Monday, November 30, 2009

So how's the 'anti-war' president doing?

One of the big hopes for the current occupant of the White House was that he'd end his predecessor's saber-rattling ways and bring the boys (and girls) home to live their lives in relative peace.

As it turns out, of course, President Barack Obama isn't anti-war -- he's anti-the other guy's war. He may get around -- eventually -- to scaling things back  in Iraq, but that's only so he can raise the stakes in Afghanistan. According to the New York Times, the White House has officially committed itself to a troop hike in the graveyard of empires. An estimated 30,000 more American soldiers will be sent over to bring ... democracy? ... peace? ... gender equality? ... well, something, anyway, to the Afghans.

Don't worry, they won't kill and die alone. At least bloody-mindedness is once again multi-lateral -- the Brits, Italians, Macedonians (Macedonia? Really?), Australians and other politicians with an apparent surplus of healthy young people to spare are also putting more boots on the ground.


Tuesday, November 24, 2009

Blinded by science

There's much buzz this week -- rightfully -- about emails and documents hacked from the servers of the Climatic Research Unit at the University of East Anglia in the United Kingdom. While the emails aren't likely to settle the debate over whether human actions are affecting the world's climate, they do call into question the ethics of some of the leading advocates of global-warming theory. The insights they provide into how some scientists seek to manipulate data and even suppress opposing views raises important questions about the wisdom of allowing politicians to draw on such experts in order to declare debates to be over, with control over far-reaching, intrusive policies awarded to the victors.

It should be emphasized that the hacked emails don't "debunk" climate change theory. There's no smoking gun in there suggesting that mad scientists manufactured the idea out of whole cloth. And the bulk of the emails consist of academic exchanges of information and data sharing.

But the emails (download them here or here) also include exchanges strongly suggesting that some scientists manipulate data in order to reach stronger conclusions than is warranted, lean on scientific journals to prevent the publication of papers by scientists who are skeptical of climate change, withhold data from rivals and even destroy correspondence so it can't be revealed by Freedom of Information requests.

That science can be politicized is no secret. In one recent email from the hacked archive, a British university department head writes:
Since [name withheld] retired I am a lot more free to push my environmental interests without ongoing critique of my motives and supposed misguidedness - I've signed my department up to 10:10 campaign and have a taskforce of staff and students involved in it.... Every now and then people say to me sotto voce with some bemusement, 'and when [name withheld] finds out, how will you explain it to her ...!
Actually, "politicized" may be putting it kindly. "Theologized" could be a more appropriate term. At times, perusing the emails, the degree of loyalty to a specific theory and rejection of dissenting views seems less like debate among rival scientists and more like priests excommunicating heretics. Tellingly, Phil Jones, director of the Climate Research Unit, wrote to a colleague about excluding papers questioning human-caused climate change from a report by the U.N. Intergovernmental Panel on Climate Change:
"I can't see either of these papers being in the next IPCC report," Jones writes. "Kevin and I will keep them out somehow -- even if we have to redefine what the peer-review literature is!"
Other times, the emails discussed boycotting journals that published papers by scientists whose views are at odds with their own. That's important, given the emphasis that many of the advocates of global-warming theory put on critiques of their position not being peer-reviewed -- a status they had actively sought to deny contrary views.

The emails also discuss denying data to researchers who they consider to be less than convinced of human-caused climate change "because he'll distort and misuse them" as they said of one request from a prominent skeptic.

Overall, the impression is one of a very messy and human process that is far from being as rigorous and open to debate as advertised. It also seems that, while many climate scientists passionately believe that human activity is causing the world to become warmer, they are well aware of and troubled by occasionally contrarian data that they can't explain.

That's to be expected, of course -- the world rarely hands out pat answers wrapped with a bow. But politicians want pat answers, and some researchers appear to have been all too willing to play along with the pretense that all questions have been resolved and now is the time for even the most extreme, state-empowering policies to be implemented in response.


The Department of the Treasury revealed (PDF) in September that the cap and trade scheme touted by the Obama administration would cost Americans between $100 billion and $200 billion every year -- money that would pour into government coffers. It would, of course, require extensive enforcement mechanisms in order to extract that cash.

Enforcement is also the order of the day in the UK, where government officials have begun to paw through people's trash to see what they are throwing away. Green-jacketed inspectors in Britain with the power to enter private property are checking up on CO2 production by private businesses.

Maybe the world is warming and maybe humans are a major part of the case. There's nothing in the hacked emails to say it's not, and someday, if the science is properly followed, we may know for sure. What we do know now, though, is that a lot of power is being accumulated by government officials based on conclusions arrived at through a process that looks a little more rough-and-tumble than we were led to believe.


Thursday, November 19, 2009

Sheriff Joe faces off with judge over deputy's courtroom document theft

There aren't too many ways to evoke sympathy for a law-enforcement officer who was recorded stealing documents from a defense attorney, but in Arizona, Maricopa County Superior Court Judge Gary Donahoe may have stumbled on the trick. In the case of Detention Officer Adam Stoddard, who was caught by a security camera swiping documents in a courtroom from defense attorney Joanne Cuccia while her back was turned, Judge Donahoe found the offending officer guilty of contempt. But rather than slap Stoddard with an adult penalty for an adult crime, he channeled his schoolyard days and ordered the officer to make a public apology -- and probably violated his rights in the process.

The problem is, while it may lie within the power of kindergarten teachers to order their charges to voice insincere sentiments to one another as a means of settling disputes, that's not a widely accepted use of, admittedly far-reaching, judicial power. Judges can fine people and toss them in the can, but ordering them to state predetermined opinions would seem to run afoul of First Amendment protections.

In Stoddard's case, Judge Donahoe had already dismissed as unacceptable the officer's claim that the reason he grabbed Cuccia's documents and photocopied them was because he saw a few suspicious words on the page. The documents clearly were covered by attorney-client privilege, he ruled. Yesterday, he found Stoddard guilty of contempt for his sticky-fingered grab at confidential information. Penalties for contempt usually consist of fines or imprisonment.

But ... as we've come to know, judges often hold police officers to be a somewhat higher breed of human than the rest of us. That's the best guess as to why Judge Donahoe decided to get creative in this case. Rather than deplete Stoddard's bank account or subject the officer to the shoddy prisons run by his own boss, the judge ordered a public, but meaningless, display of faux regret: a press conference to be held by November 30, at which a verbal and written apology is to be expressed by Officer Stoddard. If Ms. Cuccia is satisfied, the matter is then laid to rest.

After which, presumably, milk and cookies are to be served to all.

But the judge made a big error: Adult transgressor aren't toddlers; you can't make them voice opinions they don't hold, even when trying to do so seems to constitute a much lighter penalty than the alternatives. And Stoddard clearly isn't sorry, and neither is his grandstanding boss, Sheriff Joe Arpaio, who has already announced that the officer won't comply with the order, saying in a press release, "My officer was doing his job, and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation." He added, "I decide who holds press conferences and when they are held regarding this Sheriff's Office."

Having stepped off on the wrong foot, Judge Donahoe is now back to what he should have done to begin with: handing Officer Adam Stoddard an adult penalty for violating attorney-client privilege and interfering with the rights of criminal defendants in the courtroom.

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Chance at a real trial for Cory Maye

One of the more controversial prisoners behind the bars of any prison in the United States -- Cory Maye -- is getting a new trial. After eight years in a Mississippi prison for killing a police officer, during which time his case has raised questions about paramilitary police tactics, self defense, the reliability of informants, racial bias and junk science, the Court of Appeals of the State of Mississippi ruled that Maye should have been tried in his own county, as he requested, not in a neighboring county. The defendant will, at long last, have another chance to assert his innocence -- this time with a chorus of supporters, including prominent attorneys and journalists.

In Mississippi, everybody agrees that police had a warrant to raid the apartment adjacent to Maye's in a Prentiss, Mississippi, duplex, on a tip alleging drug sales, on the night of December 26, 2001. During the course of the raid, officers forced their way into Maye's apartment for which they also had a warrant, apparently believing it was connected to the targeted unit. After police broke down the door, Officer Ron Jones was fatally shot by Cory Maye.

That's pretty much the extent of the agreement. Police claim they announced themselves and that Maye looked out and saw them, so knew they were police when they pounded on the door and then forced their way inside. Maye says he was sleeping in a chair and awoke to the sounds of loud banging, so retreated to his daughter's bedroom where he could defend himself and the girl as unknown assailants entered the home.
Upon searching Maye's home, police found only a small amount of marijuana, raising questions as to why a man with a clean record would knowingly shoot  a police officer.

More questions were raised later, including the prominent role played in the trial by Dr. Steven Hayne, a controversial medical examiner whose competence was was widely derided by forensic pathologists outside Mississippi -- and who was ultimately fired after loud and public complaints that he had railroaded innocent defendants (although he may be slithering his way back into lucrative work courtesy of legal shenanigans).

There were also questions about the warrant in the case, which was based on the word of a confidential informant vouched for by Officer Ron Jones, who left no notes and was obviously unable to fill in the gaps himself after the fact. Maye's name wasn't mentioned in the warrant and Jones apparently didn't verify the information he received before the raid was staged.

These issues didn't prove critical to the appeals court, however. The court focused on the refusal of the trial judge to transfer the case back to majority-black Jefferson Davis County, where the shooting took place, and instead hold it in a majority white county despite Maye's desire to be tried near the scene of the raid. The trial had originally been moved at the request of Maye's defense counsel -- an attorney with no capital murder experience -- who asked to reverse the request after being warned by local lawyers that a fair trial was impossible in the new venue.

In fact, Maye's original death sentence was commuted to life in prison because of concerns about  his attorney's competence.

For the majority, Chief Judge Leslie D. King wrote:
Finding that the trial court abused its discretion in not allowing Maye to exercise the constitutional right to be tried in the county where the offense occurred, the judgment of the trial court is reversed, and this case remanded for a new trial.
Maye's case has been championed by libertarian journalist Radley Balko, who wrote a major article about the case for Reason in 2006. Balko also played a major role in exposing Dr. Steven Hayne. Balko's efforts, as well as those of volunteer attorneys and other journalists, will give Maye a new chance to make his case, and to address concerns raised since the first trial.


Tuesday, November 17, 2009

How can you call the federal stimulus a boondoggle?

It's not quite up to the standards of Depression-era court-packing, but the Obama administration is getting creative about  the number of congressional districts it claims to have bailed out with manna rained down from heaven fearless leader.
Just how big is the stimulus package? Well for one, it has doubled the size of the House of Representatives, according to, which says that funds were distributed to 440 congressional districts that do not exist.

According to data retrieved from, nearly $6.4 billion was used to “create or save” just under 30,000 jobs in these phantom congressional districts–almost $225,000 per job. The web site operates on an $84 million budget and is tasked with monitoring the distribution of the $787 billion stimulus package passed by Congress–which, for the record, counts 435 members–in early 2009.

Among the jurisdictions rescued from economic malaise are, we're told, New Mexico's 22nd Congressional District, and its 40th, 4th, 13th, 16th, 9th, 6th and 25th. That's quite a trick for a state that sends only three seat-warmers to the House of Representatives (but just wait until rattlesnakes win the franchise!).

This comes on the heel of earlier reports that the government's claims of having saved and created scads of new jobs in these tough times through free and easy spending might be just a bit overblown -- or even "wildly exaggerated" if you believe the Boston Globe. Looking at just one state, the Globe reported:
The federal stimulus report for Massachusetts has so many errors, missing data, or estimates instead of actual job counts that it may be impossible to accurately tally how many people have been employed by the massive infusion of federal money. Massachusetts is expected to receive an estimated $1 billion more in stimulus contracts, grants, and loans.

Among the "jobs created" were cost-of-living raises given to 150 existing staffers at the Head Start program. Each lucky raise recipient was counted as a new job created by stimulus money.

And extend those 150 new jobs across 440 newly created congressional districts, and you're talking good times all around!

Well, it's good to know that our tax dollars -- and those of our grandchildren -- aren't being completely wasted.

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Monday, November 16, 2009

He would have been better off shooting first

Most of us would probably think that a man who found himself being followed down a dark street by two people at midnight and turned to ask, "why are you following me?" while holding a folding pocket knife pointed down along his leg was just being careful. His actions seem especially reasonable when you know that he put the knife away upon hearing that his apparent stalkers actually meant no harm. But in New Hampshire, Dustin Almon was convicted of a misdemeanor because the two fellow pedestrians were plainclothes police officers.

According to SeacoastOnline:
Officer Anthony Cattabriga, said he was walking behind Almon on Chapel Street on Nov. 8, 2008, when Almon turned around three times to look at him and a new officer he was training. It was dark and Almon was twenty feet away when he displayed a knife with a two-inch blade the third time he turned around, said Cattabriga.
"He pointed it down by his side," the liquor officer testified, while demonstrating with Almon's seized pocket knife.

When he responded by yelling "police," Almon folded the knife, clipped it to his belt and complied with all subsequent police orders, Cattabriga testified.
The two state liquor enforcement officers were "in plain clothes without any indicators that they were members of law enforcement." They both carried concealed handguns and Tasers.

So neither Almon nor anybody else who might have happened along had any easy way to distinguish these two from the sort of common criminals who frequent dark, late-night streets. And Almon quickly dropped his challenge once the police did identify themselves.

It's hard to avoid the conclusion that Almon was charged -- first with that  catch-all offense, "disorderly conduct," and later with the harsher "criminal threatening with a dangerous weapon" -- because he caused these two well-armed officers to stain their pants. Despite his gun and Taser, Cattabriga insists, "I feared for my safety."

Perhaps concerned about appearing too solicitous of excitable law-enforcement officers, Judge Sawako Gardner insists that the officers' government-employed status isn't a factor -- Almon would have been sentenced to 30 days in jail (suspended pending a year of good behavior) and a $500 fine (half suspended) no matter who he confronted.

Really? But New Hampshire law explicitly allows for the use of actual force in self-defense -- deadly or non-deadly depending on the circumstances, "a degree of such force which he reasonably believes to be necessary for such purpose."

New Hampshire law also allows people to engage in otherwise illegal conduct if it's necessary to prevent a greater harm. The law states:
Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged.
So even if holding a knife by your side could, by any stretch of the imagination, be defined as "criminal threatening with a dangerous weapon," it's hard to see how doing so would not meet "ordinary standards of reasonableness" when you're alone, at night, and concerned that two people following you intend to mug and, maybe, kill you.

Dustin Almon's actions seem perfectly justifiable according to existing law, without having to reach further afield for moral justifications for deterring potential assailants. Judge Gardner would apparently strip the people of New Hampshire of rights they possess under current law rather than allow the occasional law enforcement officer to suffer from a moment of inconvenience.


Tuesday, November 10, 2009

Feds want to know: Just who are your readers?

The Electronic Frontier Foundation reports that, on January 30 of this year, the Justice Department not only demanded to know who was reading the IndyMedia alternative news site, but also forbade the site to publicize the demand.
[T]he government was asking for the IP address of every one of's thousands of visitors on that date — the IP address of every person who read any news story on the entire site. Not only did this request threaten every visitor's First Amendment right to read the news anonymously (particularly considering that the government could easily obtain the name and address associated with each IP address via subpoenas to the ISPs that control those IP blocks), it plainly violated the SCA's restrictions on what types of data the government could obtain using a subpoena. The subpoena was also patently overbroad, a clear fishing expedition: there's no way that the identity of every Indymedia reader of every Indymedia story was relevant to the crime being investigated by the grand jury in Indiana, whatever that crime may be. ...

... without any legal authority to back up their purported gag demand, the government ordered Ms. Clair not to reveal the existence of the subpoena, a subpoena that as already described was patently overbroad and invalid under the SCA.
Forewarned by an earlier Justice Department inquiry about where to send a subpoena, the EFF responded and the subpoena was subsequently withdrawn. The gag order  was dropped by default after the feds failed to respond to a legal challenge..

Indymedia wasn't prepared to obey the order anyway. Following EFF's advice to online service providers, the publication deliberately refuses to keep the sort of information the government wanted.

But not all online publications are so careful.

In the end, nobody's privacy was violated, but only because IndyMedia was willing and able to fight, and had the backing of a civil liberties organization. Faced with stubborn opposition and sophisticated legal resources, the government backed down.

This time.

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An actual economist examines Obamacare and says it makes no sense

According to Martin Feldstein, professor of economics at Harvard University and president emeritus of the nonprofit National Bureau of Economic Research:

A key feature of the House and Senate health bills would prevent insurance companies from denying coverage to anyone with preexisting conditions. The new coverage would start immediately, and the premium could not reflect the individual's health condition.

This well-intentioned feature would provide a strong incentive for someone who is healthy to drop his or her health insurance, saving the substantial premium costs. After all, if serious illness hit this person or a family member, he could immediately obtain coverage. As healthy individuals decline coverage in this way, insurance companies would come to have a sicker population. The higher cost of insuring that group would force insurers to raise their premiums. (Separate accident policies might develop to deal with the risk of high-cost care after accidents when there is insufficient time to buy insurance.)

The higher premium level would cause others who are currently insured to drop coverage, pushing premiums even higher. The result would be a spiral of rising premiums and shrinking numbers of insured.
There are penalties in the bill to prevent just that -- individuals who don't buy government-approved insurance and employers who don't offer government-approved insurance have to cough up a stiff tariff to The Man. But the penalty is a fraction of the cost of paying for insurance.
The average cost of an insurance policy with family coverage in 2009 is $13,375. A married couple with a median family income of $75,000 who choose not to insure would be subject to a fine of 2.5 percent of that $75,000, or $1,875. So the family would save a net $11,500 by not insuring.


Of course, this will result in yet another crisis, which the government will have to fix by ...


Docs on dope

At its 2009 interim meeting, the American Medical Association has adopted a statement urging that marijuana be considered as medicine and that further research be conducted into its medical value. The statement was recommended by the AMA's Council on Science and Public Health, based on a report which endorses the medicinal value of marijuana, but bemoans the combination of federal prohibition and a "patchwork of state-based systems" that have impeded scientific research. While stopping far short of a call for full legalization, the statement represents a major break with the past and undermines federal insistence that marijuana has no value.

The statement (PDF) says:
Our American Medical Association (AMA) urges that marijuana’s status as a federal Schedule I controlled substance be reviewed with the goal of facilitating the conduct of clinical research and development of cannabinoid-based medicines. This should not be viewed as an endorsement of state-based medical cannabis programs, the legalization of marijuana, or that scientific evidence on the therapeutic use of cannabis meets the current standards for a prescription drug product.
Parse the English in that statement at your  own peril.

The full report on which the CSAPH statement is based has not been made available online, but an executive summary (ZIP) has been published. That summary concludes:
Results of short term controlled trials indicate that smoked cannabis reduces neuropathic pain, improves appetite and caloric intake especially in patients with reduced muscle mass, and may relieve spasticity and pain in patients with multiple sclerosis.  However, the patchwork of state-based systems that have been established for "medical marijuana" is woefully inadequate in establishing even rudimentary safeguards that normally would be applied to the appropriate clinical use of psychoactive substances.  The future of cannabinoid-based medicine lies in the rapidly evolving field of botanical drug substance development, as well as the design of molecules that target various aspects of the endocannabinoid system.  To the extent that rescheduling marijuana out of Schedule I will benefit this effort, such a move can be supported.
Last year, the American College of Physicians, a large organization representing internal medicine doctors, came out with a similar statement. With the AMA now endorsing the medical potentialof marijuana, the federal government is going to find it increasingly difficult to support its claims that "[t]he DEA and the federal government are not alone in viewing smoked marijuana as having no documented medical value." Increasingly, the federal government really is alone in that claim.

Perhaps recognizing the changing scientific climate, last month, the Obama administration instructed federal prosecutors to de-emphasize the prosecution of people who comply with state medical marijuana laws.

Even if the new AMA position becomes the law of the land, however, it would do little more than ease research into marijuana and, perhaps, move marijuana into the long list of substances available only by prescription. That falls far short of recognizing people's right to ingest whatever they wish, whether for medical reasons or recreational purposes. Fully ending legal restrictions on marijuana (and other drugs) is necessary to end the carnage and civil liberties violations associated with the ever-escalating "war on drugs."


The health benefits of a stay in the slammer

Whether you support or oppose the health-care bill that passed in the House of Representatives over the weekend and now faces an uncertain fate in the Senate, there's no doubt that it will do at least one thing: if passed into law, the unprecedented expansion of the role and power of government will create yet more opportunities for conflict between Americans and law-enforcement officers, with fines, prison and worse at stake for those unlucky enough to be caught on the wrong side of yet another supposed government effort to make the world a better place.

In an August 2008 post, I wrote:
[T]he authorities try, and try and try to make people knuckle under to laws that they find offensive and intrusive. And as people refuse to comply, the authorities raise the stakes, adopting tactics that most of us recognize as violations of civil liberties...
The point that I made is that, when politicians push their authority beyond the boundaries of policies that enjoy near-universal support of the population and into contentious areas that involve imposing the will of the current crop of political officials on a sizeable and unwilling segment of the population, resistance is likely to be substantial. To overcome that resistance, the government adopts forceful tactics and harsh penalties -- and off we go on an escalating conflict between the enforcers and the opposition.

The government would certainly be pushing into new territory with a bill that mandates that people buy government-approved health coverage or else pay a substantial penalty. Fifteen years ago, when such policies were first proposed by the Clinton administration, the Congressional Budget Office cautioned (PDF):
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.
Such an imposition can't help but be controversial and, indeed, fifteen years later it's still stirring up opposition and may not survive a vote in the Senate. Controversial as it is, it's bound to face resistance -- which its authors anticipated. Penalties for noncompliance have been rolled into the tax code, which means, according to the nonpartisan House Joint Committee on Taxation (PDF), if "the taxpayer has chosen not to comply with the individual mandate and not to pay the additional tax," he or she could face "a fine of up to $250,000 and/or imprisonment of up to five years."

That stiff fine and prison sentence is a worst-case scenario -- in case of a felony conviction for noncompliance. But it's what the House of Representatives has voted to add to the government's armory for use against Americans who don't want to be swept up in the government's latest effort to, allegedly, make the country a healthier place.

This is the dirty secret of health care "reform" as enacted by the government. The fact of the matter is that the only reason to ask the government to get involved in any issue is to draw upon its unique powers to use force against people who say "no." Every government reform comes backed by tough men and women carrying guns, handcuffs and the keys to prison cells.

Yes, the health care bill only latches on to penalties that already exist for noncompliance with previously established programs. But that's just further evidence that every government "reform," no matter how well-intended, increases the likelihood that any one of us will end up in conflict with the government, with brutal consequences at stake.


Thursday, November 5, 2009

Is it time to get the state out of marriage yet?

In Maine, voters continued the unbroken national trend that has seen voters reject the idea of expanding the definition of marriage to include same-sex couples every time it comes to a vote. Even the apparent approval of everything-but-marriage domestic partnerships in Washington state can only slightly soften the sting, given the narrow margin for a measure that falls short of granting equality to gay and lesbian relationships. Maybe it's time to take the hint, and concede that, so long as we let government impose one top-down definition for marriage, voters in even the most tolerant states are going to insist that the definition be a conventional one.

So far, recognition of same-sex marriages in the United States has come through the courts or the legislatures. In Maine, lawmakers granted full recognition to gay and lesbian couples, only to be thwarted by a margin of roughly 53% to 47% when state residents turned the matter into a referendum. Perhaps that shouldn't have been surprising, following as it did just one year after California voters overturned a state Supreme Court decision recognizing same-sex marriages. If even Maine and California voters, known for generally socially tolerant views, balk at expanding the definition of marriage, what hope is there in the rest of the country?

Washington state voters sort-of bucked the trend, approving a domestic-partnership measure designed to  "expand the rights, responsibilities, and obligations accorded state-registered same-sex and senior domestic partners to be equivalent to those of married spouses." But the measure included a little zinger, specifying that "a domestic partnership is not a marriage."

The domestic-partnership measure squeaked by with less than 52% approval, and that courtesy of overwhelming support in ten counties clustered in the liberal northwest -- it lost in the state's other 29 counties.

Across the country, even in the most tolerant states, people seem willing to grudgingly grant legal rights to same-sex relationships -- but only so long as you don't call them marriages.

So, if you insist on marriage equality, how do you get there from here?

The practical answer may well be the one that has long been deemed the most radical: privatize marriage and let individuals, churches and familes decide for themselves what "marriage" means.

Right now, with "marriage" a privilege licensed and defined by the government, we all have to live with the same definition of marriage, and that definition has become an emotionally charged political football. In fact, though, marriage has only been a licensed, state-defined institution for a short period of time. As Stephanie Coontz, a professor of history at Evergreen State College, wrote in The New York Times two years ago:
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
Licenses were largely introduced so the government could prevent people from marrying across racial lines, and later to implement now-discredited eugenics theories about who should be allowed to marry whom in order to optimize genetic outcomes. That is, they were imposed to prevent people from defining marriage in ways that satisfied their own needs. The recent resignation of Keith Bardwell, a Louisiana justice of the peace who refused to perform mixed-race weddings "because he was concerned for the children that might be born of the relationship," was a blast from that unsavory past.

Which is to say, the government's role in defining and licensing marriage has been remarkably unhealthy.

So why not return to the days when people wholoved each other called themselves "married" and were done with it? If we were to return the institution to the private status it held for so long, conservative-minded people could continue to view marriage in a conventional way, attending churches that perform ceremonies only for heterosexual couples. Gays and lesbians would obviously define marriage in ways that better suit them.

And the legal accretia that has become tied up in marriage -- property, inheritance, benefits and the like -- could be ... well ... divorced from marriage and treated as contractual matters available through domestic partnerships or by filing a few documents purchased at an office-supply store. That would have the added benefit of simplifying matters for those many people who want to streamline their legal affairs but have no need of the full institution of marriage.

So keep marriage conventional and expand its definition by privatizing the institution. Why fight over how the government defines marriage when we can write politicians out of the whole matter and define it to suit our own tastes?


Tuesday, November 3, 2009

Arpaio's goons have an interesting take on attorney-client privilege

Arizona Defense Attorney Joanne Cuccia was in court at the podium arguing on behalf of her client during a sentencing hearing when that client, Antonio Lozano, noticed two detention officers pilfering a document from Cuccia's fies behind her back. The incident, captured on video, interrupted the hearing, enraged defense attorneys and, unbelievably, spurred the Maricopa County Sheriff's Office to defend the officers' actions.

Legal documents are privileged information, as well as private property, and so protected from casual pawing by agents of the state. But that didn't prevent Officer Adam Stoddard from casually strolling over to the table where Cuccia's files were laid out, extracting and reading a document, and then handing it to a colleague to be photocopied. His actions were recorded by security cameras.

Court officers are allowed to screen files to make sure that they don't contain contraband, and the Sheriff's office claims that was what Stoddard was doing -- examining a document that had escaped the screening process. But unless a pistol is duct-taped to a letter, officers aren't permitted to help themselves to confidential memos, briefs, motions, letters or any of the other contents of an attorney's files.

Sheriff's Deputy Chief Jack MacIntyre insists that nothing improper was done with the photocopied documents, which a judge has since determined were in fact subject to attorney-client privilege. MacIntyre told Phoenix's Channel 12, "The original papers were given back to the defense attorney, and the copy that was made was sealed in an envelope and given to county counsel. When county counsel read them, they gave them back to the defense attorney. Nobody from the Sheriff's Office ever read them."

We'll have to take the Sheriff's Office's word for that.

Maricopa County Sheriff Joe Arpaio has been notorious for years for using his power to spy on opponents, and even arrest journalists -- executives with the weekly Phoenix New Times -- who have been critical of his conduct. Arpaio and the Sheriff's Office are reportedly being investigated by the FBI for using threats and intimidation to settle political scores. Among those known to have been scrutinized, arrested or raided by Arpaio's deputies are candidates who ran against Arpaio, a civil liberties attorney and many political opponents in county and state office.

Judge Gary Donahoe is scheduled to rule on the defense documents case on Thursday.


Court reduces itself to rubber-stamp approval for torture

Fretting that allowing a lawsuit to proceed could interfere with national security concerns and damage U.S. relations with other countries, a majority of judges on the United States Court of Appeals for the Second Circuit ruled that Maher Arar, a Syrian-Canadian, cannot sue the United States after American agents kidnapped him and sent him to Syria to be tortured. The decision suggests that the U.S. government policy of "extraordinary rendition" -- sending terrorism suspects overseas to face torture and interrogation -- may have formally become a safe haven for government officials who want to act beyond the reach of the Constitution or judicial review.

Maher Arar, a Canadian citizen born in Syria, was seized by U.S. officials in September 2002 while changing planes at New York's JFK airport en route from Zurich to Montreal. A telecommunications engineer educated at McGill University, Arar had been tentatively fingered by Canadian authorities as having distant connections to people involved in terrorism. That was enough for U.S. officials, who used the controversial "extraordinary rendition" program, which was implemented in the mid-1990s, to send Arar to Syria, where he was tortured and interrogated for ten months. As the ACLU puts it:
In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."
After surviving extended beatings, deprivation and confinement to a three-foot-by-six-foot cell, Arar was eventually returned home. The Canadian government, seemingly motivated by equal parts embarrassment and horror, cleared him of any wrongdoing and awarded him nearly $10 million in compensation for the bad information its agents supplied that helped trigger his ordeal.

Arar also filed suit against the U.S. government for the crimes committed against him by its agents. But the U.S. government has repeatedly claimed that the people it sends to their fates at the hands of third-world secret policemen have no rights under U.S. law, and that the courts have no jurisdiction. By a 7-4 margin, the Second Circuit Court of Appeals agreed. For the majority, Chief Judge Dennis Jacobs wrote (PDF):
A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns.
He added:
Absent clear congressional authorization, the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy.
Jacobs also voiced concern that allowing the lawsuit to proceed would require revealing sensitive intelligence information -- a nod to the state secrets privilege the Bush and Obama administrations have invoked in an effort to put many government abuses beyond the reach of adjudication and remedy.

Ultimately, the Secoond Circuit decison in the case of Maher Arar not only denies justice to an abused man -- it arguably reduces the court system to rubber-stamp approval for any horror committed by the U.S. government, so long as the magic words "national security" are uttered along the way.


Monday, November 2, 2009

(Secret) change you'll still have to hope for

Perhaps summoning the ghosts of Bush administration officials past in celebration of Halloween, the Obama administration's Justice Department on Friday once again invoked the state secrets privilege. Government lawyers argued that allowing plaintiffs in the case of Shubert v. United States to raise their allegations of civil liberties violations in the courts created to adjudicate such claims would reveal dangerously sensitive information, and so asked that the court toss the case without considering its merits. The move cements the policy continuity between the last president and the current one when it comes to claiming that some government wrongs can never be remedied for fear of exposing information the government itself deems sensitive.

The case of Shubert v. United States concerns allegations that the U.S.government has engaged in a warrantless surveillance dragnet in the wake of the terrorist attacks of 2001. The surveillance is said to illegally ensnare millions of Americans engaged in telephone and email communications originating in or destined for the United States. The United States government, first under President George W. Bush, and now under President Barack Obama, has insisted that, whether or not the plaintiff's assertions are correct, allowing the case to proceed would jeopardize national security. Among the points of information government attorneys explicitly want to conceal is if such surveillance is ongoing.

In an October 30 statement, Attorney General Eric Holder referred to policies and procedures adopted last month that were supposedly intended to increase government transparency, and claimed that even in light of the new rules, the state secrets privilege was justified.
The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country.  I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.
Responding to skepticism over claims that the government should be allowed to determine when claims against it are too sensitive to be allowed to proceed, Holder added:
We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power.  Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.
Specifically, in documents (PDF) filed with the United States District Court for the Northern District of California, San Francisco Division, government lawyers argued:
[S]ummary judgment should be entered for the United States and the Government Defendants sued in their official capacity with respect to all of plaintiffs’ claims against all defendants (including any statutory claim against the Government Defendants not otherwise dismissed for lack of jurisdiction and any claim against any personal capacity defendant) on the ground that information necessary to litigate all of plaintiffs’ claims against all defendants is properly subject to, and excluded from use in this case by, the state secrets privilege and related statutory privileges raised by the Director of National Intelligence and the Director of the National Security Agency.
In April, the Electronic Frontier Foundation, which has been active in litigation against the federal government over warrantless wiretapping, asserted that the Obama administration's claims of state secrets privilege are actually farther-reaching than those of the last administration. According to Tim Jones, EFF's Activism and Technology Manager, "the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes."

In fact, the Obama administration has continued to assert that what matters is the government's own assessment that there is a reasonable danger that military or intelligence information will be divulged -- it's irrelevant whether the court agrees. The recent filing continues, "once the privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute and cannot be overcome by even the most compelling need in the litigation."

If granted, a state secrets privilege of such scope could effectively put even the most heinous offenses committed by the state beyond the reach of adjudication by the courts.