32.7 - Outrage(s) of the Week

Outrage(s) of the Week

Finally for this week is our other regular feature, the Outrage of the Week.

I had two possibilities this week, one of which is overall potentially much more significant that the other but that other one is just so cheap, so low, that I found it hard to choose.

So I'll lay them both out. You can decide.

The cheap, low one is from last month.

In November 2016, the Centers for Medicare and Medicaid Services adopted a rule that prohibited nursing homes that accept Medicare or Medicaid funds from including forced arbitration language in their resident contracts.

Forced arbitration - I have talked about this before - is where in order to use a product or service you have to forswear your rights to go to court even as a member of a class action suit and agree to let any dispute be settled by a supposedly neutral arbiter chosen by the corporation whose income depends on being contracted by corporations to handle such arbitrations - which is a good part of the reason why corporations win 93% of the time.

More specifically, it means, in this instance, that in order to get admitted to the nursing home, prospective residents and their families would have to sign away their rights to take the corporation to court and agree that any dispute, even up to allegations of abuse, neglect, or sexual assault, would be settled by such a "neutral" arbiter. Don't agree? You don't get in. Take it or leave it; if you don't, there are others who will so we don't give a damn.

So as of last November, the rule became that nursing homes couldn't do that. Now, the Centers for Medicare and Medicaid Services want to undo that rule and again leave the elderly and their caretakers, at a time when they are under great emotional stress, to the tender mercies of the nursing home industry, which of course has been lobbying and suing over the rule ever since it went into effect.

There is just no other word for this but "low." It is so unfeelingly despicable, so morally outrageous, so ... low, that I don't know what else to say about it.

So let's move on the other other case.

First, you may know this but just to be sure: An amicus brief - properly, amicus curiae, literally "friend of the court" - is a legal brief filed by someone who wants to address some aspect of a case but who is not a party to it. Usually they are filed as support for one side or the other.

The ACLU reports that the TheRump administration has filed an amicus brief with the Supreme Court arguing - follow me here - that businesses have a constitutional right to discriminate against LGBTQ people, that a business could properly and rightly put out a sign saying "We Don't Sell To Gays" even if a state or Congress says such discrimination is illegal.

The case revolves around a baker who ran afoul of Colorado's anti-discrimination laws when he refused to make a wedding cake for a gay couple and who now wants SCOTUS to free him from any consequences of that. And now the White House has weighed in on his side because they insist it is his constitutional right to be a bigot, not just personally, but in his business dealings.

What makes this especially outrageous - and dangerous - is that the baker and the White House are not even "just" making the hackneyed claim that it's a freedom of religion issue: The baker insists - with White House backing - that creating a wedding cake is an act of creative expression to the point where it makes him a participant in the event, in the celebration, and anyone attending would assume that the cake meant he approved of the union.*

Therefore, the argument goes, denying him the "freedom" to be a bigot, denying him the "freedom" to refuse to serve a same-sex couple, becomes "compelled speech," he is "compelled" to say he supports same-sex marriage, and compelled speech violates the First Amendment.

In other words, they are claiming that not only his freedom of religion is at stake, but his freedom of speech as well.

But where does this logic end? If it's a violation of First Amendment rights to say that you cannot discriminate against others, that you can't be a bigot in your dealings with the public, where does it end? How can it be unconstitutional to say you can't discriminate against LGBTQ people but constitutional to say you can't do it in the case of blacks? or women? or Jews? or Muslims? or anyone else you happen to dislike or disapprove of?

The White House brief tries to thread that needle, claiming that this exemption for bigotry would not apply to discrimination based on race by arguing, in effect, that discrimination based on race is really, really bad - but discrimination based on being LGBTQ? Eh, not so much.

Which just proves that they are as bigoted and un-American as the baker - and every bit as much an outrage.

*Because after all, whenever you see a wedding cake, don't you immediately think about the baker's opinion of the marriage? Yeah, me neither.

17.2 - Footnote: Arkansas to create "assembly line of death"

Footnote: Arkansas to create "assembly line of death"

As a Footnote to that, here's a quick reminder of why this remains important, that we as a nation remain enamored of death.

Starting on April 17, Arkansas is scheduled to execute 11 people in eight days in what Rita Sklar, executive director of the Arkansas ACLU, accurately called "a ghastly assembly line of death."

And why the rush? Some legal - no cruel pun intended - deadline? Well, there is a time issue, but it's not a legal one. It's because the state's supply of midazolam, one of the drugs used by the state in the process of poisoning the prisoners, expires on April 30. So it's a case of "Omigosh! If we don't kill them now, we won't have another chance until we don't know when! So hurry up!"

What makes this all the stranger is that Arkansas has not carried out a death sentence in over 11 years, during which time its murder rate has actually declined slightly or at least remained just about the same.

In fact, 31 states still have this remnant of medieval barbarity on the books, even though, happily, it is being imposed less and less - but that's a trend that Arkansas seems determined to reverse.

16.8 - For the Record: items considered quickly

For the Record: items considered quickly

Next up, we have For the Record, our occasional feature where we cover some bits of news very quickly, just to make sure they gets mentioned. So:

For the Record, leaked documents show that Daniel Pantaleo, the New York cop who killed Eric Garner with a banned chokehold in July 2014, should have been fired long before that incident. Before he choked Garner to death over a claim of selling untaxed cigarettes, Pantaleo had seven disciplinary complaints lodged against him plus four individual allegations substantiated by an independent review board. None of them lead to any significant punishment.

For the Record, a couple of computer geeks have set up a website called MakeTweetsGreatAgain where people can sign up to donate anywhere from 10 cents up to the ACLU every time Donald TheRump sends out a tweet. So far over $1600 has been raised. They also let him know via Twitter how much each one of his tweets - which in his case really should be called twits - is worth.

Finally, For the Record, the annual African Global Economic and Development Summit, which is about trade between the US and African nations, was held in Los Angeles March 16-18. One thing was missing: Africans. Every one of the invited delegates from Africa, about 100 of them, had been denied a visa.

13.3 - Good News: 5th Circuit says filming cops is 1st Amendment right

Good News: 5th Circuit says filming cops is 1st Amendment right

Finally, we have what I'm calling Good News with a big question mark.

On February 27, a three-judge panel of the 5th Circuit Court of Appeals ruled that the public has a right to film the police.

Which on its face would seem to be Good News and, coming from the notoriously rightwing 5th Circuit, I suppose it is.

But: I have to ask why is this even an issue? Why is this a thing at all? Of course we have the right to film cops! And don't give me any crap about "qualified immunity" because there is no rational theory of qualified immunity that could enable it to obviate the First Amendment. How can it even be a question? And yet it is, over and over again.

Indeed, the ACLU says there is

a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places and harassing, detaining, and arresting those who fail to comply.

To make it worse, the 5th Circuit decision wasn't even unanimous: One of those three judges was prepared to find that you have no right to film or photograph cops - or, more precisely, that such a right "is not clearly established."

And the decision contained enough caveats and was written with such timidity - it treated finding a First Amendment right to video police as if it was some daring advance, which maybe for them it was - that it's hard to regard it as striking a major blow for free speech.

Even so, it adds to the growing bulk of cases and rulings that cops cannot exempt themselves from oversight by the general cellphone-carrying or camera-wielding public. And so, still wondering why this is even still a question, I have to call this Good News.

246.5 - Clown Award: psychologist James Mitchell

Clown Award: psychologist James Mitchell

Well, we don't have a Chutzpah Award but we do have a Clown Award, one of our regular features, and given, as always, for meritorious stupidity.

This week, the Big Red Nose goes to a psychologist named James Mitchell.

Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud were kidnapped and tortured by the CIA - excuse me, they were "subjected to enhanced interrogation" - they were kidnapped and tortured by the CIA in the period after 9/11. They are suing Mitchell and another psychologist named John "Bruce" Jessen, who were hired by the CIA to help develop the agency's torture program.

The government usually tries to short-circuit any such cases by claiming some variety of the state secrets privilege, which is itself legally bogus but that's for another time.* The problem for the torture-philes here is that the ACLU, which is representing Salim and Ben Soud, says it can litigate the case relying entirely on public records, so the "It'll harm national security!" dodge is not available and so far the government has made no move to block the case from proceeding, although it still could.

Mitchell and Jessen, who were paid at least $81 million to design torture techniques for the spooks, tried to claim they were immune from civil suits because they were working for the government. The effort failed: In a landmark decision, in mid-April federal Judge Justin Quackenbush of the Eastern District of Washington, where the suit was filed, said "I don’t think I have any other choice" but to let the suit go forward.

But of course the shrinks' lawyers weren't done - and this is where it starts to get good - now arguing that the pair, quoting, "did not create or establish the CIA enhanced interrogation program." In fact, that claim will be "a major focus" of the defense. Nope, not us, uh-uh, don't know what you're talking about.

James Mitchell

Except:

Mitchell has written an as-yet-unpublished book called Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying To Destroy America. The pre-publication promotional material for the book describes Mitchell as the "creator of the CIA's controversial Enhanced Interrogation Program" and having had "a leading role in [its] development." It calls him "one of the primary terrorist interrogators" and says the book offers "a dramatic firsthand account of the design, implementation, flaws and aftermath of the program."

That is, Mitchell and his partner Jessen are claiming they had nothing to do with creating the CIA's program of torture - while Mitchell has written an entire book in which he claims to be its creator.

That is truly meritorious stupidity. James Mitchell and John "Bruce" Jessen are both scumbags for their work - but Mitchell is truly, truly, a clown.

Quick footnote: the publication date of Mitchell's book, set for May 10, has been pushed back indefinitely. Can't think why.

Sources cited in links:
http://www.huffingtonpost.com/entry/cia-prisoners-torture_us_5718140ce4b0479c59d6f894
http://www.huffingtonpost.com/entry/cia-torture-lawsuit_us_571a8fdbe4b0d0042da94ac0
http://www.huffingtonpost.com/entry/cia-torture-program-psychologist-book_us_57226af8e4b0f309baf04616

*I have written about the "state secrets privilege and why it is bogus a few times, including here and here.

159.5 - Outrage of the Week: author of "kill US citizens with drones" memo nominated to US Appeals Court

Outrage of the Week: author of "kill US citizens with drones" memo nominated to US Appeals Court

Updated Finally, we have our other regular feature, the Outrage of the Week. This week, it's actually a series of interrelated outrages.

We have to start with a bit of history. Back in April 2010, I responded to the revelations that Barack Obama had ordered the “targeted assassination” of Anwar al-Awlaki, who was a suspected terrorist but also an American citizen abroad, by writing, in part,

Mr. President, just who the hell do you think you are?

We (supposedly) have no king, no czar, no leader with absolute authority. So who do you think you are that you can order the murder - and let’s be honest here, that’s what we’re talking about, the cold-blooded murder - of an American citizen? An American citizen who has been convicted of no crime, who has had no day in court, but is to have his body ripped to shreds based solely on the kind of intelligence that has served us so well in the Middle East, from the fall of the Shah to the supposed existence of WMDs.

You are claiming for yourself a power, an authority, that even the Bush administration - that shredder of the Constitution, that underminer of privacy, that stripper of civil liberties, that embracer of torture, that invader of foreign lands without justification - an authority even the Bush administration did not claim for itself: the power to order, on your own authority, subject to no oversight and no need for proof beyond your personal belief, the “extrajudicial killing,” the “targeted assassination,” the murder, of American citizens.

I was far from the only one outraged at the time and the issue has remained let's call it contentious to at least some degree since.

That's the first outrage here: that there is such a policy, a policy to kill with drones, a policy including killing American citizens with drones, the only restriction - as of now - being that those citizens must be outside the territory of the US.

The thing is, the Obama administration claimed to have legal authority to do that based on, it claimed, a legal memo expressing that judgment - a memo that was, of course, classified. Several members of Congress requested, asked, begged, or demanded to see this memo, but it was all talk to the hand.

Several suits were filed over this, one of which finally succeeded: In April, in response to a Freedom of Information Act suit by the ACLU and the New York Times about some memos related to the drone program, including the one authorizing the killing of Americans, the Second Circuit Court of Appeals ordered the administration to release the documents.

Obama of course didn't want to and had 45 days to file an appeal. So much, yet again, for "the most transparent administration in history."

But The Amazing Mr. O had a problem: He had nominated an author of that memo, one David Barron, to a seat on the First Circuit Court of Appeals. And a number of folks, including several Senate Democrats, were unhappy enough about not being able to see the memos Barron wrote to use his nomination as leverage to force their release.

Here, by the way, is the next outrage: the very fact that this guy, the Obama gang's John Yoo, is being nominated for a lifetime position on the federal bench. In fact, he's worse than John Yoo: Yoo only came up with an argument for why it's okay for a president to order the torture of people; this guy came up with an argument for why it's okay for a president to order the murder of people, including US citizens.

Anyway, a couple of weeks ago, the O. gang offered a compromise: members of the senate could see the memos, but they still wouldn't be released where we mere peons might get a look at them.

That, as it turned out, didn't satisfy some people such as Sens. Mark Udall and Ron Wyden, who said they might oppose Barron over the issue.

So on Tuesday, the day before a key procedural vote on Barron's nomination, "two officials who are not authorized to comment publicly" - that is, it was a leak, which as we all know is a horrible practice which Obama deplores - two officials made it known that the administration would not appeal the order to release the memo.

It will, however, try to convince the appeals court to redact - that is, censor - even more of the memo and the other information involved in the decision than the court already did in ordering the release of its own redacted version. Which is another layer of the outrage, because it means even after saying the administration will not oppose release of the memo, the O. gang is still going to try to suppress as much of it as it possibly can, no doubt while declaring its commitment to "openness."

It also means it easily could be weeks or longer before the memos actually see the light of day and we have no idea how much will be stripped out and remain hidden behind the administration's wall of secrecy.

Even so - and this is where the outrage starts to boil over - even so, that promise of "something will come out some time in the future" was enough for those stalwart Democrats - including both Udall and Wyden - to start falling all over themselves to get in line.

Just throw 'em a bone and they come licking your face.

Licking face even to the point where some, such as Pat Leahy, were dismissing the whole issue of the memos and their release, the whole question of Barron's role in providing the basis for a policy of legalized assassination of American citizens - something which by the way, we denounce as a violation of basic human rights when other nations do it to their own citizens even when they claim, as we do, "national security" as justification - some senators were dismissing the entire question as irrelevant. Apparently this is another part of Obama's policy of "look forward, not backward" and amnesty - and amnesia - apply to members of his administration as well as to the Bush gang and Wall Street.

So sum it up: We have a policy that allows the president - any president - to assassinate, to murder, US citizens based solely on their unreviewable, unchallengeable, conclusion that the person is some kind of "terrorist" or they are around where some kind of "terrorist" is, the person who came up with a legal justification for it is rewarded with a seat on the federal bench, and the supposed liberals, the great humanists, of Senate Democrats can't even rouse themselves enough to say no and mean it.

Yeah, that is an outrage.

Updated with the news that on Thursday, May 22, the Senate confirmed Barron to the federal bench in an almost straight party-line vote.

In support of Barron, our own Senator Ed Markey said Senators should ignore the whole memo business, saying Barron was merely "a lawyer who was asked to do legal analysis for his client: the president of the United States." Yeah, a legal analysis that - gasp! shock! sacre bleu! whooda thunk it! - wound up telling his "client" exactly what that client wanted to hear,, leaving Obama sighing "Thank God for coincidence."

I'm sure, by the way, that on request Senator Ed can provide copies of the statements he must have made defending John Yoo against criticism of his role in writing the torture memos for George Bush.

Sources cited in links:
http://whoviating.blogspot.com/2010/04/its-just-question.html
https://www.aclu.org/
https://www.aclu.org/national-security/us-release-targeted-killing-memo-sought-aclu-foia-lawsuit
http://time.com/97613/obama-drone-memo-david-barron/
http://www.msnbc.com/msnbc/white-house-compromise-targeted-kill-memo-david-barron
http://www.washingtonpost.com/world/national-security/us-to-reveal-justification-for-drone-strikes-against-american-citizens/2014/05/20/f607bb60-e066-11e3-8dcc-d6b7fede081a_story.html
http://www.usatoday.com/story/news/politics/2014/05/20/justice-dept-drone-memo/9347697/
http://www.foxnews.com/us/2014/05/21/reid-predicts-senate-will-approve-obama-judge-nominee-who-helped-craft-drone/
http://www.huffingtonpost.com/2014/05/22/david-barron-drone-memo_n_5373015.html
https://www.youtube.com/watch?v=Q_2hlKqRTPg

143.1 - Good news: Pennsylvania voter photo ID law struck down

Good news: Pennsylvania voter photo ID law struck down

As always, where there is good news, we start off that way.

Last Friday, January 17, Pennsylvania's voter photo ID law was struck down by a state judge as unconstitutional. Commonwealth Court Judge Bernard McGinley said the law unreasonably burdens the fundamental right to vote and the state had no convincing explanation for why it was necessary.

The legislative debate on the measure when it was passed in 2012 was the same as everywhere else this has come up: Right-wingers argued it was necessary to prevent in-person voter fraud - while being forced to admit, when pressed, that they had no evidence that such fraud was occurring and certainly not to anything near an extent that would justify the massive disenfranchisement of voters that would result. In fact, in the specific case of Pennsylvania, Slate.com came up with precisely five confirmed cases of voter fraud of all types, not just in-person fraud - while at trial, the state's own witnesses said that by their own estimates somewhere between 320,000 and 400,000 already-registered Pennsylvania voters did not have the required ID and so would be barred from voting by the law.

Pennsylvania Governor Tom "Space Cadet" Corbett has asked the judge to reconsider while he thinks about his options, which could include an appeal to the state Supreme Court. He might want to bear in mind that this is the second time a Pennsylvania state court has delivered a smackdown over this law.

Witold Walczak of the ACLU, which helped lead the legal challenge, said "the act was plainly revealed to be nothing more than a voter suppression tool," a nation given extra credence by the recently-published research of sociologist Keith Bentele and political scientist Erin O’Brien of UMass Boston. They found that the states that have enacted tougher voter ID laws in the past few years are the same states where both minority and lower-income voter turnout had increased in recent years.

When they looked specifically at 2011, when many of these laws were passed, they found the three strongest common factors among those states were 1)GOPers controlled the state legislature and the governor's office, 2)they were likely to be swing states in the 2012 elections, and 3)minority turnout was up in 2008 and with high proportions of African-American voters.

In other words, as Salon.com headlined it, the study "confirms every bad thing you suspected about voter ID laws" - that they are nothing other than attempts by the right wing to hinder the ability of blacks, the poor, women, and other historically disenfranchised and under-represented groups to vote. These laws are racist, classist, sexist, profoundly undemocratic, and bluntly un-American. Those who push them are only interested in maintaining their own privileged positions in society. I would say they should be ashamed except that their actions prove they have none.

There is some feeling in some quarters that this decision in Pennsylvania will strengthen efforts in other places to strike down or prevent the enactment of such laws. Now, that would be good news.

Sources:
http://www.huffingtonpost.com/2014/01/17/pennsylvania-voter-id-law_n_4617021.html
http://www.slate.com/articles/news_and_politics/map_of_the_week/2012/09/voter_id_laws_a_state_by_state_map_reveals_how_much_voter_fraud_there_is_in_the_united_states_almost_none_.html
http://www.examiner.com/article/two-time-loss-voter-id-trial-may-influence-commonwealth-s-decision-to-appeal
https://en.wikipedia.org/wiki/Tom_Corbett%2C_Space_Cadet
http://philadelphia.cbslocal.com/2014/01/22/corbett-asks-commonwealth-judge-to-reconsider-voter-id-knockdown/
http://journals.cambridge.org/action/displayFulltext?type=6&fid=9122052&jid=PPS&volumeId=11&issueId=04&aid=9122051&bodyId=&membershipNumber=&societyETOCSession=&fulltextType=RA&fileId=S1537592713002843
http://www.salon.com/2013/12/21/study_confirms_every_bad_thing_you_suspected_about_voter_id_laws_partner/

128.8 - More on NSA spying

More on NSA spying

Update: An unusually (for me) large number of hits on this. Anyone care to leave a comment to tell me what lead you here?

We'll wrap up the week with some more stuff about 1984 coming a few decades too late. Last week I ran down a roughly chronological list of revelations about the massive collection of personal information - the massive spying - engaged in by the US government, including spying on its own citizens. I said this week I was going to touch on some of the cheap defenses and lame excuses of the spying that have been offered by government officials. Which I will, right after I note another, new, revelation:

Under Obama, the NSA has been collecting massive amounts of data on social connections among some Americans to help “discover and track” connections between “intelligence targets overseas and people in the United States” according to a report in The New York Times.

Since 2008, the spooks have had the power to analyze Americans' phone and e-mail data for tracking such alleged "connections." But since 2010, under the Obama gang, they have been able to combine that communications data with, the Times said, "material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data” in order to identify Americans’ “associates, their locations at certain times, their traveling companions, and other personal information,” including such things as religious or political affiliations or one's regular calls to a psychiatrist’s office or late-night messages to an extramarital partner.

Use of this “enrichment” data is apparently unrestricted.

As the ACLU said,

This report confirms what whistleblowers have been saying for years: the NSA has been monitoring virtually every aspect of Americans’ lives - their communications, their associations, even their locations.

And for what? Why, to protect us! Why else?

That's why at a recent hearing before the Senate Intelligence Committee, NSA Director Keith Alexander - who has had himself built a command center he called the Information Dominance Center and which was based on the deck of the starship Enterprise and no, I'm not kidding; even the doors go "whoosh" - said the NSA wants to collect more phone records. Asked about the revelations of tens of millions of phone records being collected by his agency and if there was an upper limit to how much information he wanted, Alexander said there is no upper limit and that, quoting, "I believe it is in the nation's best interest to put all the phone records into a lockbox that we can search when the nation needs to do it."

First, doofus, it can't be a "lockbox" if you can go through it anytime you want and second, let's get this straight: It is not and would not be "the nation" going through our records, it would be you, you and the rest of your creeps getting off on the power of being able to know stuff about everybody else. You are not the nation. And your apparent inability to recognize that, yours and others right up to and including the Amazing Mr. O himself, is exactly why you represent a danger to democratic freedoms, a greater danger than any terrorist or terrorist group.

And by the way, don't give me any crap about all your "dedicated professionals." It's not their dedication I doubt and at least for most of them, it's not their professionalism I question. It's the very nature of the enterprise in which they are engaged, an enterprise which strikes at the very heart of the personal freedom and the personal privacy that are vital to the core foundation of any people who strive to be and remain free.

But instead of officials proposing actual changes even merely to limit the abuses, without even claiming to stop them or even focus on them, we get a sort of good-cop-bad-cop public relations campaign to lull us into complacency, distract us from the issue at hand, and terrify us into accepting even more spying.

The lulling came from the White House. Understand first that there are two main pieces of legislation involved here: Section 215 of the so-called Patriot Act, which I have always called the Traitor Act because of its impact on civil liberties, which is used to justify the phone snooping, and Section 702 of the Foreign Intelligence Surveillance Act, or FISA, which is the supposed justification for the email and other internet spying on Americans.

Well, Obama supposedly responded to public outrage, supposedly recognized the need for changes to curtail the feds' ability to spy on Americans. He called for changes in the law and said he would create a panel of independent outsiders to examine NSA practices because, he said, “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.”

Feel all better?

Point the one: He called for changes in the Traitor Act - Section 215, about the phones - but never mentioned FISA, never mentioned Section 702, about the emails and the rest of the online stuff. And he has yet to say what specific changes he wants in the Traitor Act.

And the "independent outsiders?" It turns out that four of the five members have worked for Democratic administrations and the fifth leads a committee looking to build Obama's presidential library.

The AP reports that the review panel has effectively been operating as an arm of the Office of the Director of National Intelligence, that is, of James Clapper:

The panel's advisers work in offices on loan from the DNI [Director of National Intelligence]. Interview requests and press statements are coordinated through the DNI's press office. Its final report will be submitted for White House approval before the public can read it.

What's more, Clapper, apparently on his own authority, exempted the panel from the federal law that requires federal committees to conduct their business and their meetings openly, with the result that its meetings have been closed to the public even though participants say nothing classified was discussed.

Not enough? The consider the president’s memorandum establishing the panel. Quoting:

The Review Group will assess whether, in light of advancements in communications technologies, the U.S. employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.

Notice that there is nothing in there, not a phrase, not a word about, not a passing pro forma mention of, preventing abuses and protecting the public's privacy and rights.

While the White House lulled, Congress - specifically, the Senate Intelligence Committee - carried on with the distracting. Recently, in what journalist Kevin Gosztola, who has followed this from the very beginning, accurately called "a sham" of a hearing on NSA spying in which the six witnesses consisted of four Obama administration officials and two so-called experts who are both rabid supporters of the spying, almost all of the members turned their attention to what they claimed are the real problems: the media and Edward Snowden.

Chair Dianne Feinstein, the biggest apologist for the national security state in the whole Congress, whose role model for "oversight" is Sgt. Schultz from "Hogan's Heroes," said the whole thing was the fault of the media and Snowden. Ranking GOPper Saxby Chambliss said Snowden will have blood on hands and should be prosecuted. GOPper Dan Coats spent so much time ranting about the media that he didn't have time to ask a single question.

Senators Tom Udall and Ron Wyden tried to do their jobs as senators in questioning the witnesses, but there was very little that could be done in the six minutes each of them had.

And then there was the ever-present, the ever-faithful, the happily-no-longer-as-effective but still-present, fear-mongering.

The day before that Senate hearing, NSA Director Alexander - the man with the starship Enterprise command center with the doors that go whoosh - said in a speech at the National Press Club that if Congress hampers the spooks' ability to gather whatever and however much information they want without even the inconvenience of warrants, well, then, the type of terrorist attack launched at a mall in Nairobi, Kenya by the group Al-Shabaab a week and a-half ago, an attack that left at least 67 dead and as of today, 39 still missing, that that kind of attack is going to come to the US!

Yes, he actually said that, in essentially so many words: The actual quote was:

If you take those [surveillance powers] away, think about the last week and what will happen in the future. If you think it’s bad now, wait until you get some of those things that happened in Nairobi.

Dianne Feinstein, by the way, didn't miss her cue, obediently echoing Alexander's bug-eyed invocation of the Nairobi slaughter in her opening remarks at the next day's hearing.

I'm running out of time and there's still more to cover, which will have to wait until next week, as will coverage of the latest report on global climate change just released by the Intergovernmental Panel on Climate Change.

So I'll just say this: An outfit called MotherboardTV got hold of a manual that includes a list of hundreds of key words the spooks use to screen and monitor emails. The group has set up a site - nsa.motherboard.tv - which generates sentences that are entirely innocent but contain as many of these key words as possible.

A few of my favorite examples, with the keywords in italics, are:

- Working titles for my grindcore band: Blister Agent, Spillover, Agro Terror, Brute Forcing, Temblor.
- I have a bacterial infection. Food poisoning. A toxic plume made an evacuation from my bowels.
- Erosion of US hegemony is a disaster. We ignored the warnings and outsourced an avalanche of jobs to China.
- Character assassination isn't funny. Call Edna a toxic bitch one more time, and find yourself a new bridge game.

Sources:
http://dissenter.firedoglake.com/2013/09/28/obama-allowed-continued-expansion-of-nsa-program-to-collect-data-on-some-americans-social-networks/
https://www.aclu.org/
http://www.foreignpolicy.com/articles/2013/09/08/the_cowboy_of_the_nsa_keith_alexander?wp_login_redirect=0
http://www.huffingtonpost.com/2013/09/26/keith-alexander-nsa_n_3998071.html
http://www.mcclatchydc.com/2013/08/14/199404/obamas-surveillance-revisions.html#.UkXB2z-Pzpc
http://www.businessweek.com/articles/2013-08-13/obama-puts-spies-in-charge-of-investigating-spies
http://bigstory.ap.org/article/close-ties-between-white-house-nsa-spying-review
http://www.huffingtonpost.com/2013/09/26/senators-nsa-media_n_3998229.html?ref=topbar
http://dissenter.firedoglake.com/2013/09/26/nsa-director-supports-putting-all-americans-phone-records-in-lockbox/
http://www.theguardian.com/commentisfree/2013/sep/27/ron-wyden-nsa-systematically-deceived
https://www.youtube.com/watch?v=34ag4nkSh7Q
http://thehill.com/homenews/administration/324747-top-spook-asks-public-for-backup
http://www.independent.co.uk/news/world/africa/kenya-mall-attack-sixth-briton-confirmed-dead-after-nairobi-westgate-shopping-centre-massacre-8846266.html
http://www.scribd.com/doc/150435756/How-the-DHS-Monitors-You-on-the-Internet#page=21
http://nsa.motherboard.tv/

Left Side of the Aisle #124

Left Side of the Aisle
for the week of September 5-11, 2013

This week:

Good News #1: IRS says legally-married same-sex couples are married no matter where they live
http://www.huffingtonpost.com/2013/08/29/same-sex-couples-federal-taxes_n_3837444.html
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/19/cardin-irs-needs-to-quickly-address-tax-rules-for-same-sex-couples/

Good News #2: Federal court orders Ohio to recognize same-sex marriage performed out of state
http://www.huffingtonpost.com/2013/09/03/ohio-must-recognize-marriage_n_3863068.html

Good News #3: Federal court says "Do Not Fly" list raises Constitutional questions
https://www.aclu.org/national-security/federal-court-sides-aclu-no-fly-list-lawsuit

Clown Award: NSA blocks sale of parody t-shirt
http://www.dailydot.com/news/dni-nsa-email-metadata-tracking/
http://news.yahoo.com/parody-t-shirts-nsa-probably-doesnt-amusing-161947308.html
http://www.dailydot.com/news/nsa-trademark-infringement-liberty-maniacs/
http://www.cafepress.com/mf/78962042/the-nsa_tshirt

DOJ will not sue to to block Colorado, Washington laws legalizing pot; some cops freak out
http://www.cnn.com/2013/08/29/politics/holder-marijuana-laws
http://www.huffingtonpost.com/2013/08/29/doj-marijuana-guidelines_n_3838589.html
http://legalizationofmarijuana.com/
http://www.washingtonpost.com/blogs/the-fix/wp/2013/04/04/legalize-it-poll-shows/
http://www.huffingtonpost.com/2013/08/30/police-eric-holder-marijuana-_n_3846518.html
http://www.youtube.com/watch?v=V2FZgErvNTE
https://www.theiacp.org/portals/0/pdfs/FINALLawEnforcementGroupLetteronDOJMarijuanaPolicy.pdf
http://www.huffingtonpost.com/2013/03/06/aclu-police-militarization-swat_n_2813334.html
http://www.huffingtonpost.com/2013/08/30/marijuana-legalization-states_n_3838866.html

RIP David Frost
http://www.huffingtonpost.com/2013/09/01/david-frost-dead-dies_n_3851784.html?ir=Media
http://www.historycommons.org/timeline.jsp?timeline=nixon_and_watergate_tmln&nixon_and_watergate_tmln_media_response=nixon_and_watergate_tmln_frost_nixon_interviews
https://en.wikipedia.org/wiki/That_Was_The_Week_That_Was

Recent news on global warming
http://www.usatoday.com/story/weather/2013/08/20/climate-change-global-warming-ipcc-report/2678683/
http://www.noaanews.noaa.gov/stories2013/20130806_stateoftheclimate.html
http://www.huffingtonpost.com/2013/05/02/un-says-2012-was-9th-hottest-year_n_3200272.html
http://www.huffingtonpost.com/2013/08/06/2012-climate-change-repor_n_3715258.html?ref=topbar
http://www.huffingtonpost.com/2013/03/15/somalia-famine-climate-change_n_2883088.html
http://www.salon.com/2013/05/13/is_climate_change_fueling_an_epidemic_partner/
http://thinkprogress.org/climate/2013/07/31/2312591/climate-change-wildfires/
http://www.huffingtonpost.ca/2013/07/30/us-cities-sinking-climate-change_n_3676325.html
http://www.desmogblog.com/alec-climate-change-denial-model-bill-passes-tennessee
http://www.desmogblog.com/alec-model-bill-behind-push-require-climate-denial-instruction-schools
http://www.salon.com/2013/06/19/house_goper_term_climate_denier_offensive_because_its_like_holocaust_denier/

Syria: More deaths are not an answer
http://www.huffingtonpost.com/2013/09/03/obama-congress-syria_n_3860126.html
http://talkingpointsmemo.com/news/wave-of-bombings-kill-47-in-iraq.php?ref=fpb
http://news.yahoo.com/video/syrias-one-million-lost-children-153651080.html
http://www.juancole.com/2013/09/president-gassing-divisions.html
https://www.doctorswithoutborders.org/press/release.cfm?id=7029
http://video.msnbc.msn.com/all-in-/52916809#52916809
http://www.bbc.co.uk/news/world-middle-east-23950253
http://www.theguardian.com/commentisfree/2013/sep/01/obama-congress-syria-authorization
http://livewire.talkingpointsmemo.com/entry/following-pew-poll-abc-wapo-finds-even-larger?ref=fpb

Outrage of the Week: US intelligence knew Assad was to attack with chemical weapons, gave no warning
http://digbysblog.blogspot.com/2013/08/can-someone-explain-to-me-why-this-isnt.html
http://thecable.foreignpolicy.com/posts/2013/08/30/us_had_intel_on_chemical_strike_before_it_was_launched

123.1 - Good News #1: Arizona fails to bar Planned Parenthood from Medicaid program

Good News #1: Arizona fails to bar Planned Parenthood from Medicaid program

So we start the week, as I always do when I can, with good news. Two bits of good news, in fact, both from the southwest US.

First, in Arizona.

Last year, the state passed a law which would prohibit Medicaid patients from receiving any covered services at clinics that also provide abortion care. The law was clearly and directly aimed at Planned Parenthood. I still find it astonishing that Planned Parenthood - I mean, Planned Parenthood? - is now supposed to be a wildly controversial organization. It just shows how far to the wacko right some of our state legislatures have gone.

In response to this law, Planned Parenthood and the ACLU sued - and in February, a federal district court agreed,granting a summary judgment in favor of a permanent injunction.

The good news here is that the Ninth Circuit Court of Appeals has upheld that decision.

Judge Marsha Berzon, writing for the unanimous three-judge panel, said the issue comes down to a simple fact: Federal law allows those enrolled in Medicaid to get the services from any qualified provider.

The state tried to claim that, well yeah, that's true, but the state is free to decide who is “qualified.” That argument got short shrift, considering that the federal law defines "qualified" as a provider “qualified to perform the service or services required.” Since the state has never claimed that Planned Parenthood staff doctors are unqualified to perform gynecological exams or STD testing, and in fact said that Planned Parenthood could continue to participate in the state's Medicaid program if it stopped providing abortions, the state's attempt at a defense of the law was - Judge Berzon didn't say this, obviously, but the meaning is clear enough - that defense was lame.

This was actually the second win for Planned Parenthood in the last month, as a similar law in Indiana got hit with a permanent injunction the end of July - the day after the state conceded in a settlement with Planned Parenthood of Indiana and Kentucky that the state cannot violate Medicaid’s “freedom of choice” provision.

Indiana hasn't given up yet, however: First, you need to know of Mifepristone, formerly called RU-486. It's the so-called "abortion pill," the "morning after pill," which provides a non-surgical means of providing abortion in the first seven to nine weeks of pregnancy. Well, a new amendment to Indiana state law requires that any facility which provides Mifepristone must meet the same standards as clinics that offer surgical procedures, including separate procedure, recovery, and scrub rooms - even if there are no surgical procedures performed there. This amendment, it turns out, applies to precisely one facility: a Planned Parenthood clinic in Lafayette.

But Planned Parenthood and the ACLU haven't given up, either. They have filed suit, saying the amendments "are not reasonably related to any legitimate purpose," "irrationally and invidiously discriminate against" Planned Parenthood and impose "a significant and unnecessary burden" on the women affected.

So the fight goes on.

Sources:
http://www.rawstory.com/rs/2012/07/17/pro-choice-groups-file-lawsuit-over-arizona-law-defunding-planned-parenthood/
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/21/12-17558%20web.pdf
http://www.huffingtonpost.com/2013/08/23/arizona-planned-parenthood_n_3804487.html
http://www.eastvalleytribune.com/arizona/capitol_media_services/article_96a86f52-0b6e-11e3-8bc5-0019bb2963f4.html
http://www.courier-journal.com/article/20130730/NEWS10/307300111/Planned-Parenthood-Indiana-reach-agreement-funding?gcheck=1
http://medical-dictionary.thefreedictionary.com/mifepristone
http://www.huffingtonpost.com/2013/08/23/planned-parenthood-indiana-abortion-law_n_3805436.html?utm_hp_ref=huffpolitics-blog
https://www.aclu.org/reproductive-freedom/aclu-and-planned-parenthood-file-anti-discrimination-lawsuit-against-indiana

Left Side of the Aisle #102 - Part 1

Good news #1: Not-so-secret drones

I've talked some about the White House drone program, and how it is so wrapped up in secrecy that it's hard to know just what's going on and how that's just how President Hopey-Changey likes it.

Well, now, not quite so much.

About two weeks ago, a federal appeals court in Washington, DC, ruled that the CIA, which until now has been running the targeted killing program on behalf of Obama, can no longer refuse to respond to Freedom of Information Act, or FOIA, requests on secrecy grounds.

The ACLU had filed an FOIA request in January 2010, over three years ago, seeking to learn

when, where, and against whom drone strikes can be authorized, and how and whether the U.S. ensures compliance with international law restricting extrajudicial killings.

The CIA responded with a so-called “Glomar” response - a “neither confirm nor deny” response - arguing that it couldn't release any documents because even acknowledging such documents exist (and therefore acknowledging the existence of the program) would harm national security.

Initially, a district court agreed - and when the ACLU appealed, the White House continued to make that argument even after Obama's nominee to lead the CIA, John Brennan, spent hours before the Senate Intelligence Committee praising the CIA's targeted killing program and discussing how he would oversee it!

But the Appeals Court has overruled that lower-court decision, taking the astonishingly reasonable real-world attitude that the CIA cannot deny the existence of a targeted killing program that has been the subject of mainstream political discourse, Senate hearings, filibusters, and even remarks from Obama himself.

The drone program has already killed more than 4,000 people - nearly the number of US troops killed in the Iraq War - in an unknown number of countries. Quoting the ACLU,

The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders.

Now, it will be harder for The Amazing Mr. O. - who wanted, bizarrely, the courts to have to act as if no one knew what everyone knew - to hide behind a veil of secrecy. At least on this. And that is good news.

Sources:
http://www.salon.com/2013/03/15/federal_court_cia_cant_ignore_foias_on_drones/
http://www.aclu.org/national-security/dc-appeals-court-rejects-cias-secrecy-claims-aclus-targeted-killing-foia-lawsuit
http://www.guardian.co.uk/commentisfree/2013/feb/14/cia-aclu-drone-secrecy

Left Side of the Aisle #102

Left Side of the Aisle
for the week of April 4-10, 2013

Good news #1: Not-so-secret drones
http://www.salon.com/2013/03/15/federal_court_cia_cant_ignore_foias_on_drones/?source=newsletter
http://www.aclu.org/national-security/dc-appeals-court-rejects-cias-secrecy-claims-aclus-targeted-killing-foia-lawsuit
http://www.guardian.co.uk/commentisfree/2013/feb/14/cia-aclu-drone-secrecy

Good news #2: UN treaty on arms sales
http://www.huffingtonpost.com/2013/04/02/un-adopts-arms-treaty-global-weapons-trade_n_2999505.html
http://www.salon.com/2013/04/02/u_n_adopts_arms_treaty/
http://www.huffingtonpost.com/2013/03/18/worlds-top-5-arms-exporters_n_2899052.html

Good news #3: SCOTUS says "Down, boy!"
http://www.huffingtonpost.com/2013/03/26/drug-sniffing-dogs-unconstitutional-search_n_2956079.html?utm_hp_ref=mostpopular

Good news#4: Same-sex marriage continues to gain
http://www.huffingtonpost.com/2013/04/02/mark-kirk-gay-marriage_n_2999668.html
http://www.csmonitor.com/USA/DC-Decoder/2013/0330/Gay-marriage-opinion-shift-conservative-lawmakers-pundits-left-scrambling/%28page%29/2
http://www.huffingtonpost.com/2013/03/26/supreme-court-proposition-8_n_2950615.html
http://mediamatters.org/research/2009/05/12/oreillys-ark-gay-marriage-could-lead-to-goat-du/150069
http://www.huffingtonpost.com/2013/03/27/bill-oreilly-gay-marriage-thump-bible_n_2962110.html
http://www.salon.com/2013/04/02/alan_keyes_gay_marriage_is_the_archetype_of_all_crimes_against_humanity/
http://www.salon.com/2013/04/02/baptist_pastor_calvin_butts_marriage_equality_is_the_freedom_god_has_given_you/

Clown Award: Georgia GOP chair Sue Everhart
http://www.huffingtonpost.com/2013/04/01/sue-everhart-gay-marriage_n_2991860.html

Outrage of the Week: Wal-mart will brook no opposition
http://www.huffingtonpost.com/2013/03/20/cvs-workers-insurance_n_2915006.html
http://ehbs.kff.org/pdf/2012/8346.pdf
http://www.reuters.com/article/2013/03/25/us-walmart-trespass-lawsuit-idUSBRE92O0W820130325
http://www.presstv.ir/usdetail/295341.html
http://articles.orlandosentinel.com/2013-03-26/news/os-walmart-sues-orange-protesters-20130326_1_wal-mart-workers-wal-mart-employees-wal-mart-stores
https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
http://www.sourcewatch.org/index.php/SLAPP
http://www.anti-slapp.org/
http://www.anti-slapp.org/recent/in-a-new-aisle-energy-drinks-sidestep-some-rules/

Update #1: More transparency reports
http://arstechnica.com/tech-policy/2013/03/us-law-enforcement-gets-most-customer-data-from-microsoft/

Update #2: Keystone XL pipeline
http://www.salon.com/2013/03/26/states_keystone_report_authors_also_okayed_explosive_caspian_pipeline/?source=newsletter

Left Side of the Aisle #78 - Part 2

Outrage of the Week: Supreme Court lets telcomms off the hook

Here's the background: During the administration of George Bush, known to one and all as Shrub, the White House engaged in massive and illegal warrantless surveillance of electronic communications - that is, phone calls and email. This was done with the assistance of several of the giant telecommunications companies, such as AT&T and Sprint. AT&T even built a separate room with the single purpose of enabling the National Security Agency to have total access to all of its customers' communications. The surveillance was illegal and what the companies did in support of it was illegal. There were multiple laws in place at the time saying so.

Neither the Bush nor the Obama administration would prosecute any of this criminality, so various organizations concerned with civil liberties and privacy rights, such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), filed civil suits against the government and the corporations.

Initially, the telcomms were losing in court. Not too surprising, since they'd been caught red-handed and their claims that they acted in the "good faith" belief that it was all legal just couldn't be (and weren't) taken seriously.

But of course these giant corporations couldn't actually be held responsible for what they did illegally - especially since cases against them for what they did illegally might reveal more of what the government did illegally. So in 2008, Congress passed a law giving those companies retroactive immunity from all civil suits - a bill passed, incidentally, with the support of then-candidate Barack Obama, who had previously promised to lead a filibuster of any such legislation.

The groups suing the telcomms saw their cases ripped away by this absurd law. So they filed claims that the law was unconstitutional in that it both violated the separation of powers and denied customers of their right to redress without due process of law.

I mean, consider what this means: By the logic of this law, in the face of any offense against you, any crime committed against you, any violation of your rights, the government could simply on the one hand refuse to prosecute and on the other retroactively bar you from any civil action, leaving you with no recourse. It means the government can essentially immunize anyone, any group, any corporation it wants from all legal consequences for its behavior.

It seems a ridiculous notion - so of course the plaintiffs, those who filed the suit, lost. Courts embraced the law in order to avoid having to deal with the sticky issues involved, ones that could force the courts to actually question the conduct of the Executive Branch, something courts are loath to do.

Last December, the Ninth Circuit Court of Appeals let the suits against the government proceed, but it dismissed the arguments for reinstating the suits against the telcomms, relying on the law for retroactive immunity.

Why this comes up now is that last week, the Supreme Court refused to hear an appeal of that ruling, putting a final end to any hope of holding these giant, law-breaking corporations responsible for their actions.

So at the end of it all, the giant corporations that illegally helped with illegal government spying simply walk away untouched. And that's not even the biggest outrage of this. No, it's this: One of the reasons, the really big argument, for granting retroactive immunity - and the central argument the Obama administration used in urging courts to dismiss the suits - was the assertion that the government wanted to encourage cooperation in future such efforts.

Now bear in mind that if what the government wants to do is legal and what it wants the telcomms to do is legal, there is no problem. The issue does not arise. So what the government - what the Obama administration now - is actually saying here is that it wants to be able to illegally wiretap and it wants the corporations to illegally cooperate in illegal wiretaps, with no risk whatsoever of any criminal or civil consequences to anyone involved in this illegal activity. That's what's being said.

And if that doesn't strike you as outrageous, well, there is no hope for you.

Sources:
http://www.reuters.com/article/2012/10/09/us-usa-court-telecom-idUSBRE8980UV20121009
http://www.guardian.co.uk/commentisfree/2012/oct/10/supreme-court-telecoms-win-immunity
https://www.eff.org/files/nsa/statutes.pdf

Left Side of the Aisle #67 - Part 4

Pennsylvania admits claims of "voter fraud" used to support voter ID laws are bogus

There is much more to say about this issue and about the particular case, but I've no time this week. But I did want to tell you this:

I've talked before about attacks on The Commons, on the idea of a community of shared interests and responsibilities, and that one of the forms of those attacks are these voter ID laws and how they are an attack on the right to vote and how they have disproportionate impact on the poor, minorities, students, and the elderly, four groups that when they do vote tend to lean to the liberal side of things.

Supporters defend the laws by going on about alleged "voter fraud." "Don't you care about the integrity of the vote?"

Pennsylvania is one of the states with these insane laws. That law is now under court challenge and a hearing on the suit has been going on. In a stipulation agreement before the hearing, the state of Pennsylvania acknowledged there “have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.”

Additionally, Pennsylvania “will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere” or even argue “that in person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law.”

In other words, before the hearing even started, Pennsylvania admitted the claimed basis, the whole claimed purpose, of the law, is totally bogus. And don't you forget it.

Sources:
http://www.huffingtonpost.com/2012/07/24/pennsylvania-voter-id-trial_n_1697980.html
http://tpmmuckraker.talkingpointsmemo.com/2012/07/pennsylvania_voter_id_no_in_person_voter_fraud.php

Left Side of the Aisle #67 - Part 3

Clarabell award: Federal judge ignores Supreme Court to impose abortion restrictions

The Clarabell Award is given on a regular basis for acts of meritorious stupidity. This time the dishonoree is US District Court judge for the District of Arizona, one Judge James A. Teilborg.

Back in April, Arizona Governor Jan Brewery signed a bill that would ban abortions after 20 weeks except in narrow cases where the life of the mother is seriously at risk. It was to go into effect on this past Thursday, August 2. The ACLU went to court on behalf of three Arizona physicians who sought a temporary injunction against the law going into effect pending the outcome of their legal challenge to it.

Their argument was simple: The controlling legal authority is the 1992 Supreme Court decision, Planned Parenthood v. Casey. The Court ruled in that case that states can't ban abortions prior to viability, that is, prior to the time when the fetus could survive outsite the womb. That now is regarded as around 22 to 24 weeks. Which would appear to make for a slam-dunk case.

Unfortunately, it was heard before Judge Teilborg, who in effect told those doctors and the ACLU that resistance is futile. In fact, in the course of the hearing, he actually lectured the lead counsel for the plaintiffs - that is, the ACLU lawyer - on her supposed lack of compassion for “the unborn child” and suggested that supposed lack “underscores the legitimacy” of the state’s action.

Given that patent bias in favor of fantasy - as I’ve said a number of times, there is no such thing as an “unborn child” unless you also start calling a caterpillar an unborn butterfly, a tadpole an unborn frog, and an acorn an unborn oak tree - given that bias, it should come as no surprise that Teilborg denied the temporary injunction, allowing the law to go into effect.

What could be a surprise but perhaps shouldn’t be given that transparent bias, he also declared that the hearing was not on the injuction but actually on the merits of the law and threw the suit out entirely.

His reasoning? Because of the provision regarding saving the life of the mother, the law doesn't actually ban abortions after 20 weeks, it merely "restricts" them. Quoting him: "[the law] is not a ban on previability abortions, but is rather a limit on some previability abortions between 20 weeks gestational age and viability."

You know, there is a law against shooting people in the street. But the truth is, if you shot someone who was in the process of, say, trying to kill you with a knife, I doubt you would be charged. So by Teilborg's logic, that law doesn't actually ban shooting people in the street, it merely restricts some cases of it. And there's a law that says you can't run a red light. But I expect that if you went thought a red light while rushing someone to the Emergency Room because you thought they were having a heart attack - as I did once with my father - you would be unlikely to be given a ticket. So according to Teilborg, that law doesn't ban going through red lights, it's just a limitation on some cases of it.

The ACLU is making an emergency appeal of the decision to the Ninth Circuit Court of Appeals, calling Teilborg's ruling "just wrong on its face."

Which is not surprising, since Judge James Teilborg's own face has a great big red nose. James Teilborg, clown.

Sources:
http://www.huffingtonpost.com/2012/07/30/arizona-20-week-abortion-ban_n_1720803.html
http://www.salon.com/2012/07/30/fetal_pain_nonsense_prevails_in_arizona/
http://www.nytimes.com/2012/07/26/opinion/anti-abortionists-on-trial.html
https://en.wikipedia.org/wiki/Borg_%28Star_Trek%29
https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey

Okay, it's not all doom and gloom

Updated A few posts down, in my rant about the attack on the idea of "the Commons," I mentioned briefly "moves being undertaken to restrict participation in the political life to the nation." One of the ways that has manifested itself over the past few years is cops harassing or even arresting people trying to take pictures or videos of them, taking their cameras and cellphones and deleting files. People even have been charged with felonies for recording what cops are doing on a public street.

Happily, this is an area in which there is some significant (in both senses of the word, strength and source) pushback:

In a win for technology, citizen journalism, and our Constitutional rights, the U.S. Department of Justice has issued a letter to the Baltimore City Police Department reconfirming that photographing, video- and audio-recording on-duty police officers is a Constitutional right protected by the First, Fourth, and Fourteenth Amendments.

The DOJ pointedly informed the Baltimore police that "recording police officers in the public discharge of their duties is protected by the First Amendment" and that "interference with recording of police activities except in narrowly circumscribed situations" should be prohibited.

What's more, "officers must not search or seize a camera or recording device without a warrant" and should not "threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices."

The DOJ took interest in the case, arising from a lawsuit filed by the ACLU on behalf of someone whose cellphone was seized, earlier this year. In response, Baltimore issued an order saying that citizens have an “absolute right” to record police, provided it doesn't violate any other laws, like obstruction of justice. I doubt you'll be surprised to hear that the response of the police department was to, um, broaden its understanding (let's call it) of what constitutes obstruction of justice and keep right on doing what it had been doing. The DOJ has now made it clear that this just won't cut it.

I have had a fair amount to say about the Obama DOJ. Some of it was good, as when it declined to appeal an Appeals Court ruling that part of the TRAITOR Act is unconstitutional and when it refused to continue to defend the Defense of Marriage Act in court. Most of it was bad, as when AttGen Eric Holder endorsed the bogus "state secrets" privilege, signed off on a subpoena demanding reporter James Risen reveal his sources, urged a "carveout" in the Miranda warning, said he was personally overseeing attempts to find ways to charge Julian Assange with espionage, and, most notoriously, defended the claim that the president has the authority to have an American citizen killed based on evidence no one outside the president's inner circle gets to see.

But credit where it's due and this latest action definitely goes on the "good" side of the ledger.

Updated because a partially-finished draft was mistakenly posted instead of the completed version.

Left Side of the Aisle #56 - Part 3

Outrage of the Week: Obama administration wants to conceal evidence of torture from military tribunal

As I expect you know, five people suspected of being involved in plotting the September 11th attacks are on trial before a military tribunal at Guantánamo Bay prison in Cuba. The best known among the five is probably Khalid Shaikh Mohammed, the man who was waterboarded 183 times before being sent to Gitmo.

But you won't hear about that at the trial. In fact, if the government has its way you will not hear a single word about torture or other mistreatment of the five. Because the rules under which the defendants are being held are set by the commandant of the Guantánamo Bay prison, a Navy admiral who has decided that the issue of torture is of such importance to national security that lawyers for the defense are forbidden to talk about it with their clients.

It's called presumptive classification and it means that anything the detainees say that bears on the "sources and methods" of their capture and imprisonment - that is, their torture - is a state secret. The chief prosecutor claims “they can talk to their clients about anything,” which is true except that they can't make any reference to any classified document that describes or refers to what the accused were subjected to - as if the five don't already know.

At the same time that the government is making it difficult if not impossible for defense attorneys to talk with their clients about the torture they suffered, the Obama administration is moving to censor any testimony in the actual proceeding that might refer to that mistreatment.

The American Civil Liberties Union has filed a motion challenging that attempt, revealing as it does so that the government has proposed a “protective order" that would allow the state to suppress defendants’ statements about their detention and treatment and so prevent anyone, including the public, the press, and even trial observers from hearing them. What's more, the government wants a 40-second delay in the audio feed of the commission proceedings so that if any defendant or attorney ignores the "protective order," there is ample time to censor the record.

This should not surprise us. This is the Obama administration, remember, the same outfit that has declared the authority to kill citizens based on secret evidence with no due process, that has refused to prosecute or even investigate self-admitted war criminals, and that now looks away and whistles a tune as this lizard-brain Jose Rodriguez, the man in charge of the torture of Khalid Shaikh Mohammed, the man who admitted destroying evidence of illegal CIA interrogations, appears on “60 Minutes” to smirk and preen and plug his book and go on about pleased he is with himself about his crimes against humanity.

And what gets me even more is how little outcry there is about all this. How little outrage there seems to be. How little anger there seems to be as these criminals, these moral degenerates, smugly strut about, confident they won't be touched for things that when people of other countries did them, we hung them for it. How little we seem to care as our moral core evaporates and we more and more become that which we claim to oppose.

The Outrage of the Week is us.

Sources:
http://dissenter.firedoglake.com/2012/05/03/obama-administration-moves-to-censor-torture-testimony-from-911-suspects/
http://www.aclu.org/files/assets/aclu_motion_for_public_access_5_2_12.pdf
http://www.bendbulletin.com/article/20120507/NEWS0107/205070322/
http://www.thedailybeast.com/articles/2012/05/08/messy-legal-rules-and-procedures-make-khalid-sheikh-mohammed-trial-doubtful.html

Why the previous post matters

The New York Times reported on Monday that the FBI is giving itself additional powers to poke, prod, pry, and probe into our privacy.

The agency is re-writing portions of its field operations manual in what it falsely claims is a mere "fine-tuning of existing rules" but actually is a clear expansion of power.

Here's the background: In 2008, the FBI gave itself a new power to "proactively" investigate people and organizations even in the absence of any suspicion of wrongdoing. That is, even if there was no reason to think the person or group had done anything wrong or was planning to do anything wrong, the FBI could investigate them. In effect, the FBI could investigate you for the purpose of seeing if it should investigate you. This was called something along the lines of "improving national security in a time of international terrorism." Previously, it would have been called "a fishing expedition." Or perhaps "official paranoia."

(Sidebar: The changes were made in secret and emerged only a year later as the result of an FOIA suit.)

Anyway, the way the federales got that "proactive" power was by creating a wholly new category of investigation called an "assessment." An assessment, again, required no evidence, no suspicion, that there was anything illegal going on.

As an example how this worked,

[a]fter a Somali-American teenager from Minneapolis committed a suicide bombing in Africa in October 2008, the Federal Bureau of Investigation began investigating whether a Somali Islamist group had recruited him on United States soil.

Instead of collecting information only on people about whom they had a tip or links to the teenager, agents fanned out to scrutinize Somali communities, including in Seattle and Columbus, Ohio.

That is, simply being a Somali-American required that you be "assessed" just to see if you might be some sort of threat, even if there was no hint that you had any connection with that teenager. Or anything else illegal, for that matter.

You'd think that sort of thing, of being able to investigate without any evidence of wrongdoing, was bad enough, but of course it wasn't enough for the feds. So now comes the "fine-tuning." For one thing,

[u]nder current rules, agents must open an assessment before they may search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without opening an assessment.

That is, they can do such searches without there ever being a record of it having been done. It's entirely secret.

That's not the only "fine-tuning" going on. For example, under current rules individuals or groups under "assessment" can be physically surveilled only once for a certain period of time. Under the new rules, that period of time can be renewed repeatedly by a supervisor. Bear in mind here that an "assessment" can be kept open - and thus the surveillance can continue - indefinitely.

The use of lie-detector tests, now blocked until a "preliminary investigation," which requires a factual basis for suspected wrongdoing, is begun, will under the new rules be used in assessments and not just on someone being assessed, but on potential informants. More seriously to my mind, the trash of such potential informants would be subject to search by agents - because the feds want to be able to use information found that way to pressure the person to assist the government's investigation. That is, they want to be able to use surreptitiously-gathered information to force someone to spy on their behalf. This is called "protecting our freedom." In another context, one with only the slightest of differences, it would be called blackmail.

There are now rules governing agents' or informants' attendance at meetings of, and secret participation in, organizations on which the feds are gathering information. Those rules are not public. Under the new rules, those agents or informants can attend five meetings even before the secret rules apply.

Finally, some investigations, including those into public officials, members of the media, and scholars, are considered "sensitive" and call for additional oversight. Under the new rules, much of that oversight is being relaxed; for one example, the rules on academic protections will apply only to scholars who work for institutions based in the US. All you furriners, you is outta luck.

This is what FBI general counsel Valerie Caproni called mere "fine-tuning" but which Mike German, National Security Policy Counsel for the ACLU, called "an expansion of power that is completely unaccountable."

The bizarre thing here is that Caproni may indeed think of the changes the way she described them: Remember that one of the conclusions to be drawn from the work of psychologists Joris Lammers and Adam Galinsky is that "people with power ... feel at some intuitive level that they are entitled to take what they want" - in this case, taking more power, a freer hand to find out whatever they want to find out, to know about you whatever they want to know about you, and to do it behind a thicker wall of secrecy: remember the new power to conduct databases searches without any record of it.

That, too, that pattern of "we can know about you but you can't know about us," is regarded as "natural" by power. Several years ago, commenting on the use of tracking technologies by private companies and individuals, I wrote this:

Are the children going to be able to track the parents? Are the employees going to be able to track the boss? Will the public be tracking government agents or Starbucks executives?

Of course not. It seems silly even to ask. ... This is not about protection or accountability, it's about power. Establishing, using, extending, demonstrating power. Whether it's the direct intimidating power of "they know I'm watching" or the more subtle power of "I can catch them at something," both of which assume those being watched are untrustworthy (which is what the watchers always assume about the watched), it is something those with power put on those without it ... [including] ... the power of voyeurism, the power of "I can know your secrets."

Oh, but don't worry your pretty little heads about things like that, Ms. Caproni says. Agents, she assures us with the straightest of faces, could only retain the results of those secret database searches if there is a legitimate law enforcement purpose for doing so.

In other words, "Trust us."

Well, I first encountered the name Valerie Caproni in late 2005 in a post about the alarming increase in the use of so-called National Security Letters, legal documents by which the FBI can demand secret access to a variety of someone's personal and financial records from places such as banks, credit card companies, phone companies, ISPs, and so on without the need for any sort of warrant. At the time, she dismissed concerns about possible overreach and violations of privacy, arguing there really wasn't a point to the agency engaging in either. That is, "Trust us."

This came just 15 months before the DOJ's own Inspector General revealed that there were "many instances" of the FBI having "improperly, and sometimes illegally, used" NSLs to obtain information.

Moreover, record keeping was so slipshod, the report found, that the actual number of national security letters exercised was often understated when the bureau reported on them to Congress, as required.

I next came across her name last fall in considering PHC*'s intention to push for legislation that would force communications services including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook, and software that allows direct “peer to peer” messaging like Skype to provide convenient means for the feds to engage in electronic surveillance of their users - including decrypting data - that the telcoms are currently required to provide.

Of that move, Caproni said "We're talking about lawfully authorized intercepts ... We're not talking expanding authority." I responded at the time:

You're talking about being able to force companies to do what they didn't before, to have cop-friendly capabilities they didn't before, in order to enable you to wiretap where you couldn't before, spy where you couldn't before, to get data (including messages in decrypted form) that you couldn't before. Yes, you are talking about expanding authority, Ms. Caproni, and you are a liar.

And now, here again, comes Valerie Caproni, mouthpiece to power, to declare there is no reason for concern, to assure us that information gathered in secret database searches will not be kept unless there is a damn good reason. That is, yet again, "Trust us."

And just why should we do that, Valerie "Two-time loser" Caproni? Why, in light of your record, should we simply take your word for it that the agency for who you make excuses will not secretly retain secretly-obtained information? How can we even know if you did dispose of that information when there is no record that you ever obtained it in the first place?

In fact, we should not. We dare not. Not only because you are a two-time loser, but on the general, vitally-important, but too-often overlooked civic principle that in any free society, in any society that hopes to be free or to remain free, in any free society it is bad public policy, it is incredibly bad public policy, it is insanely bad public policy, to give anyone, particularly government, particularly police forces, additional powers under the totally lame-brained assumption that they will never abuse them.

All of history, all of human experience, screams as us that that is just an absolutely nutty, crazy, wacko, stupid, dangerous thing to do.

Why? For the same reason that back in the '60s we said "Question Authority."

Because power corrupts.

*PHC = President Hopey-Changey