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20071031
#178890
20071030
Appeals court weighs who's an enemy combatant
Enemy combatant Marri says the US can't hold him without charge indefinitely.
Washington - President Bush wants as much flexibility as possible to protect the United States from a repeat of the 9/11 terror attacks.
But does he have the authority to whisk a civilian in the US suspected of being an Al Qaeda sleeper agent into indefinite military detention without charge?
That's the question on Wednesday confronting all 10 judges of the Fourth US Circuit Court of Appeals in Richmond, Va., in a case examining the treatment of a graduate student from Qatar named Ali Saleh al-Marri.
The case raises one of the most significant unresolved constitutional questions in the war on terror, legal analysts say, and could set the stage for a landmark decision later at the US Supreme Court.
Mr. Marri has been held in an isolated wing of the naval brig in Charleston, S.C., for more than four years after being designated an enemy combatant by Mr. Bush in June 2003.
Government officials suspect Marri came to the US as an Al Qaeda sleeper agent to participate in a second wave of terror attacks after 9/11. Their suspicions are based in large part on information obtained through coercive interrogations conducted by intelligence officials overseas.
Coerced statements are not considered reliable enough to be admitted as evidence in an American courtroom. That means it could be difficult to win a conviction against Marri should the government attempt a terror-conspiracy prosecution within the criminal-justice system.
The Bush administration's alternative has been to simply declare the suspect an enemy combatant and order him detained in military custody, potentially for the rest of his life.
At issue before the appeals court is who can validly be held by US forces as an enemy combatant in the war on terror. The law of war permits the military to take war prisoners and hold them in detention facilities to prevent enemy combatants from rejoining the battle.
There is no doubt that someone captured while using an AK-47 on a battlefield in Afghanistan can legitimately be detained by the American military for the duration of the conflict.
What is less clear is whether the president can use his power as commander in chief to order similar open-ended military detentions of civilians in the US who are suspected of conspiring with Al Qaeda to commit future acts of terrorism in America.
The Bush administration argues that the battlefield in the global war on terror extends to every corner of the US itself. It does not just apply to those engaged in traditional combat on a raging battlefield. It also applies to those who secretly associate themselves with Al Qaeda and come to the US to conduct hostile, warlike acts on behalf of Al Qaeda.
The president can use his military detention power against anyone in the US – including American citizens and foreign nationals who are in the US under a valid visa, government lawyers say. Once designated an enemy combatant and held in military custody, the detainee is stripped of most legal and constitutional protections and is held as if he had been taken prisoner on a traditional battlefield.
Lawyers for Marri say the Bush administration's use of military power against civilians in the US destroys the critical distinction between civilian and military jurisdiction.
"The government has sought here an unprecedented and wholesale erasure of that line," says Jonathan Hafetz in his brief to the court on behalf of Marri.
If endorsed by the judiciary, the administration's position would "allow a president, by the mere stroke of a pen, to avoid the criminal process in any case involving allegations of terrorism," writes Mr. Hafetz, who is also a lawyer at the Brennan Center for Justice at New York University School of Law in New York City.
"Our argument is that [Marri] is being held illegally. Either charge him or release him," says Hafetz in an interview. "They can't just lock him up."
In June, a Fourth Circuit panel decided 2 to 1 that Bush overstepped his constitutional authority in the Marri case. Now, the full appeals court is reviewing that decision.
In a brief, Assistant Solicitor General Eric Miller told the judges that the earlier appeals court ruling "poses an immediate and potentially grave threat to national security" by limiting the president's authority to capture and detain Al Qaeda agents.
Hafetz disputes the suggestion that national security is in peril. His client was "captured" by the military in a jail cell where he had been held within the criminal-justice system by the federal government for 18 months and was about to stand trial. Nothing prevents his return to the criminal-justice system, Hafetz says.
Campus pranks now come with permission slips
Security concerns after 9/11 mean the days of high jinks-first, question-later are gone
In Pasadena, Calif., the Christmases and New Years are seldom white, which is why one California Institute of Technology (Caltech) student thought it might be fun to add an unexpected snow flurry to the annual Rose Parade on New Year's Day. Wanting to ensure his impromptu dusting wouldn't scare anyone, the student first spoke with local police.
Instead of responding with a simple yea or nay, the police launched an investigation, recounts Thomas Mannion, assistant vice president for campus life at Caltech. Six different police departments and the Department of Homeland Security contacted the would-be prankster before authorities dropped the case.
As the US celebrates Halloween, a night of time-honored trickery, college campuses across the nation may find themselves the target of many a practical joke. What's changed is how these jokes are carried out. Cultural shifts have altered the boundaries of what's acceptable, and 9/11 has raised new security concerns. All of this has made administration-monitored pranking the norm for universities that wish to preserve the tradition.
For better or worse, the days of prank-first, question-later are gone. In an open letter to the Massachusetts Institute of Technology student body, which, like Caltech, has a longstanding history of pranks, Chancellor Phillip Clay wrote earlier this month, "We cannot deny the fact that what was tolerated in the past, and may even have been celebrated, is now viewed differently."
In the mid-'80s, for example, MIT students hacked the elevator system in a campus building. When passengers pushed a button, the car delivered them to a random floor. While the prank, or hack, as they're called at MIT, has attained legendary status, Kirk Kolenbrander, vice president for institute affairs, says that now such a stunt would likely make waves.
"That's clever, but at the same time our society today would say that there are real safety issues if that elevator is needed in an emergency," says Mr. Kolenbrander. "Our world has a different patience for those issues than it once did."
Even among the student body, tolerance for tomfoolery has begun to change. Following complaints in 2000 from several students at Harvey Mudd College in Claremont, Calif., about an annual prank where sophomores perform elaborate freshman room rearrangements – such as turning a dorm room into a campsite, complete with sod – administrators decided that rather than sacrifice their prank culture, they would refine it by creating a "no prank list."
"There is an implicit assumption that when you come to Harvey Mudd that you are willing to be party to pranks against you and your room," explains Guy Gerbick, associate dean of students. "We tell students during orientation, 'If you don't want to have certain things or yourself or any of your stuff pranked, let us know, and we'll put you on a list.' "
At both Harvey Mudd and Caltech, students must get administrative approval before they perform pranks – that way they can be left up for the entire campus to enjoy. When Mr. Mannion began working at Caltech 14 years ago, he was distressed by a decline in student pranks at the institution, which holds the No. 1 ranking on the all-time college prank list, according to the Museum of Hoaxes. Caltech took top honors for a 1961 Rose Bowl stunt, in which Washington students were tricked into proudly holding flip cards aloft to spell "CALTECH."
Hoping to create a climate more inviting to high jinks, Mannion now counsels students about potential pranks, and, if he gives the OK, campus police and janitors are not allowed to stop the stunt. Caltech even has a $10,000+ fund to finance student pranks.
For university police on campuses with an established pranking culture, officers "walk a fine line," says John DiFava, director of security and campus police services at MIT in Cambridge, Mass, In most cases, his department will not actively try to stop pranks, although if they see students trespassing, they will intervene.
"On one side of the equation you have a policy that says there are certain places with restricted access, and on the other side you have a tradition that's celebrated from all different quarters of the institute ... and we're caught in the middle," says Mr. DiFava. "It's a really tough position."
Despite any potential friction they can create, Mannion argues that good practical jokes serve an important role in higher learning. "Pranks are great for all kinds of things: organizational skills, social skills, publicity," he explains. Mannion wrote a letter of recommendation for a student applying to the Rhodes Scholar program largely based on abilities he demonstrated on a cross-country prank against MIT.
For Todd Gingrich, a Caltech senior who has flown all the way to Boston to prank MIT students, a good prank is an opportunity for students to demonstrate their technical skills in a creative manner. "It's a way to show that locking ourselves in our rooms and studying forever can actually lead to some practical and amusing results," he says.
Inside the Mind of a 9 Year Old File-Sharer
Written by enigmax on October 21, 2007
Everyone knows that a significant number of file-sharers are teenagers and young adults and they get their share of press. But what about the true kids - the under 10’s ? TorrentFreak makes itself feel old trying to keep up with the agile mind of a 9 year old file-sharer.
Like most publications, here at TorrentFreak we regularly interview adults. However, when a recent conversation with a child turned to file-sharing, we took the opportunity to give the P2P kids a voice. We had a little chat with a 9 year old girl who wants to be called “Hannah” (after Hannah Montana) and she talks to us about LimeWire, BEBO, YouTube and her perception of the rights and wrongs of copying - even her frustrations with DRM.
“Never work with children or animals” said WC Fields. TorrentFreak takes a chance:
TF. Hi Hannah! How old are you?
- I’m 10 in 12 days
TF. What sort of music are you listening to right now?
Sean Kingstone, Shayne Ward and High School Musical 2
TF. Where did you first get into music?
- On the music channels, on MTV.
TF. When did you get a PC?
- People had computers but I couldn’t go on them but my Dad bought me one last year. I have internet.
TF. What do you do on the internet?
- MSN, talking to friends and cousins, games and dressing-up games [dolls]
TF. When did you first start using the internet to get music?
- My cousin showed me YouTube and then LimeWire and I was like “whoa cool!”
TF. What was cool about it?
- Because you can put anything in and it will come up and you don’t actually pay for it. Well you have to pay for the internet and LimeWire comes with the internet but you have to pay for that so LimeWire isn’t really free.
TF. Ok…I see….Do you get music from anywhere else?
- My cousin gets it from BEBO. She copies it from other people’s pages and puts it on her own.
TF. Do you think it’s ok to copy the music?
- Yes it’s ok because she only does it to make her page better.
TF. So you’re sure that it’s ok to copy it? What do you think about copying?
- I suppose it’s not ok to copy but people copied it off her site so she just copies theirs. It’s like, you’re copying my t-shirt so i’m copying you on shoes.
TF. Ok, so a bit like copying school work?….Hmm….ok, let’s talk about copying on the computer again. When you started using LimeWire, did anyone ever mention that if you did certain things you might be breaking some laws?
- Why would they put it [music] on the internet and invent mp3 players if it was against the law?
TF. Confusing isn’t it?….You mentioned you like Sean Kingstone - what if I told you that Sean Kingstone’s boss might send you a letter asking for money because you shared his album on LimeWire? What would you say to him?
- W.E! [whatever!]
TF. Come on, play along with me. What would you say if he did?
- I’d say “tooooo strict!” and anyway he can’t make me do anything. He’s not the boss of me, he’s the boss of Sean Kingstone.
TF. What do you think might happen if you didn’t pay him?
- Nothing. I’m too young to be charged by the government so he can’t charge me.
TF. Would you carry on using LimeWire after he sent the letter?
- Yeah!
TF. Why?
- Because you can get good albums off there. Duh!! My CD’s don’t work in my mp3 player so LimeWire is the only way to do it. I bought High School Musical 2 on CD but it won’t go on my mp3 [player]
TF. How would you make LimeWire better?
- To speak to the person sending the music to make sure they send the right one, sometimes they send stuff that doesn’t even play.
TF. Do you know what a pirate is?
- They have parrots [effects ‘arrrrr’]
TF. Do you think its legal or illegal to copy a CD or DVD?
- Some men right, they sell you a DVD at the market but when you get home it doesn’t play, that’s illegal.
TF. Why is it illegal?
- Duh!! Because they tell you it works and when you get it home it’s rubbish and jumps in the middle and its a waste of money!
TF. Do you think you should be paying for stuff off LimeWire? You have to buy CD’s from the shop…
- You have to pay for CD’s because they’re actually on a disc not on the computer. My cousin, right, she uses LimeWire when she doesn’t have any money for CDs.
TF. Did you ever download anything by anybody and then go to see them?
- I got stuff by Lee Ryan and Simon Webbe and then I went to see Blue. Why don’t you ask me what my favorite hobby is?
TF. Ok, what’s your favorite hobby?
- Dancing to music, it’s fun!!
Thankyou, Hannah. That’s it! Have a nice birthday!
Man kills self in front of City Council after zoning decision
CLARKSVILLE, Tennessee (AP) -- A business owner shot and killed himself during a City Council meeting Thursday night after members voted against his request to rezone his property, witnesses said.
Ronald "Bo" Ward, owner of Bo's Barber Shop, had told the council his business would go under if he couldn't get his home rezoned as commercial. After the 5-7 vote Thursday night, Ward stood and walked toward the council.
"Y'all have put me under. ... I'm out of here," he said before shooting himself in the head with a small handgun.
Fire and police officials attending the meeting immediately ushered the audience of about 50 into the hallway, where several people were sobbing.
At least one police officer is always on duty during council meetings, officials said. However, visitors are not required to go through a metal detector or any other screening.
"When a gun gets whipped out like that, someone is going to get shot, but I didn't know who," Councilman Bill Summers said. "You could've been right next to him, and I don't think you could have stopped that."
Mayor Johnny Piper said Thursday's council meeting would be the last held in that room.
Ward had said the rezoning would increase his property value, allowing him to secure a loan to offset debt he incurred when he expanded his shop.
Ward was well known for supporting soldiers from the nearby Fort Campbell Army post and was once recognized by its former commander, Gen. David Petraeus. His barber shop was often visited by media reporting on the local economic impact of thousands of soldiers with the 101st Airborne Division being deployed to Iraq.
"He treated soldiers like his own children," said George Heath, a longtime patron of Bo's Barber Shop and the Fort Campbell public affairs officer.
"If a soldier came in and said he needed a haircut but didn't have any money, Bo would cut his hair and tell him to pay him when he could."
In 2004, Petraeus sent Ward a postcard during the division's first deployment to Iraq, thanking him for keeping his shop open during the deployment and "giving haircuts to children of our families."20071029
Is child-porn law too broad?
US Supreme Court takes up the case of a man convicted of trying to distribute make-believe porn.
Washington - Congress has long been concerned about the use of the Internet as an anonymous medium for the sale or exchange of child pornography.
In response, law-enforcement officials have maintained an aggressive posture through undercover operations to shut down a thriving illicit market that victimizes children.
But emerging technology is presenting new challenges to these enforcement efforts, particularly with the creation of "virtual" child pornography, images generated by computer.
On Tuesday, the US Supreme Court takes up a case that examines whether a 2003 federal law aimed at addressing the virtual child-pornography problem casts too wide a net that might also infringe constitutionally protected speech.
At issue in US v. Michael Williams is whether an individual can be arrested and sent to prison for a mandatory five to 20 years for attempting to arrange a swap of photographs that are believed to be illegal child pornography.
Under a 2003 child-pornography law, Congress empowered federal agents to arrest anyone for advertising, promoting, presenting, distributing, or soliciting material in a manner that is "intended to cause another to believe" that the material is illegal child pornography. The law applies even if the underlying material isn't actually child pornography.
US Solicitor General Paul Clement says the law, a section of the Protect Act, is a carefully calibrated effort by Congress to safeguard children from sexual exploitation by targeting those who would traffic in child pornography.
Critics say the law is a vague and overbroad regulation of free speech that threatens to establish the federal government as a kind of thought police. They say the government should punish illegal conduct, not controversial – or even repulsive – thoughts and fantasies. In addition, they say the law could chill artistic, literary, scientific, and other forms of protected speech.
"How are you as a promoter or as a describer supposed to know what is likely to make another person 'believe?' " asks John Feldmeier, a political science professor at Wright State University in Dayton, Ohio., who helped file a friend-of-the-court brief on behalf of the Free Speech Coalition, a trade association for the adult-entertainment industry.
The issue arises in the case of Michael Williams of Key Largo, Fla., who was arrested in May 2004 after an encounter with an undercover agent in an adult chat room on the Internet.
Mr. Williams logged into the chat room and posted a message that he had "good" photographs of his 2-year-old daughter that he wished to swap for similar photos. The undercover agent responded and engaged Williams in a private Web chat. The agent identified himself as a 30-year-old mother with a 10-year-old daughter.
According to court documents, Williams tried to get the agent to provide a more sexually explicit photograph. When it did not arrive, Williams posted a warning message in the chat room that the undercover agent was a cop. The undercover agent responded in a chat-room message accusing Williams of being a cop.
In response to the accusation that he was an undercover cop, Williams posted a hyperlink to seven sexually explicit photographs of children from ages 5 to 15.
Four days later, federal agents executed a search warrant for Williams's trailer in Key Largo. They discovered 22 computer images of children engaged in various forms of sexual activity. They also discovered that Williams lived alone and did not have a 2-year-old daughter.
Williams was charged with possession of child pornography. But federal prosecutors did not stop there. They also charged him with violating the federal child-pornography pandering law for his Internet encounter with the agent.
Williams agreed to plead guilty to both charges, but reserved the right to appeal the pandering conviction. His lawyers say he shouldn't be held criminally liable for false claims expressed in an adult chat room.
The 11th US Circuit Court of Appeals in Atlanta agreed with Williams and reversed the pandering conviction.
In appealing to the Supreme Court, the Bush administration argues that the law is aimed at the kind of pandering that sustains the illegal trade in child pornography – which in turn poses a threat to the well-being of children.
Part of the reason Congress passed the pandering statute was to give federal authorities the ability to prosecute individuals selling or trading computer-generated child pornography.
In 2002, the Supreme Court struck down an attempt by Congress to extend a ban on child pornography to include computer-generated child pornography. The ruling opened the door to distribution of virtual child porn. It also created a potential defense for individuals arrested for possessing actual child pornography. They could claim that the children depicted weren't real children.
Even if they were real, the virtual pornography claim would complicate any prosecution by forcing the government to prove the children in any photos were real.
Congress responded by enacting the 2003 law allowing federal agents to arrest someone for presenting or soliciting virtual child pornography if the would-be recipient believes it is child pornography involving real children.
In the Williams case, it enabled the government to prosecute Williams for trying to distribute child porn that never existed involving a 2-year-old girl who also doesn't exist.
Lawyers for Williams say the law's reliance on "beliefs" gives too much discretion to investigating agents. "The speaker's criminality does not depend upon his or her intent, but rather on what the speaker's audience believes the speaker is talking about, even if that belief is deluded," says Williams's attorney Richard Diaz of Coral Gables, Fla., in his brief to the court.
"It enters into an area that should be 100 percent off-limits to any form of government regulation," Professor Feldmeier says. "Government should not be regulating the mind."
Government lawyers have a different perspective. "The statute does not punish mere 'thoughts,' but applies only when an objectively reasonable person would conclude from the context that the speaker is offering or seeking real child pornography," Solicitor General Clement writes in his brief.
Biofuels 'crime against humanity'
By Grant Ferrett
A United Nations expert has condemned the growing use of crops to produce biofuels as a replacement for petrol as a crime against humanity.
The UN special rapporteur on the right to food, Jean Ziegler, said he feared biofuels would bring more hunger.
The growth in the production of biofuels has helped to push the price of some crops to record levels.
Mr Ziegler's remarks, made at the UN headquarters in New York, are clearly designed to grab attention.
He complained of an ill-conceived dash to convert foodstuffs such as maize and sugar into fuel, which created a recipe for disaster.
Food price rises
It was, he said, a crime against humanity to divert arable land to the production of crops which are then burned for fuel.
He called for a five-year ban on the practice.
Within that time, according to Mr Ziegler, technological advances would enable the use of agricultural waste, such as corn cobs and banana leaves, rather than crops themselves to produce fuel.
The growth in the production of biofuels has been driven, in part, by the desire to find less environmentally-damaging alternatives to oil.
The United States is also keen to reduce its reliance on oil imported from politically unstable regions.
But the trend has contributed to a sharp rise in food prices as farmers, particularly in the US, switch production from wheat and soya to corn, which is then turned into ethanol.
Mr Ziegler is not alone in warning of the problem.
The IMF last week voiced concern that the increasing global reliance on grain as a source of fuel could have serious implications for the world's poor.Video puts Canadian part of falls in US
By MATTHEW LEE
WASHINGTON - Oh, Canada! The USA is closer than ever.
The Bush administration appears to have annexed a major Canadian landmark as part of a slick new campaign to promote U.S. tourism and welcome foreign visitors to America.
A Disney-produced promotional video released last week by the departments of State and Homeland Security highlights majestic American landscapes, from New England's colorful fall foliage and the Grand Canyon to the Rocky Mountains and Hawaii's pounding surf.
Backed by a soaring orchestral soundtrack, shots of those attractions are interspersed with the smiling images of people of all creeds and colors. The video, "Welcome: Portraits of America," is to be played at select airports in the United States — starting at Dulles International Airport outside Washington, D.C., and George Bush Intercontinental Airport in Houston — and at U.S. embassies abroad.
About four minutes into the seven-minute production, viewers are treated to the impressive sight and sound of water roaring over Niagara Falls before the screen shifts to the Lincoln Memorial.
In showing the natural wonder, Disney's filmmakers, however, chose the Horseshoe Falls, the only one of Niagara's three waterfalls to lie almost entirely on the Canadian side of the border separating western New York state from southern Ontario province.
Making matters worse, a visitor to the U.S. would not even be able to get the same view of the falls in the video because the scene was shot from a vantage point in Canada, according to Paul Gromosiak, a Niagara Falls, N.Y., historian and author.
Also, he said the video leaves out the two cascades that actually are on U.S. territory, the American Falls and Bridal Veil Falls.
"This is not the United States, this is 100 percent Canada, shot from the Canadian side," Gromosiak said after reviewing the video at the request of The Associated Press. "This is an insult."
Although brief, the appearance of the Horseshoe Falls in a U.S. tourism promotion effort is likely to also vex Canadians, who long have fought to distinguish themselves from their larger and more powerful neighbor to the South.
The political boundary is not marked with a line through the Niagara River that divides the two countries and connects Lake Erie to Lake Ontario. The distinction, however, is clear to most who have visited the Falls looking for a picture postcard photo to take home.
But it seems to have escaped the notice of the producers and those at the State Department and Homeland Security Department's Customs and Border Protection agency who presumably vetted the video before endorsing it and posting it to their Web sites.
In a separate "making of" video, Jay Rasulo, the chairman of Disney Parks and Resorts, speaks over the falls footage about the importance of showing would-be tourists "the great sites, the great vistas that they dream about all their lives when they dream about America."
State Department spokesman Sean McCormack could not speak to the scenery in the short film. But he stressed that Niagara Falls "is a shared natural wonder, a gateway for both our countries and anyone looking at the video will understand how proud America is to share it with Canada."
Calls to the Canadian Tourism Commission and the foreign affairs department were not immediately returned.
Karen Hughes, the undersecretary of state for public diplomacy, said in a posting to the department's blog Thursday that the production has the administration's blessing.
"This video clearly says: 'We want you to come to America, you will be most welcome,'" she said.
Hughes said she commissioned the work, which Disney shot and produced at no charge and donated, to overcome the pervasive post-Sept. 11 perception abroad that America is hostile to foreigners. She said the video is to be given maximum exposure.
"We have already sent the video and associated posters to embassies and consular offices across the world, where it will greet aspiring visitors long before they arrive on our shores," Hughes said.
"We're going to play it in waiting rooms and at embassy events — and we hope it will inspire many who otherwise might not have thought about traveling to America to come and see it for themselves." she wrote.
Or maybe Canada.
20071026
US defends its harsh treatment of an American citizen
The administration offers its legal rationale for the long detention of Jose Padilla.
US officials did not violate any clearly established constitutional rights when they held a US citizen in isolated military detention without charge for nearly four years and subjected him to harsh interrogation techniques.
That's the legal position staked out by Justice Department lawyers who are urging a federal judge in Charleston, S.C., to dismiss a lawsuit filed on behalf of Jose Padilla against former Defense Secretary Donald Rumsfeld and nine other current or former US officials. Mr. Padilla was held in military custody from 2002 to 2006 as a suspected Al Qaeda operative and enemy combatant.
The 55-page motion, filed this week, offers the first detailed defense of the government's aggressive treatment of Padilla during his three years and seven months in military custody. Padilla's suit says he endured isolation, stress positions, extreme cold, sleep deprivation, and reportedly was subjected to five months of severe sensory deprivation, including near total isolation from human contact.
Mental-health experts who have examined Padilla say the experience has left him with severe mental disabilities, including post-traumatic stress disorder.
Government lawyers made no reference to Padilla's diagnosed psychological problems. They told US District Judge Henry Floyd that such a lawsuit, if allowed to progress, would interfere with military decisionmaking, aid the enemy, and make the US more vulnerable to terrorist attack.
"It would be difficult to devise a more effective fettering of executive branch officials than to allow enemy combatants to trade a battlefield in Afghanistan for a battlefield in the US legal system," Barbara Bowens, civil chief of the US Attorney's Office in South Carolina, says in her brief.
After nearly four years in military custody, Padilla was transferred to the criminal-justice system in January 2006. He was convicted in August in a Miami terror-conspiracy trial and is set to be sentenced in December. An appeal is expected.
Although Padilla was placed on trial and convicted in Miami, no court has fully assessed the legality of Padilla's earlier detention and interrogation in military custody. Government lawyers say such an assessment is unwarranted.
"Padilla's designation, detention, and interrogation as an enemy combatant did not violate any clearly established constitutional rights," Ms. Bowens says in her brief.
"It cannot be said that there were any constitutional 'bright lines' applicable to Padilla's case which the [government] could be held liable for transgressing," Bowens writes.
The issue of "clearly established" rights is important because government officials are protected by immunity from such lawsuits even when rights may have been violated. They lose that immunity, however, if the violated rights are so obvious to a reasonable person that they are considered "clearly established."
Padilla's lawyers believe the lines in his case are clear and clearly established. In their 30-page complaint, they charge that Padilla "suffered gross physical and psychological abuse at the hands of federal officials as part of a scheme of abusive interrogation intended to break down [his] humanity and his will to live."
The complaint says US officials violated Padilla's constitutionally protected rights to consult a lawyer, to gain access to the courts, to practice his religion and associate with family and friends without government interference, and to be free from coercive interrogation, free from cruel and unusual punishment, and free from illegal and arbitrary detention.
Fundamentally at issue in the Padilla case is whether such constitutional guarantees continue to protect a US citizen seized on US soil and held without charge in a US-based military prison once the citizen is designated an enemy combatant.
Bowens says the issue has already been decided by a federal appeals-court panel in Richmond that upheld Padilla's military detention in September 2005. As a result, she says, Padilla's lawyers should be precluded from raising any constitutional claims – even claims related to Padilla's interrogation and isolation.
Some legal analysts say they are alarmed by the sweep of the government's position. "The notion that there is absolutely no limit in how the government treats US citizen detainees strikes me as a disturbing proposition," says Stephen Vladeck, a law professor at American University in Washington, D.C. "Most people would have thought before the Padilla case that the government can't simply do whatever it wants to a US citizen in military custody."
Given the government's reliance on "clearly established" law, the Padilla civil case could present an ironic twist in the long and heated debate over Bush administration tactics in the war on terror. White House and Justice Department officials worked hard in the years since the 9/11 attacks to maximize legal flexibility in dealing with detainees. They sought to clarify the law in a way that would protect interrogators, soldiers, and other US officials from civil suits and war-crimes charges.
Instead of clarification, the efforts triggered debates both within and outside the administration over what the law should be.
Now, legal analysts say, the administration may rely on the lingering uncertainty to help shield US officials from legal liability. "It will make it a lot harder for plaintiffs [like Padilla] to win a lawsuit because there is a much better argument that the relevant laws aren't clearly established," Professor Vladeck says.
"Even though Padilla's rights may have been violated, the real question is whether it was clearly established that what the government was doing to him was illegal," Vladeck says. "One can't help but wonder based on the torture debate whether anything was clearly established."
20071025
Well, you don't see something like this every day
CANBERRA (Reuters) - An Australian barmaid has been fined for crushing beer cans between her bare breasts while an off-duty colleague has been fined for hanging spoons from her friend's nipples, police said Wednesday.
Police in Western Australia said the 31-year old barmaid pleaded guilty in the local magistrate's court to twice exposing her breasts to patrons at the Premier Hotel in Pinjarra, south of the state capital, Perth.
The woman "is alleged to have also crushed beer cans between her breasts during one of the offences," in breach of hotel licensing laws, police from the Peel district of Western Australia said in a statement.
The barmaid and the hotel manager were both fined A$1,000 ($900), while an off-duty barmaid was fined A$500 for helping to hang spoons from the woman's nipples, police said.
"It sends a clear message to all licensees in Peel that we will not tolerate this type of behavior in our licensed premises," local police superintendent David Parkinson said.
20071020
A Times Square Pedestrian Is Giving No Ground
And sure, those who pause — to gawk, talk or eat a gyro — can slow the progress of pedestrians around them.
But when Matthew Jones of Brooklyn lingered on the corner of 42nd Street and Seventh Avenue in the early morning of June 12, 2004, gabbing with friends as other pedestrians tried to get by, something unusual happened: He was arrested for it.
A police officer said Mr. Jones was impeding other pedestrians and charged him with disorderly conduct.
Mr. Jones is not taking the charges lying down (so to speak). After trying twice to get the charges dismissed, he has taken his case to the state’s highest court, the Court of Appeals, which heard arguments here on Wednesday.
In the prosecution’s view, it appears, the innocent do not dawdle. According to the original complaint against Mr. Jones, the officer “observed defendant along with a number of other individuals standing around” on a public sidewalk in June 2004. Mr. Jones was “not moving, and that as a result of defendants’ behavior, numerous pedestrians in the area had to walk around defendants.”
Mr. Jones refused to move when asked, said the officer, Momen Attia, and then tried to run away. When Officer Attia tried to handcuff him, he “flailed his arms,” earning a second charge for resisting arrest.
After spending the night in jail, Mr. Jones contested the main charge and asked that it be dismissed. When the judge demurred, he pleaded guilty to a misdemeanor violation the next day and received no further sentence. But he soon filed an appeal, arguing that there had been no basis for the arrest in the first place.
Nancy E. Little, Mr. Jones’s lawyer, said that neither the police nor the prosecutors claimed that he was doing anything other than standing on the sidewalk with friends — an activity, she said, that is not entirely without precedent in Manhattan.
“You need something more,” she said, citing past Court of Appeals decisions. “You need to be being verbally abusive, or really blocking lots of people, or lying down on the sidewalk.”
The complaint, she added, did not allege that any other pedestrians had been seriously inconvenienced or that Mr. Jones had shouted at or shoved anyone or even that the alleged obstruction was more than temporary. Prosecutors did not say how big Mr. Jones’s group of friends was, or how many people were forced to walk around them.
“Let’s face it — no allegations were presented that anything was about to happen,” said Ms. Little. (Mr. Jones himself could not be reached for comment on Wednesday.)
Paula-Rose Stark, a Manhattan assistant district attorney, argued that the facts in the complaint were sufficient for the charge of disorderly conduct. Mr. Jones’s reckless intent, Ms. Stark said, was evident from the fact that his behavior was noticeable in the first place “amid the inevitable hustle and bustle of Times Square, the construction, the vehicular traffic.”
As for other details, she said — well, perhaps Mr. Jones should not have pleaded guilty, depriving himself of a jury trial.
“Those are all matters left to be pursued at trial,” Ms. Stark said.
A lower court came to a similar conclusion last year, and by a vote of 2 to 1 upheld the arrest. But, in a glimmer of hope for Mr. Jones, the dissenting judge wrote that standing and talking with friends on the sidewalk, “even if it requires other pedestrians to walk around him, is commonplace in New York and not disorderly conduct.”
And on Wednesday, Mr. Jones’s circumstances appeared to reach a friendly audience before the Court of Appeals.
“Isn’t that lawful conduct?” wondered Judge Robert S. Smith. Later he added, “Your conduct can’t be illegal just because an officer noticed it.”
His colleague Judge Eugene F. Pigott Jr. questioned what other violations might attract law enforcement attention.
“All I could think of was a bunch of lawyers from the New York City Bar Association standing around trying to figure out where to have lunch,” Judge Pigott said. (The association has offices a block and a half from Times Square.)
Chief Judge Judith S. Kaye seemed likewise nonplused. “This is at 2 a.m.?” she asked, wondering how many pedestrians it would have been possible to inconvenience at that hour. “I guess I’m not in Times Square at 2 a.m. very often.”
The court is likely to rule on the case next month. Should it rule against Mr. Jones, the available evidence on the scene on Wednesday suggested that the police would soon have their hands full.
Just before 5 p.m., near the corner where Mr. Jones was arrested, stood the following assemblage: a man eating clams out of a Styrofoam container; two men smoking cigarettes together; a man waiting for a woman to finish a phone call; a guy looking at a map; a young woman sending a text message; two men handing out tour brochures; and a family of five, including an infant in a stroller, who stopped to look at the brochures.
Across the street stood Chaya Coppersmith, 18. “That’s just completely ridiculous,” Ms. Coppersmith said when told of Mr. Jones’s case. “Nobody can walk in Times Square. Everyone’s standing around in Times Square. That’s what it’s for.”
Has Adopting Pets Become Too Difficult?
Piles of Paperwork and Home Visits Are All Part of the Pet Adoption Process
Stacks of paperwork, proof of good credit and homeownership, sit-down interviews and home visits by agency representatives are all part of the game when it comes to adoption.
Even the four-legged, furry, slobbery kind.
While many may expect to have to jump through hoops to adopt a child, pet adoption agencies use similar protocols to ensure each orphaned pooch finds a safe and loving home.
Ellen DeGeneres recently came under fire after she gave Iggy, the dog she adopted from California-based Mutts and Moms animal shelter to her hairdresser. During an emotional segment on her show "Ellen," DeGeneres said that the pup had too much energy to coexist with her cats, and her hairdresser, who is also a friend of DeGeneres', was in the market for a new pet anyway.
It was a match made in heaven, or so she thought.
When people at the animal shelter got news of Iggy's new living arrangements, they were furious and took the puppy back, claiming that DeGeneres had broken one of the rules of the contract that states that if owners can no longer care for an animal, they must return it to the shelter and not take it upon themselves to find it a new home.
And so began a war of words between DeGeneres and Mutts and Moms, both believing they did the right thing for the dog.
"I'm sure she reads the seven-figure contract she signs, and [the pet contract] says clearly there is no right to transfer," Keith Fink, the attorney representing the animal shelter, told ABCNEWS.com. "The [animal shelter] must approve the new adopter."
Fink, who said both he and his clients have received death threats since DeGeneres' on-air announcement, said the dog shelter has these rules in place so it can be certain the dog is getting the best care.
Mutts and Moms also has a policy, Fink said, that says children under the age of 14 cannot adopt small dogs like Iggy, due to the increased risk that they leave a door open or play with the puppy too roughly. So the family that Ellen had given the dog to -- which includes two young girls -- probably wouldn't have been approved as suitable pet owners in the first place.
"Ellen admits she made a mistake, but she really innocently thought she was doing a good thing," DeGeneres' publicist, Kelly Bush, told ABCNEWS.com. "Instead of the dog going back to a crate in a shelter, she found a great home for it."
The days when just about anyone could walk into a shelter and leave minutes later with a new best friend are over, but some may wonder if these animal shelters are going a little overboard with their contracts and screening ordeals. But ever since more rules were put into effect at shelters, pet adoption experts told ABCNEWS.com, more animals have been put in more stable homes. After all, they say, the rules and paperwork are in the best interest of the animals.
Paperwork Makes Better Parents, Agents Say
"Five years ago, we didn't have an application process," said Paula Werner, program manager at Lake County Animal Care and Control in California. "It used to be that if you could breathe and cough up the money, you had a pet. It created a revolving door."
"Today we have better-qualified adopters," said Werner, who said her shelter does require paperwork and sometimes even home visits. "If you're not willing to spend the time on a three-page application, how are you going to spend time on a pet?"
The application and contract is certainly not uncommon, either. Several animal shelters ABCNEWS.com contacted said that to adopt, customers have to provide references and details about any previous animals they have cared for. And sometimes even a long conversation about the responsibility that comes with having a pet is required, especially if the agency is a bit hesitant about the potential owner.
Have Pet Adoption Rules Gone Too Far?
With as many as 7 million stray animals entering shelters each year, industry members said that these rules are the only way to ensure that the animals they find homes for won't end up on the street again.
"We have to enforce our adoption agreements because we have enough trouble finding them homes once, we don't want to have them recirculated or having puppies," said Carolyn B. Matlack, an animal rights attorney and managing editor of The Animal Legal Report. "In order to ensure that, pet adoption agencies have to enforce their agreements."
While fans seem to be rallying behind DeGeneres, national animal organizations such as People for the Ethical Treatment of Animals and the American Society to Prevent Cruelty to Animals, are split on whether they believe the pet adoption rules -- like the one DeGeneres flouted -- are too strict.
"We know that Ellen was trying to do the right thing in finding the dog a new home," PETA spokesman Michael McGraw said in a statement to ABCNEWS.com. "She just missed a step in neglecting to contact the agency first. PETA does think that the agency's policies of doing home checks and not allowing people to transfer animals to others are good rules that protect animals."
On the other hand, the ASPCA seems to agree more with what many of DeGeneres' followers are saying -- as long as the dog is safe, why should the contract matter?
"Had a similar situation been encountered with an ASPCA adopter, and had the new home met our adoption criteria, in all likelihood we would have encouraged the new home environment for the animal," said ASPCA President and CEO Ed Sayres in a written statement. "We would encourage Mutts and Moms to revisit its approach to this situation and look forward to a positive outcome that reinforces the importance of pets in our society and the human-animal bond."
"I can understand the high priority that adopters give to the contract," said Matlack, who is also the author of "We've Got Feelings Too!' "You can never be too safe, for far too long we have treated animals as disposable goods."
Taking a Whack Against Comcast
Mona Shaw Reached Her Breaking Point, Then for Her Hammer
Sometimes truly American virtues arise in outlaws who -- by dint of heroic but questionable endeavors -- display the mettle of the national character.
For instance: The Dillinger Gang, robbing banks (and destroying mortgages) when banks were foreclosing on the poor. Stephanie St. Clair, matron of the numbers racket during the Harlem Renaissance, striking a (dubious) blow for both gender and racial equality. Junior Johnson bootlegging liquor during Prohibition (the benefits of which were self-evident).
Fear not, fellow Americans! In these dark days of war, pestilence and Paris Hilton, a new hero has arisen. She is none other than 75-year-old Mona "The Hammer" Shaw, who took the aforementioned implement to her local Comcast office in Manassas to settle a score, and boy, did she!This was after the company had scheduled installation of its much ballyhooed "Triple Play" service, which combines phone, cable and Internet services, in Shaw's brick home in nearby Bristow. But Shaw said they failed to show up on the appointed day, Monday, Aug. 13. They came two days later but left with the job half done. On Friday morning, they cut off all service.
This was the company that has had consumer service problems serious enough to prompt the trade magazine Advertising Age to editorialize that Comcast and other cable providers should spend less on advertising and more on customer service. And has spawned a blog called ComcastMustDie.com that's filled with posts from angry customers.
So on that Friday, Mona Shaw and her husband, Don, went to the local call center office to complain.
Let's pick it up, mid-action, according to Shaw:
Mona demands to speak to a manager. A customer service representative says someone will be right with them. Directs them to a bench, outside. (Remember, it's mid-August.) Mona and Don sit.
Tick, tick, tick, goes the clock. Sit, sit, sit, go Mona and Don.
For. Two. Hours.
And then -- this is the best part -- the customer rep leans out the door and says the manager has left for the day. Thanks for coming!
Oh, the sputtering outrage!
So, after stewing over it all weekend, on the following Monday, she went downstairs, got Don's claw hammer and said: "C'mon, honey, we're going to Comcast."
Did you try to stop her, Mr. Shaw?
"Oh no, no," he says.
Hammer time: Shaw storms in the company's office. BAM! She whacks the keyboard of the customer service rep. BAM! Down goes the monitor. BAM! She totals the telephone. People scatter, scream, cops show up and what does she do? POW! A parting shot to the phone!
"They cuffed me right then," she says.
Her take on Comcast: "What a bunch of sub-moronic imbeciles."
Being a responsible newspaper, we must note that this is a misdemeanor, a crime, a completely inappropriate way of handling a business dispute.
Noted.
Who among us has not longed for a hammer in this age of incompetent "customer service representatives," of nimrods reading from a script at some 800-number location, of crumbs-in-their-beards plumbing installation people who tell you they'll grace you with their presence between 12 and 3, only never to show? And you'll call and call and finally some outsourced representative slings a dart at a calendar and tells you another guy will come back between 10 and 2 next Thursday? And when this guy comes, pants halfway down his behind, he'll tell you he brought the wrong part?
And there is nothing, nothing you can do.
Until there! On the horizon! It's Hammer Woman, avenger of oppressed cable subscribers everywhere! (Cue galloping "Lone Ranger" theme.)
"I scared the tar out of some people, at least," she says. "It had never occurred to me to take a hammer to a phone company before, but I was just so upset. . . . After I hit the keyboard, I turned to this blonde who had been there the previous Friday, the one who told me to wait for the manager, and I said, ' Now do I have your attention?' "It wasn't all fun.
"My blood pressure went up around my ears. I started hyperventilating. They had to call the rescue squad and put me on a litter."By the time it was over, she recalls, there were an ambulance, two police cruisers and a sergeant's car in the parking lot. Shaw received a three-month suspended sentence for disorderly conduct, a $345 fine in restitution and a year-long restraining order barring her from the Comcast office.
Manassas police spokesman Sgt. Tim Neumann says there have been other police calls to that Comcast office, but he doesn't know what prompted them.Bob Garfield, who runs ComcastMustDie.com, wrote last week he was happy the site had become an outlet for "so much deep-seated rage," but hoped customers would "keep the hammer assaults down to a bare minimum."
From what we can tell, Mona Shaw is not, actually, a raving lunatic armed with construction tools.
She is a nice lady who lives in a nice house. She and Don are both retired from the Air Force (she was a registered nurse). They have been married 45 years. She is secretary of the local AARP, secretary of a square-dancing club and takes in strays for the local animal shelter (they have seven dogs at the moment). She has a heart condition. She lifts weights at a local gym. The couple attend a Unitarian Universalist church.
Police gave her the hammer back, though she swears she's content to ride off into the sunset of True Crime Stories in America, never again to go Com-smash-tic on her local cable provider.
She does, however, finally, have phone service.
On Verizon.
20071016
Facts Prove No Match for Gossip, It Seems
Until now, I was firmly pro-gossip. I welcomed the theory that gossip was the reason language developed. I cheered on researchers who believed gossip was the great evolutionary leap that enabled human apes to live peacefully in large groups, develop moral codes, build civilizations and, eventually, sell supermarket tabloids.
But now I wonder if we’ve leaped too far, and it’s not because I’ve been watching “Gossip Girl.” In a paper on gossip published yesterday, evolutionary biologists in Germany and Austria have identified a vulnerability that might be called the Chico Marx Paradox, for reasons that will be clear once you hear about this experiment.
The researchers set out to test the power of gossip, which has been exalted by theorists in recent decades. Language, according to the anthropologist Robin Dunbar, evolved because gossip is a more efficient version of the “social grooming” essential for animals to live in groups.
Apes and other creatures solidify their social bonds by cleaning and stroking one another, but the size of the group is limited because there’s not enough time in the day to groom a large number of animals.
Speech enabled humans to bond with lots of people while going about their hunting and gathering. Instead of spending hours untangling hair, they could bond with friendly conversation (“Your hair looks so unmatted today!”) or by picking apart someone else’s behavior (“Yeah, he was supposed to share the wildebeest, but I heard he kept both haunches”).
Gossip also told people whom to trust, and the prospect of a bad reputation discouraged them from acting selfishly, so large groups could peacefully cooperate. At least, that was the theory: gossip promoted the “indirect reciprocity” that made human society possible.
To test it, researchers at the Max Planck Institute for Evolutionary Biology and the University of Vienna gave 10 Euros apiece to 126 students and had them play a game that put them in a dilemma. On each turn, the players would be paired off, and one of them was offered a chance to give 1.25 Euros to the other. If he agreed, the researchers added a bonus of .75 Euro so that the recipient ended up gaining 2 Euros.
If the first player refused to give the money, he’d save 1.25 Euros, but if others found out about his miserliness they might later withhold money from him. As the game progressed, with the players changing partners frequently and alternating between the donor and recipient roles, the players were given information about their partners’ past decisions.
Sometimes the donor was shown a record of what the partner had done previously while playing the donor role. The more generous this partner had earlier been toward other players, the more likely the donor was to give him something.
Sometimes the donor was shown gossip about the partner from another player. When the partner was paid a compliment like “spendabler spieler!” — generous player! — the donor was more likely to give money. But the donor turned stingy when he saw gossip like “übler geizkragen” — nasty miser.
So far, so good. As predicted, gossip promoted indirect reciprocity. The research, published in the Proceedings of the National Academy of Sciences, showed that most people passed on accurate gossip and used it for the common good. They rewarded cooperative behavior even when they themselves weren’t directly affected by the behavior.
If a cooperation game like this was played without consequences for the players’ reputations — as has been done in other experiments — most players would be miserly, and cooperation would collapse. In this experiment they were generous most of the time, and on average ended up with twice as much money as they had at the beginning of the game.
But here’s the disconcerting news from the experiment. In a couple of rounds, each donor was given both hard facts and gossip. He was given a record of how his partner had behaved previously as well as some gossip — positive gossip in one round, negative in another.
The donor was told that the source of the gossip didn’t have any extra information beyond what the donor could already see for himself. Yet the gossip, whether positive or negative, still had a big influence on the donors’ decisions, and it didn’t even matter if the source of the gossip had a good reputation himself. On average, cooperation increased by about 20 percent if the gossip was good, and fell by 20 percent if the gossip was negative.
Now, you might think the gossip mattered just in borderline cases — when the partner had a mixed record of generosity, and the donor welcomed outside guidance in making a tough decision. But the gossip had an impact in other situations, too. Even when a player saw that his partner had a record of consistent meanness, he could be swayed by positive gossip to reward the partner anyway. Or withhold help from a perfectly nice partner just on the basis of malicious buzz.
This result may come as no shock to fans of “Gossip Girl,” or to publicists trying to plant items in Page Six about the charitable works of despicable clients. But it seemed surprising to the researchers, according to the lead author, Ralf D. Sommerfeld of the Max Planck Institute.
“If you know you already have the full information about someone,” he said, “rationally you shouldn’t care so much what someone else says.”
So why do we? “It could be,” he suggested, “that we are just more adapted to listen to other information than to observe people, because most of the time we’re not able to observe how other people are behaving. Thus we might believe we have missed something.”
This makes a certain sense, but I still wonder if evolution has taken a Chico Marxist turn here. In “Duck Soup,” Chico tries to pass himself off as Groucho’s character, complete with moustache and cigar, but encounters a skeptical Margaret Dumont, who protests that she just saw Groucho leave the room.
“Well, who you gonna believe, me or your own eyes?” Chico asks.
Now, at last, we know the answer.
The Dragon In My Garage
by Carl Sagan
Suppose (I'm following a group therapy approach by the psychologist Richard Franklin) I seriously make such an assertion to you. Surely you'd want to check it out, see for yourself. There have been innumerable stories of dragons over the centuries, but no real evidence. What an opportunity!
"Show me," you say. I lead you to my garage. You look inside and see a ladder, empty paint cans, an old tricycle--but no dragon.
"Where's the dragon?" you ask.
"Oh, she's right here," I reply, waving vaguely. "I neglected to mention that she's an invisible dragon."
You propose spreading flour on the floor of the garage to capture the dragon's footprints.
"Good idea," I say, "but this dragon floates in the air."
Then you'll use an infrared sensor to detect the invisible fire.
"Good idea, but the invisible fire is also heatless."
You'll spray-paint the dragon and make her visible.
"Good idea, but she's an incorporeal dragon and the paint won't stick."
And so on. I counter every physical test you propose with a special explanation of why it won't work.
Now, what's the difference between an invisible, incorporeal, floating dragon who spits heatless fire and no dragon at all? If there's no way to disprove my contention, no conceivable experiment that would count against it, what does it mean to say that my dragon exists? Your inability to invalidate my hypothesis is not at all the same thing as proving it true. Claims that cannot be tested, assertions immune to disproof are veridically worthless, whatever value they may have in inspiring us or in exciting our sense of wonder. What I'm asking you to do comes down to believing, in the absence of evidence, on my say-so.
The only thing you've really learned from my insistence that there's a dragon in my garage is that something funny is going on inside my head. You'd wonder, if no physical tests apply, what convinced me. The possibility that it was a dream or a hallucination would certainly enter your mind. But then, why am I taking it so seriously? Maybe I need help. At the least, maybe I've seriously underestimated human fallibility.
Imagine that, despite none of the tests being successful, you wish to be scrupulously open-minded. So you don't outright reject the notion that there's a fire-breathing dragon in my garage. You merely put it on hold. Present evidence is strongly against it, but if a new body of data emerge you're prepared to examine it and see if it convinces you. Surely it's unfair of me to be offended at not being believed; or to criticize you for being stodgy and unimaginative-- merely because you rendered the Scottish verdict of "not proved."
Imagine that things had gone otherwise. The dragon is invisible, all right, but footprints are being made in the flour as you watch. Your infrared detector reads off-scale. The spray paint reveals a jagged crest bobbing in the air before you. No matter how skeptical you might have been about the existence of dragons--to say nothing about invisible ones--you must now acknowledge that there's something here, and that in a preliminary way it's consistent with an invisible, fire-breathing dragon.
Now another scenario: Suppose it's not just me. Suppose that several people of your acquaintance, including people who you're pretty sure don't know each other, all tell you that they have dragons in their garages--but in every case the evidence is maddeningly elusive. All of us admit we're disturbed at being gripped by so odd a conviction so ill-supported by the physical evidence. None of us is a lunatic. We speculate about what it would mean if invisible dragons were really hiding out in garages all over the world, with us humans just catching on. I'd rather it not be true, I tell you. But maybe all those ancient European and Chinese myths about dragons weren't myths at all.
Gratifyingly, some dragon-size footprints in the flour are now reported. But they're never made when a skeptic is looking. An alternative explanation presents itself. On close examination it seems clear that the footprints could have been faked. Another dragon enthusiast shows up with a burnt finger and attributes it to a rare physical manifestation of the dragon's fiery breath. But again, other possibilities exist. We understand that there are other ways to burn fingers besides the breath of invisible dragons. Such "evidence"--no matter how important the dragon advocates consider it--is far from compelling. Once again, the only sensible approach is tentatively to reject the dragon hypothesis, to be open to future physical data, and to wonder what the cause might be that so many apparently sane and sober people share the same strange delusion.
20071015
Losing the War on Terror
Legal expert David Cole explains why rolling back our rights won't defeat terrorists
David Cole, a professor at the Georgetown University Law Center and the Nation's legal affairs correspondent, has been an outspoken critic and chronicler of the Bush administration's constitutional high jinks during the "War on Terror." In his latest book, Less Safe, Less Free: Why America Is Losing the War on Terror (New Press, 2007), Cole and coauthor Jules Lobel scrutinize the public record to show how Bush's tough-guy tactics have not only unjustly constricted our civil liberties but have failed to catch the "evil doers." Utne.com caught up with Cole after a lecture at the Magers and Quinn bookstore in Minneapolis.
Why are we less free?
The Bush administration has adopted a particular approach to fighting terrorism, something it calls the "preventive paradigm." This paradigm seeks to employ the most coercive measures that a state has against people, not because of what they have done but because of what they might do. When you interrogate people based on the sense that we might be able to prevent a terrorist attack in the future, or go to war against a country that didn't attack us -- Iraq -- on a preventive theory, you put tremendous pressure on the basic principles of this country.
The Bush administration has taken the position that it can lock up anyone anywhere in the world -- including US citizens -- without any hearing whatsoever, without any access to a lawyer, simply because the president considers him to be, in his words, "a bad guy." We've sacrificed the principles of the First Amendment's right of association in the name of punishing people for their association with quote/unquote terrorist groups -- groups that have been labeled terrorist. We've seen sacrifices in commitments to due process because of the Bush administration's notion that the government can coercively interrogate people to try to get information out of them.
You argue that we've been made less safe by this.
The stated justification for these measures is indeed to keep up more safe, but our argument in this book -- based on the six years of evidence we've had to assess how the administration has done -- is that we are in fact less safe as a result of these measures. We show that many of these tactics have captured few if any terrorists; have disrupted few if any terrorist plots; and have had tremendous negative consequences, both in terms of immunizing people who are bad from being brought to justice (because the information on them was tainted because it was gotten by torturing somebody) and in terms of prompting a tremendous amount of resentment against the United States.
So what's the alternative?
There are a whole range of sensible preventive measures that can make us safer without causing tremendous blowback, because they're consistent with the rule of law. There's guarding nuclear stockpiles around the world so that terrorists won't get them; better screening of cargo on airplanes; better screening of containers coming into shipping ports; better information sharing among law enforcement intelligence. A more thoughtful foreign policy would undermine some of the big problems that drive people to support groups like al-Qaida. We could engage with the world in more positive ways through foreign aid instead of putting military bases around the world. And, when we use coercive methods -- because sometimes coercive methods are justified -- we need to do so in accordance with the rule of law. If we had done that, we would be both more free, and more safe.
Why do people still subscribe to the preventive doctrine?
There are people in this administration who think that the only thing that works is hard power, military might, acting tough. If the last six years have shown anything, it's that it doesn't work. We need to be much more attentive to our soft power, to our influence throughout the world, to our legitimacy. What everybody agrees on is that this is a war of ideas. We're not going to win the war of ideas if we are perceived as engaging in illegitimate tactics.
There are other countries that have dealt with terrorism in the past. Do their struggles offer any insights for us?
They do. For example the UK has struggled with terrorism for decades. With the Irish Republican Army (IRA), the government's initial responses were somewhat similar to the responses the administration here undertook. They authorized long-term internment without trial; they authorized coercive interrogation; they overreacted in a variety of military ways. What they found was that these tactics only strengthened the support within the Irish community for the IRA. Nowadays it's widely accepted within the UK that these measures are counterproductive. You've got to be resilient; you've got to be measured in your responses. The last thing you want to do is declare a war and treat the terrorists as warriors. That gives them the kind of renown that they want.
Is there any light at the end of the tunnel?
Well I certainly hope so. Part of the reason why we wrote the book is in the hope that by showing people what has happened, people will realize that there are much smarter ways to fighting terror without the negative consequences of the play-tough/act-tough mentality of the Bush administration.
So you're more play-smart, think-smart?
Yeah, and already there's been some pushback on a number of the administration's worst excesses. On torture, they had to retract the torture memo. On [the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], Congress rejected the administration's interpretation of that treaty to not apply to foreigners outside of the United States. The Supreme Court rejected their view that the Geneva conventions don't apply. On the National Security Agency's warrantless wiretapping program, a court held it unconstitutional [and ordered the program] terminated.
There has also been a lot of pushback since the Democrats came to power, I think as a result of [popular] dissatisfaction with Iraq. We need to build on that if we're going to try to restore America to anything like the status it had before 9/11.
How much do you think newspaper-reading civilians know about the war on terror?
A lot of what we know has only been disclosed by virtue of leaks. No one really knows how much is still behind closed doors.
UK can now demand data decryption on penalty of jail time
By Ken Fisher
New laws going into effect today in the United Kingdom make it a crime to refuse to decrypt almost any encrypted data requested by authorities as part of a criminal or terror investigation. Individuals who are believed to have the cryptographic keys necessary for such decryption will face up to 5 years in prison for failing to comply with police or military orders to hand over either the cryptographic keys, or the data in a decrypted form.
Part 3, Section 49 of the Regulation of Investigatory Powers Act (RIPA) includes provisions for the decryption requirements, which are applied differently based on the kind of investigation underway. As we reported last year, the five-year imprisonment penalty is reserved for cases involving anti-terrorism efforts. All other failures to comply can be met with a maximum two-year sentence.
The law can only be applied to data residing in the UK, hosted on UK servers, or stored on devices located within the UK. The law does not authorize the UK government to intercept encrypted materials in transit on the Internet via the UK and to attempt to have them decrypted under the auspices of the jail time penalty.
The keys to the (United) Kingdom
The law has been criticized for the power its gives investigators, which is seen as dangerously broad. Authorities tracking the movement of terrorist funds could demand the encryption keys used by a financial institution, for instance, thereby laying bare that bank's files on everything from financial transactions to user data.
Cambridge University security expert Richard Clayton said in May of 2006 that such laws would only encourage businesses to house their cryptography operations out of the reach of UK investigators, potentially harming the country's economy. "The controversy here [lies in] seizing keys, not in forcing people to decrypt. The power to seize encryption keys is spooking big business," Clayton said.
"The notion that international bankers would be wary of bringing master keys into UK if they could be seized as part of legitimate police operations, or by a corrupt chief constable, has quite a lot of traction," he added. "With the appropriate paperwork, keys can be seized. If you're an international banker you'll plonk your headquarters in Zurich."
The law also allows authorities to compel individuals targeted in such investigation to keep silent about their role in decrypting data. Though this will be handled on a case-by-case basis, it's another worrisome facet of a law that has been widely criticized for years. While RIPA was originally passed in 2000, the provisions detailing the handover of cryptographic keys and/or the force decryption of protected content has not been tapped by the UK Home Office—the division of the British government which oversees national security, the justice system, immigration, and the police forces of England and Wales. As we reported last year, the Home Office was slowly building its case to activate Part 3, Section 49.
The Home Office has steadfastly proclaimed that the law is aimed at catching terrorists, pedophiles, and hardened criminals—all parties which the UK government contends are rather adept at using encryption to cover up their activities.
Yet the law, in a strange way, almost gives criminals an "out," in that those caught potentially committing serious crimes may opt to refuse to decrypt incriminating data. A pedophile with a 2GB collection of encrypted kiddie porn may find it easier to do two years in the slammer than expose what he's been up to.
20071013
Should Schools Fingerprint Your Kids?
A first grader in Pennsylvania uses a fingerprint scanner to pay for lunch.
The lunch lines weren't moving fast enough for Linda Stoll, head of food programs at the Boulder Valley, Colo., school district. Because of that, kids had barely enough time to sit and eat before the lunch period was over. So, last year, Stoll began looking for ways to speed up the queue. She discovered that many students, especially kindergarteners, can't remember their six-digit ID number, which they're required to type into keypads at the end of lunch lines. She then found out that there was technology that would allow a scanner to identify a kid qualified for lunch with the swipe of a finger, moving him or her quickly along. It would help kids who regularly forget their lunch money, and it would potentially remove some of the stigma faced by children who receive special tickets for free or reduced lunch. She proposed the idea, believing it would be the perfect solution.
It turned out to be the perfect storm. Dozens of parents raised concerns about privacy. Many mentioned identity theft. Others expressed fear that immigrant children might be unfairly tracked by government. Eventually, Stoll's plan was scrapped.
Elementary and high school students in Pennsylvania, New Jersey and West Virginia use finger scans to pay for lunch — and even to check into class. But in many other states, the parental outcry about privacy has stopped the technology in its tracks. Michigan and Iowa have passed laws essentially barring schools from taking electronic fingerprints of children. Last month, Illinois enacted a law requiring schools to get parental consent before capturing an image of a child's finger.
Generally, student information collected by schools is protected by the federal government's privacy laws. So schools can't simply give away information gleaned from a student's fingerprint. Still, many parents and privacy law experts remain anxious about records accessible to companies managing a school's computer system — and whether that information can moved if that company is ever sold.
Americans have historically resisted fingerprints of any kind, associating them with law enforcement. "But through the back door, schools are making decisions that fly in the face of deeply held commitments to privacy by throwing on these kids fingerprint programs," says Helen Nissenbaum, a New York University professor of culture and communication who studies the intersection of technology and ethics.
Finger scanning is a type of biometric, or a form of identification. So is a person's voice, even odor, sweat pores and lips. It's not known how many schools use finger scans and other biometrics. But observers of the $1 billion North American biometrics industry say schools represent a small but growing share of their market.
For an example of how the technology typically works, consider another Colorado school district: St. Vrain Valley. School administrators spend hours at the start of each school year scanning several points on the student's right index finger. "The information is saved within our system — it doesn't go anyplace else," says Shelly Allen, director of nutrition services for the 23,000-student district. When the student reaches the end of the line, she places an index finger on a pad about the size of a car's garage opener. Her name, and sometimes an image of her face, appears on a computer screen in front of the cashier. Kids with dirty or sweaty fingers are allowed to use their ID card, as are students who can't have an image taken of them because of religious or cultural issues. Allen says the system has helped add at least 10 minutes to lunch periods that in some schools last just 20 minutes. The technology hasn't necessarily saved money: the number of cafeteria employees has largely remained unchanged.
But there is nothing static about family reaction. Parents are often caught off-guard by the arrival of the new technology in their children's school. Last fall, Jim Karlsberger's eight-year-old son returned from school with a newsletter briefly reporting that lunchroom finger scanning was set to begin. "I thought it was Orwellian," says Karlsberger, a 43-year-old hotel manager in Williams, Ariz. "I find it hard to believe that someone, someday, won't find a way to compromise the information on my child's fingerprint." He rallied dozens of parents and the American Civil Liberties union to derail the school's plan. Now Tom McCraley, the 760-student school district's superintendent, says that before considering finger scanning, "I'd want to make sure parents had a full understanding about it."
In Boulder, Stoll still hopes to someday use fingerprint scanning in her schools. "I'm just disappointed our parents wouldn't let us be on the forefront of this technology," she says.
Fatalism May Be Fatal
By Michael Albert
A couple of days ago I opened the Sunday New York Times. The main headline, front page, top right, was "At many homes, more profit and less nursing." The article was about a trend in nursing homes in Florida where private investors have cut costs to raise profits. Details followed. Florida investors gained mightily. Florida nurses and especially nursing home residents lost mightily. The former were profitably fired. The latter were profitably brokered to oblivion. But don't fret, the nursing homes gained bottom line glory. Stocks climb, lives decline, praise Wall Street. Business and business only.
What I saw blazoned on that front page of the Times was the bloody cement foundation that supported the ugly article's reality. Everyone knows that everything is broken, and everyone knows why. Even when we read about social injustice, we barely cringe, don't clench, and give not the slightest thought to assembling a group to fight for our elders or ourselves. But suppose millions had read in the same Sunday Times, "Aliens take over the Florida nursing industry, patients dropping like flies while aliens soak up profits." Quite a large number of we the people, from coast to coast, would have grabbed clubs and bats, pitchforks and all too many household arms, and trucked down to Florida in droves, or to our local nursing homes, or just into the street outside our residences, eyes peering every which way, to protect our elders and ourselves. Aliens beware. But let relatives, friends, or whoever, be succumbing to the intrinsic dynamics of capitalism, dynamics that are relentlessly mercilessly present, and we the people barely wave goodbye. What is the difference? When in the old folks home at the college, where minds suffer imposed neglect on behalf of bottom lines and social control, again what is the difference that it is business as usual rather than evil enemies constraining our kids? Or in the mine, or behind the counter at McDonalds, or on the assembly line, or wherever? Why does hypothetical calamity imposed by aliens provoke outrage, while actual calamity imposed by social institutions provokes moving on?
The fatalism I am angsting over is that we the people think that there is no alternative not only to capitalist business as usual - but even to a slip slide toward hell. The fatality I have in mind is that thinking there is no alternative makes it so.
Put more bitterly, it seems to me we are becoming a population of cowardly ignoramuses - or perhaps I should say we are becoming an even more cowardly and more ignorant population - since the malady is not new, but only accelerating. And for those with parchment credentials and an air of accomplishment, who walk with noses held high and who expect others who lack said credentials to move out of their path, for those who have lots of money (though not obscenely much), and who think themselves above everything ignorant, please note that in talking of people who are fatalistic, I am not referring mainly to poor people who suffer serious repression and who lack access to substantive information and educational credentials. Society's most downtrodden do indeed feel a degree of paranoia but they do so precisely because they face conditions warranting it, including enduring violence at the end of a club or, even worse, by a flourish of poverty inducing contracts. Cringing a bit at that, as the poor wisely do, isn't being cowardly, it's being cautious. More, poor people, though lacking detailed information, nonetheless largely understand the nature of the world around them, including particularly its hypocrisy, vulgarity, greed, and violence. They just lack means, unless movements become accessible, to do much about it. And please note also that in referencing fatalists becoming fatalities, I am likewise not referring to the rich and powerful, to the owners, senators, administrators, bosses, and media moguls. Those gray flannel folks are just doing what their training, conditions, interests, and long-since ingrained mindsets require of their ilk, despicable as their behavior often is.
No, in referencing fatalists becoming fatalities I am mainly talking about people who are both educated and who are, as well, derivatively substantially insulated from repression and retribution. I am talking of the quite privileged people who are not, however, at the top of society's mountains of materialism. I am talking of the well dressed, well spoken, well poised people who are not obscenely rich and powerful but who are instead only considerably wealthy and taken together incredibly influential. They are the stupid cowards or, if you prefer, theirs is the cowardly stupidity. And their fatalism is a virus. And it is spreading at the speed of silence.
I mean your family doctor where I am assuming that she is a nice down-home neighbor with a local practice. I mean your kids' third grade or fifth grade or high school teacher, where I am supposing that he is the caring type, a liberal, by gosh. I mean the butcher and baker, your post deliverer, and each worker in each somewhat effective union, both firefighters and auto workers, who all manifest plenty of caring for friends and neighbors, and even for people they don't know who might be burning up in buildings they risk themselves to extinguish or seeking transport in cars they produce, but who manifest no caring for people burning up in poverty or fricasseeing in furnaces made by bombs labeled made in the USA, nor for people who can barely traverse their own neighborhoods much less travel across towns, cities, counties, regions, or countries. I mean the miles of minions in white collar firms who labor many stories beneath the top but well above the streets. I mean the people comfortably beyond survival incomes, who have TVs, internet access, books, and papers galore, and who may even have a piano or at any rate a couple of cars and a folk guitar. I mean people who have some degree of comfort and some degree of insulation from the violence of inner city daily life and who have plenty of access to true information even if getting it takes some effort. I mean, that is, the people who are not anti social, not jack boot maniacs, and not, by virtue of their position, so domineering over others as to inevitably be horrendously self interested and jaded, or so smashed and isolated and hurt by circumstances that anything beyond seeking bare survival is a Herculean undertaking. I mean, in other words, nice people like you, nice people like me, nice people who are watching from within while America rains destruction on others, nice people who are watching from within, as well, America's internal dissolution into escalating repressiveness. I mean nice people, liberal people, sensitive people, caring people, who are watching, watching, watching, but who are doing nothing much to stop the daily calamities that owe to capitalism.
Fatalists.
We the fatalists say to ourselves, not even explicitly, but in some subterranean channel of mind, hey, self, there is no better world. Pay attention now, self - there is nothing good that you can do outside our small circle of friends. More, if, self, you make our deep down buried horror at what we see all around us apparent to others, apparent even just to me, you will in that act impose on me the almighty sacrifice of looking different, of not fitting, of being dissident, and, well, gee, what's the point of suffering such an incredible loss of comfort and continuity merely to protest jackboot repressive trends at home and international mayhem abroad, merely to protest the daily assault against all wage slaves, not to mention the cooking of the planet unto drowning, when if I instead celebrate all that, or I just ignore all that when celebration is beyond my capacity for hypocrisy, or I even just calmly bemoan it all for a minute or two before getting on with other business, I can prosper nicely.
Hey, self, face reality. Keep my bitterness hidden. You see, self, I am convinced - albeit without the slightest logic and contrary to all evidence - that protest will get us nowhere. So, of course, self, if there is nothing to be done about all the horror, it is better for me to care for me, and it is better for me to care for mine, and it is better for me to make believe all is well, and it is better for me to smile with a happy face, and to parade my civility at all times, and to say have a good day to everyone...hoping against hope that some miracle will make things better before I have to go buy a shotgun to keep the jackboots away from my life too. So, self, please put a lid my better side, curb my solidarity, stifle my humanity, and let me be a happy, if cowardly, idiot.
Well, of course, at some point someone is going to have to do something more than look away. And it is going to have to be enough to seriously shake the minds and feelings of the broad populace and of ourselves too. How else can we possibly dislodge large numbers from fatalism given that for the fatalistic anything that appears perfunctory just adds to the malady. March in place, hold the line, make an appearance, fight the good fight unto defeat, be on the side of the angels unto the graveyard - or do anything that screams out or implies or even just suggests, to any fatalist wanting to so interpret it, that we can't win, and our entreaties will just bounce off fatalists' slicked down cynicism.
Instead, to get suburbanites and city dwellers, both students and workers, to realize that if they don't act they are abetting their own subordination, curtailing their children's prospects, terminating their children's children's hopes for a humane existence - all while aiding our country in massacring victims galore who they need to feel solidarity with if they wish to climb out of the hellish pit of alienated loneliness nearly all of us endure - we are going to have to do more than "protest" to evidence that a small sector dislikes the inevitable.
Being a lemming following the crowd over a cliff saying hooray for crowds and cliffs is pretty pitiful. How much more pitiful is it to go over a cliff, barreling along like all the rest, but moaning about how unjust it is, how painful it is, how un-lemming like it is, nonetheless churning away, cliffward and then over, right to the end.
So what is needed?
It seems to me that many many people are going to have to be severely disrupted into realizing that they can contribute to attaining a better world and that doing so has so many benefits, and that not doing so has so many detriments, that to not do so will be fatal, whereas to do so will win liberation.
And what can cause such a large crowd, currently hell bent on collective cliff diving, to transcend their current posture toward a new perspective? What can meet that challenge?
Well, first, here is what won't meet it.
Polite toe tapping won't meet it. Civil litanies of doom won't meet it. Even big marches and rallies, occurring over and over, staying one size, or even shrinking, won't meet it. Nor can movements hope to meet the challenge if they exude disdain for all non members. Nor can movements do it if they harbor habits that reveal that they are only about posturing, or about grabbing brass rings for themselves regardless of the impact on others. Movements without a vision of what they intend to do, and of how they intend to do it, and a compelling explanation of why and how each member's efforts can be a constructive part of the process, won't meet the challenge.
So what do we need?
We need shared vision to overcome the view that no other world is possible. Our vision must be inspiring, convincing, and liberating. We must hold it with passion, participating in its definition and development.
We need to enunciate and advocate shared strategy and program too - a picture of a broad pattern of activity that can plausibly lead from where we are to where we wish to wind up, not merely winning one thing and losing another, going nowhere fast, but always growing our movement even when we suffer periodic defeats in specific battles. We need an image of ourselves following a successful trajectory of change to see how we and others can contribute to social change, and we also need to make room for people to do so, and need to incorporate the new ways they find for doing so, and need to create an environment in which they are not only welcomed to contribute, not only empowered to do so, but steadily strengthened in their commitment to do so.
Yet even all that, which might have been more than sufficient if we had had it years back, nowadays, I fear, won't be quite enough. Even all that will need an additional edge to it. Because fatalism is not just a common everyday variety malady. Fatalism has defense mechanisms of considerable robustness and effectivity. To whip fatalism we not only have to have shared vision, shared strategy, and a movement that is empowering, congenial, and inspiring, we also have to communicate what we have, advocate it, trumpet it, and literally propel it into people's awareness, until all souls have no choice but to see it, and their selves have to face the facts and the prospects.
In short, people suffering fatalism won't come to movements seeking to be saved from their psychic malady or from the decaying world they daily navigate. We are going to have to push our alternative - both vision and strategy - into constant view of people who are hell bent on looking in every other imaginable direction. We are going to even have to make it constantly annoying to people, intrusive upon people - until they register it, comprehend it, face it, and decide about it. With fatalism in the way, communicating will take more than writing our vision and strategy down, or even speaking it at rallies or teach-ins, as good as it would be if we were doing a whole lot more of each. It will take implementing deeds that make attention to our messages unavoidable. We must somehow forcefully convey vision and strategy everywhere. But we don't own TV channels. We don't own billboard companies. We don't own radio stations. We don't have the financial means to easily shout into everyone's consciousness over and over. So we must instead use clever deeds, clever actions, as well as bring our words straight to people one by one in endless conversations. We must have deeds and actions and yes conversations too, that are so audacious and so visible, so provocative and yet also so respectful of the people we seek to communicate with, that those people have to hear our vision, have to assess our strategy, and thus have to communicate and think and transcend fatalism.
And how do we do this? No one knows, yet. But here is the point of this screed. Someone, in fact a whole lot of people, better start thinking about it instead of just going through the motions of what decades have proclaimed constitutes being a radical, but which the self-same decades have also taught us damn well won't be sufficient to produce really radical, much less revolutionary change.
The participatory potential around us is enormous. Almost no one is deep down enamored of profit making, of pummeling unto death, of polluting and prevaricating. Most of the population is more than ready for a hopeful alternative. If movements provide vision and strategy and audacious activism, and then nurture and refine all three with contributions from each new person coming aboard, movements will succeed.
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