and liberty? apparently so. So even though its over used these days I'll close with this thought:

Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Saturday, December 04, 2004

The Judiciary, our Last best hope for Freedom

Judge Questions Sweep of Bush's War on Terrorism
If this paragraph doesn't give you the screaming willies, you aren't awake:

After hearing Green's hypothetical questions, the military agreed it could imprison a Muslim teacher whose class includes a family with Taliban connections. It also agreed that it could detain a man who does not report his suspicions that his cousin may be an al Qaeda member, or a reporter who knows where Osama bin Laden is located but does not divulge the information to protect an anonymous source.

or try this one on for size:
"If a little old lady in Switzerland writes checks to what she thinks is a charitable organization for Afghanistan orphans, but it's really supporting . . . al Qaeda, is she an enemy combatant?" the judge asked.

Boyle said the woman could be, but it would depend on her intentions. "It would be up to the military to decide as to what to believe," he said.

When I studied the 1st amendment we had to look at a long line of cases where the Supreme CT got it wrong, and upheld things like the Sedition Act of 1919 (which made it a crime to criticize the war effort) or the Criminal Syndiciate acts of the 1920's (which made it a crime to espouse anything resembling Communist beliefs. But I always believed that those dark days were past us, and we lived in more enlightened times.

I wonder now if I was only kidding myself when a government lawyer can make these sorts of arguments with a straight face.

The Evil Mind

Mens Rea: the Evil Mind
a lovely bit of Latin that is sometimes a touch too apt in describing me. My person motto used to be Power Corrupts, Knowledege is Power, Study Hard, Be Evil.
I do try to use my super-powers of cynicism and sarcasm for good rather than evil; but i'm limited by my basic misanthopy. I think that's why I became a lawyer. Nobody likes lawyers anyway , so i'm not expected to be nice.

hich brings me to another useful bit of Latin
Ignorantia Juris Nemi Nem Excusat
Or, in English, the famous maxim: Ignorance of the Law is No Excuse, which some sick person carved into the facade of my Law School. In the simplest form it simply means you aren;t excused from breaking a law simply beacuse you didn't know what you did was against the law.
A very neat trick no? Maybe once it was possible to know all the laws that governed you, but these days, not even a lawyer can lay that claim. Once, this ignorance was bliss, you were able to go through your life, and never have the law touch you in any meaningful way. Not anymore, now fear of being sued sometimes seems to be the primary motivating factor behind almost all offical actions. Worse yet, our government's response to the war on terror has put some of the basic rights and freedoms at risk. There are subtle arguments being made in little noticed courtrooms, that could change the essential relationship between givernment power and individual freedom, and not in a good way.

I've always been passionate about civil rights, civil liberties and our freedoms, but the last three years of law school have crystalized for me how powerful and precious our freedoms really are, and just how the bedrock rights we take for granted were once not a given, and we only enjoy them because of the tenacity of stubborn people who refused to yield in the face of incredible pressure.

I've also sadly come the realization that in the last 4 years, a lot of our basic civil rights are again at risk. I never imagined that there would ever again be cases in courts arguing the basics of Western human rights (free speech, association, right to counsel, freedom from torture etc) and I would not have believed that our government would be on the wrong side of these cases

I may still be naive, and it may be corny; but I believe passionately in the power of the law , as a sheild against tyrannry and a sword against injustice. I have been almost physically sick when I've have read the text of some of the government lawyers most recent arguments in thier War on terror (tm) And I believe that if they are not opposed, the very foundation of due process and personal freedom could be in serious jeopardy.

SO here is where I vent. I'm pretty sure I'm spitting into the wind, but I have to do something, to clarify my thoughts, to raise awareness to scream against the night.