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Democracy is Doing OK
It was the July 4 holiday which brought out the worst of it, those claiming our democracy is in danger, failing, or in some cases, failed. But the holiday was just an excuse for our daily dose of doom. The blight of articles followed a familiar path, starting with some event (January 6 was the clear leader) and explaining how it was the start of fascism, comparing it one of the few historical examples allowed quotable by progressives, usually something to do with the Reichstag, and then growing that image to say, Trump standing over Lady Liberty, that kinda grin on his face.
Actually, our democracy is doing just fine. Things are working more or less exactly as they are supposed to.
The runner up to January 6 as the last gasp of democracy is the recent set of Supreme Court decisions. Centerpiece is the overturning of Roe v. Wade, a sign of democratic failing because it fully strips women of their rights and shows the Court has no respect of precedent and could overturn anything. Usually this means the end of same-sex marriage as another Democratic emote-o-point, but in some screeds reaches as far as banning inter-racial marriages and contraception. Any day now!
Slow down, kids. If you go too fast you’ll miss the scenery, in this case things working about normal. Perhaps it is necessary to remind our “democracy” is sort of like sharing crayons in kindergarten, sometimes you have to use the yucky brown one and let the other kids use the preferred red and orange. Progressives, with a lock hold on the Supreme Court for many decades, never mind the media, advertising, entertainment, and academia, grew too used to getting their way, too used to defining democracy as “expansion of rights that I favor and shrinking of those you favor.” So expanding the Bill of Rights automatically meant ignoring the Second Amendment and dilating the 14th to loop in abortions. It was easy to see it all as progress when for the most part it was just you always getting more of what you wanted.
But a real democracy shares nicely, and as voting patterns (remember when Ohio used to be a well-contested purple state? Florida always up for grabs? John King zooming the CNN Magic Map practically into voters’ backyards?) and national moods change so does the makeup and decisions of the Court. Remember back in 1896 when the Court decided in Plessy v. Ferguson separate rail cars for whites and blacks were equal enough as required by the 14th Amendment, that race was constitutionally a way to judge people? The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular minstrel character of the time) designed to maintain racial segregation by means of separate public facilities and services.
Then in 1954’s Brown v. Board of Education the Court ignored a whopper of stare decisis and ended separate but equal as an unjust albeit long-held societal standard. Race was not constitutionally a way to judge people. Nobody is keeping score but it was 59 years of separate but equal, and 49 of Roe. People said a lot of things in 1954 when the Brown decision was handed down, but it is hard to find a genre of “end of democracy.” Indeed, enforcing Brown, even to the point of deploying Federal troops to do so under the Insurrection Act everyone was afraid of on January 6, is often cited as a high point of democracy. WHen tested, the system worked.
January 6 should be a semi-holiday, like 9/11, something worth noting every year as an example of democracy working exactly as intended. Let’s look for the undemocratic element: 1) American holds an election and not everyone agrees who won (nothing new, where do you think all those complex presidential election rules came from but past instances of disagreement?) 2) Lawful protests take place at the Capitol; 3) When a minority of protestors start trespassing, law enforcement steps in and after one terrible fatality on the ground in Ashli Babbitt, the crowd disassembles. 4) Delayed a bit, the Vice President ignores any background noise and simply carries out his Constitutional duty in the ceremonial certification of electors selected earlier. With the possible exception of the cops gunning down the unarmed Babbit, everyone did their duty, and another peaceful transfer of power took place. No tanks on the White House lawn.
To create the same climate of fear progressives more or less successful maintained during the four years of the Trump administration without blaming Joe Biden for some of the highest inflation and gas prices, and lowest stock vitality in years takes some clever word play. It exists in abundance. The Supreme Court judges (the bad ones!) become right wing extremists, not jurists. Their decision on Dobbs is based somehow on only rights that existed in 1868, and so forth. Taking away the EPA’s unilateral power to make climate change rules without full and open debate and returning that authority to Congress is somehow twisted to be both undemocratic and a sign of the apocalypse. Even Left Wing Extremist Sotomayor (exaggeration is fun!) wrote of Dobbs that the majority decision “undermines the court’s legitimacy” as if such a thing happening in a democracy — the majority carrying the day — was something extraordinary and particularly rare in its evil. But just saying things are true does not make them so.
Of course George Soros had to weigh in since we’re talking about the threat to our democracy. “There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act.”
Now we’ll leave aside the part about Congress not acting on abortion, same sex marriage, inter-racial marriage, contraception, the EPA, and a lot of other supposed threats to democracy for decades, including when Democrats held majority power in both houses, the Court, and the Executive.
But Soros still sees a problem: “When it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.”
We’ll take Texas as an example. You can register to vote there online, which does not seem too hard given anyone who can borrow a cell phone and do it from a parking lot. You do have to present one of seven forms of ID to register and to vote, including a drivers license, a handgun permit, military ID, or others. You can’t have a decent adult night out without one of those, and several are issued by the Federal government well outside the hands of racist old Texas. In certain circumstances a utility bill or a cashed check can suffice. Not clear what’s so hard; 17 million people in Texas are registered so far, which sounds like alotta democracy is working just fine. Now, showing the same photo ID (and a vax card) just to sit down and eat a burger, that has some undemocratic overtones to it…
Soros aside, no one clings to the “democracy is dying” meme like a convert named Max Boot. Covering the gloom beat for WaPo, Boot warns “we’re in danger of losing our democracy.” He is stirred by Americans coming together to support Ukraine’s “fight for freedom” (better there then on the beaches of Santa Monica, eh Max?) “But it is dismaying,” he writes, “to see that there is no similar consensus on defending democracy at home.” The solution is simple, vote for Democratic candidates only, even if you don’t agree with them, because what could be more democratic then being told who to vote for and asked to not think about your choice. “Panic,” Max writes, “…is sometimes warranted.”
Boot supports one of the most undemocratic things possible, to demand the end of democratic institutions when their call has not gone your way. Don’t like Dobbs? Support packing the Supreme Court (what happens when Republicans regain power and re-pack it?) Don’t care for the electoral system? Demand the Constitution be damned and the popular vote given precedence. Max Boot, again, declares with the straight face of someone who must have failed eight grade civics class “There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348).” “The Founders never envisioned such an imbalance between power and population,” wrote Boot in a multi-Pulitzer-winning newspaper.
Um, they actually did. It was the Founders who created our proportional representation system precisely to balance the power of big states and small ones.
Keep in mind there is a reason progressives are trying to keep people in a state of fear. Fearful people are easy to manipulate; you need only scare them to the point where they demand relief, and then provide them the way out as the final solution. A standard trick of any demagogue. “Democrats need to lean into the politics of fear,” says the NYT. So it is a natural extension of “Trump is Putin’s boy” to “let’s have a war against Putin.” Or from “some states ban abortion” to “next is a national abortion ban enacted by a Republican Congress.” Historically fear has driven any number of crusades and Crusades. The solution of course is not to be drawn in, to stop and ask yourself if something is true (“it’s hard to vote in Texas”) and react out of intellect and not emotion. Heck, if half of Germany would have thought through the Reichstag fire and not bought into fear mongering, George Soros, et al, would need a whole new go-to bad guy as they try and pre-defeat Trump in 2024.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Monsters Are Due on Pennsylvania Avenue
“There are weapons that are simply thoughts, attitudes, prejudices, to be found only in the minds of men. For the record, prejudices can kill and suspicion can destroy and a thoughtless, frightened search for a scapegoat has a fallout all of its own…”
That’s the closing narration to a classic Twilight Zone episode, The Monsters Are Due on Maple Street. A summer’s day turns darkly paranoid as a group of neighbors convinces themselves strange doings are part of an alien invasion. Worse yet, one family among them may be aliens in disguise. Their fears escalate until a neighbor is shot and the former friends descend into a mob. The episode ends on a nearby hilltop where real aliens are watching the riot on Maple Street while manipulating the neighborhood’s electricity to encourage the violence. They comment on how simply fiddling with consistency leads people to descend into paranoia, and that this can be exploited to conquer Earth. The message is clear: while there is a real threat, the worst damage is done by ourselves, driven by the search for someone to blame.
And oh yes in 2020, in what the NYT calls this “land of denial and death,” we search for someone to blame. Paranoia does not require much grounding in real life. So while a global pandemic unfolds, affecting over 150 countries, the blame for what is happening rests with one man. China, Spain, Canada, wherever, have no Trump. They don’t have America’s grossly commercialized medical system, or the economic inequality, or the the presence/lack of border controls, to exacerbate the virus. Yet they have the virus, statistically flexible enough to be worse than the U.S. where needed (China and Iran, they lie) or better than the U.S. to prove some point (South Korea tests more, Denmark has socialized medicine.)The Boston Globe has it clear: Donald Trump “Has Blood On His Hands” over coronavirus. The idea that a global pandemic is not “anyone’s” fault is unthinkable and Trump is a ready foil. The MSM has spent three years seeding our thoughts Trump is deadly. He was a Russian spy selling our secrets even as the #Resistance lead by Alec Baldwin practiced shouting “Wolverines!” He brought us to the brink of civil war, or nuclear war with North Korea, Iran, and China, enroute to climate change death. So what if the MSM got the details wrong — it wasn’t Russiagate or white nationalism or Ukraine — it was, we found it, this.
Look, Trump did away with the “Pandemic Response Team” in 2018. If we had had that Team they would have swatted the virus away. Except there was no Team. What was fired was one man, Rear Admiral Timothy Ziemer, who was actually only a bureaucratic coordinator on the NSC. Ziemer was originally a George Bush anti-malaria appointee after his naval aviation career, an evangelical Christian, with little real-world experience with a pandemic. Not a doctor, not a specialist. No matter his team and its duties were reassigned inside the NSC to a new biodefense directorate. And no matter Ziemer still works for the government, at USAID, in case anyone needs his expertise. And no matter he and his position did not exist in 2009, when by most MSM accounts the U.S. successfully handled the swine flu virus.
Well, maybe it is because Trump cut funding to the CDC and NIH! Except that did not happen. The president’s budget proposals called for reducing funding even as Congress said no every time. Joe Biden claimed Trump “tried to defund the NIH” even as lawmakers enacted increases. Not that it matters much, but Trump never called the virus a hoax, though he did call Democratic efforts to tar him with inaction a hoax. And a Johns Hopkins study in 2019 ranked the U.S. the best-prepared country in the world to handle a pandemic.
But Trump didn’t test! Of course testing has ramped up quickly to the point where the U.S. has tested more people than other countries and is leading the world in deploying the new, faster, antibody test. But blame requires focus on an initial couple of weeks, mid-impeachment proceedings, when testing was not available in large quantities. One typical headline claimed, “The U.S. Badly Bungled Coronavirus Testing.” But the problems were old news almost as soon as the stories were written. Within a week, nearly a million tests would be available. The initial testing rollout of a CDC-designed test kit to state and local labs was unsuccessful because it contained a faulty reagent. CDC quickly backed away from a policy position limiting full testing to its own labs for statistical and quality control purposes, and commercial, university, and state labs gained approval to use their own tests.
The CDC’s actions were standard procedure, and for good reason. When a new disease emerges CDC normally gets the ball rolling because it has the expertise and the biosafety laboratories to handle dangerous novel pathogens. Typically there are few confirmed viral samples at the outset, which researchers need to validate their tests, and CDC has the capability to grow the virus for this critical quality assurance step. You lose that if you allow everyone to test simultaneously. It’s not a “blame,” it is science.As for the technical problem with the original CDC kits, here it is: “The key problem with the kits is what’s known as a negative control. CDC’s test uses the polymerase chain reaction (PCR) assay to find tiny amounts of the SARS-CoV-2 genome in, say, a nose swab. To make sure a test is working properly, kits also include DNA unrelated to SARS-CoV-2. The assay should not react to this negative control, but the CDC reagents did at many, but not all, state labs. The labs where the negative control failed were not allowed to use the test; they have to continue to send their samples to Atlanta.” The CDC has been supplying reagents through the same place for a decade. So if you want to blame Trump for stirring in the wrong DNA in the kits, whatever, go ahead.
Oh, you want someone to really blame? Well, there’s two pandemics’ worth of it to go around.But what about the ventilators? The U.S. tried to build a new fleet of ventilators, but the mission failed, leaving us in the present situation. Left out of the discussion was that the failure took place under the Obama administration, following the H1N1 pandemic. It was understood then some 70,000 ventilators should be stockpiled. Yet through a failure of oversight by the Obama administration the project ultimately produced zero ventilators. Last year the Trump administration approved a new design to kickstart the project, with deliveries to start in the summer.
But didn’t we once have more ventilators? Yes, in California, but Governor Jerry Brown sold them. In 2006, citing the threat of avian flu, then-Governor Arnold Schwarzenegger had the state invest $200 million in a powerful set of medical weapons. He created a truck-borne system of some 50 million N95 respirators, 2,400 portable ventilators, and 21,000 patient beds. Then in 2011 the new Democratic governor, Jerry Brown, cut off the money to maintain the stockpile. The ventilators were given to local hospitals and health agencies without any funding to maintain them. Many were resold to dealers who shipped them abroad. The N95 respirators were allowed to expire without being replaced.
New York, once again Ground Zero for a national tragedy, may not have enough ventilators. After learning in 2015 the state’s stockpile of medical equipment had 16,000 fewer ventilators than New Yorkers would need in a severe pandemic, Governor Andrew Cuomo could have chosen to buy more ventilators. Instead, he asked his health commissioner to draft rules for rationing the ventilators they already had.Governor Cuomo also recognized, but failed to do anything about, a shortage of masks and other protective gear. On March 6, weeks before Trump raised the issue, Cuomo stated people were stealing the equipment out of hospitals in New York. “Not just people taking a couple or three, I mean just actual thefts of those products,” Cuomo said. “I’ve asked the state police to do an investigation, look at places that are selling masks, medical equipment, protective wear.” There is no evidence he or the police ever followed up, directly resulting in a shortage today. Cuomo did not restate his order to investigate even after a warehouse with pallets of black market masks was reported.
Despite the crisis, Cuomo continues to pursue $2.5 billion in Medicaid cuts to NY’s hospitals alongside limiting their expansion to save more money. That will end up being a lot of ICU beds missing if needed.
Elsewhere in New York, city mayor Bill De Blasio’s decision to keep public school open through mid-March, well into the pandemic, is seeing its gruesome legacy play out in Queens, the Bronx, and Brooklyn, where multi-generational households are among the hardest visited by death.
What about Congress? Public health experts testified on in 2018 and 2019 asking for over a billion additional dollars as part of the Pandemic and All-Hazards Preparedness Act, explaining programs created after 9/11 to ready the nation’s health system for any kind of disaster had since been stripped down to dangerously low levels. Congress cut the funding. That decision is “among several key moments over the last few years where experts warned of the likelihood of something like current pandemic and government leaders did not do enough to prepare.”The point is not to absolve Trump. The point is not to blame others. There exists among too many an ugly need for things to fail, so we can blame someone. That glee cruel because the desire for a scapegoat coincides with much suffering.
You never defeat a disaster, whether a hurricane in Puerto Rico or a virus. You mitigate it. Success is measured by how well those natural processes are pushed back beyond civilization’s walls and by how much suffering is relieved along the way. The process almost always follows the same path: recognize the disaster (easier with earthquakes, harder with a virus), determine what is needed (time consuming and ever-evolving with the goal being the right help to the right places in order of priority), procure and transport (can take time), and allow the mitigation efforts to go to work. Disaster management specialists know it will never be fast enough, as the response starts in deficit. But a tipping point will take place, and people will start to receive the help they need.
The press conferences, clogged with ritual passive aggressiveness, grow wearisome, do not inform and entertain only in the way slowing down at a car wreck does. It’s not Weimar, it’s not Rome, but it is time to grow up; we’re all on the Diamond Princess now. We’ll have an election soon enough, and the people can decide for themselves what the MSM and Democrats have been trying to force on them for more than three years. Until then, focus on fixing the problems for our neighbors, not the blame.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Barrett Brown Went to Jail for My Sins
This– THIS LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail. Brown was just sentenced to five years in jail on other charges that the government could make stick, in another step towards the criminalization of everything.
The United States v. Barrett BrownBrown, pictured, 33-years-old, was arrested in 2012 after his and his mothers’ homes were raided and he used “threatening” language toward FBI officers in a response posted to YouTube. He was subsequently accused of working with hackers, whose efforts yielded a huge tranche of embarrassing and revealing information concerning misbehavior and sleaze at U.S. government contractors, primarily Stratfor.
Among the secrets exposed were collaborative efforts between the government and private contractors to monitor social networks, and to develop online surveillance systems.
The charges against Brown included the claim that merely linking to the leaked information was illegal, an alleged crime for which prosecutors sought decades in prison. Brown ultimately signed a plea deal on three lesser charges: transmitting a threat (the YouTube video), trying to hide a laptop computer during a raid, and to being “accessory after the fact in the unauthorized access to a protected computer.” He spent a year awaiting trial in federal prison, and was subject to a six-month gag order prohibiting him from even discussing his case with the media.
On January 22, a Dallas court sentenced Barrett Brown to 63 months in federal prison, minus time already served. He was also ordered to pay $890,000 in restitution to the Stratfor Corporation.
Who is Barrett Brown?Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous (he denies the association) and most certainly was deeply involved with broad free speech issues online. In 2011, Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to documents on the Wikileaks site. The docs are still there.
The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments, plus the social media stuff mentioned above.
To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the Internet and which was already available worldwide for viewing.
Looking for a Test CasePrior to Brown pleading guilty to the three lesser counts he was sentenced for January 22, the government dropped the other charges related to linking as a crime. Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while they were clearly looking to set a precendent on the Brown case, they did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater goal.
What kind of test case? Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the Internet such as the Snowden documents, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.
For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at various work sites.
Before Barrett Brown, Me?The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.
In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from my blog.
State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment. I was defended by several excellent lawyers, and retired from State on my own terms, including no gag orders.
There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders, as was Brown.
Who’s Next?
There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:
— With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.
— In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.
— Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.
Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.
So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden.
Who could have guessed that in 2015 a click of the mouse would be a subversive act?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Questions from Ferguson
I woke up this morning with the worst kind of hangover: anger, confusion, wondering what happened last night. Without a drop of alcohol to explain how I felt. So here are some of the questions I have about Michael Brown, Darren Wilson and Ferguson.
Why was the Announcement Made as it Was?The grand jury made its decision no later than early afternoon on Monday. Why was the announcement held until 9pm EST? That put the announcement at the end of hours of tension allowed to build, after dark, and suspiciously smack in TV prime time. There was nothing more to “get ready” on the streets except to allow crowds to gather and frustration to ramp up. Why not make the announcement as soon as a decision was rendered? Why not hold it until say 7am Tuesday morning when people were asleep and not yet gathered? In daytime? Wouldn’t those actions have reduced somewhat the potential for violence?
Why was the prosecutor, Robert McCulloch, Seemingly Smirking?Why was the prosecutor, Robert McCulloch, whose very title implies his task before a grand jury, seemingly so pleased with the result? Throughout his press conference, he went out of his way to chastise the media and mock discrepancies among the witnesses to Brown’s shooting. This was unprofessional at the very minimum, and did nothing to calm tensions or create the impression of a fair process.
Every attorney knows that in any situation witnesses will disagree with one another. The shooting occurred within seconds, and each witness saw it from a different location, so of course statements will vary. And indeed it is possible in any criminal situation that some witnesses may lie. McCulloch essentially treated this as some sort of unique facet of the Brown case. He kept referring to the significant gaps between the physical evidence and witness statements, yet the key thing, what initially happened between Michael Brown and Darren Wilson at the window of the police car, was by its nature not able to be supported or refuted by any physical evidence (What was said? Who acted first? At what point did Wilson shoot?)
Why was the Physical Evidence of Wilson’s Injury Not Seen as More Significant?A key element of showing Darren Wilson was justified in his use of deadly force was the claim that Michael Brown punched/attacked him in his police cruiser, causing Wilson to fear for his life and fire his weapon. The law governing this states “An officer may use lethal force only when the officer reasonably believes that the action is in defense of human life, including the officer’s own life.” To a casual observer, the injuries Wilson sustained, which appear to be minor bruises, do not support the criteria necessary to have fired the first shots or Wilson’s statements that his life was in danger. It was the action at the door of the police car precipitated everything that followed.
Wilson’s injuries were testified to on page 25 of the transcript. The questions appear only to describe for the record what was evident in the hospital photos, nothing more.
Given McCulloch’s Personal History, Which Creates the Appearance of Bias, Why did He Handle the Case?Everyone knew the Brown killing was among the most controversial and sensitive cases Missouri had seen for a long time. Given the racial tensions and violence that both happened and were worried to happen, avoiding even the appearance of bias seemed a key element in helping tamp down concerns that the issue was treated unjustly. So why was McCulloch allowed to shepherd the case?
McCulloch has a tragic, close, familial connection to violence. In 1964 his father, a police officer, was shot and killed by an African-American man in a public housing complex. In 2000 McCulloch controversially declined to bring charges against two detectives accused of excessive force in the killing of two unarmed black men, who died after 20 shots were fired into their car by police.
McCulloch made questionable statements in August as protests unfolded in Ferguson. He criticized Missouri Governor Nixon for replacing St. Louis County police control of the Ferguson protests with officers and leadership from the Missouri State Highway Patrol. “It’s shameful what he did today, he had no legal authority to do that,” McCulloch said at the time. “To denigrate the men and women of the county police department is shameful.” He also praised police: “The abuse that they took on that line was incredible,” he said, in reference to the SWAT and riot teams on call in Ferguson in the early days of the protests. “The use of force, while they were doing it under the circumstances, I don’t think was excessive,” he said.
A formal accusation of bias towards the police on the part of McCulloch is impossible to demonstrate. The appearance of bias is impossible to ignore. Given the controversy and sensitivity of the Brown killing, was there not anyone else in the state of Missouri who could have prosecuted the case? Why didn’t the governor appoint a special prosecutor as he was able to do?
Why Did the Grand Jury Take it Upon Themselves to Sort Out the Witnesses Conclusively?The point of a grand jury is only to determine if probable cause of a crime, a very low legal hurdle, exists. If it does, they return an indictment and the case goes to trial for resolution. There, in open court with all sides publicly testifying, a jury selected for the specific case goes through all the evidence, and decides which witnesses to believe and which to discard. Cross-examination occurs, particularly of critical witnesses such as Darren Wilson.
The most significant elements of the case could only be accounted for by Wilson, or Brown. One is dead, and one is fighting for his life. The latter point is often a critical one in a criminal trial and a defendant’s statements exonerating themselves are often looked at very closely. One of the key points of even having a trial is for the trial jury to sort out conflicting evidence; absent a confession, every criminal case has some sort of conflicting evidence.
It appears that the grand jury took it upon itself not just to decide if probable cause existed, but to try Darren Wilson in secret, without the checks and balances of an open trial.
What was Said by Prosecutors in Front of the Grand Jury?Did prosecutors actually ask for the grand jury to indict? If they did not believe the evidence supported an indictment, why did they take the case to the grand jury instead of dismissing the charges themselves as if normal procedure? It is clear that prosecutors went to great efforts to challenge the credibility of outside witnesses, going as far as labeling some as making up their stories to match publicly-available details.
Were the same standards applied to the ultimate witness, Darren Wilson? Were his conclusive statements, which some could consider to be self-serving, aggressively challenged? If they were, exposing that would help to calm tensions.
Wilson’s grand jury testimony is here; it does not appear to contain challenging questioning, but have a look yourself.
The key element in determining whether Wilson was justified in shooting was the the question of whether Wilson thought his own life was in mortal danger. Wilson made the following statements to the grand jury; were they seen by the jury as unbiased or self-serving, or simply truthful?
Brown had the “crazy” look of a “demon… It looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him,” Wilson told the grand jury
Wilson described Brown as “very aggressive” and was convinced the teen was “gonna kill me.” “It was just like intense,” the officer said. “I’ve never seen anybody look that, for lack of a better word, crazy.”
Wilson also stated: “He turned, looked at me, made like a grunting noise and had the most intense aggressive face I’ve ever seen on a person.”
Wilson was a veteran cop. Did anyone challenge his assertion, after years on the streets, that 18-year-old Michael Brown did indeed display the “most intense aggressive face I’ve ever seen on a person.”
By the way, Brown, according to Wilson on page 225 of the transcript, only made that aggressive face after Wilson shot him the first time.
So is This Over?This one we pretty much know the answer to. With the grand jury’s decision, Darren Wilson will not be criminally charged for killing Michael Brown by the state of Missouri.
The Federal Department of Justice can charge Wilson with violating Brown’s civil rights, under the Fifth Amendment of the Bill of Rights, for “depriving him of his life.” Civil rights investigations can drag on for years. The Justice Department’s civil rights investigation into George Zimmerman, the neighborhood watch volunteer who fatally shot unarmed 17-year-old Trayvon Martin in Sanford, Florida, is still active after two years with no results expected, well, for a long time.
More to ComeI am not a lawyer, and in the short time since the grand jury’s announcement have obviously not yet waded through all 70 hours of testimony and thousands of pages of written documentation, so it is possible that answers to some of these questions may already exist. I hope so, but I worry they don’t.
What happened in Ferguson matters to us all as Americans. Are we doomed to remain a nation hopelessly, violently adrift in a swamp of racism? Do we have a justice system that is indeed just? Can everyone expect to receive fair treatment in our system, from the moment police confront an alleged criminal to the moment some sort of final decision is reached? Do our police forces exist to “protect and serve,” or does that only apply to some groups of Americans, while for others the police are deadly enemies?
Without any disrespect, Michael Browns’ come and go. There have been young black men killed under dubious circumstances by the police before Brown, and God help us, there will be more killed under dubious circumstances by the police after Brown.
Until the real questions of Ferguson are answered, we will do this over and over and over again.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Ferguson Tourist Board Admits Bad Timing (Satire)
“Yep, we blew it,” said a sheepish spokesperson for the Ferguson, Missouri tourist promotion board. “We really, really picked a bad week to go all in on our ‘urban young people’ tourism promotion campaign– Ferguson, It’ll Be Cray-Cray Ya’ll!”With a grand jury decision on the shooting of Michael Brown in Ferguson expected Sunday, and with many predicting violence to follow that decision in the racially divided city, the tourism board admitted they had egg on their faces.
“At first we were kind of excited. The hashtag we had been promoting, #Ferguson, really blew up on Twitter, and we were hearing that media from all over the world were block-booking hotel rooms. We mistakenly took all that as signs that our social media campaign had really caught on, until we read about the whole grand jury thing and Michael Brown. I guess we should get a news app on our phones or something. Really, we checked Instagram three or four times and there was nothing. Awkward!”
In its own defense, the tourism board did emphasize that the campaign had been in the works for months, and that many of the contracts for advertising, billboards and fake friends on social media had to be lined up quite a while ago. “And besides,” said one anonymous staffer, “nobody at city hall returned a phone call or responded to even one of our emails for like, four months, so we just said to ourselves, better ‘go for it!'”
“And yes, we have already heard that saying we were specifically ‘targeting’ the African-American community with our promotional campaign is really awkward in so many ways. It’s just that our market research showed that so few African-Americans wanted to come to Ferguson for some reason that we figured they were an underserved demographic for us. Then we heard from two different restaurants in town that they actually don’t serve African-Americans, which we obviously misunderstood the meaning of. And who doesn’t make mistakes? That’s why pencils come with erasers. We feel really bad.”
“But the saddest part of all is that so many people are going to miss some of the great attractions we have here in Ferguson. We have a movie theatre, which we now hope will not be burned down, and the Rite Aid is still open despite the plywood they now have up. For military buffs, the National Guard is going to hold some sort of parade soon. And we heard the state is considering legalized casino gambling, so keep us on your vacation radar.”
“But maybe wait a week or so.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Barrett Brown: The Criminalization of Web Links
This– A LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail.First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.
The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.
The United States v. Barrett Brown
Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous and most certainly was deeply involved with broad free speech issues online. In 2011 Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to the Wikileaks site.
The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments.
To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the internet and which was already available worldwide for viewing.
(To be further clear, Brown is no choirboy. He was once addicted to heroin, is accused of threatening an FBI agent on YouTube and who knows, may be mean to strangers. And so what. What matters is his actions, not his Match.com profile.)
Browns Wins, Though Broader Issues Remain
The Electronic Freedom Foundation (EFF) supported Brown throughout his arrest. Because the government imposed a gag order on Brown speaking publicly about his situation, friends such as the EFF were critical in keeping the case in the public eye. The significance of Brown’s case was made quite clear by the EFF:
The U.S. Attorney for the Northern District of Texas today [March 5, 2014] filed a motion to dismiss eleven charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.
Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.
Looking for a Test Case
Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while the government was clearly looking to set a precendent on the Brown case, it did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater principle the government seeks.
Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the internet, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.
U.S. Government Orders its Employees to Not Look at Wikileaks and Others
For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at work.
Before Barrett Brown, Me
The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.
In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from this blog.
State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment.
There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders as was Brown.
Who’s Next?There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:
— With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.
— In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.
— Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.
Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.
So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden. Who could have guessed that in 2014 a click of the mouse would be a subversive act?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Qaddafi: Mission Accomplished
It is always sad when friends depart. Qaddafi was hated, then loved, the hated once again by the West. But, for that brief shining moment, we have our… memories.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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