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How to Improve the Economy - Legalise Cannabis
Thursday, March 20th, 2008
As I am wont to babel about the economy: here it goes again. President’s Bush’s economic stimulus package, which pledges to give the average tax payer a $600 rebate check sometime later this year, isn’t going to offset the negative impact produced by the net decline of 85,000 jobs in the first two months of 2008. The unemployment rate is a lagging indicator of the economy, meaning that job losses occur after the economy has already taken a downturn; or, jobs will increase only after the economy has begun to grow. That said, the evidence put forth in this poor start to 2008 would suggest that the economy is indeed in trouble.
Typically, even the promise of an effective stimulus package will uplift Wall Street and consumer confidence, thus leading to increased consumer spending and subsequently a growing economy. As you can see, the plan put forth by our fearless leader has not instilled confidence in the consumer and has not bolstered Wall Street. Therefore, it cannot be considered an effective plan.
How about something new? Legalize marijuana for economic reasons. It is estimated that the legalization of marijuana in the U.S. would lead to a $7.7 billion drop in law enforcement costs and generate $6.2 billion in tax revenue. This is a net $13.9 billion improvement to U.S. government budgets, not to mention the fact that the dollars being spent on marijuana would be included in the consumer spending category of GDP, which would improve economic measures. What the study done by Harvard visiting professor Jeffrey Miron doesn’t take into account is the improved quality of life which arises from less militant policing of a substance that’s use is fairly widespread and has less negative effects on both individual health and society than alcohol. In 2006, there were 829,627 arrests for marijuana, which makes up 43.9% of total drug arrests in the U.S. Of the 829,627 arrested for marijuana-related charges, 738,916 were for possession alone. This is in direct contradiction to the alleged philosophy of the Drug Enforcement Agency, which states, “DEA targets criminals engaged in cultivation and trafficking…”. The statistics seem to contradict the mission stated by the DEA.
If marijuana was legal, then growing and distributing it would not be a crime. Therefore, this would put drug dealers out of business. I am not so naive as to believe that the supply of drug dealers will decrease by the exact same number as the marijuana dealers who were put out of business, because some of these dealers undoubtedly dabble in other substances and others who only sold marijuana before legalization will probably sell something else post legalization. I acknowledge that there are a considerable amount of concerns centered around operation of motor vehicles and individuals going to work while under the influence of marijuana. This should be treated no differently than alcohol is presently: it is not acceptable and/or legal to operate machinery or motor vehicles, or to go to your job while under the influence of a marijuana or alcohol.
The side benefits are also quite substantial. The Cannabis plant can be used for a variety of commercial and industrial products. Paper, rope, soap, lotions, fuel and lubricants are all among these products. The crops grow well in the United States’ varied climates and are relatively easy to grow, making it an ideal cash crop. If the trend could be set by the United States, then other countries may follow suit. This could lead to a situation analogous to the one in the 18th and 19th centuries when America was exporting enormous quantities of tobacco. The trade deficit could be reduced by taking a progressive step forward, one executed with much forethought and wisdom, and enticing the world to join us on our revolutionary quest to change the prejudices of government against its society.
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How Corporations Took Over The Supreme Court
Thursday, March 20th, 2008
The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.
I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”
Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”
Examples like these point to an ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”
Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.
Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.
What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.
This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.
II.
The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971. That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the U.S. Chamber of Commerce. In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important, Ralph Nader. Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.
Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President Franklin D. Roosevelt threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations. And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers. But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”
To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court. “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by Richard Nixon to the Supreme Court. And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.
Today, the Chamber of Commerce is an imposing lobbying force. To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters. But its battle against the forces of Naderism got off to a slow start. In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories. That year, for example, the court held that President Reagan’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags. In 1986, the chamber supported a challenge to the Environmental Protection Agency’s aerial surveillance of a Dow Chemical plant. The chamber’s side lost, 5-4.
But eventually, things began to change. The chamber started winning cases in part by refining its strategy. With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases. The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases. Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf. The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.
Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.
At times, the strategic calculations can be quite personal. Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important. “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. “We won.”
In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief Justice Rehnquist and one of the top Supreme Court litigators who coordinate strategy with the chamber. When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case. “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.”
Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. (“She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal. The Supreme Court unanimously agreed and reversed the conviction, 9-0.
The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era. In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue. In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them. Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.”
This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.
III.
In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself. (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by Robert Bork’s thwarted nomination to the court in 1987. Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement. “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said.
So the chamber set up a formal process for endorsing candidates after their nominations. The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices. Nominees are evaluated solely through the prism of their views about business. “We’re very surgical in our analysis,” Conrad said.
After the election of Bill Clinton, for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.
During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. “Justice Breyer came close to that.”
The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the University of Chicago. The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole. Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens.
Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers. In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators. “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says Lawrence Lessig, an intellectual-property scholar at Stanford.
Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of George W. Bush, the chamber faced a dilemma. Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives. In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court, Antonin Scalia and Clarence Thomas, to rule against business interests. Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court. As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives.
When it came time to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. (“One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.
The business community was also enthusiastic about Samuel Alito, whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court. Frank’s prediction was soon vindicated.
“There wasn’t a great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. The Roberts court has unambiguously answered the call. As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”
IV.
Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.
Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”
To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States. It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science. But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.
Nader was uncontrite about his 2000 run against Al Gore — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. He conceded that, like Breyer, Democratic justices appointed by President John Kerry would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito. Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.
The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers. They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign. After 2000, the trial lawyers “have been vitriolic,” Nader explained. He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts. In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down. “There were some lawyers who left Public Citizen because they got tired of losing,” he said. “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.”
Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court. With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by. “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. “He said: The American people live in a country where they can have almost anything they want. And my regret is that it seems that they don’t want much of anything at all.”
Nader chuckled quietly and shook his head. “I say ditto.”
V.
If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson. One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000. But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business. According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.
Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future. In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products. It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault. But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.
The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing. They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer. Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented. In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.
A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.
Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.
The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich, to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted.
Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable.
Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.
This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.
After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive.
Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”
During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.
VI.
Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments.
In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts.
The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”
It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.
This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.
In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the F.D.A. reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.
After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.
The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”
In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the F.D.A. are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”
VII.
The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.
What about the executive branch? It seems unlikely that John McCain, if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”
Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)
Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.
When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”
Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”
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Minister jeered by teachers over tests & class sizes
Thursday, March 20th, 2008
The Schools minister, Jim Knight, was given a public dressing down by teachers yesterday as he sought to defend large class sizes and the Government’s testing regime.
He was jeered by delegates at the Association of Teachers and Lecturers’ conference after being asked if a class of 38 pupils for eight and nine-year-olds in a primary school was acceptable. Mr Knight replied such class sizes were “manageable” if the teacher was supported by classroom assistants. Then, in what was supposed to be a vote of thanks to Mr Knight for his speech, one of the ATL’s executive members, Phil Jacques, tore into the Government’s education policies – criticising ministers for their lack of trust in teachers.
Mr Jacques, a science teacher from Mr Knight’s constituency in Dorset, was cheered by teachers at the conference in Torquay when he said: “Class sizes of 38 shouldn’t be made more manageable. They simply shouldn’t exist.”
He won further applause as he attacked “the ridiculous amount of over-testing of English schoolchildren” and told the minister that the national curriculum was “dismal, tedious and over-prescriptive” and “of very little value”.
Mr Jacques, from Shaftesbury school, Wiltshire, said: “It’s no wonder there are large numbers of disaffected children in these schools. In some schools, disaffection results in violence.”
He went on to attack the Government for its lack of trust in the teaching profession, saying: “How can you speak of trust when you tell us what to teach, how to teach it and when to teach it? Then you tell us how to assess it.”
Mr Knight, who described his reception as a “friendly disagreement”, later told journalists he had recently visited a school in Telford where there were 70 pupils in class with a teacher and three other adults which was “perfectly manageable”.
He said that Mr Jacques “may have had a point” about the over-prescriptive curriculum and said that a new secondary school curriculum to be introduced in September would give teachers more freedom. He said the Government had also initiated a review of the primary school curriculum, which was being carried out by Sir Jim Rose, former head of inspections at Ofsted, the education standards watchdog.
However, he made it clear that national curriculum tests for 11 and 14-year-olds were here to stay.
Mr Knight also attacked the British culture whereby it was “acceptable, fashionable even, to declare that you are useless at maths”.
He was speaking as the Government published the interim report of an inquiry into primary school maths, which suggested parents should be encouraged to join in lessons with their toddlers at nursery school so they could learn alongside their children. The report called for a maths specialist to be appointed to every primary school so that struggling children could be given tuition to help them catch up.
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VOTING COMPANY BULLIES ELECTION OFFICIALS
Thursday, March 20th, 2008
Failed machines same as those to be used in Pennslvania tally
BRAD BLOG Sequoia Voting Systems’ legal threats against Princeton computer science professors and
“I think it’s unfortunate that they’re not letting an independent investigation take place,” Sollami-Covello tells the paper this morning. “They should have no problem with having a third party investigate the product if they are confident in their product.”
Another Mercer County, NJ, official sent a letter to the state Attorney General criticizing Sequoia’s bizarre explanation for failures discovered in the systems following state’s recent Primary Election, characterizing what he describes as the company’s “strange, confusing solution.” He said the company’s explanation for the problem, which succeeded in blaming voters and poll workers as usual, was based on a “bizarre scenario, with no cited evidence or testimony” to back it up. . .
Amazingly (or perhaps, not so much at this point), Union County’s attorneys folded to the pressure from the company, which claimed that Election Officials in NJ — who spent millions on the voting systems — are not legally allowed to examine them independently because “the voting machine software is a Sequoia ‘trade secret’ and cannot be handed over to any third-party.”
Fear of a lawsuit from Sequoia, which will also control the state’s elections in an upcoming June primary, as well as the November general election, has led to county attorneys backing down from their plans for the time being, unless the state AG jumps in to take action.
In the threatening email from Smith to the
A Sequoia executive, Edwin Smith, put Union County Clerk Joanne Rajoppi on notice that an independent analysis would violate the licensing agreement between his firm and the county. In a terse two-page letter, Smith also argued the voting machine software is a Sequoia “trade secret” and cannot be handed over to any third-party.
Livermore Laboratory’s computer scientist David Jefferson jumped in to comment on our story yesterday, which included the full threatening email sent to the Princeton Professors, in order to note the importance of such a test being carried out on
“We have only a matter of weeks before the
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Cheney again links Iraq invasion to 9/11 attacks
Thursday, March 20th, 2008
Vice President Dick Cheney told soldiers in Iraq that the 9/11 attacks spurred the decision to invade Iraq.
BAGHDAD — Amid tears and wails, mourners in the southern city of Najaf on Tuesday began burying victims from a suicide bombing that killed nearly 50 worshipers and injured dozens just before evening prayers Monday in nearby Karbala.
In Baghdad, a long-anticipated reconciliation conference began with great fanfare, then quickly dissolved into the usual sectarian and political stalemates that have marred several similar gatherings in recent years.
But Vice President Dick Cheney gave an upbeat view of conditions in Iraq as he concluded his trip to mark the fifth anniversary of the U.S.-led invasion. Cheney defended the toppling of Iraqi dictator Saddam Hussein as part of the struggle against terrorism following the 9/11 attacks on the World Trade Center and the Pentagon.
This month, an exhaustive Pentagon-sponsored review of more than 600,000 Iraqi documents captured during the 2003 U.S. invasion found no evidence that Hussein’s regime had any operational links with al Qaeda.
But Cheney, who spent the night at a sprawling U.S. base in the northern town of Balad, told soldiers they were defending future generations of Americans from terrorism.
”This long-term struggle became urgent on the morning of Sept. 11, 2001. That day we clearly saw that dangers can gather far from our own shores and find us right there at home,” said Cheney, who was accompanied by his wife, Lynne, and their daughter, Elizabeth.
”So the United States made a decision: to hunt down the evil of terrorism and kill it where it grows, to hold the supporters of terror to account and to confront regimes that harbor terrorists and threaten the peace,” Cheney said. “Understanding all the dangers of this new era, we have no intention of abandoning our friends or allowing this country of 170,000 square miles to become a staging area for further attacks against Americans.”
Cheney later traveled to Irbil, the capital of the mostly autonomous Kurdish region, for a meeting with Kurdish leader Massoud Barzani, before flying to Oman.
FUNERAL LIMITS
Meanwhile, at the graveyard in Najaf, police restricted funerals to eight family members, out of fears that the funerals would become a target for attacks. Emotions ran high among mourners of the bombing victims. One man draped himself over a coffin and sobbed, “My father, my father.”
”Security forces have been negligent in securing the city and the pilgrims,” said Mohamed Hassan Ali, who buried his cousin, a policeman who was killed in the blast. “This area should have had camera monitoring, searches and equipment to detect explosives.”
The devastating security breach at one of Iraq’s most sacred places added to the pressure on Prime Minister Nouri al Maliki to make recent security gains stick and to keep the country on track for October elections.
MEETING BOYCOTTS
The Baghdad reconciliation conference was intended to bring the country’s warring factions to the negotiating table. But only half of the 700 invited guests showed up, and any real chance for negotiations dissolved when both the leading Sunni Muslim bloc and the powerful faction loyal to the rebel Shiite Muslim cleric Muqtada al Sadr announced boycotts.
”We entered the conference to reaffirm our support for national reconciliation, and we left to show our rejection of all these fake conferences,” Nassar al Rubaiye, a Sadr-allied lawmaker, said of the walkout. Most Sunnis and Sadrists didn’t participate, and Shiite lawmakers in attendance hinted that the groups weren’t missed.
Sunni lawmakers boycotted because they believe Maliki hasn’t made good on pledges to disband Shiite militias, release detainees not charged with crimes and include Sunni legislators in security decisions.
Members of Sadr’s militant Shiite movement said they walked out because of the lack of dialogue in preparations, a crackdown on Sadr’s forces in the south and to protest thousands of Iraqi detainees in U.S. custody.
Across the board, there were complaints of late invitations, snubs and general disarray. Even Wathab Shaker, head of the parliament’s national reconciliation committee, said he was left out of all planning for the conference. He is a Sunni.
”No contact had been made between the preparation committee for the conference and the parliament’s reconciliation committee. Absolutely no contact,” Shaker said. “I wish them good luck.”
OTHER ATTACKS
Tuesday’s roster of attacks included two roadside bombs in Baghdad — one targeting civilians at a market in Shaab, the other at a busy intersection in al Bunook — that killed four Iraqis and wounded at least 13, authorities said. A car bomb outside an electronics store in Mosul killed three and wounded 40, the U.S. military said.
Laith Hammoudi is a special correspondent for McClatchy Newspapers. Mohammed al Dulaimy contributed from Baghdad; Qassim Zein reported from Najaf. Both are special correspondents.
McClatchy News Service
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Majority of Americans view Iraq war as failure
Thursday, March 20th, 2008
Americans offered a much more negative view of the Iraq war than President George Bush’s verdict on its fifth anniversary today.
Mr Bush said removing Saddam Hussein from power was the right decision, the war on terror is “a fight America can and must win” and Iraq is “the place where Arabs joined with Americans to drive al-Qaida out”.
But a poll published today found 54% of Americans viewed the war as a “total failure” or “mostly a failure”.
In its front page story, Karen DeYoung wrote in the Washington Post: “For a majority of Americans, today marks the fifth anniversary of the start of an Iraq war that was not worth fighting, one that has cost thousands of lives and more than half a trillion dollars.
“For the Bush administration, however, it is the first anniversary of an Iraq strategy that it believes has finally started to succeed.”
Across the river from where Mr Bush was speaking at the Pentagon, police arrested more than a dozen protesters who crossed a barricade and blocked entrances at the Internal Revenue Service.
The demonstrators said they were concentrating on the IRS at the start of a day of anti-war protests because it gathers taxes that are used to fund the war.
A marching band led protesters down the street near the National Mall and around the IRS building before dozens of demonstrators gathered at the entrance.
Protests were taking place across the US, including at the American Petroleum Institute in Washington, where dozens of protesters held signs which read “Out of Iraq” and “No war, no warming,” and chanted “No blood for Oil!”
College students from New Jersey to North Dakota have planned walkouts, while students at the University of Minnesota vowed to shut down military recruiting offices on campus.
The USA Today / Gallup poll published today showed 60% of Americans support setting a timetable for the withdrawal of US troops, with only 35% saying the troops should stay until the situation “gets better”.
And 30% of those who support withdrawal want to see the troops out as soon as possible.
But 65% of those surveyed said the US had an obligation to establish a reasonable level of stability and security in Iraq before pulling out.
Asked if Iraq would be better or worse in the long run after the US and British invasion, 23% said the country would be “much better off” and 44% said it would be “somewhat better off” while 12% said it would be “much worse off” and 14% “somewhat worse off”.
But Americans were split on whether history would judge the war as a success or failure.
The poll showed 18% thought it would be seen as a “total failure” with 36% opting for “mostly a failure”, 38% for “mostly a success” and only 4% for a “total success”.
A total of 2,021 adults were surveyed between February 21 and 24.
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Clinton missed key policy decisions
Thursday, March 20th, 2008
On the day that dozens of US cruise missiles rained down on Serbia in an attempt to punish Yugoslav president Slobodan Milosevic for the country’s onslaught against ethnic Albanian separatists in Kosovo, first lady Hillary Clinton was far from the White House war room: she was touring ancient Egyptian ruins.
In her bid for the Democratic presidential nomination Hillary Clinton has touted her experience in the White House as preparation to lead in a time of crisis. “Ready on Day One,” has been her slogan.
But an initial reading of some of the more than 11,000 pages of Clinton’s schedules from her days as first lady, released yesterday by the National Archives and the William Jefferson Clinton Presidential Library, shows that often she was far from the site of decision making during some of the most pivotal events of Bill Clinton’s presidency.
Clinton, who was an attorney and first lady of Arkansas before moving to the White House, frequently claims more than 30 years’ experience in public life, contrasting herself with Barack Obama’s slimmer resume - he served several years in the Illinois legislature and was elected to the US senate in 2004.
“The schedules do help illustrate Hillary Clinton’s extensive and exhaustive work as a public servant and her role as an influential advocate at home and around the world on behalf of our country,” Clinton campaign spokesman Jay Carson said in a statement.
But documents from her first lady office threaten to undermine her claim to have played a major role in Clinton’s foreign policy decisions.
For instance, Clinton has said she helped negotiate the April 1998 Good Friday agreement between warring factions in Northern Ireland. But while Catholic and Protestant figures hashed out details of a power-sharing agreement in Belfast Clinton was at the National Press Club in Washington at a “Hats on Bella” party honouring Bella Abzug, a congresswoman from New York who had recently died. While President Clinton phoned major participants in the peace talks she met with Holocaust survivor Elie Wiesel and joined a farewell party for Democratic worker Karen Finney. The day the agreement was inked she met with Philippine first lady Amelita Ramos.
When Nato launched air strikes against Serbia in an attempt to punish Yugoslav president Slobodan Milosevic for the country’s onslaught against ethnic Albanian separatists in Kosovo Clinton toured Egyptian ruins, including King Tut’s tomb and the temple of Hatshepsut. She dined at the Temple of Luxor, and stayed overnight at the Sofitel Winter Palace Hotel there.
Presidents of three Balkan states signed a peace agreement in Dayton, Ohio, in November 1995, ending years of ethnic violence in the former Yugoslavia. Clinton’s file lists no public schedule for that day, but indicates she was in Washington.
The documents released yesterday came in response to a conservative organisation’s freedom of information request and subsequent lawsuit. The records include schedules from nearly 3,000 days Clinton was in the White House, and detail meetings, trips, speaking engagements and social activities.
Bruce Lindsey, a Little Rock attorney and long time Clinton confidant, vetted the pages prior to their release. National archives staff checked the documents for information sensitive to national security and law enforcement matters.
Nearly a third of the pages have redactions, most of which the archives said were made to protect the privacy of Clinton’s associates. The redacted material includes home addresses, telephone numbers and social security numbers, the archives said.
Christopher Farrell, director of investigations and research with Judicial Watch, the organisation behind the two-year-long legal effort to win the documents’ release, said he doesn’t anticipate finding any “smoking gun” within the reams of pages. He said Lindsey “has enormous discretion” to redact information potentially damaging to Clinton’s White House bid. “My expectations are quite low.”
Hillary Clinton was present in the White House, however, for at least one significant event of the Clinton presidency. On November 15 1995, when President Clinton is said to have begun his affair with White House intern Monica Lewinsky, she was in the White House, according to her schedule.
First lady’s schedule
November 17 1993
The House of Representatives votes to approve the North American Free Trade Agreement, giving President Clinton one of the biggest triumphs of his early presidency. Senate approval was virtually assured.
Hillary Clinton meets congressional and cabinet spouses. She returns to the White House later for meetings and “Office/Phone Time”.
April 7 1994
Hutu extremists in Rwanda begin the slaughter of Tutsis and moderate Hutus. Eight thousand are killed on the first day of the genocide. Americans have been shocked by US military deaths in Somalia and the US evacuates American citizens but President Clinton resists calls to intervene in Rwanda.
Names of participants in Clinton’s schedule have been redacted by national archives staff. Later in the day she meets with the wife of a Georgia congressman, has private meetings with staff, and gives media interviews on healthcare issues.
April 9 and 10 1998
Catholic and Protestant parties work through the night thrashing out the Good Friday power-sharing agreement in Belfast.
Hillary Clinton attends a memorial event at the National Press Club in Washington for a New York City congresswoman. She also meets with Philippine first lady Amelita Ramos.
March 24 1999
US cruise missiles rain down on Serbia in an attempt to punish Yugoslav president Slobodan Milosevic for the country’s onslaught against ethnic Albanian separatists in Kosovo.
Hillary Clinton tours ancient Egyptian ruins.
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An apple a day keeps the McDoctor away
Thursday, March 20th, 2008
Shake-up of hospitals will open door to McDonald’s sponsorship.
Firms such as McDonald’s and Virgin could be allowed to sponsor NHS hospital wards under radical plans announced by the Government to allow sponsorship of health services and create a new era of open competition between hospitals.
Private companies will be allowed to create some “brand awareness” such as a logo on hospital property but they would not be allowed to gain a “commercial advantage”, meaning a firm such as Durex would not be allowed to sponsor a sexual health unit, but it could sponsor another type of clinic or a hospital department.
The plans announced by Ben Bradshaw, the Health minister, came as part of a drive to give NHS patients more choice over the private or NHS hospitals in which they are treated.
Patients are to be allowed a choice of hospitals across England from 1 April, including private hospitals that are NHS approved. At the moment, the choice is limited to local providers but the NHS will be able to “shop” for health care across the country.
NHS patients who opt for treatment in a private hospital will not have to pay for their care, provided it is covered by NHS contracts.
Hospitals are also to be allowed to promote their own services to compete with each other for “custom” within the NHS. The code says there will be no official cap on how much they can spend on advertising their services to patients.
“Providers will be expected to recognise the potential effect on the reputation of the NHS of disproportionate expenditure on promotional activity.
“The cost of TV or cinema promotion is very unlikely to be justifiable.”
Hospitals could promote areas of good patient care, such as low rates of the potentially lethal hospital-acquired infection MRSA, but will not be able to indulge in discrediting their rival NHS hospitals.
“Comparative claims are permitted in the interests of vigorous competition and public information. They should neither mislead nor be likely to mislead,” says the code.
Hospitals will also be able to send direct marketing to their patients and no marketing “should cause fear or distress without good reason”. The code added: “Marketing communication addressed to, targeted at or featuring children should not exploit their credulity, loyalty, vulnerability or lack of experience.”
Hospitals will be able to use testimonials as long as people are not paid for them. Mr Bradshaw said: “Choice is fundamental to the delivery of a personalised NHS. People would like to have more control and be more involved in the decisions about their illness and treatment. More choice will also help drive up quality and standards across the NHS.”
However, many Labour MPs are hostile to creating competition within the NHS and the unions representing health workers are campaigning against what they call the “privatisation” of NHS services.
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High-tech interrogations may promote abuse
Thursday, March 20th, 2008
Among certain circles, including the American Psychological Association, we need more research on effective interrogation strategies. Many of us have been suspicious that these calls may cover the design of technologies that will create high-tech tools aiding abusive interrogations. In 2003, the APA sponsored, with the CIA and Rand Corp., a Science of Deception Workshop. CIA contractor torturers James Michell and Bruce Jessen were at this invitation-only conference, which discussed such topics as use of truth serums and the role of sensory overload in interrogations.
According to a press release from the Penn State University, bioethicist Jonathan Marks raises the specter of fMRI technology being used in ways that increase the likelihood of abuse. after all, if a high-tech tool suggests that someone is a “terrorist,” the potential for subjecting them to “harsh techniques” to get information from them is increased.
High-tech interrogations may promote abuse
There is evidence that brain imaging technology is being used to interrogate suspected terrorists despite concerns that it may not be reliable, and that it might inadvertently promote abuse of detainees, according to a Penn State researcher. He says the risk that such technology could license further abuse of detainees remains ever present, given President Bush’s March 8 veto of legislation that would have prohibited the CIA from conducting aggressive interrogations.
The technology - functional magnetic resonance imaging or fMRI - has been around since the 1990s. Neurosurgeons routinely use it to scan for brain tumors, and to diagnose and treat various disorders of the central nervous system.
But in recent times, fMRI has gained support from many in the intelligence community, who feel it could be a reliable tool in identifying terrorists from a group of suspects or detecting lies during an interrogation.
After the 9/11 terrorist attacks, military psychologists attached to intelligence units advised interrogators how to increase interrogation stressors and exploit detainees’ fears to make suspects talk, according to Jonathan Marks, associate professor of bioethics, humanities and law at Penn State.
“The problem is, if you apply pressure, people will say anything they think will make you stop. And that means anything they think you want to hear,” he said.
There are also reports that psychotropic drugs - so-called truth serums - have been administered. The use of brain imaging technologies appears to offer an alternative to such approaches.
The adoption of fMRI is not surprising given the limitations of other lie detection techniques such as a polygraph test, said Marks, whose analysis is published in a recent issue of the American Journal of Law and Medicine.
A polygraph relies on detecting accentuated signs of anxiety such as changes in skin conductance, heart rate, and respiration. But it is useless against sociopaths, and those trained to beat it. Counterintelligence experts also say the device is especially unreliable when questions and answers are translated with the help of an interpreter, as has been the case in Iraq.
Intelligence personnel believe fMRI could circumvent such limitations, and some commentators have argued that fMRI could render torture and interrogation obsolete. But Marks, who has critiqued the use of aggressive interrogation techniques in the war on terror, makes a case that “such claims are unfounded, and that the uncritical acceptance of fMRI as an interrogation tool could be potentially hazardous both to the health of the detainee and to the counterterrorism mission.”
Unlike a polygraph, an fMRI uses powerful magnetic fields to detect tiny changes in blood oxygen levels in the brain. Since active neurons take up more oxygen than inactive ones, these tiny changes are believed to be signatures of cognitive processes.
Some intelligence experts believe that fMRI can be used to detect deception, or to flag when a suspect recognizes (but may not wish to admit that he recognizes) the photograph or name of a suspected terrorist.
Marks, who also heads the Bioethics and Medical Humanities Program at Penn State’s University Park campus, finds the approach problematic. “There can be all sorts of reasons for recognizing a name or a photograph or for responding cognitively to a particular word,” he said. “I spent years living in London, listening to reports of IRA bombings. My brain would light up if you mentioned the word semtex (a plastic explosive).”
Interrogations that employ fMRI may also be making a considerable leap of faith. According to Marks, fMRI-based studies of lie detection have only been conducted on small groups of healthy people to examine changes in blood oxygen levels in the brain when they are lying in highly artificial laboratory settings. These results cannot be generalized, he argued, and should not be applied to terror suspects who have usually been detained in stressful circumstances and may have mental health issues that could clearly be exacerbated by their detention.
“MRI machines are very useful diagnostic tools but using them to claim that certain things are going on inside people’s minds is a major jump,” said Marks, who is also a research fellow and acting director of Penn State’s Rock Ethics Institute. Such a jump is a particularly dangerous one in the interrogation context, he argues.
The short duration of the test is another worry. According to the Penn State researcher, many neuroscientists argue that it could take many hours, even weeks, of testing with the suspect before getting accurate baseline readings.
Marks also argues that fMRI scans are open to broad interpretation, but they can produce seductively persuasive graphic images that provide a false sense of security and help create a narrative that may lead to aggressive interrogation tactics.
“One of the real concerns I have is that you can see how people can begin to say ‘the fMRI picked him out as a terrorist so let us give him a going over in the interrogation room,’ ” Marks explained. “Contrary to the view that fMRI will render torture obsolete, it might become a license for further abuse of detainees because its readings will convince people that they have a terrorist on their hands.”
The Penn State bioethicist says his view, which draws on the previously unpublished statements of an experienced U.S. interrogator, raises fundamental concerns about the use of fMRI either to detect deception or to flag recognition of a stimulus. If a terror suspect does recognize a certain stimulus, that person could be singled out for more aggressive interrogation.
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Italian Judge Orders CIA trial To Proceed
Thursday, March 20th, 2008
An Italian court ruled the trial of 26 U.S. intelligence agents involved in the rendition of suspected terrorist sympathizer Abu Omar would resume in July.
The CIA agents are being tried in abstentia for allegedly kidnapping Abu Omar in Milan in 2003 and spiriting him off to Egypt for a presumably forceful interrogation.
Judge Oscar Magi Wednesday ordered the trial to resume April 18, at which time he would consider a defense motion to hold the trial behind closed doors, the ANSA news agency said. Arguments in the case were penciled in for July 8.
The trial had been suspended pending the outcome of a jurisdictional dispute between Italian government officials and prosecutors in Milan.
Magi said Wednesday that he could not wait for the dispute to be settled before starting the proceedings because a further delay would violate constitutional requirements for a speedy trial. (c) UPI
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Brown wants to send civilian force to war zones
Thursday, March 20th, 2008
The government will publish a “national risk register” to help local authorities and businesses prepare for potential disasters, and promote a civil protection network of local volunteers. A national security forum combining up to 30 private sector experts and academics will advise the existing ministerial national security committee.
The 60-page national security strategy document published by the Cabinet Office described the threats facing Britain as more diffuse than during the cold war. “There is a much broader set of risks and threats,” Robert Hannigan, Brown’s chief security adviser, said.
Threats to Britain’s security range from climate change to cyber attacks to extremism among the young, the document said. Officials said the emphasis on protecting the UK should be as much on local initiatives as on government measures. They gave as an example schools and universities reporting on “radicalisers”, comparing it with child protection initiatives.
“Our new approach to security also means improved local resilience against emergencies, building and strengthening local capacity to respond effectively in a range of circumstances from floods to possible terrorism incidents,” Brown told MPs. “Not the old cold war idea of civil defence but a new form of civil protection that combines expert preparedness … with greater local engagement of individuals and families.”
Asked if the civil protection network would be similar to second world war ARP (air raid precautions) wardens, who patrolled the streets, a government spokesman said: “It’s a variation of that.” The network was also likened to a kind of neighbourhood watch scheme.
The document stressed the need to link national authorities with local ones and also the growing interdependence of Britain and the rest of the world.
In his statement to the Commons, the prime minister dwelt on the need to promote civil authority rather than military force.
The 1,000-strong “UK civilian standby capacity” would be set up to help failing states and rebuild countries emerging from conflict, he told MPs. At home, he referred to extra resources the government had given to MI5, MI6, GCHQ, and anti-terrorist police. Abroad, he announced more help for peacekeepers in Africa, including Somalia.
The prime minister also announced plans, drawn up by Des Browne, the defence secretary, for a bonus of £15,000 for armed forces personnel who had served for eight years.
He also said £20m had been set aside to help them on to the housing ladder. The measures would be financed through the defence budget.
Brown also held out the promise of greater openness, by giving a bigger role to parliament’s intelligence and scrutiny committee. But it remains unclear if the heads of MI5, MI6 and GCHQ would give evidence to the committee in public.
Brown said Britain would promote nuclear disarmament but the document called for the Trident nuclear weapons system to be retained.
There has been little enthusiasm for the document, which was due to be published at the end of last year, in Whitehall where departments are reluctant to share responsibilities or projects.
Ian Kearns, of the IPPR thinktank, which has published its own national security strategy, described the government’s document as “weaker on policy substance and weaker still on necessary changes to the machinery of government”.
Security threats
· No state threatens the UK directly
· There is a high probability of a flu pandemic. It could cause 50,000 to 750,000 fatalities in the UK
· Climate change is potentially the greatest challenge to global stability and therefore to national security
· Societies are growing increasignly dependent on electronic information and communications systems vulnerable to cyber attack
· Global energy demand will be more than 50% higher in 2030 than today
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One out of ten trust government data security
Thursday, March 20th, 2008
It’s probably no surprise, but the government’s horrendous record with data security has destroyed the public’s trust.
Only one of every ten people trust the government to handle their personal data, according to new research released today.
The DES survey also showed 93 per cent of people who were against or not sure about identity cards said that this was because the government had a poor track record on protecting data.
This was a big contrast with the general freedom that people had with private information when dealing with organisations like banks and employers, with 74 per cent willing to hand over their details.
The results confirmed that the spate of data protection incidents and the press attention it has received has destroyed much of the trust that the public has with the governmental sector.
“On the face of it, these results seem surprising and controversial as they highlight such a high level of mistrust in government,” said Cherry Taylor, managing director of Dynamic Markets, who compiled the report.
“However in the wider context, when you consider the series of data protection incidents last year, maybe it’s not as shocking as you would imagine,” said Taylor.
“This is a problem we have seen echoed in other research, which suggests that it might be an issue that the government really needs to address.”
The government home secretary Jacqui Smith has already delayed the introduction of ID cards until 2012 and her contention that online ID card databases cannot be hacked has been contested by security experts and doubted by the public.
The results showed that 67 per cent of respondents didn’t trust the government’s technology and 56 per cent do not trust civil servants with their personal data.
“The research shows how damaging negative press surrounding a data breach can be - and it can be so easily prevented,” said DES managing director David Tomlinson.
One other concerning statistic showed that 52 per cent of staff were not given any means of encrypting data when dealing with client’s private information.
“The survey highlights the fact that there is a need to educate the public at large about data protection methods, such as encryption,” he added.
Asavin Wattanajantra
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Firms’ biometrics records ‘can be hacked’
Thursday, March 20th, 2008
The growing use of biometrics to identify individuals is “insecure and in need of immediate attention,” according to an IT systems company.
Fujitsu Siemens said biometrics is increasingly being used in the business world to verify whether individuals really are who they say. By 2013, Fujitsu Siemens predicts biometric identity technology will be so widespread in the private sector that the number of people included would rival that of the proposed national ID schemes.
Within five years, 95 percent of the UK population will be identifiable through biometrics and other means.
But the tracking and monitoring of people could be a risk if security controls were not tightened up, the IT company said.
“From a security perspective, we have already seen that criminals can create a number of different personae for themselves and more methods of identification means more openings for them. Whether it’s issued by a company or a government, once an individual can associate their biometric characteristics with an identity, they effectively own that identity,” said David Pritchard, senior technology analyst.
“People are already carrying around several identifying documents or artefacts – car keys, passports, driving licences, bank cards,” said Pritchard.
“Biometrics are being added to these items, making them uniquely identifiable and traceable to the individual.”
The government recently commissioned a report in which former banker Sir James Crosby said that within five years people were likely to be carrying several biometric identifiers. In the report, Crosby called on the government to work with banks to create a universal ID assurance scheme, led by the private sector, which would result in a more secure system.
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Media should press candidates on open government
Thursday, March 20th, 2008
WASHINGTON — At a time of continued government secrecy, the news media should press the presidential candidates on whether their administration would enforce “the spirit as well as the letter of the law” protecting the public’s right to know, says Associated Press President and CEO Tom Curley.
“Secrecy is one of the handiest tools for government that wants to be accountable only to itself regardless of the spirit of any law,” he said March 18 in a national Sunshine Week speech.
Curley praised congressional passage of legislation that toughened the Freedom of Information Act. But he chided Bush administration efforts that he said undercut the measure.
The presidential election provides a good opportunity to press for open-government policies, he said.
“We need to ask the candidates — at every opportunity until we have a clear answer — whether they are willing to appoint an attorney general willing to follow the spirit as well as the letter of the law that protects the people’s right to know what their government is doing,” Curley said in his speech at the National Press Club.
President Bush signed into law last December a toughened version of FOIA, the first such makeover to public-access laws in a decade. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.
The legislation came partly in response to an order by former Attorney General John Ashcroft in the wake of the Sept. 11, 2001, attacks, in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security. Although the legislation is aimed at reversing Ashcroft’s order, it fails to explicitly do so.
Earlier this year the administration submitted a budget proposal that would move the ombudsman’s office to the Justice Department instead of the National Archives. Open-government advocates including Sen. Patrick Leahy, D-Vt., say that would be a conflict of interest because Justice would be defending federal agencies seeking to keep records secret.
In his speech, Curley criticized the administration move as a “sucker punch” to cripple the new FOIA law. He urged advocates to push back and called for the next attorney general to explicitly reverse the Ashcroft memo.
“We must do more because the entrenched powers have become far more determined to avoid public scrutiny when it matters most,” he said.
Addressing the issue of whether journalists should be open-government advocates, Curley said it would be a disservice to the public to pretend to be “disinterested observers.” He noted that journalists already routinely badgered executive agencies and courts “for information and access we think the Constitution says the public is supposed to have.”
“The brightest rays from Sunshine Weeks have spotlighted countless efforts by citizens to hold their governments accountable,” Curley added. “By reporting on their efforts, we have revealed for millions important lessons in fighting city halls, statehouses and, yes, even Washington.”
In his remarks, Curley:
- Cited the case of former USA Today reporter Toni Locy as a “dramatic example” of why Congress should pass a federal shield law. Locy recently was fined up to $5,000 a day by a federal judge for refusing to disclose anonymous Justice Department sources to lawyers for a former Army scientist who came under scrutiny in the 2001 anthrax attacks. An appeals court last week stayed the judge’s order pending appeal. Locy also at one time worked for the AP.
- Urged release of any evidence the U.S. military has to justify its detention of AP photographer Bilal Hussein, who worked in the Iraq war zone. After Hussein spent 19 months in prison, his case was referred to the Iraqi criminal courts last year. Pentagon spokesmen have alleged that Hussein was suspected in a range of terrorist-related activities.Curley said he thought the Locy case had gotten good public attention. On Hussein, he said, “I don’t know how many people are interested in one more Iraqi. I wish there were.” Predicted the media would not shy away from reporting about the human rights abuses or protests in China during the Summer Olympic Games. He noted that one journalist across the world is beaten every two weeks in pursuit of the news.
Q & A on Sunshine Week
Curley is one of the media’s foremost advocates for open government and freedom of information.
Last year he testified before the Senate Judiciary Committee to urge that the Freedom of Information Act be revitalized; an amended act was signed into law late last year.
In question-and-answer form, he discusses this year’s Sunshine Week initiative spearheaded by media organizations.
Question: Sunshine Week 2008 marks the fourth year of the national effort to initiate a public dialogue in the United States about the people’s right to know. What’s different, compared to previous years?
Answer: Important progress was made last year. The Freedom of Information Act got a significant upgrade 40 years after it first was passed. A federal shield bill advanced further in Congress than ever before. The bill would give reporters significant protection from disclosing confidential sources. Unfortunately, we also saw increasing willingness on the part of judges to pressure reporters to give up sources.
Q. On the last day of 2007, President George W. Bush signed into law legislation amending the Freedom of Information Act. How significant are the changes outlined in that law?
A. The new law sets meaningful deadlines for agencies to respond to information requests, provides incentives to meet those deadlines, calls for a tracking system so requesters can check the status of their requests, and creates an ombudsman to help resolve disputes when requests are denied.
Q. Does the public have better tools now to know what the government is doing?
A. Any strengthening of the Freedom of Information Act benefits the public directly. Most FOIA requests are filed by the public about their own records (Social Security or veterans’ benefits). We think these amendments will help everyone, not just the news media.
Q. Does the government have the right to close off electronic communication, such as e-mails, from public view?
A. E-mails or other electronic files can be “records” and subject to disclosure under FOIA. Whether they can be withheld from public view depends on whether any of the exemptions in the Freedom of Information Act or other federal statutes apply to the particular content and purpose of a communication, whether electronic or paper.
Q. Has progress been made on the state level in opening up government records without legal recourse?
A. Two of the absolute worst states in terms of open-government laws — Louisiana and Pennsylvania — made considerable progress. Ultimately, what led to the change was citizen outrage over government of the special interests, for the special interests and by the special interest-elected representatives. Media played an important role covering the citizen unrest and focusing the spotlight on the most offensive officeholders and their ties to lobbyists.
Q. What is the outlook for a federal shield law?
A. The House has passed a bill, and the Senate is considering a similar one. The Senate Judiciary Committee has approved it. If the full Senate approves it, the differences with the House have to be ironed out, and then the president has to sign it. Supporters of the bill are cautiously optimistic about a Senate vote, but the rest of the process is hard to predict.
Q. Will the advent of a new administration help or hinder open-government initiatives?
A. That’s really hard to know. Candidates who get elected tend to want to control the message and the messenger. We have to continue to fight for openness on all fronts. This election year would seem to offer hope in several ways. Public interest by many measures is higher. The campaigns have been exciting, and the likely party nominees have appealed for transparency, healing and dialogue. Judging by the electorate’s repudiation of bare-knuckle partisan politics, the politicians might have gotten a message.
Q. What role should media play in the dialogue about the people’s right to know?
A. Media can help in important ways. We should explain how information can be accessed. We should model good behavior in making critical facts available, especially in crisis situations. We should seek to put as much information on the record from sources or leaders in a position to have reliable facts. We should do our best to explain in understandable terms what’s happening, who benefits and the likely impacts. Finally, we should work harder to hold elected and other officials accountable. One of the best ways to do that is to give voice to citizens and their concerns through fair coverage and letters.
Q. Is there a historical benchmark for an acceptable balance between the good done for security against the harm done to liberty?
A. As a case in point, look at the U.S. military’s detention of AP photographer Bilal Hussein in Iraq — since April 12, 2006. We believe Bilal’s detention was part of a sweep of photographers by the military and was intended to end (or) prevent coverage of a part of the war that was not going well. We know from history — such as from the Vietnam War — that images that inform the public can change the world. In terms of access to information for the media and the public, it appears we are seeing a replay on the part of some of the old Cold War scare tactics. Government exaggerates the threats and implies that it has knowledge we don’t, so only they know best. Really, that attitude is outrageous and shortsighted. Since Bilal was picked up, there also has been an egregious disregard of his due process; we’ve seen meddling in the judicial process at every step. The war on terrorism will likely be more successful if we stand by the rule of law, especially when dealing with due process for suspects or detainees. Procedures already exist to get the job done, even on electronic surveillance. We started on a slippery slope in the aftermath of the Sept. 11 attacks and now have secret prisons abroad and former military prosecutors accusing the government of trying to rig trials at Guantanamo. Excessive secrecy combined with abusive judicial tactics are a danger to democracy.
Q. Has the media’s traditional role as a watchdog of government activity on behalf of the public changed?
A. The role has evolved with the times and technology, and you can see it being played out in the presidential election process this year. The public is getting a much faster vetting of candidate rhetoric and information about partisan tactics or game-playing. New technologies have helped create new media, so there are more voices than ever. Social-networking sites are providing context and information to millions of people, especially a new generation of voters. With all the cameras in all the places, candidates and even media are finding it hard to duck.
AP
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Police Censorship of Smash Edo film
Thursday, March 20th, 2008
Police have intervened across the country to censor ‘On the Verge’ an independent documentary about a campaign to shut down a Brighton weapons manufacturer. So far establishments in Southampton, Chichester and Bath and Oxford as well as Brighton have come under police pressure to cancel film showings. In Brighton police intervened to prevent a showing at the Duke of York’s Cinema.
Staff at the Arthouse Community Cafe in Bedford Place, Southampton were approached at 11 a.m (Weds 19th March) by police accompanied by licensing officers. Threats were made concerning their licensing if the film, due to be shown on Thursday 20th was screened. Jani Franck director of the Community Cafe said “I grew up in South Africa and this feels awfully familiar. This has nothing to do with protecting the public this is nothing but censorship”
Sussex Police initially denied involvement in the decision to cancel the screening at the Duke of York’s cinema, with Chief Inspector Taylor telling the Argus newspaper that “Police played no part in the controversial cancellation”.
Subsequently however the police were forced to admit that “a junior officer, who is not based in the city, alerted the city council to the showing and they advised the cinema of its responsibilities.”
Spokesman for the production company SchMovies, Steven Bishop said ““I am extremely disappointed but not entirely surprised by the police’s action. There may be issues with certification but as we’re not charging for entry this shouldn’t be an issue. If the police really had problems over the certificate they could have approached us at a much earlier stage. Our film although focussing mainly on the rights and wrongs of protest shows a number of examples of questionable police behaviour – Perhaps this is why they left their move so late”
Andrew Beckett, spokesman for the campaign said ‘It looks like a co-ordinated campaign against the film. When the police are reduced to banning film showings via the back door another blow has been struck against our rights to free speech and free assembly’
CONTACTS:
Steve Bishop – SchMovies 07879 261625
Andrew Beckett/Chloe Marsh 07875 708873
Arthouse Community Centre, Southampton 02380238582
Sussex Police Press 01273 404173
Hampshire Police Press 01962 871619
THE FILM
On the Verge – An independent film about the SMASH EDO Campaign – View a trailer at
http://www.schnews.org.uk/schmovies/index-on-the-verge.htm
“In 2004 a group of Brighton peace campaigners began to bang pot and pans outside their local arms manufacturers EDO MBM in disgust of their part in the Iraq war. This has grown into the Smash EDO campaign, which has cost the company millions, been the subject of large scale police operations and has tested the right to protest in the UK.Using activist, police and CCTV footage plus interviews with those involved in the campaign, ‘On The Verge’ tells the story of one of the most persistent and imaginative campaigns to emerge out of the UK’s anti-war movement and direct action scene.”
The Company
EDO MBM Technologies Ltd are the sole UK subsidiary of huge U.S weapons manufacturer EDO Corp.From their base in Moulescoombe Brighton, EDO MBM
manufacture vital parts for the Hellfire and Paveway weapons systems,laserguided missilesused extensively in Iraq, Lebanon, Palestine and Somalia. EDO Corp
were recently acquired by ITT in multi-billion pound deal. ITT’s links to fascism go back to the 1930s. The founder Sosthenes Behn was the first foreign businessman
received by Hitler after his seizure of power.
The Campaign
There has been active campaign against the presence of
EDO
MBM in Brighton since the outbreak of the Iraq war.Campaigners include students, Quakers ,
Palestine solidarity activists, anti-capitalists and academics. Despite an injunction under the protection of harassment act (which failed) and over
forty arrests the campaign is still going strong.Their avowed aim is to expose EDO MBM and their complicity in war crimes and to remove them from Brighton.
They hold regular weekly demos outside the Moulescoombe factory on Wednesday’s between 4 and 6.
Andrew Beckett
http://www.smashedo.org.uk
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