What You Won't Read About the 'Pants' Case

Just this morning, when my 17-year old client was asked, by the victim of a theft for $25,000 in restitution, ($16,000 of which was listed as "pain and suffering") the judge jokingly remarked that "well, if someone can see $50 million of some pants...). In short, the "Pants Case", which was properly decided in favor of the defendant last week, will probably be held up for years as an example of how the system is in need of more "reform" (less corporate responsibility) rather than an example of a system that worked exactly as it should. In fact, I wonder if the judge who brought the suit (as a lawyer, not a judge) will be sanctioned or forced to pay attorneys fees for bringing the suit. If he is, expect to read about it on page 10 of the local paper, rather than in the newspapers covering this story as litigation run amok.

But this op-ed, pointed out on the TLC listserve, from the Houston Chronicle got my attention. An excerpt:

Tort reformers want to ban most, if not all, of these lawsuits and they
claim that eliminating them would translate into lower prices for the
consumer. The reasoning suggests that without the penalties associated with
launching an unsafe drug, pharmaceutical companies would enjoy larger
profits and be able to manufacture cheaper aspirin.

The problem with this flawed approach is that it has no end. Without
lawyers, homebuilders could build less expensive homes and not worry about
being sued due to defects in craftsmanship. The price of a pack of
cigarettes would decline because companies would not be held accountable for
the proven medical costs associated with smoking. And our stores would be
stocked with an endless supply of cheap toys because companies could
eliminate "safety" from their list of priorities...

Not every lawsuit is justified, not every verdict is legitimate and not
every lawyer is perfect. Lawyers, like people in any other profession, make
mistakes, and some lawyers file frivolous lawsuits. But our system works
because judges and juries are usually smart enough to recognize these
lawsuits for what they are, and they not only find for the defendant, but
they also sanction the people responsible for bringing the case.

The next time you hear Ann Coulter call John Edwards a "Las Vegas shyster," ask yourself what motives Ann could have for turning public opinion further against lawyers who represent people instead of corporate interests.

What's in it for Ann if the people follow Dick the Butcher's advice to "first kill all the lawyers?" Why would Ann want you to focus on her critics' hair rather than on her own motivations?

Who's really looking out for you?

Bush's Deadly Virtues

Glenn Greenwald, who will be releasing his new book "A Tragic Legacy" next week, has a post up today in which he quotes Andrew Sullivan of the Atlantic quite

There is still a chance to repair the damage -- but given how much we have lost since 9/11, the constitutional consequences of another major attack are likely to be terminal to the American experiment in liberty. If a Giuliani or a Cheney is in power on such a day, we can kiss goodbye to the constitution. . . . America has exchanged some if its basic freedoms for the patina of phony security -- and so easily. The Republican party, to its historic shame, has been the main vehicle for the replacement of doubt, empiricism and calm judgment with certainty, fundamentalism and raw force.

Greenwald goes on the explain the purpose behind his book, and his blog:

The principal value, and the necessity, of examining the underlying assumptions and beliefs which have led us to this point -- an examination which is the primary purpose of A Tragic Legacy -- is not merely to provide some historical account of the last six years. Rather, it is to describe the extreme challenges America faces in recovering from the Bush legacy and, more important still, to expose the corrupt foundations of our political discourse -- ones embraced by the right-wing movement and our establishment media figures alike -- in order to change the terms and outcomes of those debates.

Greenwald goes on to note the futility of debating whether or not Bush's conversion is real or opportunistic, saying "the need to combat and refute the framework he offers -- that those who are committed to Christian piety must join his battles -- is urgent whether or not he personally, deep down, truly believes in those claims." In response, I left the following comment, which I was hoping would prompt a reply:

I agree that, rather than focusing on whether their alleged conversion is real or not, we first need to combat the destructive actions and uncover the philosophical framework that lies beneath leaders like Bush and Nkunda. Whether they quote scripture for devilish purposes or truly believe their unlawful, immoral, unChristlike means are justified is a question for historians as we have bigger, more pressing fish to fry.

Bill Moyers created a series in the late 80's which featured the Rev. Forrest Church (son of Sen. Frank Church of the commission) in which he described our nation's "virtues" as potentially more dangerous than our "sins." He summarized this by warning that "the devil most often appears in drag." Recently, Church commented on the grip of Bush's brand of Christianity on our foreign policy:

American fundamentalism... by trivializing sin into a moralistic catalogue of personal foibles... reserve[s] the badge of real evil for others... Luther put it this way: "The final sin of man is his unwillingness to concede that he is a sinner. ... [R]evelations of prisoner abuse in Iraq... should serve as a reminder to all of us, especially the idealists who drive our nation's foreign policy, of the first law of history: to "Choose your enemies carefully, for you will become like them."

Isn't that a pretty good summary of "the Decider" and his tragic legacy? Rather than contemplating how the sermon on the mount (which ironically I discovered via a reference in Vonnegut's last book) should affect a Christian politician's view of government, he simply says "We don't torture" and forces the soldier who reported this into retirement. (And he does this after viewing a picture of a naked Iraqi decorated by an American soldier with lights made in a Chinese factory to celebrate Christ's birth!) In short, the administration is so blinded an "with us or against us" mentality, that they don't see evil even when it plainly emerges from our side.

Rather than mobilizing the moral authority we held in the pre-9/11 world or utilizing any of the world's sympathy we received as a result of it, they disregard this rule of history, along with the Constitution and the law they swore to uphold. Instead of considering whether their policies made us like our enemies, their only response was (and still is) to accuse anyone who questions them of being a terrorist sympathizer or even an outright enemy.

This policy not only distorts true Christianity and corrupts our nation's legacy, it also plays right into the hands of a fundamentalist Islamic radical who similarly, though mistakenly, believes his own faith permits him to use devilish means to achieve heavenly ends."

Some Pigs are More Equal than Others

Here is a comment I left at David Feige's blog, Indefensible. He was the best instructor I had at NCDC and he has a great piece up at Slate on the Mike Nifong disbarment that came out of the Duke Lacrosse fiasco. My comment tells the story of a complaint I read yesterday, which I don't think the prosecutor has even a good faith belief in. I'll talk to her soon, but unless her mind has changed lately, I believe she's alleging things that even she doesn't believe in.

Should prosecutors be able to do that? (If you hesitated, you better ask yourself why our founders created that pesky Bill of Rights)

Just yesterday I read a motion to terminate parental rights which alleged that my client "inflicted upon the juvenile... serious bodily injury." Yet the pros has told me many times that she doesn't believe my client caused these injuries. In fact, her boyfriend is in prison for causing them.

But the prosecutor here does believe my 22-year old client (whose tubes were tied last year) deserves to lose her parental rights for not getting the baby to the hospital quickly enough. So, believing that she's wearing a "white hat", the pros sees no problem alleging something she knows isn't true to be able go after someone she believes wears a "black hat."

The prosecutor (1) thinks my client deserves to lose her kids and (2) knows she has to prove "serious bodily injury" to get there. So what's the problem?

Like many in the Bush administration, some prosecutors tend to equate adherence to the rule of law with support for child abusers (or terrorists) when a person is changed with child abuse. The law is for people like you and me, not for people like Scooter and them.

I'll keep you posted on how it works out, but it's not looking so good. Yesterday I was told, by the child's guardian ad litem, to "do the right thing" by withdrawing my speedy trial motion, even though the right was clearly violated and that they are not offering me anything other than termination of parental rights.

So, they truly believe I should "do the right thing" and withdraw an obviously meritorious motion to dismiss, even when doing so would be per se ineffective assistance.

Don't mean to vent on your blog, but I'm glad someone pointed out that Nifong is the scapegoat and that the practices will continue unabated. Some pigs are, after all, more equal than others."

What do you think?

Judge Walton's Sarcastic Footnote

It was a victory for the Equal Protection Clause today when Judge Reggie Walton denied Scooter Libby's Motion for Bail Pending Appeal today, meaning that Scooter will begin serving his sentence in a few months rather a few years.

What stood out to me, however, was Judge Walton's sarcastic footnote delivered last week, in which he commented on the sudden involvement of 12 prominent law professors, arguing that the grave constituional issues involved required that bail be set. The footnote reads,

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

As background, what Walton was commenting on (and his sarcasm is obvious) is the tactic of having 12 prominent law professors weigh in on this issue, while professing to not be concerned with Scooter but instead purely lending their expertise on the complicated constitutional issues involved. (link to pdf of motion)

But Walton isn't intimidated. He's got Lifetime tenure and he didn't check anything at the door. So he tells them that if the proper application of the Constitution is indeed their motive, he knows they can be counted on, just as quickly, in the future when poor, criminal defendant's case presents an equally compelling issue.

In a week or so, I need to ask for a continuance to submit a brief on a speedy trial issue and think it'll help to bring this up, cautiously, and say "by the way, I know some law professors who might be able to help us out on this, your honor." It probably won't get me anywhere, but I think I have a Walton-like judge who will see the irony and maybe look a little harder at my client's claim, or at least make him laugh a little bit.

Nice to see signs of an independent judiciary, to see some cajones rather than cowardice, in an era of Alitos.

My Thought on 9/11 and its aftermath

David Feige, one of the best instructors at the National Criminal Defense College, runs a blog called Indefensible (he wrote a book with the same name). After reading one of his posts about what it was like to be near "ground zero" that day, I left the following comment:

"Great post, David. It was nice to read a first person account with concrete details like the single loafer, that made it real, even five years later. It sounds crazy, I know, but aside from running to my car to go pick up my daughters from school when they announced that the courthouse was closing, I vividly remember commenting to a fellow public defender that "this will trigger the biggest assault on civil liberties and the Constitution that we've ever seen."

I don't know what made me think of that at that moment. I think it's probably the experiences I've had as a public defender that made me think of the way the Fourth Amendment, that our ancestors fought so hard to achieve and uphold, would continue to become collateral damage in the war on drugs, on crime, and finally on terror.

I probably should have been thinking of something else at that point, and a big part of me just wanted to go home and be safe with my family. But another part of me knew we, as a nation, in our justifiable rage, would probably end up tearing down the sacred documents our country was founded upon in our quest to preserve the "American" way of life, as if it were necessary to tear down the Constitution in order to save it, as Cheney seems to believe.

What really scared me about my comment was my colleague's (also a public defender) response to it: She said, "well, I'd be willing to give up my civil liberties if that's what it takes to be safe." What's scary about that is that public defenders know, probably more than any other profession, the way we must necessarily balance individual rights with the interests of the state and how necessary the exclusionary rule is to ensuring that the police don't overreach and violate the Constitution as they attempt to stop people from violating the law.

My colleague, even though she sees firsthand the way the police will "testi-lie" and justify this as necessary for the "good guys" going after the bad, was still willing to sacrifice liberty for the sake of security. As all public defenders should know, those who make this trade, without even considering the consequences, deserve neither.

And my worst fears were realized. Who would have thought we would seriously debate whether to use torture to extract information, to confront a government that holds prisoners, even U.S. citizens indefinitely as "enemy combatants," that the Attorney General would be threatening to jail journalists for reporting on their government's secret, unconstitutional domestic spying programs, that we would use this day as an excuse to invade a country, unprovoked, to violate the Geneva conventions and alienate the world's empathy while placing tens of thousands of our troops in a quagmire that's killing thousands of them?

Thankfully we're seeing some "pushback" from the judicial branch against a group of neocons who believes in the unitary power the executive branch, and a minimum of pushback from the legislative branch.

But today Time reports that Karl Rove's "hail mary" play to retain power begins, and that the tragic events of 9-11 will be used not only to portray the other party as soft on terror, but to bring members of his own party, who still harbor antiquated ideas about the rule of law or the enforcement of the Constitution, back into line.

I'm fearful of another attack and motivated by the people who so needlessly and violently were murdered that day five years ago. But I'm also worried about where the next five years will take us, and whether that bargain my colleague made in her moment of fear, will continue to cause us to sacrifice the things our country stands for (the rule of law, the Constitution, checks and balances against a tyrant gathering too much power) in the name of making us all feel safer.

Today, rather than watching that fictional propaganda piece the Disney company is providing to the GOP just months before the election, google "Operation Northwoods" and read the recently declassified documents that discuss what bargains an overzealous, fearful military industrial complex was willing to make to motivate the American people into becoming fearful and thus easily manipulated.

As chilling as the events of 9-11 were, consider that the joint chiefs of staff were unanimously willing to murder American citizens in this country to create a climate of fear that would allow us to invade Cuba. Seriously, you can see the documents that verify this online in PDF format.

I'm not insinuating that 9-11 was an inside job, only pointing out that it is documented that the state will at times use the end to justify the means.

The price of liberty is eternal vigilance, and those who are willing to trade this precious, hard-fought freedom for security, (or to allow a small group of men the power to run roughshod over the Constitution and the traditions of this country, limiting liberties here while trying to create democracy abroad at the point of a gun) deserve neither one.

The real test of 9-11 will be the subtle one. The obvious test is whether we will defend ourselves. But the less obvious, subtle test is whether we will unwittingly destroy the American way of life, destroy freedom in this sweet land of liberty, as we hand power over to those who would exploit our fears to enhance their own portfolios and their own grip on power, who would destroy what is good and different about this country in the name of saving it for their gated community neighbors.

A Russian proverb summarizes this idea nicely: "choose your enemies carefully for you will become like them."

John McCain says what got him through torture was his belief that his country was different than that of his captors, that his nation valued something different and unique among nations. What's made us different is our willingness to uphold individual rights and to balance these against the state to keep the state's power sufficiently checked and anti-tyrannical.

Hopefully as a nation we will realize that, more than ever before, our Constitution is under assault, our leaders are hellbent on clinging to power and willing to exploit our fears to accomplish this, and our media not doing its job in educating us about these challenges to our way of life.

It's true that there are enemies out there trying to destroy us and that we need to defend ourselves from them. But it's also true that if we destroy our nation's ideals in the process, they win and we have only ourselves to blame.

Our enemies struck us five years ago, harder than ever before, but it's also true that in the last five years "we have met the enemy and he is us."

Hopefully we can win the War on Terror without killing off what makes us different as a nation.

Hopefully we can defeat our enemies without truly becoming like them in the end..."

Authoritarians at the Gate (updated below)

Today in the news, three items appear that will go virtually unnoticed by most people. Yet these items, and particularly the scant attention any of them will receive by either the public at large or the mainstream media institutions charged with informing them will discuss things like CNN's "top story" about a "tiny terrier saving kids from pit bulls." Here they are...

(1) The Wall Street Journal Editorial Page...

... features an editorial authored by Harvey Mansfield, a William R. Kenan Professor of Government at Harvard (you know that great liberal institution) entitled "The Case for the Strong Executive
Under some circumstances, the rule of law must yield to the need for energy."

Some excerpts:

- "In other circumstances I could see myself defending the rule of law.

- In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable.

- Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances...

(2) Thomas Sowell's Random Comment that...

- "when I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can't help wondering if the day may yet come when the only thing that can save this country is a military coup." Enough said, right?

(3) This New York Times Headline stating "Administration Pulls Back on Surveillance Agreement"

The first paragraph reads, "Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants."

Apparently, the Fourth Amendment requirement that "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" really means that "when the president does it, it's not illegal."

Lincoln's quote, from the Gettysburg address, about our country being "a nation of laws and not of men" no longer applies.

UPDATE: No, this isn't from the Onion. This is a quote from the President of the United States, you know "the commander guy."

From the White House website transcript of Bush's statement on the War on Terror this morning...

"By the way, in the report it said, it is -- the government may have to put in more troops to be able to get to that position. And that's what we do. We put in more troops to get to a position where we can be in some other place. The question is, who ought to make that decision? The Congress or the commanders? And as you know, my position is clear -- I'm the commander guy."

"Industry Wide" Insurance Practice to Dump Pregnant, Sick?

Will this be in Michael Moore's upcoming "Sicko?"

From today's LA Times...

- "Blue Cross of California "routinely" violated state law when it canceled
individual health insurance coverage after policyholders got pregnant or sick...
according to a state investigation of practices that appear to be industrywide."

- "The state investigation found that Blue Cross used ... a dedicated department
to systematically investigate and cancel the policies of pregnant women and the
chronically ill... Regulators examined 90 randomly selected cases ... out of
about 1,000 a year in California — and found violations in each one."

- (Parent Company) "WellPoint Inc., earned $3.1 billion in profit last year on revenue of $57 billion."

All Pigs are equal, but some pigs are more equal than others

You might recognize that line from Orwell's "Animal Farm" but it pretty much fits a disclosure by the Justice Department's Inspector General yesterday that (according to the Washington Post), "the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here."

In other news, in the Justice Department's "Document Dump" from yesterday, comes news that AZ United States Attorney Paul Charlton, one of the 8 USA's fired last year, wanted to institute a policy of requiring federal agents to tape record or videotape interrogations." Like Jerry Maguire, he was fired shortly after calling for this change.

What's more shocking is the internal memos released yesterday. For example, a June
'06 ATF memo to the DOJ opposing such recording states:

"Law enforcement interrogation techniques (although completely legal) may still be unsettling for some jurors in video and audio form."

Even more shocking, an internal FBI memo, also opposing the AZ USA's desire to record interrogations, states:

"FBI agents have successfully testified to custodial defendants' statements for
generations with only occasional and rarely successful challenges.... as all
experienced investigators and prosecutors know, perfectly lawful and acceptable interrogation techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may be unfair deceit."

(Interestingly, in the FBI document, someone has handwritten the words "So we
want to hide the truth? Don't want the jury to reach its own judgement?" in the
margin." )

A link to Glenn Greenwald's article on subject, which includes pdf images and
links to the dumped docs, is here. You might have to click through Salon's first screen to get there)

Letter to the Editor re: Fired US Attorneys

Below is a letter I sent to the Omaha World Herald after they ran a highly misleading political cartoon, by the same jackass who drew the one shown below. The cartoon itself isn't available until tomorrow) Since I'm pretty sure The WH won't publish it, here it is...

“It is highly misleading for the World-Herald to show a political cartoon today which depicts former President Clinton, standing beside a chalkboard with 93 tally marks behind him, calling President Bush an “amateur” while only eight tally marks appear behind Bush.

It is true that Clinton did ask for the resignation of all 93 U.S. Attorneys at the beginning of his term, but Bush did the same thing, as did both Reagan and Bush I. This is routine practice. In fact, an internal Justice Department memo written shortly after Bush assumed office (found at http://www.usdoj.gov/opa/pr/2001/March/107ag.htm), states “[c]ontinuing the practice of new administrations, President Bush and the Department of Justice have begun the transition process for most of the 93 United States Attorneys.”

However, while replacing USA’s at the beginning of a President’s first term is routine, what the Bush administration did, in firing 8 prosecutors they had originally appointed, is unprecedented. In fact, an email from Attorney General Gonzalez’ Chief of Staff Kyle Sampson from Jan. 9, 2006 shows that they realized the unprecedented nature of their actions. The memo states “[i]n recent memory during the Clinton and Reagan administrations, [the] President[s] did not seek to remove and replace U.S. attorneys they had appointed whose four-year terms had expired.”

What is alarming about the firing of eight United States Attorneys is that the list included Carol Lam, who had recently indicted Rep. Randall “Duke” Cunningham, R-CA, (currently in federal prison for fraud), and who had also announced her intention to execute search warrants against a Bush appointed CIA agent just days before Gonzalez’ aide Sampson discussed the need to fire her. The list of eight fired prosecutors included those who had indicted prominent Republicans, but also included David Iglesius who, despite being chosen as a trainer for voter fraud related issues by the Justice Department, refused to indict Democrats for voter-fraud related offenses, after Karl Rove publicly called for them. The fact that these firings relate both to prosecutors who indicted Bush supporters and those who refused to indict his opponents, should raise red flags to both anyone who cares about democracy, whether conservative or liberal.

If the eight (out of 93) United States Attorneys were indeed fired because they would not do Karl Rove’s bidding, the real focus of this story should truly shift not to the eight fired prosecutors who refused to “play ball” but rather to the remaining 85 whose “performance” either (1) satisfied Rove and his boss or who (2) received the message that those who don’t play politics with prosecutorial powers are soon looking for other work.

Trivializing this complex and important story about the role of politics in the exercise of the awesome power of the federal government in its prosecutorial (and thus potentially imprisoning and liberty depriving role) by picking up a factually incorrect, highly misleading political cartoon from the wires not only misinforms the public, it also puts the World-Herald in the role of propagandizing Pravda rather than perceptive, government-questioning press. How sad, both for your paper and its readers who depend on you for the truth necessary to be ensure that Lincoln’s dream of a government of, by and “for the people does not perish from the earth.”

UPDATE: The WH responded and asked me to cut it down to 200 words and I sent it in. Still not holding my breath, though.

Update II: The WH didn't publish it, either since it didn't meet their standards of decency or they don't like being compared to Pravda. The cartoon itself has not yet been released, but will be posted shortly.

Nothing More Intractable Than Seeking Death

Over at TalkLeft, Jeralyn Merritt (who's blogging on her own dime from D.C. and needs all the help you can send her) links to a defense lawyer's "Motion to Declare U.S. Attorney's Appointment Unconstitutional" in which he argues that the Bush administration's move to replace Assistant United States Attorneys with party hacks (via a Patriot Act provision that allows for recess appointments) violates his client's rights as well as a federal statute.

[In case you missed it, Paul Krugman accurately observed that the "likely answer" to why this move now "is that for the first time the administration is really worried about where corruption investigations might lead..."]

The motion and attached memo, are accessible via the above link, but I was astonished to read the following comment on the TalkLeft post:

"How does this filing in any, way, shape or manner help the person whose life is at stake in this case? If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? ... If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?"

Iresponded with the following comment:

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante. There are times, indeed, when heeding this advice is appropriate, but they're rare.

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA. This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.

Fight them with any means, inside the law, when they want to kill your client."

What do you think?

What effect will the execution videotape have on Iraq?

That is the $64 billion question, but here are a few reactions from people with expertise.

First, Robert Baer, who is a former CIA case officer, author of both "Sleeping with the Devil: How Washington Sold Our Soul For Saudi Crude" and of "See No Evil" the book that eventually became the movie Syriana. In fact, George Clooney plays Baer's character in the movie. Baer has a new op-ed in Time which begins...

"The cat is out of the bag. Thanks to images from a cell phone, we now know that the Iraqi National Police unit we turned Saddam over to was in fact a Shi'a lynch mob."

On the subject of what this means to a future Iraq and the question of the effect of our presence there Baer writes:

"Only time will tell us what Sadr intends do with Iraq if he ever does take over. But the Sunnis today will tell you they don't need to wait. On Saturday, they saw all the evidence they needed: the symbolism of executing Saddam on the Muslim High Holiday of Id al-Adha as a gift to the Shi'a, and and the decision of Maliki to get special approval from Iraq's senior Shi'a clerics, the "marja'iya," to carry out the execution on that day. No one is ever going to take a poll, but it's safe to say that most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true."

Second, CBS/AP reports that "After Hussein's burial Monday, rage over the hanging spilled into the streets in many parts of the Sunni Muslim heartland Monday, especially in Samarra where a mob of angry protesters broke the locks off the badly damaged Shiite Golden Dome mosque and marched through carrying a mock coffin and photo of the executed former leader." The article continues:

"Sunni extremists had blown apart the glistening dome on the Shiite holy place 10 months earlier, setting in motion the sectarian slaughter that now grips the troubled land.

The Samarra protest was particularly significant because it signaled a widening expression of defiance among Sunnis, the minority Muslim sect in Iraq that had enjoyed special status and power under Saddam and had oppressed the now-ascendant Shiite majority for centuries."


Third, Professor Juan Cole describes this Sunni protest of the Saddam execution as:

"Folks, this is very bad news. The Askariyah Shrine (it isn't just a mosque) is associated with the Hidden Twelfth Imam, who is expected by Shiites to appear at the end of time to restore the world to justice. (For them, the Imam Mahdi is sort of like the second coming of Christ for Christians). The Muqtada al-Sadr movement is millenarian and believes he will reveal himself at any moment.

The centrality of the cult of the Twelfth Imam, a direct descendant of the Prophet Muhammad who is said to have vanished in 873 AD, helps explain why the bombing of the Golden Dome on February 21 of 2006 set off a frenzy of Shiite, Sadrist attacks on Sunni Arabs. Last February, stuck in a Phoenix hotel because of a missed flight and without an internet connection for my laptop, I blogged from my Treo that it was an apocalyptic day. Sadly, it was, kicking off a frenzy of sectarian violence that has grown each subsequent month.

For Sunni Arabs to parade a symbolic coffin of Saddam through the ruins of the Askariya shrine won't be exactly good for social peace in Iraq. Can't that site be properly guarded or something?

Al-Hayat reports in Arabic that hundreds of demonstrators marched in Dur, near Tikrit on Monday, protesting the execution of Saddam Hussein. Young men carried machine guns and fired them in the air, chanting "Muqtada, you coward," and "Hakim! Yellow-belly! Agent of the Americans!" They unveiled an enormous mosaic of Saddam Hussein inscribed, "The Martry-Hero."

There was also a demonstration in the northern Baghdad district of Adhamiya, at which protesters shouted condemnations of Muqtada al-Sadr, according to al-Zaman. Some of those present at Saddam's execution shouted "Muqtada, Muqtada, Muqtada!" Saddam mocked them, asking if this was their sign of manliness. (Personally, I believe this is Saddam's reference to rumors in Iraq that Muqtada's wife left him, saying that he is actually gay. He is saying that chanting Muqtada's name is a sign that they are also not real men.)"

(To get to Cole's comment, scroll down to the "Tuesday, Jan. 2" entry)

Bottom Line: If Baer is correct that "most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true" and Cole is correct that the Sunni break-in/ coffin protest at the "badly damaged Shiite Golden Dome mosque" is "very bad news" and not "exactly good for social peace in Iraq," where do we really stand in Iraq? And what will the future look like?

Is there any hope of "victory" for an occupying power in the midst of this current and potentially worse future bloodshed? Of course, to the right, the answer is simple. The killing is not a sign of failure but a reason for hope. As Dean Barnett puts it, on Hugh Hewitt's blog, in a post entitled "A Moment of Savagery - Now a New Hope?:"

"The only answer, as it always has been, is to stamp out that savagery ferociously and totally. At the end of this war, Iraq must necessarily be composed of people who always wanted to live in peace and the one-time enemies of peace who have come to realize they have no other choice but to live in peace. How much killing will this take? That will depend on how many enemies of peace there are and how determined they are to live in a state of war."

In other words, we are assisting in killing off the "bad" Iraqis, even though 1 in 20, at least, has now been killed. Just a little more progress, Barnett believes, and the good Iraqis, the ones who want to live in peace, will be left and the mission will be accomplished.

Amazingly, Barnett concludes his paragraph above with this prediction:

"One thing's for certain - the more resolute we are, the less killing there will be."

We have a President who just recently dropped the theme of "stay the course" and now, when 1 in 20 Iraqis is dead in the post Saddam era, after the "liberation" if we just stay "resolute" Barnett somehow has the gall to predict that the killing will stop.

Barnett then concludes his piece with these words about the "best news" coming out of Iraq:

"The best news of the past few days actually wasn’t Saddam’s execution, even though Saddam facing justice (in spite of the primitive savagery of the execution itself) is something that every American can feel proud of. The even better news than Saddam’s death is that (according to the reliable Strategy Page), American and Iraqi forces have begun to make war on the Sadr militia."

The worse the news is, the more it is spun as "progress" by the increasingly isolated Bush cabal. One in 20 is already dead after the "liberation" and U.S. forces now attacking the Shiite leader's militia is considered "good news."

Kurt Vonnegut described the Decider playing with U.S. forces like a rich kid playing with toy soldiers. While the analogy is fitting, the killings are real and the future for Iraq, and our forces, is bleak and bloody.

Who will be the last to die for Bush's mistake?

Top Ten Lists

The end of the year always brings about top ten lists about the past year, but here are a couple you might have missed...

First, on the question of "Is the U.S. becoming a police state?" comes this top ten list (from Alternet). Here are the topics, some of which surprised me. See the article for more details/explanations.

1. The Internet Clampdown
2. "The Long War"
3. The USA PATRIOT Act
4. Prison Camps
5. Touchscreen Voting Machines
6. Signing Statements
7. Warrantless Wiretapping
8. Free Speech Zones
9. High-ranking Whistleblowers
10. The CIA Shakeup

And here is Juan Cole's "Top Ten Myths about Iraq 2006" The first line is pretty ominous: "Myth number one is that the United States "can still win" in Iraq." Here are the top ten myths, according to Professor Cole:

1. Myth number one is that the United States "can still win" in Iraq.
2. US military sweeps of neighborhoods can drive the guerrillas out.
3. The United States is best off throwing all its support behind the Iraqi Shiites.
4. Iraq is not in a civil war," as Jurassic conservative Fox commentator Bill O'Reilly insists.
5. The second Lancet study showing 600,000 excess deaths from political and criminal violence since the US invasion is somehow flawed.
6. Most deaths in Iraq are from bombings." (The Lancet study found the majority of violent deaths are from being shot.)
7. Baghdad and environs are especially violent but the death rate is lower in the rest of the country.
8. Iraq is the central front in the war on terror." (From the beginning of history until 2003 there had never been a suicide bombing in Iraq. There was no al-Qaeda in Baath-ruled Iraq)
9. The Sunni Arab guerrillas in places like Ramadi will follow the US home to the American mainland and commit terrorism if we leave Iraq." This assertion is just a variation on the invalid domino theory. (People in Ramadi only have one beef with the United States. Its troops are going through their wives' underwear
10. Setting a timetable for withdrawal from Iraq is a bad idea.

Justice Dept. Refuses Senator's Requests for Docs on Detainee Treatment

From yesterday's L.A. Times:

"Setting up what could become the first showdown between the Bush administration and the new Democratic Congress, the Justice Department has refused to turn over two secret documents, describing the CIA's detention and interrogation policies for suspected terrorists, to the incoming chairman of the Senate Judiciary Committee."

Senator Leahy "waited until the week that Democrats take control of Congress to release — and denounce — the response" after sending the letter to DOJ during the congressional recess. Predictably, the DOJ responded that:

"Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them," wrote James H. Clinger, acting assistant attorney general for legislative affairs. "We must avoid assisting their effort... Clinger said the department had already briefed members of the Senate and House intelligence panels about aspects of the anti-terrorism programs, fulfilling its obligations under the law."

Also, the FBI released documents regarding detainee treatment yesterday in response to an ACLU Freedom of Information Act Request. You can read the ACLU's response here and view the documents themselves here.

The ACLU describes the documents as including "some new accounts of abuse related to the detainees' religious beliefs:"

- Investigators wrapped a detainee's head in duct tape "because he would not stop quoting the Koran."
- Another agent said an interrogator bragged about making a detainee listen to "satanic black metal music for hours and hours."
- According to the same report, the interrogator later "dressed as a Catholic Priest and baptized the detainee in order to save him."
- In another incident observed by an FBI agent, a Marine captain squatted over the Koran during an interrogation of a Muslim prisoner, which the prisoner found extremely offensive."

Making enemies faster than we can kill them.

UPDATE: Marty Lederman, at Balkinization, writes an excellent analysis of possible DOJ justifications for refusing Leahy's request. He writes:

"The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are."

Bush Claims Authority to Open Mail without Warrant

From today's New York Daily News comes this statement:

"President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the Daily News has learned.
The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a "signing statement" that declared his right to open people's mail under emergency conditions.

That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it."

The actual signing statement found on the White House website is here.

Hopefully we'll see more analysis and scrutiny of this latest, but unsurprising, assault on the Fourth Amendment.

Operation "Wagon Train" Sorts People By Skin Color

From the Salt Lake Tribune, this article describing how ICE agents acted when they raided the Swift Plant in Hyrum, Utah as part of ICE's "Operation Wagon Train" Raid on suspected undocumented workers:

"If only for a few minutes, Maria felt like an ''illegal alien'' in her homeland - the United States of America. She thought she was going on break from her job at the Swift & Co. meat processing plant here on Tuesday, but instead she and others were forced to stand in a line by U.S. immigration agents. Non-Latinos and people with lighter skin were plucked out of line and given blue bracelets. The rest, mostly Latinos with brown skin, waited until they were ''cleared'' or arrested by ''la migra,'' the popular name in Spanish for Immigration and Customs Enforcement (ICE), employees said."

Later, the article quotes Maria saying "she hopes the authorities are not targeting Latinos."

Gee, ya think just because they put the whites in one line and gave them blue bracelets and the latinos in another without any bracelets that they might have been targeting latinos?

Speaking of targeting latinos, how nice that the Washington Post now says this of Augusto Pinochet, who died earlier this week:

"It's hard not to notice, however, that [Pinochet] the evil dictator leaves behind the most successful country in Latin America. In the past 15 years, Chile's economy has grown at twice the regional average, and its poverty rate has been halved. It's leaving behind the developing world, where all of its neighbors remain mired. It also has a vibrant democracy. Earlier this year it elected another socialist president, Michelle Bachelet, who suffered persecution during the Pinochet years.

Like it or not, Mr. Pinochet had something to do with this success..."

And...

"In 'Dictatorships and Double Standards,' a work that caught the eye of President Ronald Reagan, [Jeanne] Kirkpatrick argued that right-wing dictators such as Mr. Pinochet were ultimately less malign than communist rulers, in part because their regimes were more likely to pave the way for liberal democracies. She, too, was vilified by the left. Yet by now it should be obvious: She was right.
In "Dictatorships and Double Standards," a work that caught the eye of President Ronald Reagan, Ms. Kirkpatrick argued that right-wing dictators such as Mr. Pinochet were ultimately less malign than communist rulers, in part because their regimes were more likely to pave the way for liberal democracies. She, too, was vilified by the left. Yet by now it should be obvious: She was right."

So Pinochet came to power in a U.S. backed military coup to unseat a democratically elected President and was later responsible for the deaths of two to three thousand dissidents, and was implicated in a car bombing in Washington D.C. that also led to the killing of an innocent American civilian. That's o.k., according to the Post, because "his" policies ultimately led to the creation of South America's most economically successful state.

In short, the Post's logic is that "so you killed a few thousand, your policies led to the economic prosperity of millions, so we'll forgive you." How "liberal" is it to say that right wing dictators are "less malign than communist rulers" because liberal democracies are more likely to follow dictatorships?.

Remember this the next time you hear the media derided as "liberal." The paper that brought about the downfall of Nixon through thorough, necessary reporting is now editorializing about how a mass murderer isn't so bad after all. Thousands died, but millions now live better, so all is forgiven.

And these people are charged with keeping us informed about the dangers of governmental power run amok?

Gingrich: "Free speech should not be... cover for people who are planning to kill... people who have inalienable rights of their own"

I'm guilty of parroting Glenn Greenwald's posts a lot lately, but the stories he picks up on are so important, and so invisible in the mainstream media, that I feel the need to spread the word.

Today, Greenwald points out this article from Newt Gingrich in which Gingrich states:

"[F]ree speech should not be an acceptable cover for people who are planning to kill other people who have inalienable rights of their own."

Gingrich further comments that:

"We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents."

The article, which Gingrich authored, is a follow up to his speech given on 11/27/06, in which he said,

"This is a serious long term war, and it will inevitably lead us to want to know what is said in every suspect place in the country, that will lead us to learn how to close down every website that is dangerous, and it will lead us to a very severe approach to people who advocate the killing of Americans and advocate the use of nuclear of biological weapons.

"And, my prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us.

"This is a serious problem that will lead to a serious debate about the first amendment, but I think that the national security threat of losing an American city to a nuclear weapon, or losing several million Americans to a biological attack is so real that we need to proactively, now, develop the appropriate rules of engagement."

Steve Earle once appropriately said, "It just gets tougher every day, to sit around and watch it while it slips away."

Observer: ICE Agents recorded their informant committing 13 murders, Left him on the payroll

Today Glenn Greenwald recommends this article from the British newspaper The Observer.

To summarize the facts, I cut and pasted from Greenwald's narrative below...

- "Although the subject of the investigation (the U.S. Government's conduct as part of its "war on drugs") receives little attention in the U.S., the incident reported by the Observer powerfully highlights exactly what the Bush administration is and how its "Homeland Security" Department operates."

- "In 2000, agents from the Immigration and Customs Enforcement Department (ICE)... recruited Guillermo Ramirez Peyro, known as "Lalo," to work as an informant for ICE as part of its investigation into a Mexican drug cartel... and they paid "Lalo" more than $220,000 to work as a spy for them, including the wearing of a wire."

- "In August, 2003, Lalo's cartel boss ordered him to participate in the murder of a Mexican lawyer. Lalo participated in the murder -- which was extremely brutal -- while wearing the wire supplied to him by ICE. "

- "After the initial murder, the ICE agents sought permission to continue using Lalo as their informant. Permission was given by high-level Justice Department officials in both Texas and Washington, including several Texans who are very close associates of both George Bush and Alberto Gonzales..."

- "Permission was given by Homeland Security and the DOJ to continue to work with Lalo. Over the course of the next six months, Lalo directly participated in the murder of 13 different Mexicans, usually extremely brutal murders, and all with the knowledge of ICE. Despite one murder after the next being perpetrated by their paid informant, they never intervened.

- "On January 14, 2004, Lalo kidnapped Luis Padilla in El Paso, Texas, drove him across the Mexican border, and then murdered him along with two other Mexicans, all while wearing an ICE wire. It was later revealed that Padilla -- who had lived in the U.S. (legally) since childhood and at the time with living (legally) in Texas with his wife and three children -- had nothing to do with any cartels and was abducted by Lalo as a matter of mistaken identity.

- "[A]round the same time, members of Lalo's cartel-- the cartel which ICE knowingly allowed to go on murdering -- went to the home of an undercover DEA agent in order to kill him (they obtained his identity and home address by torturing an informant). The DEA agent barely escaped with his wife and daughters, through sheer luck.

- The DEA had not known about ICE's ongoing work with Lalo. They thought, naturally, that ICE severed its connection to him once he began murdering people while wearing an ICE wire. But after the DEA's agent and immediate family were almost murdered by the cartel, they found out that ICE was still working with Lalo and they reacted with extreme anger.

- "Once the DEA's Gonzalez put these accusations in writing, the Bush Justice Department responded boldly and vigorously . . . by attacking, threatening and ultimately forcing the retirement of the DEA's Gonzales -- the whistleblower who brought this to light -- for the crime of complaining about it and putting it in writing, thereby risking discovery of what ICE had done (with the permission of the DOJ). Not only was no action taken against the perpetrators, but they were actively protected."


As Greenwald notes, the whole article truly needs to be read, but here is an excerpt...

"Janet Padilla's first inkling that something might be wrong came when she phoned her husband at lunchtime. His mobile phone was switched off. On 14 January, 2004, Luis had, as usual, left for work at 6am, and when he did not answer the first call Janet made, after taking the children to school, she assumed he was busy. Two weeks later she would learn the truth.
'It was love at first sight for Luis and me, and that's how it stayed, after two years dating at school and eight years of marriage,' says Janet. 'We always spoke a couple of times during the day and he always kept his phone on. So I called my dad, who owns the truckyard where he worked and he told me, "he hasn't been here". I called my in-laws and they hadn't seen him either, and they were already worried because his car was outside their house with the windows open and the keys in the ignition. He would never normally leave it like that.'

"Luis Padilla, 29, father of three, had been kidnapped, driven across the Mexican border from El Paso, Texas, to a house in Ciudad Juarez, the lawless city ruled by drug lords that lies across the Rio Grande. As his wife tried frantically to locate him, he was being stripped, tortured and buried in a mass grave in the garden - what the people of Juarez call a narco-fossa, a narco-smugglers' tomb.
Just another casualty of Mexico's drug wars? Perhaps. But Padilla had no connection with the drugs trade; he seems to have been the victim of a case of mistaken identity.

"Now, as a result of documents disclosed in three separate court cases, it is becoming clear that his murder, along with at least 11 further brutal killings, at the Juarez 'House of Death', is part of a gruesome scandal, a web of connivance and cover-up stretching from the wild Texas borderland to top Washington officials close to President Bush."

Will we see the story on the news tonight, or is news of government agents doing nothing while an informant repeatedly murders people, while wearing a wire, not enough to draw national media attention?

Will Olbermann take notice? You can comment on his website by clicking here.

Jose Padilla - "What does [the case] say about our country?"

In an article titled "Video Is a Window Into a Terror Suspect’s Isolation," the New York Times today reports that Jose Padilla's attorneys have obtained a videotape of Mr. Padilla being transported from his cell to the dentist to undergo a root canal.

Padilla is an American citizen was accused by then attorney General John Ashcroft of being involved in the detonation of a "dirty bomb" as well as a plot to blow up apartment buildings. However, as the article notes...

"Mr. Padilla’s status was abruptly changed to criminal defendant from enemy combatant last fall. At the time, the Supreme Court was weighing whether to take up the legality of his military detention — and thus the issue of the president’s authority to seize an American citizen on American soil and hold him indefinitely without charges — when the Bush administration pre-empted its decision by filing criminal charges against Mr. Padilla.

Mr. Padilla was added as a defendant in a terrorism conspiracy case already under way in Miami. The strong public accusations made during his military detention — about the dirty bomb, Al Qaeda connections and supposed plans to set off natural gas explosions in apartment buildings — appear nowhere in the indictment against him. The indictment does not allege any specific violent plot against America."

Several months ago, Judge Marcia G. Cooke of United States District Court in Miami dismissed the most serious charge, conspiracy to murder, kidnap and maim persons in a foreign country, "saying that it replicated accusations in the other counts and could lead to multiple punishments for a single crime."

Now that Mr. Padilla's public defenders have obtained the videotape, they allege that he is unfit to stand trial. According to the article, his lawyers:

"argue that he has been so damaged by his interrogations and prolonged isolation that he suffers post-traumatic stress disorder and is unable to assist in his own defense. His interrogations they say, included hooding, stress positions, assaults, threats of imminent execution and the administration of “truth serums.”

The article quotes former Navy JAG officer Philip D. Cave:

"There’s nothing comparable in terms of severity of confinement, in terms of how Padilla was held, especially considering that this was pretrial confinement."

The article also quotes Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Padilla in June and September, and who, in an affidavit filed by the defense on Friday, said that Padilla:

"lacks the capacity to assist in his own defense... It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation."

In another affidavit filed by the defense, one of his public defenders, Andrew Patel, said:

"Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government’s interrogation scheme... During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body... The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel."

According the article, Orlando do Campo, another of Padilla's attorneys...

"...said that Mr. Padilla was not incommunicative, and that he expressed curiosity about what was going on in the world, liked to talk about sports and demonstrated particularly keen interest in the Chicago Bears. But the defense lawyers’ questions often echo the questions interrogators have asked Mr. Padilla, and when that happens, he gets jumpy and shuts down."

Here is a roundup of bloggers' comments on the revelations of this latest filing.

First Glenn Greenwald writes in this article that:

"As I have said many times, the most astounding and disturbing fact over the last five years -- and there is a very stiff competition for that title -- is that we have collectively really just sat by while the U.S. Government arrests and detains people, including U.S. citizens, and then imprisons them for years without any charges of any kind. What does it say about our country that not only does our Government do that, but that we don't really seem to mind much?"

Check out the whole article. Greenwald is one of the most insightful political commentators out there right now. While many lawyers have never even bothered to learn the details and implications of Jose Padilla case, he's been laboring for years, trying to hold the administration's feet to the fire for actions like this. I've even approached him about attending TLC as he's got the warrior part down pat.

Digby points out, via a link at TalkLeft, that

"I know that all the tough guys on the right will say that Padilla is just being a typical whining malcontent but I have a feeling that most of them would crumble into blubbering babies after five minutes in his position. This treatment is extremely inhumane. They basically blinded, deafened and then isolated him, essentially destroying his mind. There is no reason on earth to put those goggles and earphones on him to go to the dentist in the prison in South Carolina except to keep him from ever feeling like a normal human being, part of the natural world. It's sick."

And here is a link to University of Miami law professor Michael Froomkin's take on the case. In a nutshell, Froomkin summarizes the Government's response to this motion by the defense, alleging that the Government's case against Padilla should be dismissed because of "outrageous governmental conduct."

"We deny everything. And even if it's all true the remedy is to sue us, not dismiss this case."

You can view the Government's response to this defense motion here.

Sadly, when I asked another public defender about the Padilla case today, she didn't know who he was. It's not her fault. She is a hard working public defender who has very little free time. She depends on the media to tell her when important things are happening in this country. But, while the New York Times article is insightful, most people have no idea who Padilla is or, if they do, they remember him as the "dirty bomber" as if Ashcroft's allegations, which were never even charged, were somehow true.

But how can we expect average Americans to take note of Padilla's case- which has immensely dangerous implications for all of us- when people like Jules Crittendon, columnist for the Boston Herald, writes today that...

"I Think We're Supposed to Feel Bad About This... Padilla...[y]ou may recall he is the gentleman from Chicago who converted to Islam, hobnobbed with al Qaeda, and, our government has alleged, came back here with a plan to blow up apartment buildings, and now apparently lives in a state of virtual sensory deprivation while awaiting trial on charges of providing support to terrorists."

Once again, the government, via John Ashcroft, accused Padilla in the press of plotting to detonate dirty bombs and with blowing apartment buildings, but never charged Padilla with any such thing!

But accusation has become akin to conviction in post 9/11 America.

It is very likely that Padilla will never stand trial based on the fact that the evidence against him, which was obtained via torture, will either be suppressed because its gathering violated the Constitution or will be so unreliable that a jury won't buy it.

So the chances are great that an American citizen, who was convicted in the court of public opinion, but who may not be convicted in the real courts at all, will have to be cut loose, back onto the streets of his own country, convicted by the media but rightfully and lawfully acquitted in court.

We are left, sadly, with the system we ultimately deserve. I'll probably end up on a watch list for this last statement, but we truly have a choice: Exercise our First Amendment Rights now or risk losing more of the rest of the Bill of Rights later.

Do we go out with a bang or a whimper? If you view the Padilla case as a legitimate exercise of governmental power, you deserve the goverment you have right now. If not, we better all get off our asses and exercise our rights before they vanish, just like Padilla's did.

This case is beyond sickening and yet what do we hear from most of the institutions who are supposed to be informing us about this case's implications on the rest of our liberties? Crickets, followed immediately by Brittney Spears updates.

God help us... The precious rights our ancestors fought and died for, and thoughtfully preserved in the Bill of Rights, are being taken away, right before our eyes, and no one seems to even notice.

Spence / Mayfield Settle Suit for $2 million

It's old news by now, but here are some things you might have missed regarding Portland attorney Brandon Mayfield and his attorney, Gerry Spence, agreeing to a settlement of $2 million in his civil case against the government for wrongfully holding him as a "material witness" for 14 days following the Madrid train bombings.

(1) Do You Fit The Sun's "Terrorist Profile:" , Glenn Greenwald has an excellent post describing the "typical breathless television report at the time" of Mayfield's arrest. The worst example is from the New York Sun in June, 2004. The Sun editorialized that:

"Mr. Mayfield 's political profile fits that of many disaffected, America-hating terrorists: he strongly opposes the Patriot Act, inveighs against American foreign policy related to Muslim countries, and is "particularly angered," according to his brother Kent, by close U.S. relations with Israel. Mr. Mayfield speculates that the Bush administration knew in advance about 9/11 but chose to let the attacks go ahead so as to justify going to war. And on his release from custody, he compared the U.S. federal government to Nazi Germany.

If those are the qualifications for a terrorist profile, we're in big trouble.

(2) FBI: "Not Enough Evidence": , (h/t sysprog in comments at Unclaimed Territory) here is an a probable reason for the $2 million settlement amount. According to an unclassified FBI email (link to original) from May 5, 2004, FBI agent Elizabeth Steele, emailed another agent (whose name was blacked out) that...

"I left you a voice mail this morning, but I figured this was a more secure way to leave the details for you.

There is a man living in the Portland area who has been tied to the Madrid bombings by a fingerprint found at the scene. His name is Brandon Mayfield, Muslim convert and attorney.

Earlier this week, an LA Times reporter in the Paris Bureau called the Legat in Spain, Ed Sanchez, to ask about information the reporter had heard that there was an American tied to the Madrid bombings. At that time, we don't think he had the name or location or the fact that the evidence is a fingerprint.

The problem is there is not enough evidence to arrest him on a criminal charge. There is a plan to arrest him as a material witness if and when he gets outed by the media.

Neither the National Press Office nor the Portland Division has received any media calls as of this morning, and *BLACKED OUT* thought is that, at some point; LA may receive a call from the Times trying to nail this down. If you do receive this call, we would ask that you confirm nothing and try to get out of them how much they have and whether or not publication is imminent. The powers that be are trying to hold off as long as possible on any arrest, but they want to make sure an arrest happens before anything hits the media.

To complicate things, the Legat just notified Portland that he received an inquiry from a Spanish publication about the same thing, and it had the details about the evidence that it said it planned to publish "soon".

Thanks for your help,
Beth Anne Steele / FBI Portland"

The AP article quoted Gerry Spence's take on this email: "The e-mail says that there wasn't enough evidence to arrest him on a criminal charge. I don't know if that makes your hair stand on end or what... Here the government is saying we don't have any grounds to hold him criminally, but if the media outs him then we are going to hold him as a material witness. It becomes a race to see if the government could arrest Mr. Mayfield before some member of the press outed him."

Yes, Mr. Spence, that does make my hair stand on end. My favorite part of the settlement, however, is not the amount but the fact that Mr. Mayfield (Mr. Spence) retained the right to contest the constitutionality of the PATRIOT Act. The patriotic defense lawyer (who beat a prosecutor named Giuliani in defending Imelda Marcos and who sucessfully defended Randy Weaver and who has never lost a criminal case) still gets a chance to strike down the unpatriotic, draconian provisions of the so called "Patriot Act." It's a good day to be a Warrior, in other words, and the case isn't over.

(3) "A Lot More Mayfields Out There?: , the LA Times reports that "a report on the Mayfield case in January, the Office of the Inspector General, the Justice Department's internal watchdog, said FBI experts had overlooked "important differences" between Mayfield's prints and those of the Algerian man, and had essentially ignored information from Spanish police that pointed to the other suspect."

The same article quotes Michael Cherry, president of Cherry Biometrics, an identification-technology company, stating that "misidentification problems could grow worse as the U.S. and other governments add more fingerprints to their databases." Mr. Cherry is quoted as saying,

"I really believe there are a lot more Mayfields out there," Cherry said. "We just don't know about these cases because the Spanish police don't always get to oversee them. We simply don't have an identification standard that fits with today's times."

According to the Bush administration, we don't have a Constitution that fits with today's times. Like the Geneva Conventions, they see it as quaint, and that attitude trickles down to FBI agents who play with people's liberty like toy soldiers in a spoiled child's game.

Just wait, however. The settlement amount will be used as a call for tort reform rather than as an admission of wrongdoing by a government who lied on an affidavit seeking a "sneak and peek" warrant. And the corporately owned and controlled media who reports it this shoddy, incomplete manner will be chastised as being "liberally biased."

Oh well, as one of Gerry's clients once said after hearing the words not guilty, and as Brandon Mayfield may well be saying now: "Fuck 'em. I'm free."

Gonzalez: A "Grave Threat" to Our Liberties?

From a USA Today article regarding Atty. General Alberto Gonzalez' comments on the President's "Domestic / Terrorist Surveillance Program" we find the following quote:

"The administration has maintained that its warrantless surveillance program focuses on international calls involving suspected terrorists, and dismisses charges that it is illegal because it bypasses federal law requiring a judge-issued warrant for such eavesdropping."

That's right. The Bush administration's position is that the Authorization for the Use of Military Force (AUMF), which allowed the President to use "all necessary and appropriate" actions to confront the horrors of 9-11, allows him to bypass a federal statute that requires a warrant for "such eavesdropping" as well as bypass the Fourth Amendment's warrant requirement.

In short, a general statement passed hastily in the wake of 9/11, trumps a federal statute and the the Constitution Bush swore to uphold!

But there's also a backup plan. If the AUMF doesn't grant the President this power, Gonzales believes, his status as the "Unitary Chief Executive" puts him above the law. Here's what Alberto said:

"We believe the president has the authority under the authorization of military force and inherent authority of the constitution to engage in this sort of program, but we want to supplement that authority."

Shorter version: The Constitution puts us above the law, the Congress' general grant of authority puts above the law, but we want more power, without any judicial oversight!

With this in mind, I found this scary comparison between what Alberto's comments and the constitution of the former Soviet Union. (h/t Unqualified Offerings)

Here's what Alberto said as quoted by USA Today:

"Gonzales told about 400 cadets from the Air Force Academy's political science and law classes that some see the program as on the verge of stifling freedom rather that protecting the country.

“But this view is shortsighted,” he said. “Its definition of freedom — one utterly divorced from civic responsibility — is superficial and is itself a grave threat to the liberty and security of the American people.”"

Here is an excerpt from Article 39 of the Soviet constitution, as quoted by Richard Schifter in a 1987 address to the American Bar Association:

"Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interest of society or the state. . . ."

Or, from Article 59...

"Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations."

So, to paraphrase Carl the Groundskeeper from Caddyshack, "We've got (similarities to the Soviet Union) goin' for us.. which is nice."