A year ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. The D.C. Circuit has now agreed with that view and the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.

In my prior testimony, I discussed how Obama — and by extension the Office of Legal Counsel — violated both the text and the purpose of the recess appointments clause. It was an interesting hearing with other experts testifying that the appointments were constitutional — supported by the January 6, 2012 opinion of Assistant Attorney General Virginia Seitz and the Office of Legal Counsel (OLC). I was very critical of that opinion.

Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch – allowing the Clause to be used to circumvent congressional opposition. Indeed, the debate today is generally confined to the question of what technically constitutes a “recess” for the purposes of the Clause, treating as settled the question of whether the Clause can be used to fill a position that the Senate has chosen to leave vacant. In my view, the Clause is now routinely used not only for an unintended purpose but a purpose that is inimical to core values in our constitutional system. I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view, but I discuss the original and later interpretations to demonstrate how far we have moved from the plain meaning of the Clause. Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.

In a 2-1 panel decision, the Third Circuit is different in some respects from the earlier D.C. Circuit opinion in Noel Canning v. NLRB. It was narrower in rejecting “intrasession” appointments — recesses during a given session of Congress. However, it did not address pre-existing recesses or contain the broader historical analysis of the D.C. Circuit. It also rejects the clarity in the language of the Clause: “In short, the natural meaning of recess does not help us decide between intersession breaks and intrasession breaks of a fixed duration, but the relevant context does undermine the Board‘s current position.”

The opinion was written by Judge D. Brooks Smith and the dissent came from Judge Joseph. A Greenaway Jr. Greenaway objects that “The Majority attempts to displace the absurdity of its holding by showing that my standard also yields absurd results.”

He adds:

An empty office is an empty office. It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause. See Evans, 387 F.3d at 1226 (“The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”). The atrophy of agencies and other offices caused by the Senate‟s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both opinions are worthy of reading and present compelling arguments, though I obviously agree with the majority. My own analysis goes further than both the D.C. Circuit and the Third Circuit.

Here is the decision: Third-Circuit-2013.5.16-Decision-Vacating-NLRB-Decision

Lopez resigned after it was revealed that the state secretly paid women (plural) $103,000 to settle sexual harassment claims against the powerful Brooklyn politician. The accounts detailed unwanted advances and contact by the 71-year-old assemblyman.

After Lopez announced his resignation, Gov. Cuomo declared “Vito Lopez should not spend another day in office, let alone a whole month. He should resign effective immediately.” He will resign today and then start his campaign for the City Council.

Donations have poured in to fund his new run for office.

That could result in a Lopez in the city council and a Weiner in the mayor’s office — giving hope to politicians everywhere that there is a place where no scandal is too great to overcome.

By the way, under the arcane rules in New York, Lopez might be able to pick his successor.

Roberts went to five fast food restaurants and asked for cups of ice. She then went into the toilets and flushed once before taking samples. She reported her findings: “I found that 70-percent of the time, the ice from the fast food restaurant’s contain more bacteria than the fast food restaurant’s toilet water.” The reason, she determined, was that toilets are routinely cleaned while the restaurants virtually never cleaned the ice machines.

That study resulted in first in the regional fair and a prize of $800.

Welcome done, Jasmine. We are all impressed and totally grossed out.

Source: Business Insider

The bizarre 100% tax is the result of a one-off levy last year on 2011 incomes for households with assets of more than 1.3 million euros ($1.67 million). The surcharge was imposed shortly after Hollande took office on a promise to hit the rich with high taxes. The Hollande 75% direct tax was so unfair that the Constitutional Council struck it down. However, this report states that the one-off levy effectively pushed some families to a 100% tax.

The newspaper Les Echos found that nearly 12,000 households paid taxes last year worth more than 75 percent of their 2011 revenues due to the exceptional levy. ($1 = 0.7798 euros).

Putting aside how many families are impacted by taxes above 75%, it is in my view an insane, self-destructive economic policy for France. I just spent an evening with a friend and his parents discussing the situation in France. This is a moderate family politically that has long fished in French waters. My friend is now an American citizen but his parents and family remain in France. They recounted how they had to destroy half of their ships because of taxes. They are seeing other businesses doing the same or simply moving out of France. These a patriotic and proud French people but they are watching their government cannibalize off the economy. The government is getting instant revenue while killing revenue producing businesses. It is like eating the grapes and roots of the vineyards of Bordeaux for food and leaving the fields barren.

As someone who truly loves visiting France, it is disheartening to watch Hollande’s cultural war on the wealthy. I favor higher taxes as part of a comprehensive package of reforms in this country and other countries. However, Hollande’s expressed hatred of the rich resulted in a political success and now an economic disaster. It is also grossly unfair to wealth French who love their country and are not opposed to making sacrifices. Hollande played the class card and told the French that their problems were due to a sinister upper class rather than France’s high labor costs and burgeoning budgets. Even if one dismisses this study and the one-year levy, there are still many thousands of families and businesses who face a government demanding 75 percent tax rates.

These policies however will only lengthen the economic crisis. Indeed, France is already viewed as a hostile country for business and that is likely to continue under Hollande who is fighting the French judges to impose taxes higher than what is viewed as constitutional or fair by the courts.

Source: Reuters

Either that or this dog is just trying to look more like his owner.

By Mike Appleton, Guest Blogger

“Be what you would seem to be-or, if you’d like it put more simply-Never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise.”

-Lewis Carroll, Alice in Wonderland

The late Paul Weyrich is generally regarded as the principal architect of the new conservative coalition that emerged with the ascendancy of Ronald Reagan.  He was a co-founder of the Heritage Foundation.  He even created the phrase “moral majority” for Pat Robertson.  But his most important creation was the American Legislative Exchange Council (ALEC) in 1973.  In the course of 30 years that body has become the most powerful force in state legislative bodies throughout the country.

Weyrich was not a fan of voting rights.  “I don’t want everybody to vote,” he said in 1980. “Elections are not won by a majority of the people.  They never have from the beginning of our country and they are not now.  As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.”  Weyrich understood that voters are problematic for two reasons.  First, they are fickle and  unpredictable.  Second, they cannot be held accountable for their decisions.  In short, they cannot be controlled, making democracy an uncertain endeavor.

But Weyrich also understood that lobbying is not an effective antidote to an independent electorate.  It is expensive and subject to restrictions and regulations that vary from state to state.  ALEC operates in a manner that enables it to surmount those problems.  Powerful corporate interests provide the funding necessary to research and draft model bills serving their interests.  The approximately 2,000 state legislator members of ALEC sponsor those model bills in their respective states.  And the electorate? Well, anyone is free to join and have his or her voice heard by paying an annual membership fee ranging from $7,000.00 to $25,000.00.

As you will see, ALEC’s ability to get its way in spite of the voting public is indeed a wonder to behold.

Play One-Milwaukee 

Wisconsin has a statute authorizing what is known as “direct legislation.” The statute allows voters in a municipality to draft a specific ordinance and submit it to local government to either adopt without changes or place on a referendum ballot.  The submission must be accompanied by a petition containing the signatures of qualified voters equal to or exceeding 15% of the votes cast in the last gubernatorial election.

In 2008 a coalition of groups in the City of Milwaukee proposed an ordinance which would require employers to provide paid sick leave to employees under prescribed circumstances.  The Milwaukee Common Council considered the ordinance and decided to place it on the ballot for the November 4, 2008 general election.  The ordinance was overwhelmingly approved by 68.64% of the voters and became law on November 12, 2008.

Business interests were outraged, and the Metropolitan Milwaukee Association of Commerce (“MMAC”) promptly filed suit in circuit court to challenge the ordinance on various constitutional and statutory grounds.  The MMAC successfully secured a preliminary injunction and, on June 12, 2009, a summary final judgment finding the ordinance unconstitutional and permanently enjoining its enforcement.

The City of Milwaukee declined to appeal the judgment, but the Milwaukee chapter of the 9to5 National Association of Working Women, one of the proponents of the ordinance, was able to pursue the appeal as an intervening defendant. The Wisconsin Court of Appeals initially certified the case to the Wisconsin Supreme Court for determination, but that court split 3-3 on whether to reverse, and sent the case back to the court of appeals to rule on the merits.  Metropolitan Milwaukee Association of Commerce, Inc. v. City of  Milwaukee,  789 N.W.2d 734 (Wisc. 2010).  On March 21, 2011, the court issued a 50-page opinion upholding the constitutionality of the ordinance and remanding the case to the circuit court with instructions to enter a summary judgment vacating the injunction and reinstating the ordinance. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 798 N.W2d 287 (Wisc. App. 2011).

But the sweetness of victory can often be a fleeting pleasure.  While the appeal was pending, attorneys for MMAC were not only writing briefs; they were also drafting proposed legislation intended not only to eliminate the Milwaukee ordinance, but to insure that this experiment in home rule would not be repeated elsewhere in the state. Their efforts produced what would become known as Senate Bill 23. The bill was introduced on February 23, 2011, almost a month before the appellate decision.  It was sponsored by Sens. Leah Vukmir, Mary Lazich, Glenn Grothman and Alberta Darling.  Sen. Vukmir served as ALEC’s Health & Human Services Task Force Chairperson and received the ALEC Legislator of the Year Award in 2009. The other senate sponsors are all members of ALEC.

Senate Bill 23 begins with a legislative determination that the “provision of family and medical leave that is uniform throughout the state is a matter of statewide concern” and that the enactment of local ordinances mandating sick leave, paid or unpaid, “would be logically inconsistent” with the need for uniformity.  The bill concludes with a prohibition against the adoption by any “city, village, town, or county” of an ordinance requiring the provision of sick leave, paid or unpaid, by any employer.  The Wisconsin legislature moved quickly and Gov. Walker signed the bill into law as Wisconsin Act 16 on May 5, 2011. By the time the ordinance appeal was remanded to the Milwaukee County circuit court, the new preemption statute was already in effect.  Circuit Judge Thomas Cooper said, “I don’t feel real good about how this happened politically,” but finding further action on the ordinance now moot, he concluded, “It’s over.”

The Bureau of Labor Statistics estimates that 40 million American workers, roughly 40% of the workforce, lack the ability to take sick days for any reason without losing pay, or possibly their jobs.  Among restaurant workers 79% are in this position. Evidence submitted in favor of the Milwaukee ordinance established that 47% of the private sector workforce in that city lack paid sick leave.  They still do.  And the almost 70% of the Milwaukee electorate who believed they could do something about it now understand that Paul Weyrich was right.  Some elections are not won by a majority of the people.

Sources: American Legislative Exchange Council (www.alec.org); ALEC: The Voice of Corporate Special Interests In State Legislatures,” People for the American Way (www.PFAW.org); “ALEC Exposed: Wisconsin, the Hijacking of a State,” Center for Media and Democracy, 2012; ”Revealed: Full List of ALEC’s Corporate Members,” Think Progress, May 4, 2012; Georgia Pabst, “Judge says city’s sick days ordinance is ‘over’”, Milwaukee Journal Sentinel, July 28, 2011; “Walker signs bill to kill Milwaukee sick leave law,” BizTimesMedia, May 5, 2011; ”Ruling will not end sick leave fight,” Milwaukee-The Business Journal, March 24, 2011; Patricia Sullivan, “A Father of Modern Conservative Movement,” Washington Post, December 19, 2008.

That free speech is under attack by the governments local and Federal should be manifestly apparent from the stories that have appeared of the last few years here at Res Ipsa Loquitur.  In articles from our host, myself and my fellow guest bloggers, we’ve seen open attacks on free speech as a right proper, attacks on anonymous political free speech, the prosecution and persecution of whistleblowers and the erosion of shield laws protecting reporters and attacks on free speech and pluralism  in general in the form of blasphemy laws just to name a few of the threats that have come to our attention. What is most troubling is that the Federal government has stepped up their efforts to outright infringe upon the free speech rights of citizens and the press and chill the right however possible. Free speech is critical for the function of democracy. Without dissent, there can be no debate, only the dictates of the strong over the weak which is by definition tyranny. That is one of the reasons that it was so important that the Founders protected it in the 1st Amendment. However, they felt in particular that the freedom of the press was a not just free speech, but a very special kind of free speech that merited both special mention and protection in the 1st.  The 1st Amendment reads in relevant part:

Congress shall make no law [. . .] abridging the freedom of speech, or of the press”.

As we know, there are legitimate reasonable restrictions on free speech such as defamation, incitement and threats (particularly threats of violence).  So before we look at the two present instances of the chilling of free speech – one a local story about a graduation and one the national story concerning the DOJ accessing the phone records for hundreds of reporters working for the Associated Press – let us first ask examine what is meant by the term “chilling free speech”.

What is the chilling effect? The first use of the term traces to Wieman v. Updegraff, 344 U.S. 183 (1952).   In an unanimous ruling, the Supreme Court held that Oklahoma loyalty oath legislation violated the due process clause of the Fourteenth Amendment. Due process requires that individuals have scienter (knowledge that their membership or support violates the loyalty oath), and the Oklahoma statute did not accommodate this requirement because it did not give individuals the opportunity to abjure membership in subversive organizations. Keep in mind this was at the height of the “Red Menace” when Justice Frankfurter said in his concurrence (joined by Justice Douglas):

Such joining is an exercise of the rights of free speech and free inquiry. By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakeable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

The Constitution of the United States does not render the United States or the States impotent to guard their governments against destruction by enemies from within. It does not preclude measures of self-protection against anticipated overt acts of violence. Solid threats to our kind of government — manifestations of purposes that reject argument and the free ballot as the means for bringing about changes and promoting progress — may be met by preventive measures before such threats reach fruition. However, in considering the constitutionality of legislation like the statute before us, it is necessary to keep steadfastly in mind what it is that is to be secured. Only thus will it be evident why the Court has found that the Oklahoma law violates those fundamental principles of liberty ‘which lie at the base of all our civil and political institutions’ and, as such, are imbedded in the due process of law which no State may offend.

That our democracy ultimately rests on public opinion is a platitude of speech, but not a commonplace in action. Public opinion is the ultimate reliance of our society only if it be disciplined and responsible. It can be disciplined and responsible only if habits of open-mindedness and of critical inquiry are acquired in the formative years of our citizens. The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all our great leaders, from Thomas Jefferson onwards.” Id., at 195-196 (cites omitted, emphasis added).

The term was again used and became common usage after Justice Brennan used it in Lamont v. Postmaster General, 381 U.S. 301 (1965) in reference to a “deterrent effect” on freedom of expression. Since then, the chilling effect refers to any legislation or governmental action that places an undue burden upon rights in general and not just upon free speech although it is a term still most often seen associated with free speech cases.

Which brings us to the case Katelyn Campbell and the actions of her high school principal, George Aulenbacher. The senior at George Washington High School in Charleston, West Virginia, recently took Aulenbacher to court over a mandatory “abstinence only” assembly. The mandatory school assembly featured Pam Stenzel, a prominent conservative advocate for sexual abstinence among teenagers. At the assembly, Stenzel allegedly warned students that “if you take birth control, your mother probably hates you,” and that she “could look at any one of you in the eyes right now and tell if you’re going to be promiscuous”.  This did not sit well with Campbell.  She made unflattering comments to the press and protested the assembly which she (rightly) felt spread blatant falsehoods about sex. Aulenbacher then threatened to tell her then prospective college, Wellesley, that the honor student was “of bad character”. Campbell took Aulenbacher to court seeking injunctive relief against him, but lost the suit. She was admitted to Wellesley anyway. But it appears the petty principal wasn’t done there. She has been denied the previously granted permission to speak at her graduation along with seven other students who were expected to speak at the ceremony on May 22.  On Wednesday, Aulenbacher revealed that only the two students with the highest GPAs would be speaking “due to changes in the format of the ceremony”. Although Campbell had learned from a school superintendent that changes were in the works, Aulenbacher conveniently “forgot” to tell the students until a week before the ceremony. Campbell’s response was to the point.  Writing on her Facebook page, the honor student said, “I was shocked to hear from Mr. Aulenbacher today that myself and other highest honor graduates will no longer be permitted to speak at our graduation ceremony next Wednesday … Politics, I suppose, play a greater role in the graduation of seniors than I had previously expected.”

In short, someone in a position of authority took action against a speaker they took exception to based on the content of their speech albeit previous speech.

Contrast this with the recent story about the DOJ obtaining the phone records of hundreds of Associated Press employees. The press and the government have long had an odd relationship, but it was generally accepted that the press would show restraint if information would put lives in danger.  However, since the days of the leak of Pentagon Papers revealed the misdeeds and lies to both Congress and the public by the Johnson administration concerning the Vietnam War, the case of New York Times Co. v. United States, 403 U.S. 713 (1971) settled the issue that the 1st Amendment was not subordinate to a claimed need of the executive branch of government (then under Nixon) to maintain the secrecy of information. “‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’  The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’” Id., at 714 (cites omitted). The Court further to noted:

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’” Id., at 715.

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” Id., at 717.

The press, however, continued to honor the old system of restraint when prudent.  And what do they get for their cooperation?

It would seem that President Obama, AG Eric Holder and their DOJ have forgotten the lessons of the Pentagon Papers and seek to accomplish by other means what they cannot accomplish by injunction. In addition to seeking the zealous (some would say overzealous) prosecution of whistleblowers like Bradley Manning and organizations and individuals that aid them like Julian Assange and Wikileaks, the DOJ recently obtained phone records for 20 phones used by hundreds of reporters under the guise of “looking for a leak”.  James C. Goodale, an attorney who represented The New York Times on the Pentagon Papers case, said, “We’ve come full circle right back where we were 40 years ago, where the president is mesmerized by classified information and national security — just as Richard Nixon was.”  Bob Woodward of The Washington Post, a man who’s been on the receiving end of many leaks since the Nixon years, suggested Friday that AP phone records seizure could damage the running dialogue between both sides since the Pentagon Papers ruling.  Speaking Friday on MSNBC, Woodward said the action could “chill the relationship, so reporters are going to say, ‘why the hell should I go to the government, they’re just going to go after my records?’” Not to mention in addition to intimidating reporters, it is a move obviously meant to intimidate both current and future whistleblowers. Keep in mind that all of this takes place in the context of the Obama administration actively lobbying to weaken and block so-call “reporter shield” laws that would protect reporters from revealing their sources. It’s a heinous attack on liberty by those sworn to protect liberty.  So heinous that even those on the far right like Senate Minority Leader Mitch McConnell (R. – KY) came out in defense of the President on this matter.

In short, someone in a position of authority took action against a speaker they took exception to based on the content of their speech.

Consider, these two recent stories and the stories before them in context. The pattern is impossible to ignore. The 1st Amendment is under open assault by the government from all levels.

Is it just me or is it getting chilly in here?

I think, to paraphrase Robin Williams in The Survivors, “It’s weather like this that makes you wonder why men have nipples.”

What do you think?

Source(s): Huffington Post (1, 2, 3, 4), WVGazette.com (1), The L.A. Times (1, 2, 3), AP (1), International Business Times (1), Wieman v. Updegraff, 344 U.S. 183 (1952), Lamont v. Postmaster General, 381 U.S. 301 (1965), New York Times Co. v. United States, 403 U.S. 713 (1971)

~submitted by Gene Howington, Guest Blogger

Bring me a plate of whatever and something wet to drink!

A friend of mine sent me this picture. I know that apathy is a problem for a great number of our fellow citizens, but come on. Sure, it’s silly, but do you think this is clever? Is it indicative of a larger problem with the American mindset? Both? Or do you just not care?

~submitted by Gene Howington, Guest Blogger

Dr. Isaac Ray

The relationship between mental health and the legal system is a turbulent one at best. One major problem is they speak two different languages. For example, insanity is a legal term found nowhere in any psychiatric or psychological diagnostic manual.

There are several key words used commonly by both professions, but which have quite different meanings. The words “validity” and “reliability” are part of the vocabulary of science. To a scientist, the word validity means that a test measures what it claims to measure. When a test is intended to measure depression or anxiety, the user can assume it measures depression and anxiety.

Reliability refers to the repeatability of a test or measurement. If we give the same test to the same subject several times, all the scores will fall within the standard error of measurement 95% of the time.

When an attorney uses the word validity, it means, Binding; possessing legal force or strength; legally sufficient.

The legal interpretation of the word reliability suggests the subject matter is trustworthy, and that one can rely on it. However, when a scientist says something is reliable, it means whatever is being tested will get the same results with every retest, within the Standard Error of Measurement.

An examination of the literature of both professions reminds us of the quip attributed to George Bernard Shaw, “[We] are two peoples divided by a common language.”

When I was in graduate school, a well-known attorney gave an invited lecture to the student body. The speaker made several sweeping generalizations about the mentally ill; all of them displaying a stunning ignorance of facts. Then he turned his venom on those in the mental health professions, referring to mental health professionals scornfully as, “Soul doctors.” I would like to say people like him are rare, but they are not. I have known judges who, quite literally, did not believe in mental illness. We had one of those in our area who, mercifully, retired a few years ago.  People like that remind me of those misogynistic knuckle-draggers who don’t believe there is such a thing as rape.

Now, back to the stormy relationship between the legal system and mental illness.

In 1581, Edward II said that under English Common Law, if a defendant had no more understanding than a “wild beast,” then they should not be held responsible for crimes committed in that state. By the 18^th century, British courts elaborated on this distinction and developed the “wild beast” test:

If a defendant was so bereft of sanity that he understood the ramifications of his behavior “no more than in an infant, a brute, or a wild beast,” he would not be held responsible for his crimes.

Daniel M’Naghten

That was the standard until 1843, due to one of the most precedent setting trials of all time took place in England. In 1838 an American psychiatrist, Dr. Isaac Ray, published a book called, A Treatise on the Medical Jurisprudence of Insanity. Five years after the publication of Dr. Ray’s book, Daniel M’Naughten attempted to assassinate the Prime Minister of England, Sir Robert Peel. As luck would have it, Sir Robert decided to ride in the carriage of Queen Victoria that day. The only occupant of the Prime Minister’s carriage was his secretary, Mr. Edward Drummond.  M’Naughten leaped onto the Prime Minister’s carriage armed with a pistol “loaded with gunpowder and a leaden bullet.” Mistaking Drummond for Sir Robert, M’Naughten shot him. Drummond languished for a few days, whereupon he expired. M’Naughten was charged with murder. His trial was held in 1843. His attorney, Alexander Cockburn, was one of the best lawyers in England at the time.  Cockburn was familiar with Dr. Ray’s seminal work on the legal implications of mental illness and its application to an insanity defense. Cockburn’s brilliant and persuasive defense won an acquittal, standing the ‘wild beast’ principle on its head.

Queen Victoria was not pleased. Both the queen and her husband, Prince Albert, had been the target of assassination attempts. She reportedly said, “Anyone who tries to kill a government minister cannot possibly be insane.” At the Queen’s request and considerable public pressure, the House of Lords convened a panel of learned jurists, led by Lord Chief Justice Sir Nicholas Conyngham Tindal . The panel came up with what is now known as the M’Naughten Rule:

“…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.^”

Thus was born the M’Naughten Rule. The rule set aside the subjective experience of the mentally ill defendant and substituted a purely cognitive test. It was as if the panel had undertaken to make sure no one would ever again be acquitted on the ground of insanity. Make a note of that public pressure thing; you will be seeing it again. By 1851, United States courts adopted it as the standard for determining legal insanity.

During the 1900s, the insanity standard evolved. The Durham Rule was created in the 1950s. Durham tried to take into consideration psychiatric and medical standards for insanity. This proved unworkable. The brand new DSM-I had been published in 1952, listing 106 mental disorders. Defense attorneys began trying earn their clients acquittals if they had any of the diagnoses found in the DSM-I.  It did not take long for the reaction to the highly liberalized Durham rule to come under fire. Twenty-two states rejected the Durham rule outright. In 1972, a panel of Federal Judges discarded the Durham Rule. They adopted the standard created by The American Law Institute (ALI). The ALI standard allowed for a more flexible interpretation of understanding than simple cognitive knowing. The ALI model also avoided use of diagnoses found in the DSM-I, and the later DSM-II, as a legal basis for insanity. The DSM-II increased the number of diagnoses to 182, and dropped use of the term “reaction” as a diagnosis, because that implied causality. About half the states retained the M’Naughten Rule and half adopted some variation of the ALI standard. The Federal Court system adopted the ALI standard for establishing insanity.

The DSM-III was published in 1980. It was considerably different than the two previous versions. It added more detail, along with algorithms for making differential diagnoses. There was a five-axis matrix on which to report a diagnosis, including something called the Global Assessment of Functioning, or GAF. The DSM-III contained a staggering 494 pages with 265 diagnostic categories. When the DSM-IV was published in 1994, it listed 297 disorders in 886 pages. During all these iterations of the manual, some diagnoses were removed, and new ones added. Some had their names changed. Illnesses became “disorders.”  Earlier versions listed homosexuality as a mental illness or disorder.  The committee voted to change that to “egodystonic homosexuality.”  Later it was removed altogether.

DSM-5 (they have dropped the Roman numerals) was released this weekend, but don’t know anyone who has actually seen one. This version, unlike all previous versions, was conceived in almost total secrecy. There was a public comment period, but all members of the committee had to sign a non-disclosure agreement. As a result, there has been no transparency as was the norm in the past.  What we know of this new diagnostic manual is limited to what the American Psychiatric Association has released piecemeal. The new version has 947 pages and over 300 diagnoses.

Where is this going? My interest is in the forensic psychology aspect of the new manual. Previous versions of the DSM have been criticized for lack of validity. Based on what has been released about the manual so far, it appears the newest version suffers from the same flaw. I have observed problems with inter-rater reliability, when using any version of the DSM. In other words, if ten psychologists and psychiatrists examine the same patient, how often do they come to the same diagnosis? Lack of agreement on any given diagnosis is far more common than the public…and lawyers….ever suspected. I have attended countless staff meetings where a half-dozen experienced psychologists and psychiatrists argued heatedly whether a patient was one thing or another diagnostically. They all missed the main point. The question they should have been addressing was whether the defendant was competent to stand trial and criminally responsible. It made no difference whether the defendant had a personality disorder or not. Folks, it doesn’t matter what the diagnosis is. The legal criteria are not found in any diagnostic handbook.

Child custody cases present a unique problem when one or both parents have received treatment for a mental health problem.  I have seen far too many cases where a parent seeks counseling or medication for some condition. The other parent runs down to the courthouse and files a change of custody motion based on the psychiatric diagnosis. The diagnosis itself should play no role whatsoever in the custody issue, but many attorneys use the fact the parent sought help and has a diagnosis as if it were a sledgehammer.

Remember, none of the Diagnostic and Statistical Manuals has anything close to the same degree of validity found in other medical specialties.  Over the years, it dawned on me that many psychiatrists and psychologists don’t know all the diagnoses in the DSM-IV.  I referred a client with a Nightmare Disorder recently. The psychiatrist told my client I did not know what I was talking about because, “There is no such thing as a Nightmare Disorder,” without bothering to look it up in the DSM-IV.  There is, of course.

For all the attorneys who read this. Next time you have a mental health professional on the witness stand who wants to talk about diagnoses in the context of legal issues, ask, “Isn’t it true the diagnoses to which you refer come from a diagnostic manual put together by a committee in secret? Isn’t it also true that diagnoses are often taken out and new ones put in based on pressure from advocacy groups?”

This is not to say diagnoses aren’t helpful. They sometimes are helpful. To know that someone is Bipolar, Schizophrenic or has a personality disorder is potentially helpful, especially when recommending a parenting plan or considering mitigation in a criminal case.  However, a ruling by a court should never be made based exclusively on a DSM diagnosis.

Any forensic psychologist or psychiatrist who knows what they are doing will talk about behaviors rather than syndromes or clinical diagnoses. That is one reason I had a serious problem with Dr. Richard Gardner’s use of the term, “Parental Alienation Syndrome.”  In fact, I read that PAS was considered for inclusion in the DSM-5, but voted down. However, parental alienation behaviors definitely exist.  Behaviors can be observed, recorded, measured, and result of the behaviors quantified. A syndrome is a group of symptoms, from which it can be inferred there are additional symptoms related to those already observed.  It does not take a critical thinking lawyer to see the problem with that.

Problems with the new DSM-5 go far beyond whether it should be accepted as the definitive diagnostic manual by the legal system.  Two weeks ago, Thomas R. Insel, M.D., Director of the National Institute of Mental Health (NIMH), delivered a sharply worded statement saying the NIMH would no longer fund research based on the DSM-5. His criticism is the same as mine,

 ”The weakness” [of the DSM-5] “is its lack of validity….Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.”

Adding his voice to those criticizing the DSM-5 is Dr. Allen Frances, editor of DSM-IV, and Dr. Robert Spitzer, editor of DSM-III. Spitzer wrote an open letter to the DSM-5 committee complaining about forcing task force members to sign a non-disclosure contract, which flies in the face of proper protocols for scientific or medical projects. The DSM-5 staff rejected Drs. Frances and Spitzer’s complaints about lack of transparency, blaming their motivations as the fact both are still receiving royalties for their work on the previous editions.

In a press release three years ago, Canadian Medical Associaton Journan (CMAJ), in collaboration with the Journal of the American Medical Association (JAMA) published an article highly critical of the DSM-5 task force and its operation. The article included the following:

Some critics of the DSM process express other concerns in addition to matters of transparency. It’s been pointed out that about 70% of current task force members have ties to the pharmaceutical industry, up about 14% for DSM-IV. A study of an earlier edition of the manual found that ties to the drug industry are particularly strong in working groups focusing on diagnostic areas in which drugs are the first line of treatment (Pscyhother Psychosom 2006;75:154–60). For DSM-IV, all of the members of the working groups for mood disorders and “schizophrenia and other psychotic disorders” had ties to drug companies.

“We recommended that they limit the number of people on these working groups with industry ties, making them a minority so they won’t dominate,” says Sheldon Krimsky, a coauthor of the study and an adjunct professor in the Department of Public Health and Family Medicine at the Tufts School of Medicine in Medford, Massachusetts. “But that hasn’t happened yet.”

As far as I have been able to determine, nothing changed since that memo. Talking with both physicians and psychologists, I hear little else but skepticism that the new DSM-5 is driven more by economics than science.

By way of full disclosure, I am a forensic psychologist who has been in both public and private practice for the past forty-one years. I was a founding member of the American Board of Forensic Psychology, and remain active professionally. However, my opinions are my own and I do not presume to speak for any other person or group. I speak for myself only.

———–0————

The floor is open for discussion.

The Obama Administration was rocked last week by two political scandals that Republicans claim makes Watergate look like a jaywalking ticket. Pious GOPers decried the lack of response to the Benghazi terrorist attacks and then blasted the Administration (as well as US Senators Chuck Schumer and Jeanne Shaheen) for sicking the IRS on their lapdog grassroots movement that’s neither grassroots nor a movement, the Tea Party. Seems the Republicans say they can do national defense better and are willing to produce quotes from doctored emails to prove it. On the home front, the knives were out for that whipping boy of the “Don’t Tax Us” crowd — the IRS. Calling for jail sentences, leading Republicans like House Speaker John Boehner,  House Oversight and Government Reform Committee member Rep. Jason Chaffetz, and  29 other Republicans who sponsored legislation to really, really, make IRS political retribution illegal (it is already) are shocked … shocked that some politically active conservative groups were scrutinized over tax exempt status when they were forced by two rogue IRS examiners to fill out long questionnaires that went public. Never mind that no group was actually denied the status despite their applications that said that these “social welfare” organization weren’t really social welfare organizations anyway but political ones, or that that “legalest” of tax  dodges –501(c)(3) & (4) status — has become a bad joke used to attack the other guys politics.  What mattered to leading Republicans now (Oh, yeah in less ox-gored days a year ago,  Senator Minority leader Mitch McConnell blasted liberal groups for you guessed it — using tax exempt status to attack the GOP), is that they finally have something to use politically against the Administration. You can almost hear the sighs of relief coming from the parlors at the country clubs and over the lemonade and cookies in the church basements can’t you?

But are the scandals resonating with  the rest of the American people? The answer seems to be: “Well, that depends.” If you’re Republican and conservative, the answer is most assuredly  ”yes.” For the rest of America it’s a decidedly “Maybe.”  Here’s the recent polling about who’s watching the scandals:

By a slight majority, Americans are interested but clearly not enthralled. Now let’s see who’s watching by political affiliation:

The other question is, “Who thinks the scandals deserve major investigations to –as those public-spirited Republicans say — get to the facts?”:

Thus, according to Gallup, Americans are paying less attention to the Benghazi and IRS “scandals” than they do to other major news stories. According to the polling service the interest in the two stories is “well below the average for news stories Gallup has tracked over the years.” Are the GOP engaging in more wishful thinking as most of their punditry did in the last Presidential election?

The answer here is another “maybe.” Let’s look at political affiliation since the  2012 elections:

If I’m reading these tea leaves correctly, the number of folks identifying  themselves as GOPers looks to be holding as steady as  Lindsey Vonn (ok I like Lindsey) on a downhill run. So maybe what Fox News claims was an outright theft of the last presidential election and what Republican lawmakers see as their last, best hope to cripple the Obama Administration is fools gold after all.

Of course, things can change in an instant in D.C. as we all know, but do Boehner, McConnell, and their Tea Party cronies look like first place finishers to you?

If so, I’ve got some Triple Crown bets on Orb you might like?

Source: National Memo

~Mark Esposito, Guest Blogger

Scientists from Aristotle to his 21st Century successors have wondered how complex structures form in nature. Wim L. Noorduin, a postdoctoral fellow at the Harvard School of Engineering and Applied Sciences (SEAS) and lead author of a paper appearing on the cover of the May 17 issue of Science, may have the clues in his beaker.  Manipulating chemical gradients in liquid have produced incredible flower-like structures based on the precipitation of crystalline forms on the microscopic level. Measured in microns, the crystal  flowers (such as those pictured left)  can be created by changing the chemical soup causing the crystals to grow towards or away from chemical gradients as the pH of the reaction shifts back and forth.  Broad leaves,  thin stems, or a rosettes of petals are all determined by the chemical reactions.

The work is important because  changes in chemical gradients  influence growth in nature: “delicately curved marine shells form from calcium carbonate under water, and gradients of signaling molecules in a human embryo help set up the plan for the body. Similarly, Harvard biologist Howard Berg has shown that bacteria living in colonies can sense and react to plumes of chemicals from one another, which causes them to grow, as a colony, into intricate geometric patterns.”

The flower making process involves dissolving common substances found in nature, a salt ( barium chloride) and waterglass (sodium silicate), into a beaker of water.  CO2, already in the air, dissolves into the solution setting off a reaction. The crystals (known as barium carbonate crystals) form as the acidity level of the water around the crystals drop. As pH drops, the dissolved waterglass reacts to form a tiny layer of silica around the crystals which further drops the acidity and allows for the growth of the complex man-made “flowers.” To create broader leaved varieties, Noorduin adds more CO2.  Reversing the pH gradient at the right moment can create curved, ruffled structures.

“You can really collaborate with the self-assembly process,” says Noorduin. “The precipitation happens spontaneously, but if you want to change something then you can just manipulate the conditions of the reaction and sculpt the forms while they’re growing.”

And even if the work at Harvard didn’t open windows into the creation of the natural world, bringing to life more flowers  seems value enough. It was Monet who attributed his motivation for painting to the existence of flowers and Auguste Rodin, the father of modern sculpture, who said as poetically as he carved:

The artist is the confidant of nature, flowers carry on dialogues with him through the graceful bending of their stems and the harmoniously tinted nuances of their blossoms.  Every flower has a cordial word which nature directs towards him.

Source: Science Daily

~Mark Esposito, Guest Blogger

]]> http://jonathanturley.org/2013/05/18/consider-the-lilies-of-the-field-scientists-create-flowers-in-beakers/feed/ 13 jonathanturley 130516142218-large (1) http://jonathanturley.org/2013/05/18/irs-targeted-catholic-league/ http://jonathanturley.org/2013/05/18/irs-targeted-catholic-league/#comments Sat, 18 May 2013 11:48:20 +0000 jonathanturley http://jonathanturley.org/?p=64398 ]]> -Submitted by David Drumm (Nal), Guest Blogger

Bill Donohue, president of the Catholic League, writes: “Just weeks after Barack Obama was elected president in 2008, I was notified by the IRS that the Catholic League was under investigation for violating the IRS Code on political activities as it relates to 501(c)(3) organizations.” So, that would be when George W. Bush was the President. The recent media attention directed towards IRS investigations of Tea Party, 501(c)(4), organizations, was just too enticing for Donohue. For 501(c)(3) organizations, the IRS requires that the organization “may not participate in any campaign activity for or against political candidates.” It might be interesting to see how well the Catholic League upheld its commitment to this requirement.

Unlike 501(c)(4) organizations, donations to 501(c)(3) organizations are generally tax-exempt. In return for this benefit, these organization agree to the IRS terms and conditions. The language in the IRS specifically designates “political candidates” as being off limits.

However, the September 2008 issue of Catalyst, the journal of the Catholic League, in an article entitled “OBAMA’S PUBLIC POLICY BLUNDERS,” Donohue wrote:

Recently, Sen. Obama has disappointed Catholics again. This time regarding his public policies on school vouchers, faith-based initiatives and selective infanticide.

In the October 2008 issue, Donohue writes of then-candidate Nancy Pelosi: “Pelosi is wildly out of touch with the Catholic Church.” Donohue writes of vice-presidential candidate Joe Biden: “As the only Catholic on either ticket, Biden could have been a real asset to Obama, but instead he has become a liability.” Donohue defends Keith Fimian, the Republican candidate for Virginia’s 11th Congressional District. Donohue also defends Sarah Palin by noting: “Republican vice presidential nominee Sarah Palin’s religion has come under severe scrutiny. Unfortunately, some of the coverage has been downright unfair.”

What was the result of the IRS investigation? Acdording to Donohue:

In the end, the IRS concluded that although the Catholic League had “intervened in a political campaign,” it was “unintentional, isolated, non-egregious and non-recurring”; our tax-exempt status remained intact.

Donohue responds:

I intentionally addressed political issues, and did not intervene in the campaign …

However, Donohue’s legal accumen seems to differ from that of the United States Conference of Catholic Bishops (USCCB) Office of General Counsel, who offers this advice:

A Catholic organization may not directly or indirectly make any statement, in any medium, to endorse, support, or oppose any candidate for public office, political party, or PAC. [Treas. Reg. § 1.501(c)(3)-1(c)(3)(iii).]

Nonprofit attorney Gene Takagi agrees with that interpretation. Takagi writes that 501(c)(3) organizations “cannot make endorsements (whether in support or in opposition to a candidate); and cannot allow the use of the organization’s resources without giving equal opportunity to other candidates.”

If Donohue wants to issue his political opinions regarding candidates, he is free to give up his organization’s tax-exempt benefit.

H/T: Steve M., David Weigel.

Forget about the IRS, AP, and Benghazi. They all pale in significance to Umbrella-Gate. President Obama asked White House Marine guards to hold umbrellas for the President and the Turkish Prime Minister during an outdoor press conference. Male Marines are not allowed to use umbrellas while in uniform, except when they are “perform[ing] such other duties as the President may direct“. Female Marines are allowed to use umbrellas. Sarah Palin tweeted: “Mr. President, when it rains it pours, but most Americans hold their own umbrellas.”

The funds are reportedly $600 million underfunded due to poor management. Yet, while Detroit literally burns and descends into darkness, four trustees will be drinking Mai Tais on the beach in Hawaii.

We have long discussed how incompetence and corruption has been the norm among Detroit’s politicians (here and here and here and here), judges, police, and prosecutors.

Trustees insist the conference provides the education needed to manage the public fund competently. Other major public pension systems, including the Los Angeles Fire and Police Pensions, have declined to send trustees to the conference.

The six-day National Conference on Public Employee Retirement Systems (NCPERS) conference starts this weekend on the 22-acre oceanfront resort at Waikiki.

Cynthia Thomas the executive director for both funds insists that the expenses fall within the systems’ travel and expense policies — and will offer important educational opportunities for the trustees. She further stressed “The way conferences are set up, there’s not too many of them happening in Indiana or Kansas.”

Well, it certainly is not going to be Detroit any time soon.

Source: FREEP

Such math moments are likely to increase with the move of the Administration to lower the BAL to the equivalent of one drink for a woman.

We have previously seen some shocking cases of juror misconduct, including some cases where judges have given a mere slap on the hand for egregious misconduct. In this case, however, Christopher magnified his misconduct by not showing up for his own contempt hearing. That is some real contempt.

Christopher was a potential juror in a child abuse trial but showed up late for jury selection not once but twice. On an earlier occasion, he spent four hours in jail and Elliott dropped one contempt charge after Christopher apologized for repeatedly interrupting him. However a contempt proceeding was ordered on the repeated failures to appear on time.

Christopher has said that one of the earlier late appearances was due to a car breakdown coupled with a broken cellphone. The second time was allegedly due to a miscalculation that he thought he had time for lunch.

The contrast between judges Elliott and judges like Milwaukee County Circuit Court Judge JD Watts is remarkable. Watts gave a juror a slap on the hand for leaving a jury deliberation to go to Cancun for vacation.

Source: NEWS OK

Roughly a dozen custodial workers filed a complaint with the Equal Employment Opportunity Commission alleging that the Center only communicated with its workers in English. The complaint names the Metropolitan State University of Denver, the University of Colorado-Denver and the Community College of Denver.

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

I tend to agree. I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin? Such an obligation would presumably extend to all languages from Polish to Chinese to Spanish. It creates an added burden on businesses which could find themselves in a vice between the duty to hire without discrimination and the costs of supplying translations for any non-English speaking employees.

What do you think?

Source: CBS

One report states that such an outfit is called Dream Tours in Florida, which on its website claims to provide “quality based, memorable, and affordable vacations, to people with special needs.” The Disney guide charges $130 an hour, or $1,040 for an eight-hour day. The website reportedly cited a Manhattan mom who claims she hired a tour guide using a motorized scooter.

The Post quotes a Mom as saying “This is how the 1 percent does Disney.” By using its rent-a-disabled person approach, the Mom says that she and her husband and two boys avoided hours of standing in line at Disney.

The article identifies Jacie Christiano as the person who works at Dream Tours. She is reportedly the girlfriend of the tour company owner, Ryan Clement. Clement insisted that Christiano doesn’t use her disability to bypass lines and says that she has an auto-immune disorder.

What is interesting is whether Disney would run afoul of disability laws if it cracks down on such guides. If Christiano has a documented disability, can Disney bar her from being a guide who goes on rides with guests? Likewise, if you simply hire a disabled person for the day, how can Disney refuse the accommodation afforded to family and friends with disabilities? It can hardly impose a test on how well you know this person. People will say that they met yesterday but are now like family (an almost Disney like story).

I will not return to my theory that Michael Eisner is the Biblical Beast or that Disney is his Kingdom from Revelations 13. However, when people start hiring disabled folk to avoid your lines, isn’t it time for you to start to do something? Now most businesses would stop ripping off people by packing too many people into its parks or adding rides to shorten lines. If Disney is true to form, it will crackdown on faux guides to sell more fast passes. Indeed, initial reports show an outraged Disney — not at the fact that families are standing for hours for rides at its park but someone else is making money off Disney. I will only direct you again to Revelations 13: “And [the Antichrist] causeth all … to receive a mark in their right hand, or in their foreheads: And that no man might buy or sell, save he that had the mark….”

Source: Post

The man reportedly told the mother that he was not trespassing in the use of a private drone. It is certainly true that the Supreme Court has ruled against private property claims over airspace. The Court rejected the ancient precept of cuius est solum, eius est usque ad caelum et ad inferos (“For whoever owns the soil, it is theirs up to Heaven and down to Hell.”). The ruling in United States v. Causby, 328 U.S. 256 (1946) rejected such absolute claims but noted that there were limits on government interference under the Takings Clause:

We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. . . . The fact that he does not occupy it in a physical sense—by the erection of buildings and the like—is not material. . . . We would not doubt that if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used.

This obviously deals with government interference. The intrusion in Seattle dealt with private action. Yet, both the government and private parties are subject to common law protections of privacy, which recognizes that the privacy of a home includes its curtilage or area surrounding the home. This includes government surveillance requiring a warrant.

Under the Second Restatement, citizens may sue for violations of the intrusion upon seclusion:

652B Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

This would seem to qualify. Any photos taken would also be subject to litigation for the public disclosure of embarrassing private facts. If close enough to a window, it is even possible to argue trespass under a curtilage theory, but the privacy claims are stronger. There are also criminal laws governing harassment and stalking that could be applicable.

In other words, this private drone operator needs to rethink not only his concept of civility but legality in his bizarre form of recreation.

Source: Betabeat

These milestones allow us to take stock of the blog community. We continue to rank in the ten top most popular legal blogs in the world, though we commonly fluctuate between the 9th and 11th ranked blog.

In the last seven days, our ten biggest international sources for readers came from United Kingdom, Canada, Australia, India, Germany, France, Netherlands, Japan, Philippines, and Taiwan. Today, Israel and Singapore are also in the top ten contributing countries.

I wanted to thank our weekend bloggers: David Drumm, Mark Esposito, Gene Howington, Michael Spindell, Eliane Magliaro, Mike Appleton, Larry Rafferty, and our newest weekend blogger, Charlton Stanley. I wanted to particularly thank our contributors. In the last 24 hours, the most active commentators were (starting with the highest appearance): nick spinelli, anonymously posted, Blouise, Swarthmore mom, Bron, and Darren Smith.

Thanks again to everyone.

In defense of the police, it is not clear if they can actually see the couple, particularly the wife. In a case of possible domestic abuse, police need to see the occupants to ensure that someone is not being or has been beaten. If the police were to simply leave based on verbal responses, there could be a victim found later who was unable to break free or seek help. I can understand the reluctance of the police to leave the scene without a visual on the couple. However, they could have sought a telephonic warrant.

Despite the compelling concern over the safety of occupants, there remains the question of whether the police can break down the door based on what they have been told and more importantly whether tasering was necessary simply because the couple was refusing to lay on the ground.

Police can enter a home without a warrant under “exigent circumstances” where there is a reasonable belief that there is an immediate need to protect their lives or the lives of others. Here the couple both respond to the police and demand a warrant as a precondition for entry. There is no allegation of a report of actual violence as opposed to yelling. The police are clearly suggesting that the suspicious conduct led them to be concerned for the safety of the couple, particularly the woman.

The police demand to know why the couple will not come out, though citizens are allowed to remain in their homes absent a lawful demand to exit the home. The woman is tased first and then the man. I fail to see the reasonable basis for the taser. They are clearly not obeying commands but they do not appear to be threatening the officers. As we have discussed before, tasers appear to be used increasingly in response to citizens who simply do not follow the orders of police.

What do you think about the entry and force shown in this video?

It is a well known fact that Sci Fi can pit dweeb brother against dweeb brother. However, this confrontations involved more than a dozen fans from the rival camps. Although the Jedi have more lethal weapons, the Dr. Whoists have control of time and space. The availability of the TARDIS may explain why, when police reviewed the surveillance tapes, there was no direct evidence to use as the basis for assault.

Organiser Richard Walker, 63, (yes, 63) insisted that the Star War fans were trying to undermine the convention by posting comments on Facebook.

Below appears to be part of the security clip from the fight in Norwich:

Source: Metro

Social media sites are a growing rage for Saudi citizens and a headache for the government. Like other repressive governments, the Kingdom sees these sites as threats in allowing free speech and association.

The imam of the Grand Mosque in Mecca in April has also denounced the use of Twitter as anti-Islamic and a threat to national unity. He declared Muslims on Twitter to be “fools.” It appears less foolish to denounce a social media site as an offense to God.

The Kingdom is particularly concerned with how Twitter has been used to keep people informed of human rights activists who have been tried for the crime of free speech. Leaders on the Web have been detained while others have been charged with apostasy and other crimes for statements made on these sites.

The more that repressive government seek to ban Twitter the more they remind us of the value of this resource as a force for freedom around the world.

Source: BBC

Kardo was formerly associated with the Champa Ling monastery in Chamdo prefecture of the Tibet Autonomous Region (TAR). He was arrested at his home and in the subsequent search two cassettes of the Dalai Lama’s speeches were discovered.

According to one report, Kardo was a student monk at Jampaling Monastery for a long time but left because of the monastery’s worship of a controversial deity called Dorje Shugden. The Dalai Lama discourages worship of the deity.

Kardo was taken into custody on April 21 at his home in Dzogang (in Chinese, Zuogong) county by county police, a Tibetan living in India told RFA’s Tibetan Service on Monday.

“Two cassettes of the Dalai Lama’s speeches were discovered in his room,” the source said, speaking on condition of anonymity and citing contacts in the region.

He was severely beaten in custody and died on April 28.

Tibet is experiencing a new round of harsh crackdowns and arrests by Chinese police. Monks have been severely beaten and are being denied the ability to go to homes to worship. Residents are being forced to fly the Chinese national flag against their will. Many tore the flags down, leading to more beatings and arrests.

The denial of religious freedom of course goes hand in hand with China’s denial of basic freedom of speech and association. While some leaders like our “ally” Hamid Karzai have praised the Chinese as a model of success and invited them into their countries, China’s continued repression of Tibet and denial of human rights to its own population is often forgotten.

Source: RFA

Gosnell was convicted Monday of first-degree murder after a jury found that he routinely performed illegal abortions past Pennsylvania’s 24-week limit. The testimony in the trial was deeply disturbing with witnesses recounting how Gosnell would “snip” the spines of babies who were seen moving, whimpering or breathing. In one case, Gosnell joked that the baby was so big he could walk to the bus on his own legs.

The case has filled many with disgust and rage. However, the agreement is a serious concern if prosecutors can negate the appellate process and review by threatening to seek the death penalty. Such a waiver can also occur in exchange for a reduction in recommended years of incarceration. There is already tremendous pressure on defendants to plead guilty in our system. Prosecutors now routinely stack counts to allow obscenely long sentences to force such plea bargains. Now, this technique could also be used to cut off any appeal.

Do you feel such waivers should be allowed by the courts?

Source: SF Gate

Experts are divided on the impact of violent video games with some finding no real longterm impacts and others finding a contributing factor in violence or delinquency. Putting aside this debate, there is no discussion of why a tax would serve any purpose beyond driving up costs and of course producing more revenue for the government.

As many on this blog know, I am fairly hostile to the tax-first approach to public policy and the use of high taxes to address worsening economic situations in countries like France. This is an example of how reflexive the call for taxes is from politicians like Biden. Biden announced that he would like to tax the game and give the money “help victims and their families.” It is an all-too-common approach to tax politics. Find an unpopular industry, tax it, and then give the money to a more popular group. It appears the later group this term is a generally defined group of “victims” — not of video games but crime. It is not clear how such money will be awarded to victims or whether it would go to government offices that support victims.

When he was later asked if he could point to any study showing the effect of violent games on behavior or the effect of the tax on game playing, Biden simply said that the government would study the problem.

While I disagree equally with the no tax mentality of people on the other side of the political debate, I am constantly amazed by how taxes seem the first reaction of politicians like Biden. In this case, the tax seems to come first and the rationale will be supplied later. We simply tax them all and let God sort them out.

Source: Forbes

Human rights groups have denounced atrocities on both sides of the conflict. In the video, Sakkar cuts into the chest of the dead soldier before ripping out his heart and liver and declaring: “I swear to God we will eat your hearts and your livers, you soldiers of Bashar the dog”. You can hear rebels chanting “Allahu akbar [God is Great]” as the commander engages in an act of cannibalism.

Such mistreatment of fallen enemy soldiers is a war crime under international law.

Abu Sakkar has been seen in previous videos posing with dead bodies and firing rockets at Lebanese Shi’ite villages.

Despite such videos, the drumbeat for war has been steadily rising in Washington for massive military aid in the Civil War. Even the Administration continues to speak of “red lines” and plans for intervention in a continuation of our past policies.

WARNING GRAPHIC AND DISTURBING IMAGES
Here is the video.

Source: Independent

What is striking is the statement of NTSB Chairman Deborah Hersman, who explained that “Our goal is to get to zero deaths because each alcohol-impaired death is preventable.” That would seem to favor a .00 BAL. While all agencies work to avoid all injuries and deaths, few consider it a functional goal since there are few attainable absolutes in regulations. All regulation tends to be a trade off between rivaling goals or practices. Drinking is legal and most people believe that they can drive safely with a single drink. There is no question that the alcohol diminishes driving ability even with a single drink but the new level could result in a massive expansion of drivers under court supervision or suspension.

In defense of NTSB, they claim that more than 100 countries have adopted the .05 alcohol content standard or lower. Yet, this is a change that will receive little debate outside of the NTSB. An issue of this importance used to be the subject of considerable debate in Congress (or more importantly, in state legislatures) but with the rise of the “Fourth Branch” of federal agencies, such decisions are increasingly decided by federal bureaucracies that are fairly insulated from the public. They are then imposed on the states through federal conditional spending.

Many states are likely to balk at the decision given the already vocal opposition over the current standard. However, the federal government is expected to threaten states with the loss of federal funding for highways if they do not do exactly what they are told. No state (particularly in this economy) can afford to forgo federal funds for roads. While the Supreme Court suggested in National Federation of Independent Business v. Sebelius that the federal government could go too far in coercing states (in that case by threatening Medicaid), it has long allowed the use of federal conditions for highway funding. This encourages Congress to take in more taxes than it needs to return the money to the state with conditions or federal mandates.

States may also be ordered to implement alcohol ignition interlock devices. The cost of these devices is imposed on the drivers in the form of a $50 to $100 purchase price plus a $50 a month fee to operate.

With the increasing use of sobriety roadblocks where drivers are asked if they had anything to drink (and most answer truthfully), the result could be a much higher “yield” in arrests.

What do you think about the new regulation on BAL?

Source: USA Today

We were in Durham, North Carolina for Mother’s Day and had a ball with my in-laws.

My kids were rolling with laughter in hearing the same lines in the song that they hear at home everyday.

The spying on reporters by the Obama Administration included outgoing calls for the work and personal phone numbers of individual reporters. The seizure covered general AP office numbers in New York, Washington and Hartford, Conn. The Justice Department showed no restraint or concern, even including the AP in the House of Representatives press gallery. It now appears that in a few years historians could well be saying the Nixon was perfectly Obamaesque in his abuses.

AP President and Chief Executive Officer Gary Pruitt has written a letter to Holder objecting to the spying, noting that “[t]here can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters.” I would be equally upset with the mere fact of the spying as opposed to its breadth.

The spying may be part of a criminal investigation into a May 7, 2012, AP story about a foiled terror plot. AP agreed to hold the story after an objection from the Administration but ultimately ran the story disclosing a CIA operation in Yemen that stopped an al-Qaida plot to detonate a bomb on an airplane bound for the United States. While working with the Administration in holding the story, the Administration apparently was moving to spy on five reporters and an editor who were involved in the story.

Holder would have to have personally approved the subpoenas under Justice Department regulations.  However, it is not enough to again criticize Holder (who has assembled one of the most abusive records on civil liberties in our history).  Obama is well aware of the objections by civil libertarians and personally approved such decisions as promising CIA officials that they would not be investigated for torture and the kill list policy.

What is most striking about this story is the sense of complete immunity and lack of concern shown by the Administration. That sense of impunity has developed over four years as Democrats have gone into radio silence over abuses by the Administration from Obama’s “kill list” policy to other rollbacks on civil liberties. There will come a day when this president is no longer in office and many Democrats and Liberals will be faced with the imperial presidency that he created in the hands of someone they do not revere. When that day comes, it will be hard to climb over the mountain of hypocrisy to find a principled ground for criticism.

Source: CNN

Al Khawahir was stopped at the Detroit airport under suspicion of using an altered passport. They then found the pressure cooker. At first, Al Khawahir said that he was bringing the pressure cooker to his nephew because you cannot buy pressure cookers in America. That did not go very far with Customs officials and he then said that his nephew’s pressure cooker was broken. The nephew, Nasser Almarzooq, supported his account and said that his uncle just wanted him to be able to make lamb dishes.

The problem is that his uncle could not be charged with both an altered passport and lying to federal agents. However, the lie was about a kitchen item. Does it really make sense for a terrorist to bring in a pressure cooker when you can buy them at any appliance store? The whole idea of the design in Boston is that it could be made from ubiquitous or commonplace items.

Al Khawahir was traveling with a B1/B2 visa and the missing page raises concerns over tampering with travel documents. Ripping out pages can hide travel history. However, the man insisted that he had no idea why the page was missing. I can only hope that this whole controversy is not due to the pressure cooker itself . . . but nothing would surprise me these days. It would be a relief if our federal agents would issue a statement that traveling with a pressure cooker in your luggage is the not reason why this man was arrested or being held. Lamb stew chefs around the world need to know that our borders are once again open to pressure cookers.

Source: Metro

The court in the Eastern Saudi city of Khobar also sentenced a Saudi man to two years in prison and 200 lashes for helping the young woman named Maryam to escape to Sweden to secure asylum.

Maryam has stated that Saudi Arabia worked to instill her and other children with an intense hatred for Judaism and Christianity. The men worked with Maryam in an insurance company. Notably, they were arrested after Maryam’s family went to police to demand punishment of her friends. The lawyer for Maryam’s family, Hmood al-Khalidi, “expressed satisfaction with the severe punishments.” It is hard to call such a person a “lawyer” when he demands Sharia punishment for people who merely help an individual seek freedom.

Of course this record of repression of religious faith did not stop the Obama Administration in working with Saudi Arabia to create an international blasphemy standard to allow for the punishment of those who insult Islam.

Source: Yahoo

In other Ice Age news, check out the Sibearian Mammoth that scientists found perfectly preserved, including the vivid coat of the animal. Of course, this is all a terrible mistake since the animal is dated as over 10,000 years old — long before what creationist intellectuals like Sarah Palin say is the real age of the Earth.

Noh Mul (or Nohmul) is a pre-Columbian Maya site that was constructed before the 5th Century. It was considered unique and unusual for Mayan construction. Nohmul means “great mound” in (Yucatec) Maya.

John Morris, an archaeologist with the Institute of Archaeology, told 7newsbelize.com’s Jules Vasquez. “We can’t salvage what has happened out here — it’s an incredible display of ignorance. I am appalled and don’t know what to say at this particular moment.”

Jaime Awe, director of the Institute of Archaeology, expressed disgust at the scene and said that the pyramid could not be salvaged. While the Noh Mul complex sits on private land, Belizean law places any pre-Hispanic ruins under government protection.

The heavy equipment at the site belongs to D-Mar Construction. When confronted, Denny Grijalva, owner of the company, insisted that he knew nothing about the project.

Such a crime does incalculable damage to not just Belize but the world. Unfortunately, such crimes tend to be treated lightly in many countries in sentencing. Notably, according to experts, bulldozing Mayan sites for gravel is a common practice in Belize. That would indicate that criminal penalties were demonstrably too low for deterrence since detection would seem relatively high in such cases.

As we recently saw, other schools are conducting unannounced practice raids by hooded police pretending to be homicidal killers.

The question is how is this new environment going to affect how our children view the world and their government. What impact do such signs have on children in accepting a greater role for authority and police presence?

Source: KNBC

Tafuruka, 29, was later arrested inside the park and charged with illegal possession of a firearm. A third man, Godfrey Shonge, 52, was also arrested in Harare.

As these animals have become more rare and protection increases, the value of poaching has increased — resulting in more poaching of animals.

China remains the greatest market for these poached animal parts and continues to fund the international black market.

Source: Telegraph

Gilmore got into a verbal fight with a waiter who cut him off from more drinks at a dinner with lawyer Andrew Riches. When the waiter said he had had enough, Gilmore reportedly exclaimed “Don’t you know who I am?”, and calling the man a “dickhead.” He also threatened to arrange to have the waiter fired through his connections to the prime minister.

Gilmore denied Riches’ allegations on the specific statements but admitted that he was drunk and abusive. After initially refusing to resign, he finally relented to the demands of his party and opposing parties.

Gilmore reportedly had a habit of using his office for threats. Emails were later disclosed from his time as a contractor to the Ministry of Business, Innovation and Employment (MBIE) prior to his return to Parliament in 2013. The emails contained veiled threats to a Treasury official where Gilmore said that, with his return to Parliament, “I am sure this sort of thing will come back to haunt you if you want your career to reach its full potential.”

His conduct is worthy of scorn and punishment but I am struck by how forgiving we are in relation to American politicians. In our red state/blue state paradigm, voters now retain politicians simply because they are deemed as better than “those other guys” in the opposing party. It is a remarkable protection for reprobates and scoundrels in office.

Source: Telegraph

Agency fines and charges place citizens into a system that is heavily weighted in favor of the agency and denies basic due process protections found in courts. After the judge threw out the charge against Brennan, 50, the TSA got one of its administrative judges to fine him $1,000 for violating a federal rule stating passengers may not “interfere with, assault, threaten, or intimidate” TSA screeners. You may ask how stripping is an act of interference or assault or threat or intimidation. It does not matter. Once in the administrative process, the agency gets a huge degree of deference in determining violations with judges who are dependent on the agency for the very jurisdiction of their “court.”

What is equally troubling is the news blackout imposed by TSA over the case. Administrative judge George Jordan was asked to make an exception and allow cameras into the courtroom but he denied the request. The message seemed to be that Brennan’s move was in the hands of TSA and neither a court nor public opinion would save him now. TSA has refused to even answer questions on the case.

We can debate the ruling of the court in finding no criminal conduct, but the subsequent effort to fashion a new crime from the TSA regulations should be a matter of concern for all citizens. The TSA is taking an act found by a court to be an act of protest and re-defining it as an act of intimidation or threat to the TSA. The case should also focus attention at the ever-expanding system of administrative courts that are pulling citizens into a bureaucratic vortex where they face unfair procedures and treatment.

By the way, after the incident, Brennan was fired from his job as a web development manager at Seagate Technology.

Source: Oregon

The study of more than 5,200 adults tied the benefits not only to walking their pets but the calming effects of pets. Glenn N. Levine, a professor at Baylor College of Medicine in Houston, stated “Pet ownership, particularly dog ownership, is probably associated with a decreased risk of heart disease.”

Here is the most interesting stat from the article. About 78.2 million people in the United States own a dog while 86.4 million have a cat. Cat lovers outnumber dog lovers by roughly 10 million! As a dog lover, I assume this is because cats are easier to house and require less space.

Source: Reuters

Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

Recently, the ICIJ, better known as the International Consortium of Investigative Journalists released a report detailing hundreds of thousands of off-shore companies whose sole product or service is to hide income from many countries tax authorities.  “A cache of 2.5 million files has cracked open the secrets of more than 120,000 offshore companies and trusts, exposing hidden dealings of politicians, con men and the mega-rich the world over.

The secret records obtained by the International Consortium of Investigative Journalists lay bare the names behind covert companies and private trusts in the British Virgin Islands, the Cook Islands and other offshore hideaways.

They include American doctors and dentists and middle-class Greek villagers as well as families and associates of long-time despots, Wall Street swindlers, Eastern European and Indonesian billionaires, Russian corporate executives, international arms dealers and a sham-director-fronted company that the European Union has labeled as a cog in Iran’s nuclear-development program.” ICIJ.org  

When I read this article several days ago, I was struck by the sheer volume of money and the huge numbers of companies and wealthy individuals who were allegedly hiding income from their respective country’s tax authorities.  As the above quote noted, there are more than 120,000 companies vying for the tax evasion business from countless numbers of the ubber wealthy who just can’t find it in their hearts to pay their fair share of taxes.

We always here the argument in this country from the wealthy and those supporting the wealthy in Congress and the Senate, that the wealthy already pay more than enough and the poor and middle class don’t pay enough taxes!  If I understand the ICIJ report, all of those people whose names were disclosed as evading taxes were all wealthy people.  I was sure that I would find somewhere in the report that the rest of us tax paying poor and middle class must have some sort of tax haven in order to hide a buck or two from the IRS.

As hard as could search, I was unable to find a single company trying to sell tax evasion funds and depositary accounts for someone making $50,000  or less a year.  I guess that this tax evasion gap was just an oversight by the international tax evasion community.  Surely they pine for the opportunity to offer their “services” to the vast and under served silent, but poorer majority.

Two prominent and wealthy Americans made this auspicious list of alleged tax evaders.  “Among nearly 4,000 American names is Denise Rich, a Grammy-nominated songwriter whose ex-husband was at the center of an American pardon scandal that erupted as President Bill Clinton left office.  A Congressional investigation found that Rich, who raised millions of dollars for Democratic politicians, played a key role in the campaign that persuaded Clinton to pardon her ex-spouse, Marc Rich, an oil trader who had been wanted in the U.S. on tax evasion and racketeering charges.

Records obtained by ICIJ show she had $144 million in April 2006 in a trust in the Cook Islands, a chain of coral atolls and volcanic outcroppings nearly 7,000 miles from her home at the time in Manhattan.  The trust’s holdings included a yacht called the Lady Joy, where Rich often entertained celebrities and raised money for charity.  Rich, who gave up her U.S. citizenship in 2011 and now maintains citizenship in Austria, did not reply to questions about her offshore trust.

Another prominent American in the files who gave up his citizenship is a member of the Mellon dynasty, which started landmark companies such as Gulf Oil and Mellon Bank. James R. Mellon – an author of books about Abraham Lincoln and his family’s founding patriarch, Thomas Mellon – used four companies in the BVI and Lichtenstein to trade securities and transfer tens of millions of dollars among offshore bank accounts he controlled.

Like many offshore players, Mellon appears to have taken steps to distance himself from his offshore interests, the documents show. He often used third parties’ names as directors and shareholders of his companies rather than his own, a legal tool that owners of offshore entities often use to preserve anonymity.”  ICIJ.org

I realize that the quoted article notes above that Ms. Rich gave up her American citizenship in 2011, but I wonder if she knew that her name would be disclosed along with such auspicious company? Mr. Mellon seems to have made a career or a profession out of allegedly evading the IRS.  Shouldn’t the rest of us have the opportunity to hide our hundreds in these off shore accounts?  What’s good for the goose is supposed to be good for the gander.  Isn’t it?

After this report broke, it seems that the IRS and its fellow tax collectors around the globe suddenly became interested that thousands of its citizens may be evading taxes!

“It appears our international investigation of offshore tax havens may have prompted government tax authorities to go public with their own data digging operations in pursuit of international tax evasion.

On Thursday, the U.S. Internal Revenue Service, along with British and Australian tax authorities, jointly announced that the three nations “have each acquired a substantial amount of data revealing extensive use of such entities [tax havens] organized in a number of jurisdictions including Singapore, the British Virgin Islands, Cayman Islands and the Cook Islands.”  These are roughly the same jurisdictions being investigated using a similar amount of leaked data by the International Consortium of Investigative Journalists (ICIJ), the international arm of The Center for Public Integrity”  Nationofchange.org

Did the IRS actually believe that the wealthy were being model citizens and paying all of the taxes that they should be according to the law?  Did they really not know of this community of alleged tax evaders before the stuff hit the proverbial fan?  Personally, I find it hard to believe that our IRS was caught with its pants down when it comes to wealthy citizens allegedly evading taxes.  Do you believe it?

While we are at it, the millions of poor and middle class citizens who are paying their fair share of Federal and state and local taxes have been accused by members of the media and members of Congress that we are not paying enough.  Is it wrong for a country to expect all of its citizens to pay their fair share of taxes?  What should our country do about the wealthy and corporations that continue to claim that they are overpaying, while the rest of us, in many cases, are paying at even higher percentages than our wealthier counterparts and our largest corporations?

The latest example of how the tax system and the economic system is skewed in favor of the wealthy and corporations is the latest deadline for student loan payers.  The interest rate for student loan is about to double unless Congress acts soon.  One Senator has introduced a bill that will mandate that the student loan rate should equal the same rate of interest that the big banks pay to the Federal Reserve for loans.

“On July 1, without action from Congress, Stafford loan interest rates for some 7 million students are set to double from 3.4 percent to 6.8 percent….Warren…would prevent that hike and take the additional step of cutting the rate to 0.75 percent — the same rate that big banks are allowed to borrow at — for one year until Congress can achieve a more permanent fix.

“Our students are being crushed by debt,” Warren told TPM in an interview late Wednesday.  Under her legislation, the Federal Reserve would float money to the Department of Education, which would provide federally guaranteed student loans at 0.75 percent for all those who are currently eligible for them — at the same rate it offers banks.”  Truth-Out.Org

What a novel idea.  Senator Warren is suggesting that the common folk be treated just the same as those big banksters who broke the economy.  Maybe there is hope yet for the silent economic majority!  Then again, I wouldn’t hold your breath!

As previously discussed in the column “Fantastic Plastic?“, the advent of cheap 3-D printing (or additive manufacturing) is changing the nature of how we can manufacture anything including guns. At the time the original column was written, a pioneer in additive manufacturing of guns – Defense Distributed of Austin, Texas – was making headlines for using this technology to make lower receivers for AR-15 style assault rifles. Although in the proof of concept stage, Defense Distributed had rapidly shown that they could make such a component capable of firing over 600 rounds before stress failure. I speculated that such a weapon was not as threatening due to size and some materials constraints and that even more dangerous was the possibility of all (or nearly all) plastic handguns and other easily concealable weapons that escape normal detection techniques.

In this instance, we have a case of science rapidly catching up with speculation.  Last week Defense Distributed released the following video of their plastic handgun design.  The only metal component of the weapon is the firing pin. It is called (rather dramatically) the Liberator.

In a move that is not entirely unexpected as self-described crypto-anarchist Cody R. Wilson and his company Defense Distributed continue to push both the boundaries of the technology as well as gun laws, the government took action. It is no secret that escalation often begets escalation. Is this the first salvo by the government in their dealings with Cody Wilson and Defense Distributed?

Through the Department of Defense Trade Controls Office, the government demanded that the design for the Liberator – the CAD file – be removed from Defense Distributed’s website. This is based on the likely correct presumption that providing such a design violates U.S. export control policies.  However, this removal came only after almost 100,000 copies of the file had already been downloaded.

That saying about horses and barn door closings comes to mind.

However, the removal does comport with the stated aims of our export control system. The state goals of our export control system are:

• Provide for national security by limiting access to the most sensitive U.S. technology and weapons
• Promote regional stability
• Take into account human rights considerations
• Prevent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism
• Comply with international commitments, i.e. nonproliferation regimes and UN Security Council sanctions and UNSC resolution 1540

Clearly the Department of Defense Trade Controls Office is relying upon the “[p]revent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism” rationale. It’s a rationale that I think no sane individual would argue against as a policy matter. The penalties for violating export restrictions alone is pretty robust:

The U.S. government has built in various enforcement mechanisms to ensure compliance with our export control laws. U.S. Customs officials (now part of the Department of Homeland Security) have the authority to check any export or import against its license at the borders. For dual-use items, Department of Commerce officials also investigate violations. Licensing authorities often require pre-license checks and post-shipment verifications.

Criminal and civil penalties for export control violations can be severe. For munitions export control violations, the statute authorizes a maximum criminal penalty of $1 million per violation and, for an individual person, up to 10 years imprisonment. In addition, munitions violations can result in the imposition of a maximum civil fine of $500,000 per violation of the ITAR, as well as debarment from exporting defense articles or services. For dual-use export control violations, criminal penalties can reach a maximum of $500,000 per violation and, for an individual person, up to 10 years imprisonment. Dual-use violations can also be subject to civil fines up to $12,000 per violation, as well as denial of export privileges. It should be noted that in many enforcement cases, both criminal and civil penalties are imposed.

However, running afoul of trade restrictions is not the only potential legal pitfall for Defense Distributed. Consider that what they published was a digital document containing design specification for a gun that is for all practical purposed undetectable by traditional means. The only design benefit of such a weapon over traditional handguns is as either an assassination weapon or for use against a protected facility (a covert attack). But is an export control really ever going to be effective against such digital information? As previously noted, many hundreds of thousands of copies of the file were downloaded before the ban was put in place. Because it is a digital media, it is easily copyable and redistributed by networked or other means. Does this put Defense Distributed at risk for prosecution under export trade laws?  The barn door was closed after the horses left after all. I think the answer is “possibly”, but I don’t think that is the most interesting legal question though.

The more interesting questions are found in considering Defense Distributed’s actions, the nature of digital media, existing law (namely the Patriot Act) and future acts deemed “terrorism”.  Under 18 U.S.C. § 2339B (part of the Patriot Act), it is illegal to “knowingly [provide] material support or resources to a foreign terrorist organization, or attempts or conspires to do so”. What is interesting is how “material support” has been defined by case law since the enactment of the Patriot Act. Consider the case of Holder v. Humanitarian Law Project. In that case, the Supreme Court considered the challenge of the definition of “material support” by the Humanitarian Law Project, a groups seeking to teach peaceful dispute resolution to groups like Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam, groups which have been on U.S. lists of terrorist organizations maintained by the State Department for years. To understand the risks facing Defense Distributed, it is necessary to understand the reasoning behind Holder v. Humanitarian Law Project, the low and/or incorrect threshold it represents as well as other criticisms of the holding and actions taken post-decision.

The Humanitarian Law Project brought suit claiming that the language of 18 U.S.C. § 2339B was vague, violated the 5th Amendment, and that it infringes upon the 1st Amendment guarantees of freedom of speech and free association. The relevant part of 18 U.S.C. § 2339B reads:

(1) Unlawful conduct. – Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).” 18 U.S.C. § 2339B(a)(1).

In most part relying upon these definitions of what constitutes unlawful conduct, the Court found that the type of aid intended did fit into the law’s definition of material aid and in part that it hinged upon the “knowingly” requirement as the organizations the Humanitarian Law Project sought to aid were already identified terrorist organizations.  The finding was based on the principle that any assistance could help to “legitimize” the terrorist organizations and free up their resources for terrorist activities. The Court did note, however, that the actions of the Humanitarian Law Project were hypothetical and did not preclude post-enforcement challenges in the future.

The case of Holder v. Humanitarian Law Project marks the only time in the jurisprudence surrounding the 1st Amendment that a restriction of political free speech has passed the test set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). To those not familiar with the Brandenburg decision, it created a two-fold test for examining whether political free speech is protected or not:  Speech advocating the use of force or crime could only be proscribed if (1) the advocacy is “directed to inciting or producing imminent lawless action” and (2) the advocacy is also “likely to incite or produce such action.”

The decision was met with much criticism. Former President Jimmy Carter as head of the Carter Center criticized the decision.  He argued that “”We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.” In the same press release, Melissa Goodman, staff attorney with the ACLU National Security Project said, “Today’s decision is disappointing and inconsistent with our First Amendment position. The government should not be in the business of criminalizing speech meant to promote peace and human rights.”

Perhaps most damning and to the logical point are the words of Elisabeth Decrey-Warner, president of the Swiss NGO Geneva Call, in stating the obvious flaw with this decision in that “Civilians caught in the middle of conflicts and hoping for peace will suffer from this decision. How can you start peace talks or negotiations if you don’t have the right to speak to both parties?”

Along these same lines, linguist Noam Chomsky criticized the decision in an interview with Democracy Now!’s Amy Goodman, saying “A very important case was six or eight months ago, I guess, Holder v. Humanitarian Law Project. It was initiated by the Obama administration. It was argued by Elena Kagan, Obama’s new court appointment. And they won, with the support of the far-right justices. The case is extremely significant. It’s the worst attack on freedom of speech since the Smith Act 70 years ago. The case determined that any material support to organizations that the government lists on the terrorist list is criminalized, but they interpreted ‘material support’—in fact, the issue at stake was speech. Humanitarian Law Project was giving advice—speech—to a group on that’s on the terrorist list, Turkish PKK. And they were also advising them on legal advice and also advising them to move towards nonviolence. That means if you and I, let’s say, talk to Hamas leaders and say, ‘Look, you ought to move towards nonviolent resistance,’ we’re giving material support to a group on the terrorist list.”

This shows the strained logic of the Court clearly in the Holder v. Humanitarian Law Project case. However, like the much and rightfully lamented Citizens United decision, it remains controlling precedent until overruled or legislatively amended.

In January 2011, David Cole, a professor of law at Georgetown University Law Center, who argued the case for the Humanitarian Law Project, wrote a particularly damning Op-Ed piece for the New York Times commenting on developments since the decision and stated that “Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees.” I strongly suggest reading Cole’s Op-Ed piece in its entirety.

Now reconsider the actions of Defense Distributed.

Contrast the actions of Defense Distributed in sharing information to the actions of the Humanitarian Law Project. Too be clear, we are not discussing the physical material support here, but rather the provision of expert advice or assistance. It becomes apparent that distribution of weapons designs is even more in line with the definition of “material support” if you consider that what is arguably free speech in advocating peaceful dispute resolution is sufficient to meet the definition of “material support”.

When (and it is probably a matter of when, not if) a plastic handgun made on these designs is used in an assassination or other crime deemed to be “terrorism”, will the government choose to go after Defense Distributed under the Patriot Act for their “material support” of “terrorism”? It seems like a real possibility.

Will Defense Distributed be able to hinge their defense on not knowingly providing information to problem end-users and supporters of international terrorism when their actions were not directed per se but simply the equivalent of releasing the information “into the wild”?

If giving away design data for a weapon whose fairly described design advantage is covert action and assassination the equivalent of advocacy that is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”?

It seems to me that Defense Distributed could be walking into a fight much more substantive and more more dangerous than simply championing the 2nd Amendment.

What do you think?

Source(s): Huffington Post (1, 2), YouTube, www.state.gov, Defense Distributed, 18 U.S.C. § 2339B, Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), 130 S.Ct. 2705 (.pdf), Brandenburg v. Ohio, 395 U.S. 444 (1969), Wikipedia, New York Times (1, 2), ACLU (Supreme Court Rules “Material Support” Law Can Stand), www.swisster.ch (Ed. Note: you may have issues getting this URL to resolve.)

~submitted by Gene Howington, Guest Blogger

What is wrong with this picture?  According to figures obtained from the Department of Justice, the National Alliance for the Mentally Ill (NAMI) reports that back in 1999, sixteen percent of the prisoners in State and Federal jails and prisons had a diagnosable major mental illness. These diagnoses include schizophrenia, bipolar disorder, major depressive disorder, or some other mental illness that can be classified as “severe.” Based on the number of known prisoners, this means there were roughly 283,000 persons with severe mental illnesses locked up in Federal and State correctional facilities, and that was 13 years ago. It has gotten worse since then. At the end of 2011, 2,266,800 adults and approximately 71,000 juveniles were incarcerated in Federal and State prisons, and jails.  That is 2,337,800 incarcerated inmates. If the sixteen percent figure holds, and there is no reason to believe it hasn’t, there are now about 374,000 mentally ill inmates in correctional facilities. “Correctional facility” is an oxymoron when it comes to providing treatment.  According to both law enforcement and mental health groups, the percentage of mentally ill being locked up is growing, not decreasing.

By way of contrast, public psychiatric hospitals have a patient population of 70,000 with similar severe mental illnesses. Want to know something else scary? Thirty percent of those patients are classified as forensic patients. They are awaiting trial, or so in need of treatment the prison system cannot cope with them. This was something I saw when I worked at the Mississippi State Hospital on the forensic unit. We would get prisoners from the State Department of Corrections that could not be managed adequately on the psychiatric unit at the penitentiary. Almost all State and Federal correctional facilities now have special units for the mentally ill, or with mental or physical handicaps. County jails nationwide do not usually provide mental health care at anything more than the most superficial level.

Furthermore, law enforcement officers are increasingly becoming first responders to people with severe mental illnesses in crisis. That is not working out very well for the police or the public, as we have seen in numerous stories reported on this blog. I talk to many sheriffs who are both angry and frustrated their jails are filling up with the mentally ill. They do not have the trained staff or the facilities needed to care for the mentally ill. At the same time, access to mental hospitals is becoming increasingly difficult.

Starting about 1955, a social movement began to “deinstitutionalize” the mentally ill. This movement was based more on political correctness than sound public policy.  Proponents of the movement, nor the operators of mental hospitals, offered a sound treatment alternative for patients released onto the street. When I went to work at the Mississippi State Hospital in 1972, the total inpatient census was 4,400.  Getting a patient into the hospital was no big deal, and most patients did not stay more than three weeks or so. There were long-term care wards for patients who were too ill and too resistant to treatment to be released, and some of those patients had been there for years. Most of those patients had no place to go upon release.  When I left the hospital ten years later, the total patient census was only 1,600.  At the same time, jails began filling up with former patients. We began seeing many of the same people who had been released recently funneled back through the forensic unit for pre-trial evaluations. The ones who survived, that is. That is another story for another day. Some patients didn’t even live long enough to get into legal trouble.

The Federal government singled out public mental hospitals for denial of Medicaid payments. However, Medicaid would be paid to privately owned and operated nursing homes and other group homes. The hidden agenda behind this was to speed the destruction of state-run mental hospitals. Well, I have news. It worked. According to NAMI:

• Since 1960, more than 90 percent of state psychiatric hospital beds have been eliminated. In 1955, there were 559,000 individuals with serious brain disorders in state psychiatric hospitals. Today, there are less than 70,000. Based on the nation’s population increase between 1955 and 1996 from 166 million to 265 million, if there were the same number of patients per capita in the hospitals today as there were in 1955, their total number today would be 893,000.

• The pace of psychiatric hospital closures has accelerated. In the 1990’s, 44 state psychiatric hospitals closed their doors, more closings than in the previous two decades combined. Nearly half of state psychiatric hospital beds closed between 1990 and 2000.

In Tennessee, Lakeshore Mental Health Institute in Knoxville closed its doors for the last time in 2012. That means inpatient care for all those Lakeshore patients is now dumped on the three East Tennessee acute-care psychiatric hospitals: Peninsula in Knoxville, Ridgeview Psychiatric Hospital in Oak Ridge and Woodridge in Johnson City.  This, despite the fact that all those facilities are for short-term care only.  Mental patients who will not, or cannot, be treated at any of those facilities have to depend on mental health centers. Whose bright idea is this?  State Commissioner of Mental Health Douglas Varney. Doug Varney is the former CEO of Frontier Health, one of the largest mental health centers in the area, with an annual budget in excess of fifty million dollars. They serve, where else? East Tennessee and southwest Virginia.

As all these patients began being dumped into the communities around the country, something new we had not seen before began to emerge. Bag ladies. Homelessness. Increased crime. At the time I left the Mississippi State Hospital at Whitfield, I was consulting with law enforcement agencies all over the state, including the State Attorney General’s Office.  The situation got worse, literally by the day. Then in the early 1990s, something else changed. Remember when Hillary Clinton proposed reforming health care insurance? There was an intensive ad campaign by the insurance industry about patients not being able to choose their own doctors.  Ms. Clinton’s plan was shot down in ignominious defeat. The smoke from that had not even cleared before something called “managed care” was instituted by the insurance industry. It is still with us.

Mental health providers (psychiatrists, psychologists, counselors and clinical social workers) were reimbursed at only 50% the normal rate as other specialists.  Not only that, most managed care plans limit providers to six visits.  Very few psychiatrists or psychologists outside mental health centers accept health insurance these days. Pay at the door, and you can file your own insurance claim.

I knew traditional mental health treatment was nearing an end when I got a frantic phone call from the psychiatrist in charge of the Dual Diagnosis Unit at one of the private psychiatric hospitals where I was on the staff. Dual Diagnosis is for treatment of patients who have an addiction problem in addition to an overlying mental illness. I had just walked in my office at 8:00 AM when the phone rang. The conversation went like this:

Dr. Bill the Psychiatrist: “Chuck, I need you to see a new patient for an evaluation right away.  I need some psychological testing to get a better handle on just how sick this patient is.”

Me: “Be glad to, Bill, when was he admitted?”

Bill: “Last night at 7:00.” 

Me: “OK, but I’d like to wait a day to let him settle in. He hasn’t had time to find the bathroom yet. We both know it is stressful to be admitted to the hospital, and I would like to give him a little time to get used to being there.”

Bill: “No, no. I need him seen this morning. He came in with a provisional diagnosis of cocaine addiction and a major depression. He is seriously suicidal.”

Me: “OK, in that case I will come over and see him this morning.”

Bill: “I need your written report by 1:00.”

Me: “What? How come you need the final report by one o’clock?

Bill: “We are going to staff his case at one o’clock, and I will need you here then. His insurance only allowed a 23-hour admission, and I have to let him go by six this afternoon.”

Me: “Say what!?! They gave you one day to cure a coke addiction and suicidal depression?”

Bill: “Yup. It’s getting worse. They didn’t want him admitted at all; they wanted me to see him for six outpatient visits, but I did manage to get him admitted for one day.”

As an example, I had a worker’s compensation case in the mid-1990s. The patient was a Vietnam veteran, who had sustained a significant back injury at work, causing chronic pain. In addition to preexisting PTSD from combat, he was both depressed and angry over his present situation. He was not able to work, and was about to lose his home. Needless to say, with the insurance balking on paying any of his doctors, that added to his frustration, which was reaching the boiling point.  I continued to see him, because as fragile as he was, the risk of abandoning him as a patient trumped not being paid by a wide margin.  His insurance adjuster was refusing to pay our office for my time, saying I was trying to gouge his company for fees and the vet was just trying to get something for nothing.  The fellow came in one day with a high-capacity magazine for an AK-47 in his pocket. I asked him about it, because it is rather hard to miss a 30-round magazine sticking out of a man’s pocket.  He pulled it out, turning it over in his hands several times, saying he just bought it for his AK-47 rifle. He had one magazine already, and this was an extra. In a soft voice, he said if the adjuster did not stop giving him such a hard time over his benefits, he was going to go to Florida, find his office, and shoot the SOB.

I told him I was going to push the case harder, and in the meantime, don’t do something stupid without coming and talking to me anytime day or night. I gave him my home phone number, after he reassured me he was not going to go down to Florida right away, that he would give the insurance adjuster some time, but not much time. My business partner at the time was a psychiatrist as well as an attorney. He moonlighted part time as a deputy sheriff. To say that he can be blunt when he wants to is an understatement. He said he would call the adjuster and light a fire under him.  I found out later he called the adjuster and explained to him in very simple terms, that, “Don’t you understand that Dr. Stanley is the only thing standing between you and death?  The adjuster must have gotten the message because suddenly he could not do enough for me, and the vet did not lose his house.

This is a long and convoluted story, involving intrigue, deception, greed, misguided people on all sides, and where idealism clashes with harsh reality.  We are not done yet.  I have a story in the works for next week about the new DSM-5 diagnostic handbook, which will replace the present DSM-IV-TR.

The criminal justice system has no mechanism for mental illness other than, “not guilty by reason of insanity,” for dealing with the mentally ill.  For non-lawyers reading this, insanity is a legal term, not one found in the diagnostic manual.  Insanity has very specific legal meaning. Many mental health professionals do not understand that legal insanity does not equate to any specific mental, psychological or neurological condition.

There are judges who don’t really believe there is such a thing as mental illness.  It is really hard to get an N.G.R.I. verdict. When I was at the State Hospital seeing hundreds of pre-trial defendants, very few were truly schizophrenic. Of those schizophrenics, only about seven percent of them met the M’Naughten criteria for legal insanity. M’Naughten is the rule for insanity in Mississippi. When those cases went to trial, almost all were convicted anyway. Juries are skeptical of insanity defenses.

Prison or jail is the worst place a mentally ill person can be. They do not get treatment.  Many are locked up in solitary confinement or protective custody, usually because of acting out due to the illness.

At the same time, public mental hospitals across the country are closing to, “save money.”  I have news for those folks.  If we use the state of Michigan as an example, a Bazelon Center report shows the stark reality of the cost of keeping a mentally ill person locked up in prison, versus case management in the free world. The annual case management of a mentally ill person in Michigan is $2,165. A more intensive program, The Assertive Community Treatment Program is even more intensive for the more severely ill, with a per-patient cost of $9,029 per person per year. By contrast, the average Michigan prison inmate costs the state over $34,000 annually.

The cost is more than just money. In 2010, 530 inmates with mental issues committed suicide while locked up.  All suicides are a tragedy for everyone concerned, but some seem to be more poignant than others. The gifted blues guitarist, Roy Buchanan, committed suicide in the Fairfax County, Virginia Jail in August 1988 at the age of 48. He was arrested for public drunkenness, but had a history of depression. Roy should have been in a hospital rather than a jail. Far too many people with mental issues self-medicate with alcohol or recreational drugs. What could possibly go wrong?

I will leave the reader with one of Roy Buchanan’s tunes. No wonder he was so good at the blues. He lived the blues, and died an inmate in a jail with a homemade noose around his neck. The title of this is, When a Guitar Plays the Blues, recorded at Carnegie Hall. The Blues indeed.

I’ll be busy celebrating Mother’s Day with my ninety-five year old mother, my daughter, and granddaughter–and also with my husband and son-in-law.  Happy Mother’s Day to all the mothers who frequent this blog! I’m dedicating the following poem to my dear mother.

A Poem by Christina Rossetti

Sonnets are full of love, and this my tome

Has many sonnets: so here now shall be

One sonnet more, a love sonnet, from me

To her whose heart is my heart’s quiet home,

To my first Love, my Mother, on whose knee

I learnt love-lore that is not troublesome;

Whose service is my special dignity,

And she my loadstar while I go and come

And so because you love me, and because

I love you, Mother, I have woven a wreath

Of rhymes wherewith to crown your honored name:

In you not fourscore years can dim the flame

Of love, whose blessed glow transcends the laws

Of time and change and mortal life and death.

**********

Christina Rossetti (Academy of American Poets)

Submitted by: Mike Spindell, guest blogger

Sometimes I’ll be watching something and a thought will occur to me and it will stick in my mind and lead me into a meditation on a more global idea that remains with me as I try to puzzle it out. A train of thought set off this week was a TV program in which a person had to deal with aging and it was clear that their fear of their own mortality that controlled their actions. The program is forgotten and unimportant in this piece, but it did start me spending much time extrapolating the implications from that situation. This represents the rude beginnings of a theory I’ve developed, sans research, on why many people respond the way they do to the world, especially in a sociopolitical sense. Feel free to attack it, because it is merely a product of my tangled thought processes and in truth I don’t even know if it is particularly original, or the result of my synthesis of much I’ve learned and read through the years.

Noticeable human development began at least a million years ago in an apelike creature that was small and relatively weak, considering the predatory creatures that surrounded it. Life was a tricky proposition for that creature and the act of merely staying alive consumed its time. I would think that almost all of its day was spent in a state of fear, causing adrenalin rushes and hyper sensitivity to its environment. Those with the most fear, sensitivity and intelligence survived enough to pass on their genes to the coming generations, thus continuing the evolutionary cycle. As time and evolution passed enormous changes in brain size and other factors turned this fragile being into an omnivore predator that mastered the food chain. Yet still remaining were the instincts of fear and hyper-vigilance, since life even at the top of the food chain remained brutal and short. Those instincts protected us well until a next evolutionary step that took us to a whole new level, leaving us as unquestioned masters of life on this planet. That step is what some are calling a social evolutionary process. When humans began to band together into larger groups their place in the world increased exponentially. This “social evolution” changed the Earth and continues today, but nevertheless we are still primarily ruled by fear and by hyper-vigilance. Let me take you where this thought has led me and perhaps you can show me the flaws in my nascent “theory” and provide me with respite from its repetition in my brain.

Fear of death has to be a common instinct to almost all species, but it is of particular importance to humans because of our understanding that we all will die. All life is a struggle for survival and that struggle concludes with death. The idea of our own non-existence is on some level a frightening one for even the most stoic among us.  As human societies became more complex this fear of death had to be dealt with or social collapse would surely follow. On the Savannahs of Africa, hunters in small packs tracked deadly game for meat. Despite the organization of a hunt, any individual was risking their life for the good of their social group, as well as the filling of their stomach. In small social units this risk was worth it, because everyone’s life was at stake. As these small social units became tribes though, we can assume that there were those who sought to escape the danger for the sake of their own safety. I think that this led to the rudimentary beginnings of religion as a means to coerce a larger social group into working together for the common goal of survival. As the complexity of societies increased philosophy developed as an offshoot of religion and from philosophy came political and economic ideas that branched into their own kind of philosophical thought.

The germ of this idea began in a book recommended to me by our regular contributor Blouise and I think one or two others. The book is: “The Social Conquest of Earth” by the distinguished scientist Edward O. Wilson. http://en.wikipedia.org/wiki/E._O._Wilson In the book Professor Wilson demonstrates his belief that in addition to the biological evolution of species, there have been in a few species an advanced “social evolution” that has inextricably entwined with biological evolution, to take these species to even greater levels of success in the evolutionary struggle. The other species which he talks of are insects, such as Ants, Termites and Bees that have found long term success and growth due to evolving into creatures with complex social structures. I don’t have the scientific expertise, or the insight to do this book justice, but if nothing comes of your reading here other than reading this book, then it will be a success, because Wilson presents a compelling argument.

As a scientist Professor Wilson looks at human behavior from the perspective of the species as a whole, as a retired psychotherapist my interest is more in how people encounter this confusing knowledge, the effect of it on their life and their individual reactions to it. My experience is that there are a large percentage of human beings that live their lives in a constant state of anxiety, fear and dread that lurks below the surface of their conscious mind. The evolutionary factor that has caused the defense mechanism of fear to be so strong in us, certainly has kept us viable as a species, yet in the social context that Professor Wilson speaks of, it can also carry within us the seeds of our extinction. I think that this is apparent if we look at some of the foibles of modern human life and also extrapolate how the interactions of our basic human fears, with the complexities of modern existence have created the danger of our own self-destruction.

In a small social unit of perhaps up to 25 people, the leader was the physically strongest individual and fear of death via the hunt, was overcome by fear of punishment from the leader. The leader of let’s say 100 people would have more difficulty in controlling the group through fear and so developed hierarchical social structure. This was nothing new in evolution as we can see from the hierarchies in the society of Apes and Monkeys our close evolutionary relatives. However, as best as science can currently tell the average 5 year old human is as smart as, or smarter than any of these simians, so we can assume the hierarchical structure was a natural result of social evolutionary processes, limited by the capacity of intelligence and communication. Among most species the notion of territoriality seems a result of adapting to the surrounding environment. Even with plentiful game the struggle for food was constant, the idea of battling between groups of the same species competing for food and water was a simple affair among pack animals, overcoming the individual’s fear of death. If one did not fight the other pack for survival, one would either die, or have to run away alone. When the perception increases to the level of humans, the options for actions and foresight of possible consequences are such that more is needed to overcome the fear of dying.

The problem on this level of evolution for humans is that environments change over time and with it the need to adapt to changing circumstance. A greater bond was needed to grow and expand the tribal experience. In my opinion that bond was religion. On one hand religion worked to calm the fear of death and on the other it worked to explain the confusing nature of life itself. As religion evolved it also worked hand in glove (generally) with the hierarchy to maintain its power within the expanding societal group. It gave “rules” to govern the way people should live within their larger social group and it was justification for fearing and opposing other social groups offering competition for resources. On the beginnings of religion evidence has been found dating religious symbols back to about 30,000 BCE. Currently Archaeologists place the earliest known development of human societal history, be it Sumer or Egypt at about 5,000 years ago. My own suspicions are that in the years to come they will discover far older roots of human civilization. In postulating the suddenly blossoming of Sumer and then Egypt, from simple farming society to monument building civilized empires, represent too great a leap, without intervening steps currently unknown.

In those two civilizations, that have left us written records, we see religion working in tandem with the political hierarchy to build great structures through harnessing the manpower of the entire people. The monuments in Sumer were temples to the Gods and in Egypt served as tombs for the Pharaohs, who were considered Gods. From those early beginnings the complexities of the interactions evolved to the extent that brings us to the present day. A world where humanity has the tools to destroy itself and where our fears are exploited to control us, either through religion, politics, xenophobia or a mixture of all of these elements.

In the end though, shorn of the complexity of “isms”, human societies are primarily governed by fear of death and its complementary aspect fear of the “other”. Structurally, from a hierarchical standpoint, we are little different than the society of the Great Apes and on top of that structure our leaders are similar to the “grey-backs” that rule our evolutionary “cousins”. For America the defining moment of this 21^st Century has been 9/11. The fear engendered by that terrorist act was engineered into two wars and into a drastic change in government power. A majority of the American people were so frightened by that event that they willingly acceded to these changes in their governance and embraced activity, such as torture, to keep their inner fears at bay.

In my own lifetime, approaching 70 years, the changes in the world around me have been phenomenal and most times I spend struggling to keep up with these changes. For those who watched the “speculative” Star Trek in 1966 their handheld computer communicators have become our now ubiquitous cell phones. Much of the Science Fiction I read in the 50’s and 60’s have become if not reality, strong theoretical possibilities. Forget technology though. The social changes are also quite remarkably startling. The attitudes towards race, sexuality, gender and ethnicity while not free from prejudice and stigma have certainly come a long way towards that goal. It requires no great insight to understand that for many these “changes”, that have “rocked” their world, have led to heightened anxiety and the fear that drives that anxiety. It is no coincidence that the recurrence of s strong religious fundamentalist strain developed in the 60’s when all over the world society’s had their stability shaken by a youth unwilling to accept their predestined role. Then too, the experience of psychedelic drugs tends to disconnect one somewhat from the standard definitions of reality. For many the dislocation was such that they grasped onto religious faith as a rock to cling to as the tidal wave of social change threatened their emotional grounding. We see in America the result of many of our people overcome by fear, which to my mind is nurtured by the elite that rules us and through that fear they are willing to take extraordinary measures to give them some sense of comfort that they are safe from random death. That this is illusory is quite beside the point. The reality is that each of us faces death daily from completely mundane causes. The likelihood of a terrorist act, a school shooting, or being murdered in our beds, is infinitesimally smaller than a car accident, illness or falling off a bike. For all the fear generated our lives are so much safer now than they ever have been in all of human history. The anxiety and fear though that many live in as their constant emotional state paradoxically decreases our safety and increases the possibility of human self-destruction.

With that long explanatory preamble I finally get to the nub of my thinking this week. While fear is a human necessity for survival, as I well know, it can also be a self defeating instinct. While fear can manifest itself in response to an immediately perceived danger which is needed protection, it can also manifest itself into debilitating anxiety which can lead to inappropriate responses to our external environment. One definition of anxiety that I like is by Fritz Perls and states: “Anxiety is the difference between now and then”. The anxious individual is afraid of some future action perceived, rather than some imminent danger. Paranoia is a form of anxiety and the response by the paranoid can turn deadly. To my mind much of the response to 9/11 came from anxiety rather than reality. Remember the non-existent “weapons of mass destruction”?

The human condition today is that our lives are ruled by fear in the form of irrational anxiety. Due to it the collective “we” tries to react to “threats” that are more perceived than real. Our leaders, many of whom suffer from anxiety themselves, nevertheless exploit it in us for their own personal gain and indeed “leaders” always have. The trappings of civilization in the form of religions, philosophies economic and political systems are chimeras that disguise the reality, which is many of us are ruled by our fears/anxieties and thus the necessary survival instinct of fear, may in the end lead to our self destruction. I spent a good bit of this week ruminating on this, was it worth it, or just a product of my own anxiety?

Submitted by: Mike Spindell, guest blogger

At a time when recording a conversation is as easy as whipping out a cellphone or iPod, the FBI policy on electronic recording of witness interviews is: “agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee.” Instead FBI agents take notes and later type up a summary report called a form 302. The interview takes place with two FBI agents and the single interviewee. The FBI has eschewed the objective for the subjective.

This policy has proved problematic in numerous cases. District court judge Charles B. Kornmann in South Dakota lamented that he was forced to hear: “another all too familiar case in which the FBI agent testifies to one version of what was said and when it was said[,] and the defendant testifies to an opposite version or versions.”

Former U.S. attorney for Arizona, Paul Charlton, was forced to resign when he tried unsuccessfully to order the FBI to record confessions. Charlton recalls that “We lost cases, we had to plead down cases, we had to drop cases just because of this policy.” In a beating case on a Navajo reservation, the defendant had been charged with assault with intent to commit murder for the attack on his live-in girlfriend. After the victim refused to cooperate, the form 302 was the critical piece of evidence. However, the form 302 didn’t even indicate if the defendant was intoxicated or if the interrogation was in English or Navajo.

In an internal memo, the FBI listed its arguments supporting its non-record policy:

First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.

Thomas P. Sullivan, et. al., have spoken with officers from over 600 police and sheriff departments and found “None of the officers who had experience with electronic recordings would voluntarily return to reliance on handwritten notes.”

The memo offers another FBI argument is:

[A]s all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.

What happened to the “successful rapport-building interviewing technique?” With the frequency of false confessions, one would think that the FBI valued ascertaining the actual guilty party and not just obtaining a confession that looks good to a jury. Playing to the jury is the FBI’s stated motivation. Juries tend to believe the two FBI agents, and the form 302, and this advantage would be lost if a recording was used.

The real reason the FBI doesn’t want to record interviews is Title 18 of the United States Code, section 1001, the so-called federal false statements law. Without recordings, the sole arbiter of what an interviewee says, is the FBI and its form 302. The threat of a charge if the interviewee is called to testify before a grand jury, or at trial, ensures testimony that is favorable to the prosecution. As noted by Harvey Silverglate:

Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.

New York attorney Eric Dixon writes:

If the FBI wants to talk to you, they may be setting a trap for you where you walk into the interview totally innocent, and are totally vulnerable to being charged with a crime afterwards, no matter what you say.

H/T: Mano Singham, Brendan McCarthy (Times-Picayune), Steve Chapman, Eric Lipton and Jennifer Steinhauer (NY Times), Colin Ross.

The first proclaimed fact in many of these bills introduced across the country is a whooper for those concerns about the wall of separation between church and state: “Israel has been granted her lands under and through the oldest recorded deed, as recorded in the Old Testament, a tome of scripture held sacred and revered by Jews and Christians, alike, as presenting the acts and words of God.”

The language has been duplicated and introduced in states across the country. It is rare for states with no foreign policy functions to hold forth on international matters of this kind. However, one could certainly understand the desire to affirm the close alliance between the United States and Israel. However, that can be express in a variety of ways referring to the countries and their history. There was a clear desire to have an expression of faith in the legislation — a faith-based claim that is not shared by many non-Christian and Jews including atheists and agnostics.

Do you consider this type of language appropriate?

Ken Paxton is a graduate of Virginia Law School. His campaign literature states that he “is an active charter member of Stonebriar Community Church in Frisco, where he has participated in various leadership roles.”

Here is the language of the Texas bill:

SENATE RESOLUTION NO. 694

WHEREAS, Israel has been granted her lands as recorded in the Old Testament; and

WHEREAS, The presence of the Jewish people in Israel has remained constant throughout the past 4,000 years of history; and

WHEREAS, The basis for the establishment of the modern State of Israel was a binding resolution under international law, which was unanimously adopted by the League of Nations in 1922 and subsequently affirmed by both houses of the United States Congress; and

WHEREAS, This resolution affirmed the establishment of a national home for the Jewish people in the historical region of the Land of Israel; and

WHEREAS, Israel declared its independence and self-governance on May 14, 1948, with the goal of reestablishing its lands as a homeland for the Jewish people; and

WHEREAS, The United States, having been the first country to recognize Israel as an independent nation and as Israel’s principal ally, has enjoyed a close and mutually beneficial relationship with Israel and her people; and

WHEREAS, Israel is a great friend and ally of the United States in the Middle East; and

WHEREAS,
RESOLVED, That the Senate of the State of Texas, 83rd Legislature, hereby commend Israel for its cordial and mutually beneficial relationship with the United States and with the State of Texas and support Israel in its right of self-governance and self-defense.

After the boy went into therapy, he told his father of the alleged abuse that he experienced at a Jewish camp by his counselor, Yosef Kolko. Kolko is a former yeshiva teacher on trial now for the alleged abuse.

Kolko, 39, is accused of abusing the boy at age 11 in 2007 at a religious summer camp in Lakewood. The boy says that the rabbi engaged in molestation and oral sex in various locations including an empty classroom, a storage room, Kolko’s car and the basement of a synagogue.

What is interesting about the case is the reaction of the father and then the community. The father was told by his son that he was sexually abused, but instead of going to the police he went to a group of rabbis to take action even though such rabbis could not imprison him or order corporal punishment. The father waited for months as the rabbis did little. He was also willing to send his kid back to the same camp. It was only after he discovered that Kolko was going to continue his work at the camp that he took additional steps. The father admits that he wanted to leave the matter in the hands of the rabbis and not report to police that his son had been allegedly sexually assaulted. I find that truly extraordinary since any action that the rabbis took would not deprive Kolko of his freedom. It is the ultimate triumph of faith for a father to refuse to go to police even when he believes that his son was raped. Both the father and Kolko went to the home of a prominent Lakewood rabbi. The father wanted the matter submitted to a rabbinical court rather than to inform police of an alleged sexual predator working with children.

The father however said that it was clear that the rabbis had not acted. He then said that he felt he had to act in July 2009. That is two years after the alleged sexual abuse so for two years he allowed someone he believed to be a sexual predator walk around free because he preferred to use rabbinical courts.

After he went to Ocean County prosecutors, however, community members denounced him and posted signs against the family. Even the father still admits reluctance in going to the police, saying “[g]oing to law enforcement is not, at this time, common within the Orthodox Jewish community. Even when it’s necessary it’s considered unusual.”

A flyer in their community denounced them of a “terrible deed” by speaking to non-Jewish officials. We have seen this abuse in other cases in the Orthodox community. However, it is the hold of faith on the father that is most striking to me in this case. To wait two years to speak with police is astonishing for a father who believes that his son was sexually assaulted. It is also interesting to see that no lawsuit has been filed against the Jewish leaders who took no action and also did not report the matter to the police. The similarity to the allegations against the Catholic Church is striking.

As for those responsible for the flyers, I cannot imagine how even profound faith could lead someone to denounce the possible victim of child abuse for simply going to police.

Source: Fox

Grieving family members had complained that lights, candles, and other objects were routinely taken from the graves of their loved ones.

This is a mugshot of Farinella from 2011. Debra Farinella, now 57, was released from a Florida prison in 2011 after serving time for grand and petty theft and passing bad checks.

She is now facing grand theft charges. Presumably this would be third degree grand theft, but it is hard to value such items. On the basis of market value, they would obviously be lower in cost than how these families valued them. First (Degree Grand Theft covers stolen property valued at $100,000 or more, while Second Degree Grand Theft covers stolen property valued between $20,000 and $99,999. Third Degree covers property valued between $300 and $19,999 and comes with a maximum of 5 years in jail and a $5,000 fine.

Source: Orlando

The mementos are from his high school and early professional basketball career. It is undisputed that he left the items in his room in the house in New Jersey. His mother insists that he made an oral statement that what was left in her home was hers. As a back up, she could argue abandonment. The New Jersey code states:

46:30C-4. Claiming of lost property.

4. a. A person may claim lost property only after making reasonable efforts to return the property to its owner.

b. If the owner of the lost property does not reclaim it within 120 days of the commencement of reasonable efforts to return it:

(1) The owner of the premises where the property was found may claim title to buried or hidden lost property or to lost property which a trespasser found;

(2) The finder of the property may claim title to lost property in other cases.

c. If the owner of the premises or finder does not claim the lost property, and an action is not pending to determine rights to the property:

(1) Marketable property shall be sold by the clerk of the municipality in which it is located and the proceeds, less costs of sale shall be transmitted to the administrator of the “Uniform Unclaimed Property Act (1981)” (R.S.46:30B-1 et seq.), for deposit in the Unclaimed Personal Property Trust Fund established pursuant to the provisions of R.S.46:30B-74;

(2) Non-marketable property may be treated as abandoned.

Bryant says that his mother admitted to him that the mementos were his and that he never gave her permission to sell them. In a filing, he told the federal court “I confronted her about her false statement that I had given my memorabilia to her . . . I said to her, ‘Mom, you know I never told you that you could have the memorabilia.’ Her response was, ‘Yes, but you never said you wanted it, either.’”

Goldin Auctions is selling various items including two championship rings that Bryant gave his parents after the Lakers won the 2000 title and his 1996 Pennsylvania high school championship ring and sweat suits from Lower Merion High.

With a net worth of $200 million and annual income of some $52 million, it is not clear why he doesn’t fork over the cash to get rid of his Mom and her claim. However, his relationship with his Mom and Dad (“Jellybean Bryant”) is described as icy.

It is nothing like court filings to lay the foundation for a Mother’s Day dinner. Since she is a represented party, does counsel have to be present for the obligatory phone call to Mom? At a minimum, any flowers should be accompanied by an express statement that “this floral gift is not intended and should not be construed as an admission or concession in any pending or planned litigation against the recipient.” Indeed, if Kobe leaves the flowers at the house, can that be used as evidence of past conduct and understandings about the presumed ownership over left or abandoned items?

Source: LA Times

The letter was an embarrassment for the University of Cambridge which appeared like it was trying to spin the declination of the invitation for reasons of health. Tim Holt, acting communications director at the University of Cambridge, issued a statement that tied the decision to Hawking’s continued struggle with amyotrophic lateral sclerosis (ALS), known as Lou Gehrig’s disease:”For health reasons, his doctors said he should not be flying at the moment so he’s decided not to attend. He is 71 years old. He’s fine, but he has to be sensible about what he can do.”

However, Hawking sent a letter to Peres clearly stating that he was refusing on principle to travel to the conference in Israel. Hawking described Israel’s treatment and policy of the Palestinians as a “disaster” and reprehensible. Hawking stated that he initially accepted the invitation with the intention to speak out against the policies: “Had I attended, I would have stated my opinion that the policy of the present Israeli government is likely to lead to disaster.” He then explained that “I accepted the invitation to the Presidential Conference with the intention that this would not only allow me to express my opinion on the prospects for a peace settlement, but also because it would allow me to lecture on the West Bank. However, I have received a number of emails from Palestinian academics. They are unanimous that I should respect the boycott. In view of this, I must withdraw from the conference. Had I attended, I would have stated my opinion that the policy of the present Israeli government is likely to lead to disaster.”

There are various groups of academics supporting the boycott of Israeli products as well as academic and cultural ties with Israel, including a group with Desmond Mpilo Tutu, Archbishop Emeritus. The boycott has also received support of groups this year like the Asian American Studies Association. Various divestment policies have been proposed or passed at American academic institutions.

Ironically, MIT linguistics professor and political author Noam Chomsky actually opposed the ban by scholars but was himself banned from Israel simply because of his political views by the Israeli government.

The Hawking controversy reveals a deepening divide among academics in the United States over the boycott — an increasingly heated debate. The Hawking decision comes as Israel has ordered the building of new settlements opposed by the United States and the world community as well as a report this year from the United Nations stating that Israeli have taken a “heavy toll” on the rights and sovereignty of Palestinians. The U.N. complained about the creeping annexation” by Israel in East Jerusalem and the West Bank.

Others have disagreed that such boycotts are productive and insist that more interaction with Israel is better for pushing reforms. Israel Maimon, chairman of the Presidential Conference, added this week that “Israel is a democracy in which all individuals are free to express their opinions, whatever they may be. The imposition of a boycott is incompatible with open, democratic dialogue.”

The response to Hawking from conservative publications have been extreme. One such site asked “Would Professor Hawking ever survive in any Arab country or under the Palestinian autocracy he shamefully defends?” The Israeli publication noted that “[w]hile in the Arab world disabled people have been called ‘the invisibles,’ because they are segregated and hidden from the public eye, Israel’s work with illness and disabilities would merit a book in itself.”

Hawking’s letter has put the boycott and divestment movement on the front pages of international newspapers and is likely to rekindle the debate on U.S. campuses.