Shhh!

Updated Some years ago, the job that I had involved doing historical research. As part of that, I came across a description of a court case which took place in colonial times in which a woman was accused of being a prostitute. The main witness against her was a neighbor who claimed to have seen on various occasions men entering the woman's house in the evening. So one time, observing an unaccompanied man enter the house, the neighbor went to the woman's window, opened her shutters, and looked in - where, she testified, she saw the two of them getting it on.

What struck me at the time was how no one involved in the case, including the person doing the contemporary description, saw anything odd, questionable, or even unusual about one neighbor just going to another neighbor's house and opening their shutters to look inside to see what they were doing. The concept of privacy just didn't seem to enter the discussion.

Our concepts of privacy and its proper reach have shifted and bubbled dramatically over the years, not always moving in the same direction but overall, for a long time, the slow, grudging trend was to greater privacy, to more respect for personal space not subject to intrusion of uninvited outsiders, including the government. However, the modern, legal concept of privacy is in historical terms quite recent. An essay written in 1997 by a consulting attorney says that

the right of privacy has only recently received legal recognition and is still an evolving area of law. It is generally agreed that the first publication advocating privacy was the article by Warren and Brandeis, The Right to Privacy, 4 Harvard L.R. 193 (1890). However, the codification of principles of privacy law waited until Prosser, Privacy, 48 Cal.L.Rev. 383 (1960), which Prosser subsequently entered into the Second Restatement of Torts at §§ 652A-652I (1977).

Still, recent though it may have been, a point had been reached when the idea of "the right to be left alone" was common currency in our legal system. As former Supreme Court Justice William O. Douglas pointedly noted, "The right to be let alone is indeed the beginning of all freedoms."

However, the reason I emphasized the "legal concept of privacy" is that the legal understanding differs, in some ways dramatically, from our social or cultural understanding. Most people are astonished to realize just how little legal privacy they actually have and how thin are the protections against its invasion by government agents or corporate entities.

For example, while the idea of "the right to be left alone" was gaining ground, the concept of areas with "no expectation of privacy" was also becoming common currency. Certainly its easy to understand how, say, something done openly on the street would not be considered "private" in a legal sense. But the legal meaning of the term actually is far wider: As long ago as 1974, the Supreme Court ruled that you have no reasonable expectation of privacy in any information disclosed to a third party, i.e., anyone beyond you and the government agency that wants the info. That is, the Court has said that in the absence of a specific law declaring otherwise, you have no reasonable expectation of privacy in your bank records: Because the bank knows how much you deposited when and what checks you wrote, the government can, too. No privacy in your phone records: If the phone company knows who you called and who called you, so can the government. In your driving records. Potentially, even your health records, although the government's record of getting access to those is mixed because of the strong tradition of doctor-patient confidentiality even in the absence of a specific law. Theoretically, even a sealed private letter is unsafe: As soon as the recipient reads it, the information in it has been "disclosed" and is therefore subject to government examination.

Related to this is how the Fourth Amendment has been subjected to a death by a thousand cuts in the federal courts over the past couple of decades, usually, where not done by simply declaring there was no privacy to protect, by labeling the intrusion, as they did in the case of Larry Hiibel, "insignificant" and therefore not worthy of concern. The problem is, each "insignificant" intrusion became the new base, inviting another "insignificant" intrusion reaching beyond that one, and so on.

As for the former, that is, cases of "no privacy," two recent examples show just how far down the slippery slope we have gone. One is a Supreme Court decision from 2005. I posted on the case three times; this summary is from one of those posts:

In 1998, Roy Caballes was stopped by Illinois state police for going 71mph in a 65mph zone. After he refused to allow a search of his car, another trooper showed up with a drug-sniffing dog, which indicated contraband was in the trunk. A search revealed a quantity of marijuana, leading Caballes to be sentenced to 12 years in prison and a $256,000 fine.

He claimed the search based on the "sniff" was illegal and in violation of the Fourth Amendment. The trial court rejected the argument but the state Supreme Court reversed on the grounds that the involvement of the dog improperly changed the nature of the situation from a routine traffic stop to a drug investigation.

But the US Supreme Court re-reversed, finding that no, the use of the dog doesn't change anything, it's just fine, there was no privacy violated, nothing unreasonable done.

What was the basis for the conclusion? According to the majority opinion, written by the supposedly liberal John Paul Stevens, Caballes did not have a legitimate expectation of privacy for contraband in the trunk of his car. He said that was different from the expectation that information about perfectly lawful activity will remain private.

In other words, the Court ruled that the search did not violate the Fourth Amendment because something was found - it was, essentially, justified after the fact. If so, what is to stop police from just randomly stopping people to search them or their cars? Even from entering their houses to search? If anything illegal is found, its presence stripped away their "expectation of privacy," so the search was not improper. And if nothing is found, what is the recourse? Sue the cops? In what higher dimension? It really needs to be asked if in light of that decision, the Fourth Amendment still exists in any practical sense.

The other example involves a case reported on earlier this month by the International Herald Tribune, in which it appears that the Ninth Circuit Court of Appeals is about to rule that a computer's hard drive is "just a container" and its contents can be examined and inspected at will by customs officers when you are entering the country.

Rummaging through a computer's hard drive, the government says, is no different than looking through a suitcase. ...

The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer ... deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

Yeah, and, as the saying goes, if your grandmother had wheels, she's be a wagon. The information on a computer is not in hard copy form and it is a thoroughly bogus argument to say in essence that if it was something other than it is, things would be different than they are so therefore things are different than they are. Consider that hard copy for a moment, copy that required an extra, conscious step to produce: Suppose it was in code. Could the feds demand it be decoded on the grounds that if it wasn't in code, it could easily be read? Why not? What if the information on the computer is encrypted?

What if there's a sealed personal letter in your luggage? Can it be opened and read by one and all at customs because an envelope is "just a container?" Why not?

The IHT article states that

the law requires a little more - a "reasonable suspicion" - when the search is especially invasive, as when the human body is involved.

But, based on the logic employed here, again I have to ask why? Why should there be a distinction? Why can't the body be considered "just a container?" The case arose because a customs agent allegedly found child pornography on the computer of one Michael Arnold when he arrived a LA International a couple of years ago.

Judge Dean Pregerson of U.S. District Court in Los Angeles suppressed the evidence against Arnold.

"Electronic storage devices function as an extension of our own memory," Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and ... information about reporters' "confidential sources and story leads."

It is Judge Pregerson's decision that the Ninth Circuit seems poised to overturn. Why is it that our memories, our private thoughts, plans, records, all sorts of parts of our lives, are fair game, why is it that the privacy of our minds can be pierced and probed at will for no reason beyond random chance or idle curiosity but suddenly officialdom gets all gooey at the privacy of our bodies? Which, frankly, is another way of asking how much longer do you think this separation will be maintained?

Reactions to the case lead me to another concern:

An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government's ability to acquire information.

"Under the government's reasoning," the brief said, "border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign." That is, the brief said, "simply electronic surveillance after the fact."

My concern here is not only with the "electronic surveillance after the fact" but the essentially permanent storage of that information in massive databases of personal data being established and pushed outward by government at all levels from local to federal.

This drive is not new: In the fall of 1995 - during the administration of St. Bill - there was a move (which gathered support from some liberals) to create a massive database of all persons eligible for employment in the United States, created by combining records of the Social Security Administration and the INS. Employers would be required to call a number and provide the name and Social Security number of any potential employee to confirm they are “legal” before they could be hired. The excuse at the time was illegal immigration, and in pursuit of an "answer" to that "problem," members of both parties in both houses of Congress were advocating creation of a national identity card based on Social Security number, a number that would be issued at birth and you would have to have in order not only to work, but to get a driver’s license, go to school, take part in any federal program, get married, and perform a host of other normal social actions; a single number, that is, that could trace you through your entire life from birth to death.

After 9/11, the ground shifted and it became all about "terrorism." The attitude didn't change, the Big Brother response didn't change, the smarmy "It's for your own good" reassurances didn't change, only the excuse did. More simply, the claims changed, the drive for power and control did not.

Now, however, what's being pushed is not, if you will, a de jure national ID card but a de facto one. The program is called Real ID and again, it's something I've posted on a few times. Passed in 2005 with no review, no hearings, and no debate, Real ID would require every state to adopt a federally-approved driver's license and link all their databases containing all of their information on drivers in their state with each other and with the feds. Failure to comply would mean that state's driver's licenses could not be used as identification for any federal purpose, including obtaining federal benefits, getting on an airplane, and even entering a federal courthouse.

Fortunately, the proposal aroused opposition across the political spectrum and generated anger in a number of state legislatures. So far, 17 states have passed legislation or resolutions opposing Real ID - often, though not always, because of the high cost involved. So the feds are turning up the heat, suggesting chaos at airports if states don't meet the initial deadline of this coming May. AP reports:

Homeland Security Secretary Michael Chertoff, who was unveiling final details of the REAL ID Act's rules on Friday, said that if states want their licenses to remain valid for air travel after May 2008, those states must seek a waiver indicating they want more time to comply with the legislation.

Chertoff said that for any state which doesn't seek such a waiver by May, residents of that state will have to use a passport or certain types of federal border-crossing cards if they want to avoid a vigorous secondary screening at airport security.

But opponents scoffed at the idea.

"Are they really prepared to shut those airports down? Which is what effectively would happen if the residents of those states are going to have to go through secondary scrutiny," said Barry Steinhardt, director of the ACLU's technology and liberty program. "This is a scare tactic."

In the face of the resistance, the Department for the Protection of the Fatherland has repeatedly pushed back deadlines and stretched out entry requirements, with the deadline for states to be in compliance now in 2011 and full requirements for all Americans not coming into effect until 2017, all in an effort to get the thing moving. Still and happily, opposition seems to be growing, not shrinking.

All of these programs, of course, are being pitched as necessary to "protect" us. But it's easy to wonder just who and what it is that's being protected, since the net effect of the programs, the intrusions, the limitations on privacy, the slices taken out of the Fourth Amendment, is to reduce the populace to a childlike state, passively accepting direction from, and blindly trusting in, daddy and mommy but especially daddy.

That's why the programs are being sold through a combination of fear and "for your own convenience" - because despite any claims, that drive for a native version of a Ministry of Information containing as much information as possible about as many of us as possible can't possibly be based on its efficacy at protection of the public. Its own record condemns it. For example, last August Raw Story cited a story from the Washington Post saying that

[t]he government's terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list's effectiveness. ...

Slightly more than half of the 20,000 encounters last year were logged by Customs and Border Protection officers, who turned back or handed over to authorities 550 people, most of them foreigners, Customs officials said. FBI and other officials said that they could not provide data on the number of people arrested or denied entry for the other half of the database hits. FBI officials indicated that the number of arrests was small.

Ten thousand encounters leading to 550 referrals is a false hit rate of at least 94.5%. And it would even be that good only if every one of those referrals lead to an arrest or a denial of entry, an very unlikely situation in light of the "small" number of arrests and the unwillingness of the FBI to make any grander claims. That is only slightly better than the brandy-newy airline-passenger-screening SPOT program, which by the use of advanced scientific techniques of behavior observation, has managed to chalk up a false hit rate of at least 99% without making a single terrorism-related arrest.

But that doesn't matter, no siree. The databases and such are still "powerful tools for identifying and tracking suspected terrorists," you betcha. The real problem, we're told, is that the ability to spy doesn't yet go far enough. How much further do they want to go? The sky's the limit - or, more appropriately here, the ether.

It seems that spychief Mike McConnell wants to protect us from terrorist threats in and through cyberspace and has proposed a Cyber-Security Policy, one that he expects, in what's sure to be an understatement, to be "unpopular." Paul Kiel at TPMMuckraker quotes an article in the current New Yorker based on interviews with McConnell:

In order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer, or Web search. "Google has records that could help in a cyber-investigation," he said. Giorgio warned me, "We have a saying in this business: 'Privacy and security are a zero-sum game.'"

Kiel says when the story first broke, it looked like the plan was almost finished - but then House Homeland Security Chairman Bennie Thompson (D-MS) demanded to review it and it apparently has stalled. Wall Street Journal reporter Siobhan Gorman, who broke the story while at the Baltimore Sun, wrote in his WSJ blog that

[p]art of the lawmakers’ ire, [congressional aides] have said, is the paltry information the administration has provided. ... [S]ome congressional aides say that lawmakers have still learned more from the media than they did from the few Top Secret briefings they have received hours before the administration requested money in November to jump start the program.

One time, it seems, when the penchant from secrecy among the WHS* works for the good. But don't expect them to give up on this, as McConnell is still throwing fear-bombs: "My prediction is that we're going to screw around with this until something horrendous happens."

So even though some of the drive for an all-seeing eye has gotten caught in the mire, it is by no means the end. Because as Henry Drummond said, "fanaticism and ignorance is forever busy, and needs feeding."

*WHS = White House Sociopaths

Updated to add the links to the Larry Hiibel case and the "all-seeing eye."

Noted in passing

Even though I have not been following the primaries in any detail, I had thought I might watch the Democratic debate tonight, just for the heck of it.

Forget it.

I expect you know the story: MSNBC made a corporate decision to change one of the criteria for inclusion in the debate from being among the top four nationally to being among to top three. The result of what was essentially a last-minute move was to exclude Dennis Kucinich from the debate after having already invited him and receiving his acceptance.

Kucinich sued on grounds of breach of contract and won in lower court. MSNBC, after first appearing to shrug its shoulders, changed its mind (again) and appealed. Just 15 minutes before the debate was to start, the Nevada Supreme Court reversed and Dennis was gone.

Now, as I understand it, the underlying legal issue revolved around what constituted an enforceable contract under Nevada law. So in legal terms, the court's decision may have been entirely correct.

In ethical terms, MSNBC's decision sucked royally.

But the reason for this post is to offer a quick speculation as to why this happened. MSNBC claimed, feebly but unsurprisingly, that it made the change and went to court to enforce it because it would "better serve the public" to focus on the top three candidates. But that situation of there being a Clinton-Obama-Edwards troika and then "some other guys" had existed for months. So why now? What changed now?

My suspicion is that until almost the last minute, MSNBC brass thought the fourth for bridge would be Bill Richardson. Now, while Richardson does hold some reasonably liberal views, particularly on the environment, and was clearly better than the troika on the war, he is still basically an establishment candidate with establishment credentials in a way that Dennis Kucinich clearly is not.

When Richardson dropped out, that made Kucinich the fourth-place candidate by default. Initially, network staff proceeded with the plan as set down and invited him. But after he accepted, the fact registered on network honchos who made the determination that there was no way they were going to let him on that stage.

I'm not suggesting that the network is "terrified" of Kucinich or any such nonsense; I'm suggesting that a corporate decision was made to exclude non-establishment voices. After all, if the original requirement had been to be among the top three, I expect there would have been a lot of grousing but the issue really never would have arisen.

When Kucinich accepted the invitation, corporate brass could have said. "Oops. Oh, well."

When the lower court ruled in Kucinich's favor, corporate brass could have shrugged their shoulders and said "Hey, BFD."

But they didn't. Instead they changed the rules at, again, essentially the last minute and fought in court to keep it that way. It's easy to see why it was so important to Kucinich to get in the debate. It's harder but more important to see why it was so important to MSNBC to keep him out.

Numbers as numbers

This is going to be less analytical than I wanted, in fact it's not even what I had planned to write about, but the truth is I'm still sick and I'm afraid the dark cloud is readying another assault. So much for my good intentions to have a solid piece here to be read on Tuesday. I'm off to a great start.

Still, there is something I want to say.

Last week, the results of the latest household survey of Iraq were released. And, like everything else about our war, it provoked argument.

Performed by the Ministry of Health and the Central Office of Statistics in Iraq with technical assistance provided by the World Health Organization and funding by the UN, the major finding was that 151,000 Iraqis died from violence between the beginning of the invasion and June 2006.

The estimate[, WHO said in a press release,] is based on interviews conducted in 9345 households in nearly 1000 neighbourhoods and villages across Iraq. The researchers emphasize that despite the large size of the study, the uncertainty inherent in calculating such estimates led them to conclude [with 95% confidence] that the number of Iraqis who died from violence during that period lies between 104 000 and 223 000.

Despite the fact that it was the largest, most widespread household survey to date of Iraqi deaths, it was met with considerable skepticism in some quarters of the progressive blogosphere. Some groused about the fact that Iraqi government was involved; that, it was said, automatically made the figures more than suspect. And in fact, as AP noted, the new figure

closely mirrors the tally Iraq's health minister gave in late 2006, based on 100 bodies a day arriving at morgues and hospitals.

Actually, it's about 20% higher than that rate and that figure was considered shocking at the time because it was so much higher than earlier official estimates, but still, not that far off, and that agreement with an earlier claim by a government official raised some eyebrows. Others looked with narrowed eyes at the fact that

[m]ore than 100 neighborhoods, mostly in Baghdad and Anbar, could not be visited for safety reasons. So researchers estimated deaths in those areas by using a formula based on information from another group that tallies fatalities, the British-based Iraq Body Count.

Because IBC uses a very conservative method, counting only non-combatant deaths confirmed by at least two news accounts, various folks on the left dismiss it, some even charging that the group deliberately underplays the numbers in order to make the war seem, in the words of one, "a humane occupation." One blogger rejected the group's numbers as "discredited."

But ultimately, the objections were not about arcane points of methodology or the use of IBC figures. (Sidebar: The criticisms often read as though people thought the Iraqi/WHO survey simply used the IBC numbers for the areas the surveyors didn't dare go. If so, that's incorrect, since the study used "a formula based on" that data, which pretty clearly establishes the totals were extrapolated from IBC, not copied from it.) The objections were about one fact and one fact only:

The number reported by this survey is considerably below the 2006 Johns Hopkins survey which covered much the same period and reported 600,000 deaths by violence.

That's it. That was the actual concern. The new numbers just weren't big enough.

Now, there are reasons to suspect that the new numbers undercount the actual total. For example, NPR quotes study co-author Dr. Ties Boerma, Director of Measurement and Health Information Systems at WHO. The figures

"don't include car accidents and they don't include unintentional injuries," says Boerma. "They just include intentional injuries and armed conflict. In fact, the armed conflict deaths are more than 80 percent of the deaths we got reported."

Researchers left it up to the respondents to define the cause of death,

opening up the possibility of families not reporting some deaths because they thought of them as accidents. But that wasn't the problem.

AP notes that

many deaths go unreported in the chaos that has gripped the country, or the numbers may be tainted by sectarian bias. ... Muslim burial traditions add to difficulties - many families are believed to simply bury loved ones before sundown on the day of death without ever reporting the fatality.

But that wasn't the problem.

There is suspicion of the central government. Les Roberts, co-author of the Johns Hopkins study, suspects that lead families to be reluctant to admit a family member died violently. But that wasn't the problem.

A large number of Iraqis have fled the country and any violent deaths suffered within their families obviously would not be counted here. But that wasn't the problem, either. None of that was the problem, indeed couldn't be, because most of those doubts would have applied to any household survey.

No, the problem, again, the real problem, the core concern driving the doubts among progressive and liberal bloggers, was that the number reported by the Iraqi/WHO survey was considerably smaller than the one the reported by the Johns Hopkins survey.

That was the problem: a smaller and so, I gather, seemingly less politically-useful number.

And oh my word, doesn't it make my soul hurt.

Who the fuck cares? Suppose the death toll is "only" 150,000 instead of 600,000. So what? Is that supposed to matter, to make a difference, to justify any of the madness, mayhem, and murder?

I don't care which estimate is the most accurate. I don't! I don't care if it's 600,000, "only" (only??) 150,00, or even 84,000 (midpoint of the IBC range). I really do not care.

Isn't even that lowest figure horrifying enough? Aren't 84,000 dead humans important enough for our outrage? Do the dead in Iraq, coming so fast that there would seem barely enough time to mourn them, matter to us only as political talking points?

Yes, the IBC number, by definition, is a subset of the whole, yes, clearly the actual death toll is higher, probably considerably so. But even at that and maybe even because of that, isn't it enough? It's 48 non-combatant Iraqis killed a day, every day, since we invaded. It's a 9/11 for innocents every nine weeks for nearly five years.

Why are we even getting into these pissing contests about methodologies and universes and confidence levels? Why do we seem to find it necessary to maximize the devastation? It's said that one death is a tragedy, 50 deaths is a horror, and 5,000 deaths is a statistic. Is that all the Iraqis have become to us? Statistics for scoring political points?

I say, let the statisticians argue it out. Because I don't care. Because the fact is, even the lowest estimates can't wash the rivers of blood from our hands. Because while it'd be good to know the truth of the numbers, whatever they are, the truth of the war does not depend on them.

Meanwhile, as we look to score our political points and pore over our Clinbama polls, that war continues with our passive support.

Yes, our support. After all, we still pay our taxes for the Pentagon.

Candidates who actually would stop the war remain in single digits.

The walls of Congress and the White House still stand in the notable absence of hundreds of thousands, millions, of bodies pressing on them. (I'm reminded of the story that during Vietnam, Lyndon Johnson once rejected a Pentagon request for more troops to escalate the war by asking the brass to calculate how long it would take 100,000 angry Americans to "climb the White House wall and lynch their president.")

The convoys, the deployments and re-deployments and re-re-deployments, continue unhampered and unimpeded by people standing in the roads, sitting on the railways, to block their way.

Business goes on, that is, pretty much as usual here. And death goes on, pretty much as usual, in Iraq.

Few - very few - of us have actually done what we can to stop the war. Not what we comfortably can, not what we conveniently can, what we actually can. Our guilt as war opponents may be less, but we are not guiltless. The blood stains may not be as deep, but they are there.

How many have to die before it engages our moral rather than merely our political outrage?

Footnote: The Iraqi/WHO survey report, in .pdf format, is at this link.

Hey, where you goin' with that ballot box?

Writing in CounterPunch for January 11, Dave Lindorff offers some questions about the balloting in the New Hampshire Democratic primary, raising the possibility of vote fraud in the electronic voting machines used. I'll say at the top that I don't find the argument in this case compelling but because of my abiding concern over electronic voting, it's worth looking at.

The initial question got raised, of course, by the disparity between pre-election polls and actual results. Those polls had Obama ahead by around 13 points; according to one story I saw, even the Clinton campaign's own internal tracking polls had her down by 11. (Which, by the by, is where I think the "teary" moment came from: I think she was overtired, frustrated, expecting to lose big in New Hampshire, and so saw her campaign as disintegrating. That is, I don't think it was planned or calculated.) Reportedly, exit polling also had Obama on top. But when the votes were counted, Clinton won by 2.6 points.

Various explanations were offered

[b]ut[, Lindorff wrote,] there were anomalies in the numbers that have some people suggesting something else: vote fraud.

What has had eyebrows raised is a significant discrepancy between the vote counts done by voting machine, and the ones done by hand.

In the primary, 81 percent of the votes were cast by use of optical scanners made by Diebold Corp. These are not touchscreen devices (about which I have greater concern); rather, a voter fills out a paper ballot by filling in ovals and puts it in the machine, which scans the ballot to record the vote. The other 19 percent of votes were done on hand-counted paper ballots; such ballots were cast almost exclusively in smaller, more rural towns.

The machine tally was Clinton 39.6 per cent, Obama 36.3 per cent - fairly close to the final outcome. But the hand-counted ballot count broke significantly differently: Clinton 34.9 per cent, Obama 38.6 per cent.

The difference could just be chalked up to the differences between more rural and more urban (in the New Hampshire sense of the term) areas, arguing that Obama did better in the former and Clinton in the latter. Lindorff, however, isn't buying it.

[T]hat explanation flies in the face of logic, historic voting patterns, and most of the post­election prognosticating.

Some of his arguments don't impress me, as when he raised the issue of so-called "behind the curtain" racism where people say they intend to vote for Obama because they think that sounds good while actually voting against him. "Surely," he writes, "it would be more likely that this would happen in the isolated towns of northern New Hampshire where black people are rarely to be seen," so Obama should have done worse there. But I have no clue why that premise is supposed to be true. If we have learned anything at all about race over the past few decades it's that urban dwellers can be every bit as, if not more, racist that rural dwellers. On the other hand, if we are to assume that racism is more common in the rural areas, wouldn't that mean that "behind the curtain" racism is more likely in urban areas where overt racism would be less acceptable?

But other arguments carry at least some weight.

- Clinton did better among people with lower incomes - a demographic more prominent in rural areas, where she polled worse.
- Obama did better among younger voters, usually more concentrated in urban areas, where he polled worse.
- In Iowa, Obama did better in more urban areas than in more rural ones, the opposite of his result in New Hampshire.

Again, however, there could be innocent explanations for all these. The first two involve not only doing well in a particular demographic but just how well, how that demographic is distributed across the state, and the actual numbers of such people who voted - especially bearing in mind that there were more than four times as many machine voters as hand-count voters. And the third could be written off as the difference between a caucus and a primary state and the different organizing tactics for each.

There are two additional points to consider here. One is that FAIR (Fairness and Accuracy In Reporting) pointed out, also on Friday, that this was not the first New Hampshire primary with a seemingly anomalous result.

Right before the [2000 GOP] primary, the New York Times reported (1/30/00) that "a series of polls showed the two Republican front-runners in a dead heat." Given that McCain won by 19 points, journalists and pollsters puzzling over Clinton's showing are ignoring very recent history.

Plus, this year's pre-election polls still had a fair number of undecideds and a rather hefty percentage (in the 20s, if memory serves) who said they could still change their mind. The tendency of pollsters is to assume that all of that will pretty much even out - for example, the undecideds will break down pretty much the way the decideds had. But if they didn't, if the undecideds mostly broke for Clinton and more changed their minds to her than from her, that easily could have made the difference. (That would not be the first time for that, either: Until the final weekend of the 1980 presidential race, polls said Jimmy Carter and Ronald Reagan were neck-and-neck, polling within the margin of error. But the undecideds were in double digits, a remarkably large figure that late in the campaign. Post-election analysis revealed that about 80% of those undecideds went for Reagan, just what it took to create his margin of victory.)

So all of this could be innocent and in fairness, Lindorff does quote Doug Jones, a professor of computer sciences at the University of Iowa who harbors doubts about the security of the Diebold machines used, but still said that "My suspicion is that nothing untoward happened" in this case.

Yet the nagging suspicion remains. Each question may have a legitimate answer, but it's not enough to answer each objection separately, we have to answer all of them simultaneously. Fortunately, there may be a resolution of the matter. Dennis Kucinich has put up the required fee to start a statewide hand recount, something Obama would likely be loath to do for fear of being labeled "a sore loser."

In a letter dated Thursday, [AP reports,] Kucinich said he does not expect significant changes in his vote total, but wants assurance that "100 percent of the voters had 100 percent of their votes counted."

So we can hope to see for (at least pretty) certain if it was the machines or the pollsters who got it wrong.

However - let it be noted that regardless of the outcome in this case, I still have objections to electronic voting, particularly touchscreen voting, and most particularly to this outrage:

The counting of the machine totals, in New Hampshire as in all states using the Diebold machines, is handled by a private contract firm, in this case Massachusetts-based LHS Associates, which controls and programs the machines' memory cards.

The idea that the running and counting of our elections is increasingly being done by private, profit-oriented corporations using proprietary technology that public officials are often not even allowed to examine, much less oversee, is about as offensive, just offensive, an affront to free and open elections as I can imagine. Optical scanners I can accept because there is an actual paper ballot that can be examined if a question arises. Optical scanners in the control of corporate America, I can't. And won't.

Noted in passing

This is old stuff, but I just came across the article today and I wanted to mention something about it. It comes from Inc.com for September 18, 2007:

Last year, U.S. workers each produced $63,885 in value-added labor, compared to $55,986 by workers in Ireland, the next closest economy, according to the United Nation's International Labor Office.

Yet, measured as value added per hour worked, American workers dropped behind those in Norway where workers produced $37.99 per hour, compared to $35.63 in the United States and $35.08 in France. That's because U.S. employees tend to work much longer hours than workers in other developed economies, the Geneva-based agency reported.

At the same time, according the fed's Bureau of Labor Statistics, in 2006 the median hourly wage for American workers was $14.61 and the mean hourly wage was $18.84.

That means that the average worker receives no better than roughly half of the value they create. Which means in turn that some folks somewhere along the economic ladder are getting a lot more income than they deserve in terms of the value they create.

Gee, I wonder at which end of the ladder those folks are? Let me think....

Footnote: Among the ILO's goals is "decent work," for which it has a useful definition of productive employment that provides fair income, job security and social protection for those who speak out and organize against unfair workplace conditions.

And lighten the mood a bit more

As George Bush's motorcade moved through Chicago on Monday, a group of eight antiwar protesters tried unsuccessfully to stop its progress by swinging a neon green anti-war banner reading “No to War and Occupation” and “Troops Home Now!” into an intersection.

In a battle between a handful of protesters and a presidential motorcade, [reported the Chicago Sun-Times on Tuesday,] bet on the motorcade - especially if it’s backed by hundreds of pounds of police horse, a mounted cop and an officer on a Segway. ...

As Andy Thayer, a Chicago paralegal leading the group, entered the street, he appeared to lean his weight into a police officer’s horse, which barely moved. A cop on a Segway appeared to push into the animal from the other side, moving Thayer back to the curb. Officers quickly handcuffed Thayer and three other protesters who refused to drop the sign and exit the thick of the skirmish.

Some of those holding the sign were not arrested. ...

Thayer admitted even before the mounted officers aligned in a barricade that there was a slim chance the president would get an unobstructed look at his sign.

“I don’t think they’re going to allow us,” he said.

So why does this apparently unsuccessful effort lighten the mood a bit? Because it happened! Because people were prepared to do it. Because people were prepared to do something to harass Bush. And besides, this was playing on a boom box:

Creature from the Black Lageek

Just to lighten the mood a bit. This comes from News.com (Australia) for Monday:

Scientists have figured out how mice can regain some ability to walk after spinal cord injuries, and hope this insight can lead to a new approach to restoring function in people paralysed by similar damage. ...

Mice given partial spinal cord injuries in the laboratory were gradually able over a period of about eight to 10 weeks to regain the ability to walk, although not as well as before the injury, according to the scientists.

After this partial spinal cord injury, the brain and spinal cord underwent a sort of spontaneous rewiring to control walking even in the absence of the long, direct nerve highways that normally connect the brain to the walking centre in the lower spinal cord, the researchers said.

What happened was that the body was able to use "a previously unrecognised mechanism" involving, essentially, redirecting nerve impulses from the usual long nerve paths to a series of other, shorter, nerve paths in undamaged inner parts of the spinal cord. This raises hopes that with better understanding of the mechanism and the development of rehabilitation therapies to stimulate the shift, people with some types of spinal cord injuries can walk again.

"This is not the end of a story. This is the beginning of a story," said Dr Michael Sofroniew, a professor of neurobiology at the David Geffen School of Medicine at the University of California at Los Angeles who led the research.

But it is a beginning. Christopher Reeve would be happy.

Like I said

Well, I said "I have little faith and even less hope." Apparently with good cause.

As scheduled, on Wednesday the Supreme Court heard oral arguments in the case of the Indiana voter ID law. That law requires that voters present one of a few specified government-issued photo IDs at the time they vote. If a voter does not have such an ID, they must cast a provisional ballot and then show up in person at the country courthouse within 10 days with certain specified documents to prove their identity. If they don't, their ballot is tossed - which, as I noted on Tuesday, has already happened.

The claimed purpose of the law is to prevent voter fraud through impersonation. Considering that there has never been a single prosecution - not even conviction, prosecution - for voter impersonation in Indiana and that everyone seems to agree that the law will disproportionately impact the (Democratic-favoring) indigent and elderly, it seems clear the real purpose of the law is consciously to suppress voter turnout in a way benefiting GOPpers.

The Court, however but not surprisingly, spent the hour

studiously avoiding almost all mention that it was examining a thoroughly partisan political battle,

according to the coverage by reporter Lyle Denniston at SCOTUSblog. In fact, Denniston says, the justices - particularly (again not surprisingly) the reactionary wing - put in more effort trying to scuttle the case altogether.

Justice Antonin Scalia, one of the more predictably conservative members, led the charge against the challengers, drawing in his wake Chief Justice John G. Roberts and Justice Alito and (to some extent) Justice [Anthony] Kennedy in questioning whether anyone had “standing” to bring this case. Scalia also took the lead in questioning - even more aggressively - whether the case should have been brought at all to the law as written rather than to its actual application in a specific election setting.

That is, people should have to wait until they actually are denied their vote because of the law. Then and only then should they have standing to sue, thus hilariously suggesting that the very people who can't manage the burden of a photo ID - the poor, the elderly, those with the fewest resources, people who, as even Seventh Circuit Court Judge Richard Posner was forced to admit in his ruling upholding the law, "[n]o doubt ... are low on the economic ladder" - can manage the burden, the stress, the expense, of a federal lawsuit. Adding to the general hilarity, Solicitor General Paul Clement, arguing for the White House, insisted that was exactly right:

Clement suggested that it may be “easier to get someone to help with your lawsuit” than it would be to get some assistance in getting identified to vote.

(Oh, by the way, it turns out that Scalia's two complaints are the same two that the Shrub gang focussed on in supporting the law. I'm still waiting to be surprised by something here.)

Both Denniston and the report in Thursday's Washington Post on the case made special mention of Kennedy's position, labeling him a swing vote while leaving little doubt of his hostility to the challenge to the law. The Post noted this bit:

"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy asked Washington lawyer Paul M. Smith, who argued the case on behalf of the Indiana Democratic Party, the American Civil Liberties Union, and other Hoosier community groups and individuals.

I expect it's a "minor inconvenience" for a Supreme Court justice, but that hardly makes it one for the estimated 13 percent of Indiana voters (that being, it seems, a "small" number to Kennedy) who don't have photo ID. (The 13% figure comes from the New York Times article I cited on Tuesday; the link is above.)

Denniston, for his part, described Kennedy as

somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place.

That not only seems to improperly expand the argument beyond the issue at hand (even if his supposition is correct, it's irrelevant to the constitutionality of the law at issue), it prompts a valid question: And...? If we actually want to encourage voting, as we supposedly - I choose the word deliberately - do, there should be no unnecessary impedements to doing it. Those qualfied to vote according to requirements like age, residency, and citizenship should be assisted in doing so, not hindered. I voted for years in a state where a signature match was the only ID and it seemed no more subject to voter fraud than any other state (and less than some). After all, impersonating a voter via a signature match requires you to be a skilled forger - and I expect those rare individuals would seek more profitable outlets for their talents.

But that simple logic is lost on Kennedy and specifically rejected by the reactionaries such as Scalia, who embrace "Fraud!" as the new meme designed to increasingly define voting as something to be restricted to the deserving elites, something to be kept away from the hoi polloi, the untrustworthy unwashed masses. Scalia, the ever-faithful echo chamber of wingnut blather,

rejected Smith’s suggestion that voter fraud was only “possible,” insisting instead that it actually was “likely.”

This, it deserves to be pointed out as many times as necessary, despite the fact that Indiana has never prosecuted a single case of voter fraud of any sort this law would cover.

A decision is expected by the end of the current term in June. Right now, I'm looking for the law to be upheld 6-3 with Breyer and Ginsberg in dissent, picking up either Stevens or Souter.

We are so screwed.

Footnote: The Post noted that

Roberts pushed hard on a finding of the lower court that the petitioners had not produced a "single person" who had been denied the chance to vote because of the law. Smith responded that there were examples of voters whose provisional ballots were not counted because they had been unable to meet the state's standards,

as I noted Tuesday. But, assuming the Post reported the exchange accurately (of which there is, I realize, no guarantee), Roberts referred to the "chance" to vote. Anyone without an official photo ID got a provisional ballot - they got, in Roberts' terms, the "chance" to vote.

So there, it seems, you have it: In the eyes of the Chief Justice of the Supreme Court, what matters is the "chance" to vote. Whether or not your vote actually gets counted, well, that's something else altogether.

Important enough to have its own post

Just a couple of posts down I wrote about the Supreme Court case on the Indiana law requiring a photo ID in order to vote - a case which, I should have mentioned but failed to, is to be argued tomorrow. Requiring such ID is, as I said,

a practice that many fear will lead to (further) disenfranchisement of already-underrepresented poor and minority voters

and through that very means disproportionately benefit one major party over the other. The counter-claim to that made by advocates of the additional roadblocks on the way to the ballot box is that opponents of the law in Indiana and the more than two dozen other states that had adopted similar requirements have failed to present anyone who was actually prevented from voting by the law.

Well, guess what.

[O]n Election Day last November, Valerie Williams became that evidence, [reported the New York Times on Monday].... After Ms. Williams grabbed her cane that day and walked into the polling station in the lobby of her retirement home to vote, as she has done in at least the last two elections, she was barred from doing so.

The election officials at the polling place, whom she had known for years, told her she could not cast a regular ballot. They said the forms of identification she had always used - a telephone bill, a Social Security letter with her address on it and an expired Indiana driver’s license - were no longer valid under the voter ID law, which required a current state-issued photo identification card.

“Of course I threw a fit,” said Ms. Williams, 61, who was made to cast a provisional ballot instead, which, according to voting records, was never counted. Ms. Williams - who has difficulty walking - said she was not able to get a ride to the voting office to prove her identity within 10 days as required under the law, and her ballot was discarded. ...

Mary-Jo Criswell, 71, who, like Ms. Williams is an Indiana voter cited in the case before the Supreme Court, had her vote thrown out in November after she was told the identification she had used in previous elections - a bank card with a photograph, a utility bill and a phone bill - no longer sufficed. ...

“It’s like I’m having to recreate my identity and build a paper trail after all these years of never having problems,” she said, explaining that her epilepsy had prevented her from ever getting a driver’s license. Her passport expired in the 1950s, she said, and she did not have a copy of her birth certificate last November.

Which wouldn't have helped her anyway because it's obviously not a photo ID. Ms. Williams and Ms. Criswell are not the only ones:

A brief filed with the Supreme Court by the Marion County Board of Elections, the state’s largest voting jurisdiction and a defendant in the case, said Ms. Williams - who is a black Republican - and 31 other voters had to cast provisional ballots because they showed up at the polls without the state-required ID.... Because they also failed to appear later at county offices with the identification required to validate their identities, all of these voters had their ballots thrown out, records show. In interviews, many of these voters said they could not find transportation or could not afford the IDs.

All of these voters appeared at the polling place for the precinct in which they were registered, and all of the signatures on their provisional-ballot envelopes matched the appropriate poll book signatures. At least 14 of these voters had voted in 10 elections before last year, according to voting records.

It's important to repeat the point that Indiana has never prosecuted a single case of voter impersonation. But that, of course, doesn't matter to the brilliant legal minds of the Shrub gang, for who torturing logic comes as naturally as torturing prisoners:

The Bush administration, arguing in favor of the law in a brief filed with the Supreme Court, suggested it was not necessary to prove fraud was actually taking place, given the importance of preventing such fraud.

“The state’s interest in deterring voter fraud before it happens is evident from the monumental harm that can come from such fraud,” the brief said.

Okay, by that logic, I expect the Shrub gang to push Congress to pass a measure making it illegal for space aliens to impersonate humans. I mean, think of the incalculable harm that could arise from having space aliens undetected among us! The fact that there's absolutely no evidence that it's happening (or even that intelligent extraterrestial life exists) is completely unimportant, irrelevant, even!

If and when the WHS* do that, I will take their argument to the Supreme Court seriously. Until then, they can kiss my ass.

Oh, by the way, studies by state officials of Georgia, Michigan and Missouri

found that at least 4 percent of registered voters lacked the type of ID needed under the strictest voter identification laws. A 2007 study by political scientists at the University of Washington found that about 13 percent of registered voters in Indiana lacked the required identification.

But those are just more of those stupid fact-thingies and we know what the right wing thinks of them.

*WHS = White House Sociopaths

Tiding you over

Sorry for my silence of the last few days. I've been very sick and am only partly recovered - and, as is all too often the case, there were other things that had prior claim on my diminished physical resources.

But here's the deal: I've decided to go to a guaranteed-twice-a-week format. I intend that starting next Monday, that every Monday and Thursday I'll have a for lack of a better term "major" post with posting on other days as events and/or the spirit moves me. I imagine a lot of those will be "minor" posts, but perhaps something with more substance will slip in.

Note that I do almost all of my posting late at night (or overnight), so a Monday/Thursday posting schedule means a Tuesday/Friday reading schedule. So kinda figure me like a twice-a-week columnist in your newspaper. (You remember those.)

I'm quite sure that there will be posts up here between now and Monday, so do check back. But for the moment, here are a few bits and pieces to keep you entertained:

- Hugh has a long and growing list of Bush administration scandals. A number of them are examples of scandalous policies rather than legal scandals, but in the list of 298 (as of this writing) there are certain to be some in both categories which you had forgotten.

- John Nirenberg of Brattleboro, VT is walking from Boston to DC to bring a message to Nancy Pelosi, demanding impeachment. As of the evening of January 7 he and a few others are a little north of Baltimore, expecting to arrive in DC, on schedule, on Saturday. For info and to offer support, this is the link.

- Speaking of that, as I expect you know, former Sen. George McGovern had on op-ed in Sunday's Washington Post calling for the impeachment of Bush and Cheney. "Nixon was bad. These guys are worse," he said. The first vote I ever cast was for McGovern for president in 1972. I've no regrets.

- The ACLU is calling for a day of protest this Friday, January 11, demanding the closure of Gitmo. If you can't get to an event, you can at least sign the petition and try wear something orange that day.

And even a geek item: According to a new study,

[c]omplex life on Earth may have blossomed during two "explosions," not one....

Earth's biggest species diversification occurred 542 million years ago, during what's called the Cambrian explosion. But a similar and rapid burst in evolution occurred 33 million years prior, researchers now think. They've dubbed the event the Avalon explosion.

The Cambrian explosion, a geologically short period of time in which every modern phylum seems to have appeared, has been somewhat controversial precisely because of the rapidity of the change. This new study would seem to support the idea that such rapid change is in fact possible.

Footnote to the footnote

Updated Okay, you've got your state-issued photo ID, your passport, your birth certificate, your note from the police department, your properly signed and dated Permission to Leave Your Security Sector form, everything you need to cast your elusively beneficial vote in our treasured, almost sacred, national process.

Now you just have to wonder if you can actually get to a voting booth. From USA Today for Tuesday, via Buzzflash:

Five years after passage of a federal law to create electronic registration databases to deter voter fraud, the new technology is posing hurdles that could disenfranchise thousands of legal voters, a USA TODAY examination finds.

From Florida to Washington, voters have been challenged because names or numbers on their registration forms did not exactly match other government databases, such as Social Security and motor vehicle agencies. "We know that eligible people have been thrown off the rolls," says Justin Levitt, a lawyer with the Brennan Center for Justice at New York University School of Law.

Quite possibly a lot of them:

Colorado, for instance, knocked nearly 20% of its voters off the rolls between the 2004 and 2006 elections. ...

In Wisconsin, Elections Board Executive Director Kevin Kennedy says, "the users keep complaining that it's too complex." In Texas, Henderson County opted out of the database after voters griped about being dropped from the list. "I was just afraid to trust it," says voter registrar Milburn Chaney.

But the state with the worst problems - well, here's a surprise - is Florida,

where a Gannett News Service analysis found more than 14,000 people whose voter registrations were disputed by the state because they didn't match other databases; about 75% are minorities.

Forida seems to have a real problem getting elections right, as I've observed here, here, here, here, here, here, here, here, here, here, and here.

But anyway. You've gotten to the voting booth. Now your only worries are one, if there is a way to vote there and two, if there is, will it actually count your vote correctly. MSNBC raised the question on Monday:

With the presidential race in full swing, some U.S. states have found critical flaws in the accuracy and security of their electronic voting machines, forcing officials to scramble to return to the paper ballots they abandoned after the 2000 Florida debacle.

In December alone, top election officials in Ohio and Colorado declared that widely used voting equipment is unfit for elections. ...

The states of California, Ohio and Florida have found that security on touch-screen voting machines is inadequate. Testers have been able to disable the systems and even change vote totals. ...

[I]n tests, researchers in Ohio and Colorado found that electronic voting systems could be corrupted with magnets or with Treos and other similar handheld devices.

In Colorado, two kinds of Sequoia Voting Systems electronic voting machines used in Denver and three other counties were decertified because of security weaknesses, including a lack of password protection. Equipment made by Election Systems and Software had programming errors. And optical scanning machines, made by Hart InterCivic, had an error rate of one out of every 100 votes during tests by the state.

The New York Times Magazine raised the banner on Sunday.

Introduced after the 2000 hanging-chad debacle, the [electronic voting] machines were originally intended to add clarity to election results. But in hundreds of instances, the result has been precisely the opposite: they fail unpredictably, and in extremely strange ways; voters report that their choices “flip” from one candidate to another before their eyes; machines crash or begin to count backward; votes simply vanish. (In the 80-person town of Waldenburg, Ark., touch-screen machines tallied zero votes for one mayoral candidate in 2006 - even though he’s pretty sure he voted for himself.) Most famously, in the November 2006 Congressional election in Sarasota, Fla., touch-screen machines recorded an 18,000-person “undervote” for a race decided by fewer than 400 votes.

The article opens with the story of recent elections in Cuyahoga County, Ohio.

About 200,000 voters had trooped out on the first Tuesday in November for the lightly attended local elections, tapping their choices onto the county’s 5,729 touch-screen voting machines.

But in doing the count, the system failed repeatedly and so many printers had broken down that there were not the paper receipts to do a recount. Yes, the machines could print a back-up copy, but, in the saddest sentence I've read in this whole debacle and one that sums up the reasons for my opposition to the suckers, the Times said of Jane Platten of the Board of Elections:

She could only hope the machines had worked correctly.

She could only hope. Right along with the rest of us. About one-third of voters, it's expected, will be voting on touchscreen machines come November. One-third of us will have to "only hope" the machines worked as they are supposed to because all too often there is no way to check. This is how we're supposed to run free elections - on machines maintained by private companies which use proprietary software that in many cases public officials are not even allowed to see and which we can "only hope" record votes accurately? This is what's supposed to provide "clarity," to make us feel secure in our elections?

I've often noted my doubts about electronic voting and the lack of a paper trail. This link has some posts on the matter, as does this one; there is some difference and some overlap because I tend to use the terms "touchscreen voting" and "electronic voting" interchangeably. I'm glad to see - despite the short-term hassles it will cause - that a number of states are wising up.

Updated with the excerpt from the New York Times article and some additional commentary.

Footnote to both of the preceding, Yeah, What Ya Gonna Do About It, Punk? Div.

More and more states are adopting rules requiring photo IDs for voters, a practice that many fear will lead to (further) disenfranchisement of already-underrepresented poor and minority voters. Now the issue is headed to the Supreme Court. The Washington Post reported on December 25 that the case before the Court, which arose from a law in Indiana,

presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?

The answer so far has depended greatly on whether you are a Democratic or Republican politician - or even, some believe, judge.

"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.

His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote.

Posner's dismissive attitude toward the burden of requiring a photo ID in order to vote - apparently, in his world, flying is an everyday experience - was also directed against the right to vote itself:

Posner's majority opinion said that the "benefits of voting to the individual voter are elusive" because major elections "are never decided by just one vote."

He said there is a deferential scale the court should follow in evaluating voting requirements. "The fewer people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer," he wrote.

Get that? As far as Posner is concerned, your very right to vote is an "elusive benefit" of little value so if you get blocked from voting, so what? BFD, y'know? By that logic, if a candidate wins a two-way election by, say, 10,000 votes, then 9,999 voters have engaged in a pointless waste of time that served no benefit. And while it's true that major elections have never been, as far as I know, decided by just one vote (although we have :cough: Florida come close :cough: Washington), minor elections, local elections, primaries, have been. Does the importance of your right to vote decline as you go further down the ballot? It seems that according to Richard Posner, it does.

Even beyond that, there is the simple fact that every individual vote is as important as every other individual vote in the final tally. That's one of the real powers of, part of the real significance of the idea of, voting. And no candidate gets their votes as one single block, they get them as a combination of single, individual votes, each of which has an "elusive" value to the voter. (I had a bit more to say about this a while back as part of a longer argument.)

Even taken on its own merits, Posner's argument fails. Indiana's law was passed by the GOPper-dominated legislature in 2005 - even though the state had never prosecuted a single case of voter impersonation. The "benefits" Posner was claiming for the law, i.e., cutting down a certain type of supposed voter fraud, do not exist because the problem itself does not exist.

"Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?" [Judge] Evans wrote. "I think not."

Bizarrely, Indiana Secretary of State Todd Rokita, in the face of that undenialble fact, argued "Why should we wait until we become victims of identity theft, which is what this is?" Which clearly is an admission that the law accomplishes precisely zilch, rights no wrong, corrects no imbalance; it's a solution in search of a problem, an effect in search of a cause, an end in seach of a means - or, more truthfully, a means to an end, one so obvious even Posner had to acknowledge it: "No doubt most people who don't have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates."

He knows. But he just doesn't give a damn.

It remains to be seen if SCOTUS gives a damn. Considering this is at least as reactionary a crew as the one that ignored precedent (which held that state courts make the rulings about voting issues and procedures within their states) and logic (declaring the issue to be one of the risk of "irreparable damage" to George Bush) in order to stop the 2000 Florida recount and install Shrub as El Leader while gutlessly dodging responsibility by declaring that the decision was not to be cited as precedent, I have little faith and even less hope.

Voting, like everything else, is becoming a privilege of the privileged.

Footnote One: Just who is Richard A. Posner? He's a federal judge, yeah, but what does he believe beyond the inanity noted above?

Well, he denies there is a Constitutional right to privacy and argues that the means of protecting privacy are economically inefficient. The first part is bad enough, but economic efficiency? Is that something that should be of concern to the courts?

Apparently yes, because he also endorses so-called "efficient breach theory," the notion that a party should be allowed to breach a contract and pay damages, if doing so would be more "economically efficient" than carrying out the contract. So if I have a contract with you to provide some good or service and someone else comes along and offers me more, I should be free to ditch you except to pay you damages to make up for what you lost by my being a money-hungry creep. As long as I expect my profit from the new deal to exceed the damages I must pay you, I not only should be free to dump you, I should be encouraged to do so by exempting me from any punitive damages. That is, Posner believes that I should be free to say "screw you" if it makes me profit. Nice guy.

Even nicer: About a year and a-half ago, Glenn Greenwald wrote that

Court of Appeals Judge Richard Posner has become one of the leading advocates of drastically expanded federal police powers as a response to the terrorist threat. He advocates the creation of a domestic spy agency (an internal CIA/KGB/Stassi-type agency to monitor domestic activities); expanding the group of citizens subjected to warrantless eavesdropping to include even include "[i]nnocent people, such as unwitting neighbors of terrorists"; allowing warrantless eavesdropping even if it violates the law; and stripping federal courts of their ability to enforce legal limits on the President's national security powers.

Indeed, in December 2005, Poser wrote in the Washington Post of the illegal domestic spying by NSA and the Pentagon and the establishment of data-mining programs. Was he at all troubled? No way:

These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism.

In the same column, he described FISA as "too restrictive."

But give him his due, he's no Johnny-come-lately jackass. In the September 2002 issue of The New Republic, he used the hoary "ticking bomb" scenario to endorse torture:

If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square [he wrote], torture should be used — and will be used — to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility.

So I guess, at the end of the day, dismissing the right to vote as an "elusive" benefit isn't that long a jump.

Footnote Two: The Brennan Center for Justice at the NYU School of Law has coverage and commentary about the Indiana law case and the amicus curiae brief it filed in opposition to the law, along with a commentary (in .pdf format) about the bogus nature of the "voter fraud" claims made by Indiana and its allies. It has also published an important study (also in .pdf format) in this regard called "The Truth About Voter Fraud," which asserts "by any measure, voter fraud is extraordinarily rare."

Footnote to the preceding

Privacy International, a human rights group based in London, UK, acts "as a watchdog on surveillance and privacy invasions by governments and corporations."

Last week it published its 2007 International Privacy Ranking, and the results are - well, not good. In its survey, countries are ranked on a seven-step scale ranging from "consistently upholds human rights standards" down to "endemic surveillance societies."

Only one of the 47 nations considered was listed as "improving" on privacy matters since last year: Slovenia. Meanwhile, 10 nations are listed as "deteriorating," meaning they have dropped a notch, and four were labeled "decaying," that is, they dropped at least two ranks. The US, no real surprise, was "deteriorating" and now sits among the "endemic surveillance societies."

If you really want to get a sense of just how absurd the whole "security" business is, see just how much it has to do with control rather than with, you know, security, try reading some of the nominees for the group's Stupid Security Awards. Links to nominees for the various categories are at that link.

You look suspicious

Updated But we won't tell you what it is about you that makes us think so.

Just over a week ago, the Seattle Post-Intelligencer reported on a program under which travelers

at Sea-Tac [Seattle-Tacoma Airport] and dozens of other major airports across America are being scrutinized by teams of TSA behavior-detection officers specially trained to discern the subtlest suspicious behaviors. ...

[A] central task is to recognize microfacial expressions - a flash of feelings that in a fraction of a second reflects emotions such as fear, anger, surprise or contempt, said Carl Maccario, who helped start the program for TSA.

The name of the program is SPOT, or Screening Passengers by Observation Technique, and is intended, so TSA officals say, to notice "indicators of possible terrorist intent."

"In the SPOT program, we have a conversation with (passengers) and we ask them about their trip," said Maccario from his office in Boston. "When someone lies or tries to be deceptive, ... there are behavior cues that show it. ... A brief flash of fear."

TSA officials refuse to identify any specific behaviors for which the feds look, but they emphasize that the behaviors are constant across cultures. They also cite some results.

Since January 2006, behavior-detection officers have referred about 70,000 people for secondary screening.... Of those, about 600 to 700 were arrested on a variety of charges, including possession of drugs, weapons violations and outstanding warrants. ...

Lynette Blas-Bamba manages Sea-Tac's 12-officer behavior-detection team. Since the program started here in November 2006, more than 600 people have been referred for secondary inspections, she said. Of those, 11 were arrested.

Where to start with this latest bucket of bilge, this latest "Big Brother is watching" farce? I'll concede one point: So-called "microfacial expressions" do appear to exist and to that extent they do appear to be cross-cultural, related more to the hard-wiring of our genes than the software of our cultures. (Thereby striking a blow against strict behaviorism, but that's a different subject.)

From then on, it's trouble. First, Mark Frank, the very researcher who claimed to have

identified and isolated specific and sometimes involuntary movements of the 44 human facial muscles linked to fear, distrust, distress and other emotions related to deception,

did so by examining videotaped interviews, not by reading them on the fly in a public situation filled with distractions.

Second, the whole notion of such expressions comes out of publicly-available psychological research. Anyone sufficiently interested can find out the details. The business of refusing to name specific behaviors, as if this was some sort of big state secret, is so childishly idiotic as to make me think the leaders of the TSA spend their days imagining themselves in a James Bond movie or maybe an episode of The Man from U.N.C.L.E. (Besides, if the reactions truly are involuntary, what difference could it make to describe them? Sounds like they want to mark it "secret" because - well, just because.)

Third, even to the extent microfacial expressions exist and are accurate indicators of internal states, accurately detecting them in a first, casual meeting with a stranger is almost impossible. It's very much like trying to do a polygraph test without even having a baseline.

Fourth and perhaps most importantly, again just like polygraphs (even ones with a baseline), they are notoriously unreliable. Just consider the results, precisely as reported:

- About 70,000 people have been referred for secondary screening nationwide, resulting in 600 to 700 arrests. So the "trained observers" were wrong in their suspicions at least 99% of the time.

- Sea-Tac fared only slightly better: more than 600 referrals, 11 arrests, a false hit rate of at least 98.2%.

And not one of the arrests was for anything related to terrorism. Not one. As a commenter at the P-I said, they probably could have just randomly pulled people out of line and done just as well if not better.

What's more, there is always the problem of what's known in psychology as "observer bias," that is,

"behavioral characteristics will be found where you look for them," [as] the American Civil Liberties of Massachusetts legal director John Reinstein told The Washington Post.

Put more bluntly, this program carries the distinct risk of giving racial profiling, even if it's unconscious racial profiling, a gloss of scientific impartiality. And it does not work.

This, as in so many other cases of official intrusion into personal space, is not about security. It's about the illusion of security, employed to keep us afraid while pushing us to passively accept being watched, observed, judged, by government officials as a regular feature of our daily lives. It is disturbing and depressing how many people are not only willing, they are even eager, to accept and even advocate further, deeper violations of those zones of privacy which not so long ago were supposed to be so precious.

Erich Fromm was on to something.

Footnote: Some people have some objections to intrusive surveillance, at least if it affects their pocketbook. The UK makes extensive use of "speed cameras," a combination of radar and camera designed to automatically detect and photograph any car exceeding the speed limit. In the West Midlands of England, a self-described "vigilante anti-speed camera group" called Motorists Against Detection is having none of that. They have quite literally been destroying the cameras, usually by burning them. Their exploits are discussed and documented at this site, which has a bunch of pictures of wrecked speed cameras: Go here and click on "Vandalised Gatsos."

Updated with a Footnote to the Footnote: I first heard of these sorts of cameras some years ago on a visit to Denver, which had recently installed them. I had two immediate responses: One, that it seemed unfair, even improper, since this makes it impossible to "confront your accuser" and there is an inherent belief in the machines' infallibility. Two, that someone would develop a spray that would react to the high-intensity flash by becoming opaque for a fraction of a second.

Right at the top of the Speedcam cite is a banner advertising precisely such a product. Free enterprise strikes again!

The geek lives!

Just to put some things in perspective.



There is simply so much that is so vast, so literally beyond our ability to truly grasp, to truly conceive, there is so very much out there that it is incomprehensible to me that there should not be life out there, especially since as of the end of December, 270 extrasolar planets (i.e., beyond our solar system) have been found, including some in their star's habitable zone, at least one of those being a rocky (that is, roughly Earth-like) planet.

And yet - and yet - in all that inconceivable vastness, the only place we know for a fact that life exists is right here on this ball of rock orbiting a very ordinary star in a very ordinary galaxy. Thinking about things like this video solidify my conviction that the universe is aflame with life. Maybe it's super-intelligent. Maybe it's slime mold. Hell, maybe it's super-intelligent slime mold. But it's out there in astonishing variety.

And at exactly the same time, thinking about things like this video drive home to me the specialness, the preciousness, the fragility, the utterly incalculable value, of life and remind me of what it is we waste on blood-stained fields and streets over squabbles and quibbles and passions and prejudices that in the "long" run of our vanishingly short human history don't mean a fucking thing.

Uh-oh, that "world is too much with me" business is starting up again. I'd better find a distraction for a while.

Uh-huh. Right.

Infoworld reported early in December that

[e]xecutives from 12 large companies, including The Coca-Cola Co., Wells Fargo & Co., Kaiser Permanente, General Motors, and Dell, have jointly formed a Blog Council aimed at promoting corporate blogging best practices....

This "Blog Council," the first meeting of which is planned for January 22, was described as a forum for executives to meet in private to share tactics and develop standards for corporate blogging. According to Blog Council CEO Andy Sernovitz (yes, the council of CEOs has its own CEO),

"[i]ndividual and small-business bloggers don't face the same issues [as large companies].... For example, we still need to deliver a responsible and effective corporate message, but we need to do it in the complicated environment of the blogosphere."

In other words, it's a cabal of CEOs (I like that - it should be the name for a group of CEOs: a cabal. Like a pride of lions or an exultation of larks. A cabal of CEOs.) meeting in secret, naturally, to share ideas and notes about how best to use the internet for corporate propaganda. And did you notice how in "delivering the message" they claim to have extra burdens, because apparently unlike "individual and small-business bloggers," these CEOs have to be "responsible?"

Other founding members include AccuQuote, Cisco Systems, Gemstar-TV Guide International, Nokia, and SAP.

Honorable folks, all. Indeed.

RIP

Netscape is dead. Which is a shame, since I always preferred it to IE, but on the other hand its progency, Firefox, is alive and well, with versions for Windows, Mac OS X, and Linux.

But at this time of passing it needs to be noted that Netscape didn't so much die as get slowly strangled. For some years, Netscape lead the field - and helped proved the existence of a market for online activity. Then Microsoft, having pretty much ignored the online market until others proved its value, jumped in with "oh, we have a browser now - and it's a Microsoft browser!" And way too damned many people went "Oooh! It's a Microsoft browser! We gotta have that one!" It wasn't that IE was clearly better than Netscape (it wasn't) or even better at all, but it was Microsoft! And the sheep trailed behind like, well, like sheep.

And then, of course, there was the "integration" of IE into Windows, making it, Gates Gang Inc. said, an "integral part" of the operating system. That was utter bull (hackers quickly developed ways to rip IE out without affecting Windows' performance) and was part of what lead to that big antitrust suit, the one that died a sputtering death when the Shrub gang hit town and decided that actually doing something about monopoly power was not in their interest. The relevant point here is that with IE slapped onto every copy of Windows, a goodly number of people were unwilling to use a "different" browser when there was one right there!

But the fatal blow was delivered by AOL, which bought out the rights to Netscape and then to the surprise of many, cut a deal with Microsoft to make IE, not Netscape, AOL's default browser! With that, Netscape's audience just withered to being all but non-existant.

It really is a shame.

Oh, but don't forget, besides Firefox, Opera ver. 9.25 is out there for Windows and Apple's standard browser, Safari, now has a beta version for Windows. So you have lots of choices beyond "oooh, Miiicrosoffft!"

Footnote to the preceding

The photo was taken in the immediate wake of the bomb blast that occurred as Benazir Bhutto was killed. I include it here because while I have, happily and fortunately, never directly experienced anything nearly so dreadful, still it expresses how I often feel looking at the world: a dazed, helpless rage at the devastation and bloodshed I see around me, silently screaming "why?" even as I know there is no answer. That's one of the reasons I think I should no longer commit myself to posting daily. I have described it in the past as "the world is too much with me," I just feel overwhelmed and I need to step away, even just for a day or two.

Okay, dude, definitely time to can the melodrama for a while.

Footnote: I found the picture through Wonkette, to which I must have gone from somewhere else since I never read it. Still, be it known that at this link she has a number of photos surrounding the assassination, if you care to check them out.

One related thing: The pictures, obviously, come from Getty Images; if I read the site correctly, by using this "preview" version I'm not running afoul of any copyright issues. I know a lot of you don't care about that and think online is a free-for-all or more exactly a "free-for-me," but having had my work both as a writer and a photographer ripped off without even attribution, much less payment, I do care.

Death is always with us

The biggest news of late, of course, was the assassination of Benazir Bhutto. Too much of that - including the consequences - is too unresolved for me to imagine I could cast any more light on it than others already have (or have tried to), but I do have one thought about the Musharraf government's patently bogus story about how she died: I don't know if they are directly responsible for her death either by being the killers or by deliberately letting it happen, but I do know they are trying damn hard to avoid being blamed for it - which only serves to make me more suspicious of Musharraf than I already would have been.

The ludicrousness of the official story - that she was killed by striking her head on a sunroof lever as a result of the bomb's concussion - was apparent to many from the start, especially since it was the third story they came up with. But now there is video of the shooting which clearly shows something happened to her before the blast, a something that damn well looks like an impact. (The video is a little grainy, but pausing it at the right moment clearly shows Bhutto starting to fall, her scarf and her hair lifted up as if having been struck with force from a low angle.)

And it also has emerged, according to the New York Times for Monday,

that her doctors felt pressured to conform to government accounts of her death....

Athar Minallah, a board member of the hospital where Ms. Bhutto was treated, released her medical report along with an open letter showing that her doctors wanted to distance themselves from the government theory that Ms. Bhutto had died by hitting her head on a lever of her car’s sunroof during the attack. ...

Mr. Minallah ... said the doctor who wrote the report, Mohammad Mussadiq Khan, the principal professor of surgery at the Rawalpindi General Hospital, told him on the night of Ms. Bhutto’s death that she had died of a bullet wound. ...

The medical report, prepared with six other doctors, does not specifically mention a bullet because the actual cause of the head wound was to be left to an autopsy,

one which, needless to say, will never be performed. The result is that, as others have already said, it's likely we will never know for certain the exact circumstances of her murder - especially since the site was hosed down rather than blocked off and protected for forensic investigation, which needless to say (but I will) should not increase anyone's confidence in the Pakistani government's intention to find out what really happened.

Footnote the first: Last week, William Arkin noted in the Washington Post that in the very near future

U.S. Special Forces are expected to vastly expand their presence in Pakistan, as part of an effort to train and support indigenous counter-insurgency forces and clandestine counterterrorism units, according to defense officials involved with the planning.

Arkin, who quotes US CentCom Commander Adm. William Fallon as saying Pakistan is showing "more of a willingness to use their regular army units" along the Afghan border, thinks that, plus the expanded US role, could make 2008 "a better year." Frankly, I very much doubt it.

Footnote the second: While Bhutto, not entirely without cause, became the symbol for democracy in Pakistan, it is well to keep in mind that neither she nor her husband, Asif Ali Zardari, could be classified as angels.

Footnote the third: McClatchy newspapers reported on Monday that an aide to Bhutto said that on the very day she was assassinated, Bhutto

had planned to reveal new evidence alleging the involvement of Pakistan's intelligence agencies in rigging the country's upcoming elections....

Bhutto had been due to meet U.S. Sen. Arlen Specter, R-Pa., and Rep. Patrick Kennedy, D-R.I., to hand over a report charging that the military Inter-Services Intelligence agency was planning to fix the polls in the favor of President Pervez Musharraf.

There has been some speculation that it was this report that got Bhutto killed, but I very much doubt that. First, because unless Bhutto was the only person who knew its contents, killing her would not prevent the report's release. Second, because while gaining nothing, such an assassination could well increase the report's impact: Now, instead of being "charges by the opposition," it becomes "the final act of a martyred hero of democracy!"

This is by no means to say that I think the Musharraf regime could not be behind Bhutto's murder, only that this would not have been the cause.

Happy New Year

Okay, I won't say I'm back full force but I'm back.

The reason I won't say "full force" is that, as I wrote last week, I have to think about some things relating to doing this. The fact is, I don't know that I can be reliable about posting something every day. So I'm thinking seriously about setting up sort of a schedule. Either twice or three times a week - I haven't decided which yet - I would post a longer, more developed piece. The idea, of course, is that barring illness, emergency, or other unforeseeable circumstance it would be same two or three days every week, so anyone interested would know when to look for it.

In between and on no particular schedule (and with no guaranteed regularity) there would be other, short items as I'm moved to comment on something or as events arise.

Oh, and I'm going to start using labels. BFD, I know.

So what we have coming up tonight and tomorrow, as a way of getting back in gear, are several things that over the past couple of weeks have provoked me or that I just thought worthy of passing on. And by the way, since no one answered it, for the prize of having your name plastered in a post title, just why is December called December? (Or do I have to tell you?)

Season's fleeting

Just to let everyone know, Lotus will be back from hiatus just after the beginning of the year.

I've got a lot of thinking to do about a lot of things over the next few months, and this blog is one of them. Not if to do it, but how. My frustration all along has been the sense that it's not a productive use of my energies because my audience is so small. I have no expectation of being (and truth be told, no desire to be) one of the Big Blogs or even one of the middling blogs with daily hits measured in four and even five figures. But a couple hundred hits, maybe?

Anyway, one thing I'm going to do in an attempt to increase traffic is to sign up with some of those ubiquitous bookmarking services. That, and get over my resistance to blatant self-promotion. There may be other changes, I dunno yet. More as (and if) it develops.

And if anyone has any helpful suggestions, proposals, whatever, I'm all ears. Well, eyes, technically, since I'll be reading it but you know what I mean.

For the moment, happy holidays and my best wishes for peace and joy for you and yours.

Footnote: A trivia question to which I suspect several of you know the answer: Why is December called December?

I just dropped in to see what condition my condition is in

No, I'm not back yet but I did want to note for the record that this did not come as a complete surprise to some of us.

Almost exactly three years ago, I responded to a poll question about "Iran's nuclear arsenal" by demanding to know "WHAT nuclear arsenal?" and noting that Iran denied an intention to go nuclear and that the EU was unsure on tne point.

Earlier that same day, I had noted the Bush administration's attempts to drive war panic over Iran, in the course of which I said regarding Iran's supposed "refusal to cooperate,"

I can and do entertain the possibility that Iran is being deceptive in its dealings and about its intentions. But I also entertain the notion that Iran, like most nations, like most people, may just really dislike the feeling of being bullied and is behaving more out of misplaced pride than a desire to manipulate and mislead the world community. ...

I don't dismiss the possibility of aggressive intent on Iran's part ... I do think other explanations are more likely.

The following June, I said that

Iran might - might, I say - be taking steps toward developing nuclear weapons....

One of the bases for the charge that Iran is conducting a covert nuclear weapons program - traces of weapons-grade uranium on centrifuges - has very likely been refuted....

That, of course, does not completely exonerate Iran, but it does make the case for any sort of sanctions against it much weaker.

And in March and April of this year, I said that I thought that it was more likely than not that Iran was going after nuclear weapons but that "the question isn't closed" and "I'm not convinced."

That is, for the past three years I've been pretty consistent in maintaining that while Iran "more likely than not" was trying to develop nuclear weapons, I was not convinced of it and if it was, it was more likely to be done out of a sense of its regional importance and feeling threatened rather than as a means of aggression. So while I can't claim to have flat-out said Iran wasn't looking for nukes, I can claim to have not been taken in by the WHS* and their fear-mongering.

*WHS = White House Sociopaths