Wampum

Congressional PAC Expenses

From the Cleveland Plain Dealer (link via Squalor in the Holler) comes a listing of expenses some Senators and Congressmen billed to their PACs in 2003-2004:

John Boehner, (R-Ohio) --- $53,855 on greens fees, $47,357 for Boehner and guests to dine at Sam & Harry's, a top Washington steak house;

Jim McCrery (R-La.) --- $173,053 for golf tournaments and related expenses;

Tom Reynolds (R-NY) --- $117,825 on Pebble Beach events, including greens fees, lodging and catering;

Michael Oxley (R-Ohio) --- $25,493 for chauffeurs to transport him around New York City, $63,544 for ski trips and fund-raisers in Colorado (I guess he doesn’t play golf);

Eric Cantor (R-Va.) --- $39,012 on events and meals at Beverly Wilshire Hotel and Wolfgang Puck's Spago Beverly Hills;

Bill Frist (R-Tenn.) --- $39,794 for executive jet service;

Rick Santorum (R-Pa.) --- $19,451 for meals from the U.S. Senate Restaurant.

I do not find that list particularly surprising or shocking, but I do admit to a bit of jealousy. I would love to find out what it is like to spend $117,000 of other people's money playing golf at Peeble Beach.

Aljazeera interviews Riverbend

Firas Al-Atraqchi's interview with RIverbend is here.

Would you like cookies with that Flash?

Dave Kristol, the guy who is credited with inventing the http-state-management-mechanism, aka "cookies", sent off a note to the mostly quiescent http-state mailing list this afternoon.

Macromedia Flash's local (to your machine) shared objects (SO) are an effective alternative to cookies, and there is already a market -- three cents per thousand impressions on Flash content provisioned servers. Since about 40% of the best demographic flush their cookies regularly (that is, are familiar with the concept, and the controls, and choose to use the controls to abate the concept), on-line marketers, analytics (user profile generation and tracking) and ad tech vendors are moving to where the Flash is. After all, lusers don't know what SO's are, and therefore are unlikely to delete them, and commercial anti-spyware and privacy apps do not fold, spindle, mutilate, or discard SOs, as they do cookies.

Oblig geek: The reason there is a p3p policy applicable to cookies, and that IE and Mozilla/Firefox can process the policy and do something possibly useful with (or to) the cookie, is because I spent two years contributing to the P3P Spec WG, which never would have policied objects had I not insisted that objects, not just URLs, could, and should be policied. Oh. We pronounce "policied" as "policy'd".

For more fun, read what the advertizers read, the former Internet Advertising Report.

Oil Prices to Double?

Reuters:

Oil markets have entered a ``super-spike'' period that could see 1970's-style price surges as high as $105 a barrel, investment bank Goldman Sachs said in a research report…

"We believe oil markets may have entered the early stages of what we have referred to as a "super spike'' period -- a multi-year trading band of oil prices high enough to meaningfully reduce energy consumption and recreate a spare capacity cushion only after which will lower energy prices return,'' Goldman's analysts wrote.

Wow.

Judicial activism defines high court's Oneida ruling

The editorial writers at Indian Country Today have posted an editorial on City of Sherrill v. Oneida Indian Nation of New York.

Here is the link.

I recommend reading it. If the link fails to load, go to the ICT front page then dork on the Op-Ed tab.

No Trust

Suppose that you are a salesman with a large quota to fill. Would you suggest to your potential customers that your company may not live up to its contracts with existing customers?

Writing at the Wall Street Journal’s Econoblog, Nouriel Roubini notes the following:

[The]financing needs of the U.S. government (between issuance of net new debt due to the ongoing fiscal deficit and refinancing of the existing maturing debt) will be close to $800 billion in 2005 and above $1 trillion in 2006-2008 …

That means that President Bush will need to sell about $4 trillion in Treasury bonds during his second term. If Mr. Bush is not able to sell those bonds at a good price, the U.S. economy may suffer a “hard landing.”

In speaking of the Social Security trust fund, Mr. Bush recently said:

Some in our country think that Social Security is a trust fund -- in other words, there's a pile of money being accumulated. That's just simply not true. The money -- payroll taxes going into the Social Security are spent. They're spent on benefits and they're spent on government programs. There is no trust.

The assets held by the Social Security trust fund are, of course, Treasury Bonds. Mr. Bush is claiming that the accumulation of Treasury bonds does not constitute the building of assets. “There is no trust” can only mean that Mr. Bush does not think that one can rely on the United States to honor the commitment it made to repay those bonds with interest.

Mr. Bush is relying on foreign central banks and investors to purchase $4 trillion in bonds over the next few years. Mr. Roubini:

Since 2001, there has been almost no increase in the net amount of holdings of U.S. Treasurys by U.S. residents. Almost all of the new net supply of U.S. Treasurys has been purchased by non-residents, and about two-thirds to three-quarters of such foreign purchases have been made by foreign central banks, especially in Asia, but also in other regions.

Thus, Mr. Bush is telling potential customers (foreign central banks) that the United States in untrustworthy in keeping its commitment to its existing customers (the Social Security Administration). By necessity, he must also tell those same potential customers that they need not worry about repayment, that they can trust the United States to keep its commitments.

That is a very dangerous game. Credibility is a unified whole. It can rarely be maintained in part and lost in part. If the potential purchasers of Treasury bonds listen in on Mr. Bush Social Security statements, they may conclude that “there is no trust.” In that event, they will demand a much larger premium for accepting a larger risk of non-repayment. That means much higher interest rates and an increased risk of a “hard landing.”

On the other hand, Americans may listen in to what, in effect, is Mr. Bush’s promise to foreign purchasers of Treasury bonds. That promise is that the foreign central banks can rely on the promise of the United States to repay its debts but that the American people cannot trust similar commitments. In essence, Mr. Bush is trying to tell foreign purchasers that if push comes to shove, it will be the American people and not Japanese and Chinese bankers who will get screwed. That may surprise many Americans.

Would it not be better to try to reassure everyone that the word of the United States is good and that everyone can trust in the full faith and credit of the United States of America?

Say What?

NY Times:

At one point, Mr. Bush said his plan would benefit people "if they pre-decease, or die early…"

Now there is a real selling point. You will do great if you are dead. But how will they do if they post-decease?

Litmus Test

In several prior posts, I suggested certain of President Bush’s nominees to the Federal Circuit Court’s of Appeals should be opposed on grounds of their lack of experience and their conduct without reference to their substantive political and judicial views.

Today, I will argue that Janice Brown, a nominee for the Circuit Court of Appeals for the DC Circuit, should not be confirmed.

Justice Brown has an impressive resume. She has a law degree from the University of California and an L.L.M. from U.VA. She worked as a Deputy Attorney General for the state of California for nearly a decade. She has taught law and worked in private practice. She has served on the bench for more than a decade including nine years on the California Supreme Court. Justice Brown has ample credentials to serve on the Circuit Court.

Why then do I oppose her confirmation? The People For the American Way have raised concerns over Judge Brown’s decisions in the areas of civil rights, worker and consumer rights, privacy, economic and environmental regulation, and First Amendment issues.

Now, I must admit that her positions on those issues would preclude me from choosing her for the Court. As luck would have it, however, I wasn't elected President and George Bush was. I can’t expect him to nominate the folks I would choose. While her past decisions are troubling, let’s give her a pass on those issues for there is a much more important reason to oppose Justice Brown's confirmation.

What I can not abide is her view of the incorporation doctrine. PFAW provides the following quote from Judge Brown:

The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment…The historical evidence supporting what the Supreme Court did here is pretty sketchy…The argument on the other side is pretty overwhelming that it’s probably not incorporated.

- Janice Rogers Brown, Speech to Pepperdine Bible Lectureship entitled “Beyond the Abyss: Restoring Religion on the Public Square,” in 1999

If that quote is accurate (I am a bit suspcious about the ellipses), in context, and if it means that Judge Brown does not believe in the incorporation doctrine, then she is unqualified to sit on the Federal bench.

Let’s see how the incorporation doctrine works. The First Amendment of the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Many people understand that provision to mean that newspapers do not have to be submitted the government for approval before publication. They think that the First Amendment protects them from being put in jail for saying something politically unpopular. Most people think that the First Amendment would keep the government from making it a crime to read the Bible, or to not read the Bible. Most people think that the government can not require them to be a Catholic, or to pray five times a day while facing Mecca, or whatever.

Please note, however, that the plain language of the Amendment only prohibits the Congress from passing laws that that would require or prohibit those things. The First Amendment, by itself, does not keep state or local governments from putting you in jail for criticizing the mayor, or for having a different faith than the governor. That is where the incorporation doctrine comes into play.

After the Civil War, the 14th Amendment to the Constitution was ratified. That Amendment says, in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The plain language of the “privileges and immunities” clause, the due process clause, and the equal protection clause do apply to the states. The incorporation doctrine holds that the 14th Amendment incorporates the rights embodied in the First Amendment (and various other rights contained in the Bill of Rights) and makes those rights applicable to the states.

Thus, the First Amendment, incorporated through the 14th, bars a state law requiring your local newspaper to submit each day’s edition to the governor’s office for approval. Freedom of the press means freedom not just from federal government interference but from interference from the state governments as well. Under the incorporation doctrine, neither the federal nor state government can tell you how to worship and to back up its directive with the threat of incarceration.

Justice Brown, apparently, does not believe in the incorporation doctrine. Apparently, she believes that a state law calling for incarceration of anyone who criticizes local officials is just fine if it is valid under state law.

It is true that most (all?) state constitutions provide some sort of First Amendment protections. Nonetheless, I do not think that application of the Bill of Rights should be a matter of experimentation among the various states. It is quite possible that an individual state might enact an official religion and require compliance of all citizens by threat of fine, incarceration, or other sanction. Here is a list of countries with official religions. In colonial America, a number of individual states, including Virginia and Massachusetts, had official religions. It is not so far fetched to think that a movement to enact official state religions could arise again, at least in the absence of the incorporation doctrine.

History also shows that freedom of the press and speech are not always popular and, in the absence of the incorporation doctrine, could be extinguished in individual states.

Presidential candidates are often asked if they have a “litmus test” for judicial nominees. Keeping the rights and freedoms embodied in the First Amendment safe from encroachment by any level of government is a litmus test for me. Apparently, Justice Brown fails that test.

City of Sherrill v. Oneida Indian Nation of New York (II)

The following commentary is from the final section of Arlinda Locklear's 1988 legal overview of the Oneida land claims (part of chapter 9 from the Iroquois Land Claims book published in 1988).

---

Oneida Land Claims: A Legal Overview
By Arlinda F. Locklear
Chapter in Iroquois Land Claims (Book), 1988

(Final section)

THE PASSAGE OF TIME AND EQUITY

All the Oneida successes have left as a practical matter only one possible defense to the claims, i.e., the equitable doctrine of latches. In its Oneida II decision, the Supreme Court expressed doubt about the applicability of that defense, but did not decide the issue. As a result, the issue is still an open one.

The purpose of the doctrine of laches is to prevent the assertion of stale claims. Originally, the defense of laches was available only in courts of equity while the analogous statute of limitations defense was available only in courts of law. Now, there are no separate courts of equity and law. Both equitable and legal actions are heard by a single court. But equitable defenses such as laches are, as a rule, still applicable only to traditionally equitable actions. For that reason, the Supreme Court in Oneida II was doubtful that the defense was available at all.

Even were the defense available, it would not bar the Oneida claims. Unlike a statute of limitations defense, laches does not arise simply from the passage of time. The latches defense depends upon the relative equities of the parties. It bars claims where the plaintiff unreasonably delayed filing suit for an unduly long period of time, resulting in prejudice to the opposing party. This is not the case with the Oneida claims for a number of reasons.

First, the Oneidas have been diligent in the pursuit of their land. As soon as the Oneidas realized what was happening to them in the late eighteenth century, the Oneidas called upon the federal government for its oft-promised protection. The first recorded request was made by an Oneida leader during the negotiations that led to the 1794 Treaty of Canandaigua. The Oneidas were told that the matter would be investigated later. No such investigation took place.

Since that time, the Oneidas have persistently raised the issue. Throughout the nineteenth century, the Oneidas in both Wisconsin and New York raised the matter of their New York lands with their federal Indian agent to no avail. In fact, there is evidence that the Oneidas consulted a lawyer in 1874 on the claims, but nothing resulted from that meeting. Protests continued throughout the twentieth century. Numerous letters and petitions were sent to the federal government by individual and Oneida leaders. The Oneidas also formally requested the United States to sue on the claims as the Oneidas' trustee. With one exception, discussed below, the requests were also to no avail. Thus, Judge Port concluded in his 1977 Oneida decision that the Oneidas "never acquiesced in the loss of their land, but have continued to protest it diminishment up until today."

Second, the Oneidas' legal capacity to sue on the claims without the United States as co-plaintiff, and the federal court's jurisdiction over the claims, have been doubtful until recently. The United States as trustee for Indian tribes plainly has legal authority to sue to protect tribal property rights. Historically, the overwhelming majority on such suits were filed by the United States when circumstances convinced the United States that such a suit was appropriate or required. It was assumed that the United States' trustee obligations somehow diminished the tribes' right to sue on their property rights themselves. That assumption was first squarely rejected by the Supreme Court in 1968. It was also doubtful whether federal courts have jurisdiction over suits filed directly by tribes. That jurisdictional point was not finally resolved in the tribes' favor by the supreme Court until 1974 in the Oneida test case itself. In other words, the Oneidas diligently pursued their claims in court once that avenue became available to them.

Third, these cases come as no surprise to the State of New York or its citizens. The state, of course, has been aware of the claims since the transactions occurred. The governor was told plainly by the federal officials before the time of the first transaction and afterward that the state had no authority to deal in Oneida land. The State chose to ignore that advice and thus acted at its peril. In 1919 the state legislature appointed a commission to investigate the "Indian problem." That commission, known as the Everett Commission, reported back, among other things, that the Indian/state land transactions had been illegal. The legislature did not like its commission's report and suppressed publication of it. There can be no doubt that state officials have actual knowledge of the claims from the state's own records.

Earlier litigation should have brought home knowledge of the claims to private landowners (i.e., actual knowledge as opposed to constructive knowledge arising from county land records). In 1919, the federal government filed suit on a thirty-two-acre parcel of the Oneida claim onbehalf of the Oneidas. Based on its determination that the federal government had sole authority to dispose of Indian lands, the court ordered eviction of the non-Indians then in possession of the parcel. On appeal the decision was upheld. The Boylan decision is generally known in the community as the origin of the present-day thirty-two-acre reservation in Oneida. In a contest about leases of Seneca lands in 1942, the same court again affirmed the general principle that New York State had no authority over tribal land. Thus, the existence of outstanding Indian claims is or should be known by the current landowners.

The Oneida claims, then, are not a bit of history dusted off by a clever lawyer and sprung upon an innocent state and citizenry. The Oneida claims arise out of a blatant and knowing violation of the dominant society's own law for which the Oneidas have sought redress by every means available to them. The story of the claims is one of conscious neglect of a former ally by the United States. The story is one of fraud and overbearing by the state of New York. And the story is one of self-imposed ignorance of others' rights by the present landowners. The equities plainly weigh in favor of a remedy for the Oneidas.

One final word about responsibility for the Oneida claims. It is true that the original sin here was committed by the United States and the state of New York. It is also no doubt true that there are a number of innocent landowners in the claim area, i.e., individuals who acquired their land with no knowledge of the Oneida claim to it. But those facts alone do not end the inquiry respecting the ultimate responsibility. Whatever their knowledge of the claims before then, the landowners have certainly been aware of the Oneida claims since 1970 when the first suit was filed. Since that time, the landowners have done nothing to seek speedy and just resolution of the claims. Instead, they have as a point of principle denied the validity of the claims to be frivolous. Now that the landowners have failed in that effort, they loudly proclaim their innocence in the entire matter. The Oneidas, on the other hand, have since 1970 repeatedly expressed their preference for an out-of-court resolution of the claims. Has the landowners joined with the Oneidas sixteen years ago in seeking a just resolution, the claims would no doubt be resolved today. For that reason, the landowners share responsibility for the situation in which they find themselves today.

Now that the legal merit of the claims has been demonstrated to a large extent, perhaps enlightened self-interest will convince all parties to deal fairly with the Oneidas. The parties to the claims must cooperate if an amicable solution to the claims is to be found. If that does not happen, then all parties will bear responsibility for the failure. As the Oneidas have learned, it cannot be done by one party alone.

Nuclear Spring (Summer, Fall, Winter, ...)

We've been involved in the People for the American Way / Working Assets campaign to get Mainers to contact Senators Olympia Snowe and Susan Collins to support the historic rule of the Senate of unlimited debate and minority rights. We haven't seen any evidence that Wampum's coverage of two (soon to be 4) of the specifically unqualified, previously rejected and re-submitted nominees has made it into the mainstream critical theory of the "left", which still seems exclusively focused on theory and ideology rather than personal incapacity and prior specific instances of poor judgement, though surveys show that messaging around specific flaws in a nominee is the most effective way to wage an anti-nomination fight. However, we are invited to a partner briefing here in Portland today, in lieu of the (cancelled) Portland edition of the multi-media-markets press conferences.

Here is the PFAW Foundation press release:

PEOPLE FOR THE AMERICAN WAY FOUNDATION TO UNVEIL FILIBUSTER AD CAMPAIGN

Washington, DC - People For the American Way Foundation will launch a multimillion-dollar national advertising and grassroots campaign Wednesday urging senators to preserve the 200-year-old Senate rule known as the filibuster, a key check and balance on overwhelming power in our
constitutional system.

Senate Majority Leader Bill Frist is threatening to detonate the "nuclear option" and eliminate the filibuster for judicial nominations when Congress returns from its spring break. The campaign will include local and national television spots, along with online and print ads targeted to senators whose votes will be key.

Filibuster Ad Campaign News Conference
WHEN: Wednesday, March 30, 10:00 a.m.
WHERE: Zenger Room, National Press Club

People For the American Way Foundation President Ralph G. Neas will moderate the news conference. A list of participants will be announced Tuesday.

I'll post a follow-up later. Oh. There is a conservation outfit that is messaging that William Meyers doesn't like the environment. That conservation outfit went out of their way not to mention his role in putting a open pit cynaide heap leach mine, and a lot of water to deliver the cyanide to the heap, in an ecologically and culturally significant area -- to Indians. I like the fact that they are messaging specifics to their base, I just wish their base required their leadership to include Indians when circling up the environmental leadership wagons. More on that if you missed it here and here.

Update: Before noon I was a superhero, washing dishes and such. Afternoon and I'm a slightly constrained puddle. Flu is such a gas.

They call us 'Indians'

Overnight surprising news from Sweden. Fortunately for me I've a Swedish reader in for coffee and childcare and such.

Four Triballaw contributors, one non-Indian, three Indian, are among the 12 contributors to They call us 'Indians', a work undertaken by Annika Banfield, and dedicated to our friend Michael Two Horses, who died during the Winter of 2003/4. MTH wrote intelligently about faux shawcritters and bounced back and forth between Law and Cultural Anthro before settling on Indian Studies. The book is retailing in Sweden for 130 Swedish Kroner ($18), and I'll be taking orders for it here. Use the email address on the right hand side of the index page for EBW.

All profits made by Världen i våra händer go to the Albuquerque Indian Centre, earmarked for children. All profits made by Wampum will go to Wabanaki children -- Abenaki, Mic'mac, Maliseets, Passamaquoddy, and Penobscot.

The Swedish version is avaliable also. Don't forget the Red Lake fund. PayPal or postal, upper left hand corner of the page.

City of Sherrill v. Oneida Indian Nation of New York

Writing for the entire SCOTUS, minus J. John Paul Stevens, who wrote a dissenting opinion, Justice Ruth Bader Ginsberg wrote that:

too much time had passed for the Oneidas to now claim tribal sovereignty over a property, and

if upheld, the claim would create a "disruptive" patchwork of local and Indian jurisdiction.

The Oneidas claimed that because the Sherrill properties, located 30 miles east of Syracuse, N.Y., were once part of a 300,000-acre stretch of their land they were no longer taxable by state and local officials after the tribe purchased them in 1997. The City of Sherrill differed. At issue, the taxes on a gas station, a convenience store and a defunct T-shirt factory. The date when the Oneida left the area of Sherrill, 1815.

For those of you who take an interest in the passage of time in the American courts, in the 2001 session the Court decided New Hampshire v. Maine 532 U.S. 742 (2001). The issue in New Hampshire v. Maine was the tax jurisdiction over Seavy Island in the Piscataqua. The deciding language was taken from a 1740 decree of King George II delimiting the Colony of New Hamphsire from the Northern Extent of the Massachusetts Bay Colony (now Maine) -- "Middle of the River".

Yes. J. Ruth Bader Ginsberg wrote the majority opinion in New Hampshire v. Maine in 2001.

Municipalities are always concerned when properties are taken off the tax rolls through title transfer to tax exempt entities, and I'll be happy to take counsel, but I've never heard anyone at a planning or zoning board or citry council take the position that the United States or the Catholic Church or some 501(c)(3) entity should be subject to municipal taxation because taking a property off the muni tax roles would be disruptive to the city budget.

Justice John Paul Stevens wrote that the decision "is at war with at least two bedrock principles of Indian law: (1) "that only Congress can reduce a tribe's reservation" and (2) "change a reservation's tax status".

He managed not to write that Ruth Bader Ginsberg actually managed to practice racism today, in addition to some fairly rediculous SCOTUS inconsistency, and if anybody doesn't know what first order magnitude of transfer of authority took place today in Sherrill, Plenary Powers, thought to be reserved to the United States Senate under Art. II, section 2, may now be exercised by the smallest city in New York State, with approximately 3,200 residents. On the bright side, J. Ginsberg didn't actually transfer Art I, section 8 powers to the City of Sherrill. That would be really entertaining.

The slip is here.

Living Will Information

If there is one thing that the Schiavo matter teaches, it is the importance of having a written advanced directive concerning medical care in the event that one becomes unable to communicate through injury or illness. In other words, it is important to have a living will.

I do not give legal advice on this blog and I am not about to try to tell you the ins and outs of the legal formalities of living wills and other advanced directives in the various states.

I do suggest that you visit the American Bar Association site and review the Consumer’s Tool Kit For Health Care Advanced Planning.

For information on your state’s law regarding Living Wills and other advanced directives, you may find the U.S. Living Wills Registry site useful.

By statute, Georgia provides a living will form. It works here but you should check your own jurisdiction. To help focus on the issues to be decided, the Georgia Living will form, located at OCGA §31-32-3, is reproduced below the fold.

LIVING WILL

Living will made this ______ day of ______________ (month, year).

I, _______________________, being of sound mind, willfully and
voluntarily make known my desire that my life shall not be
prolonged under the circumstances set forth below and do declare:

1. If at any time I should (check each option desired):

( ) have a terminal condition,

( ) become in a coma with no reasonable expectation of
regaining consciousness, or

( ) become in a persistent vegetative state with no reasonable
expectation of regaining significant cognitive function,

as defined in and established in accordance with the procedures
set forth in paragraphs (2), (9), and (13) of Code Section
31-32-2 of the Official Code of Georgia Annotated, I direct that
the application of life-sustaining procedures to my body (check
the option desired):
( ) including nourishment and hydration,

( ) including nourishment but not hydration, or

( ) excluding nourishment and hydration,

be withheld or withdrawn and that I be permitted to die;

2. In the absence of my ability to give directions regarding the
use of such life-sustaining procedures, it is my intention that
this living will shall be honored by my family and physician(s)
as the final expression of my legal right to refuse medical or
surgical treatment and accept the consequences from such
refusal;

3. I understand that I may revoke this living will at any time;

4. I understand the full import of this living will, and I am at
least 18 years of age and am emotionally and mentally competent
to make this living will; and

5. If I am a female and I have been diagnosed as pregnant, this
living will shall have no force and effect unless the fetus is
not viable and I indicate by initialing after this sentence that
I want this living will to be carried out. _________(Initial)

Signed ______________

____________(City), __________(County), and __________(State of
Residence).

I hereby witness this living will and attest that:

(1) The declarant is personally known to me and I believe the
declarant to be at least 18 years of age and of sound mind;

(2) I am at least 18 years of age;

(3) To the best of my knowledge, at the time of the execution of
this living will, I:

(A) Am not related to the declarant by blood or marriage;

(B) Would not be entitled to any portion of the declarant's
estate by any will or by operation of law under the rules of
descent and distribution of this state;

(C) Am not the attending physician of declarant or an employee
of the attending physician or an employee of the hospital or
skilled nursing facility in which declarant is a patient;

(D) Am not directly financially responsible for the
declarant's medical care; and

(E) Have no present claim against any portion of the estate of
the declarant;

(4) Declarant has signed this document in my presence as above
instructed, on the date above first shown.
Witness _______________________

Address _______________________

Witness _______________________

Address _______________________

Additional witness required when living will is signed in a
hospital or skilled nursing facility.

I hereby witness this living will and attest that I believe the
declarant to be of sound mind and to have made this living will
willingly and voluntarily.

Witness: ___________________________
Medical director of skilled
nursing facility or staff
physician not participating
in care of the patient or
chief of the hospital
medical staff or staff
physician or hospital
designee not participating
in care of the patient."

Nuclear Option Status Report

Have recent events increased or decreased the chances that the Republican Senate will use the “nuclear option” to prevent filibusters of judicial nominees?

For a very good primer on the “nuclear option” see this JLFinch Diary at Kos.

It seems rather clear that the Terri Schiavo matter has increased the likelihood of the Senate going nuclear.

In the Weekly Standard, we find the following:

For President Bush and the social conservatives who comprise the central rampart of his base, the courts' naked assertion of judicial supremacy in deciding the fate of Terri Schiavo represents an important moment. This is because the premise of the Democratic filibuster of the president's conservative judicial nominees is that the Roe v. Wade decision must never again be called into question.

The judicial confirmation debate will now unavoidably be about whether democratic decision-making on abortion should continue to be prohibited by our courts and (effectively) by the American legal profession. From the beginning, those who believed Roe would corrupt the rule of law feared that state sanction of private killing would put all public order and all private restraint in doubt. The fate of Terri Schiavo makes clear that those fears were utterly on target.

Since the social conservatives seem intent on blaming the failure to “save Terri” on judicial activism (defined, of course, as any judicial ruling with which they disagree), they are likely to turn up the heat on Bill Frist and Republican Senators to go nuclear to insure that the most socially conservative judicial nominees get confirmed.

Mark Kleiman quotes Jonathan Zasloff as suggesting that that was the plan all along and was the reason Congress took up the Schiavo matter:

The whole POINT was not to grant relief. This would enable the Republicans to say that a "runaway federal judiciary" was ignoring the will of Congress. And this just so happens to occur when the Republicans are about the exercise the nuclear option regarding filibusters of judicial nominees. Just another way to astroturf this issue among the Christian right. "Make sure that what happened to Terri Schiavo doesn't happen again!"

Before we conclude that the nuclear option is inevitable, we should consider two other factors. The first is whether or not a core Republican faction will push Frist and the other GOP Senators away from the nuclear option.

The Washington Post notes that so far, the biggest beneficiary of the Bush second term, and the increase in Republican control of the Senate, has been big business:

Fortune 500 companies that invested millions of dollars in electing Republicans are emerging as the earliest beneficiaries of a government controlled by President Bush and the largest GOP House and Senate majority in a half century.

MBNA Corp., the credit card behemoth and fifth-largest contributor to Bush's two presidential campaigns, is among those on the verge of prevailing in an eight-year fight to curtail personal bankruptcies. Exxon Mobil Corp. and others are close to winning the right to drill for oil in Alaska's wildlife refuge, which they have tried to pass for better than a decade. Wal-Mart Stores Inc., another big contributor to Bush and the GOP, and other big companies recently won long-sought protections from class-action lawsuits.

Republicans have pursued such issues for much of the past decade, asserting that free market policies are the smartest way to grow the economy. But now it appears they finally have the legislative muscle to push some of their agenda through Congress and onto the desk of a president eager to sign pro-business measures into law. The chief reason is Bush's victory in 2004 and GOP gains in Congress, especially in the Senate, where much of corporate America's agenda has bogged down in recent years, according to Republicans and Democrats.

Big business has gotten the class action bill it wanted, the bankruptcy bill it wanted, and ANWR drilling passed in the Senate. Nonetheless, business’ appetite for legislation does not appear to be sated:

"These are not real high-profile, sexy issues like the war or Social Security, but these are issues that have huge economic consequences," said Charles R. Black Jr., a GOP lobbyist and one of the president's top fundraisers. "And there is more to come on that score."

Bush and his congressional allies are looking to pass legal protections for drug companies, doctors, gun manufacturers and asbestos makers, as well as tax breaks for all companies and energy-related assistance sought by the oil and gas industry…

Big business appears to understand that if the Republicans go nuclear, Democrats will shut down much of Senate business and that shut down will prevent further legislation benefiting the business community:

R. Bruce Josten, top lobbyist for the U.S. Chamber of Commerce, said businesses feel a sense of urgency to enact as many pro-business laws as possible before a fight over judicial nominees or a Supreme Court opening brings legislative action to a "screeching halt."

Big business might act as a counterweight to the social conservatives and push the GOP away from the nuclear option. While that dynamic may appear to put Democrats in the box of having to accept either judges they find intolerable or anti-consumer, anti-labor, anti-environment legislation they also find intolerable, a schism in the Republican coalition of social conservatives and business interests is surely a long run benefit to the Democrats.

The second factor in the nuclear option calculus is a plain vote count. The Washington Times suggests that Frist does not yet have the 50 votes needed to implement the nuclear option:

Senate Majority Leader Bill Frist does not have firm support among his caucus to employ the so-called "nuclear option" for dislodging the Democratic filibusters against President Bush's judicial nominees.

Harry Reid is firming up Democratic opposition to the nuclear option. The Washington Times reports that Colorado Democrat Ken Salazar has fallen into line:

Sen. Ken Salazar has backed off the position he took during his campaign last year that Democrats should not filibuster President Bush's judicial nominees.

Republicans had been counting on Mr. Salazar, a Democrat from Colorado, as a key vote against the filibusters. His defection is a serious blow to the hopes of Senate Republicans who wanted more bipartisan weight behind their "nuclear option" to dislodge filibusters.

Tapped’s Sam Rosenfeld (who has had excellent continuing coverage of this issue) reports that labor has joined the Democrats in a large media effort against the nuclear option. It appears that the only possible Democratic defection is Ben Nelson of Nebraska and while Nelson might vote for cloture on individual nominees, I think it unlikely that he would vote to end filibusters for all judicial nominees. Thus, Reid can count on 45 Democratic (including Jeffords) votes against the nuclear option.

If I am reading the Mooney Times article correctly, Frist can count on only 46 votes for the parliamentary maneuver. Republican Senators hold four separate positions with regard to the nuclear option. Forty-six are for it. Two GOP Senators, Snowe and Chaffee, are against it.

Four Senators (Collins, Warner, McCain, and Hagel) are undecided but have expressed reservations. Three other Republican Senators, Cochran, Sununu, and Voinovich have said nothing on the issue.

Frist needs to gain the votes of four of those seven to get to the 50 votes he needs to permit Cheney to break the tie and go nuclear. Even if Frist has pledges of support from the three silent Senators, he would still need to pick up at least one vote from the group expressing reservations about ending unlimited debate on judicial nominees.

If big business weighs in strongly against the option, Frist may have a difficult time gaining the votes he needs.

Of course, Frist controls the timing of the nuclear option. He could try to push through a bunch of pro-business legislation to satisfy that wing and then go nuclear to placate the social conservatives. It remains to be seen if the social conservatives have sufficient patience to allow that course. The emotion aroused by the Schiavo case in social conservatives does not seem to be patience.

Reagan And Movies

Brad DeLong reminds us that Ronald Reagan used the message from the Hollywood film, The Day The Earth Stood Still to make foreign policy:

Life was certainly interesting when Ronald Reagan was president. For the neoconservative Cold Warriors who largely staffed the foreign policy side of his administration, it became most interesting when Reagan began wandering around the White House saying, "Klaatu Barada Nitko!" and asking people whether they had seen The Day the Earth Stood Still. "Here come the Little Green Men again!" Colin Powell would say….

The Cold Warriors thought that they had a man who hated Communism and was eager for an expensive and bloody crusade against the Evil Empire. And they did. But there was also another Reagan roaming around inside Ronald's head: A Reagan who wanted SDI not to gain the U.S. an advantage in the Cold War but to protect people against the horrors of death-by-nuke--and who sincerely wanted to give SDI technology away for free to all nations so that no one would have to fear nuclear destruction. A Reagan who genuinely hoped to eliminate nuclear weapons from the face of the earth. A Reagan who had been profoundly influenced by the movie "The Day the Earth Stood Still," and bought 110% its powerful message about how small were the differences that divided the world's nations when seen from the right point of view. A Reagan who was definitely willing and eager to give peace--and Gorbachev--a chance.

This Reagan freaked his National Security Council staff out. But he proved remarkably powerful when pitted singlehanded against virtually his whole administration in 1987 and 1988. And we should not forget that Nancy Reagan was a powerful voice backing Ronald-the-Peacemaker in the waning days of the administration.

For that, thanks.

My favorite Ronald Reagan/movie story involves not science fiction but, rather, Julie Andrews. The following is from Lou Cannon’s biography of Ronald Reagan, The Role of a Lifetime, pp. 56-57.

On the afternoon before the 1983 economic summit of the world’s industrial democracies in Colonial Williamsburg, White House Chief of Staff James Baker stopped off at Providence Hall, where the Reagans were staying, bringing with him a thick briefing book on the upcoming meetings. Baker, then on his way to a tennis game, had carefully checked through the book to see that it contained everything Reagan needed to know without going into too much detail. He was concerned about Reagan’s performance at the summit, which had attracted hundreds of journalists from around the world and had been advertised in advance by the White House as an administration triumph. But when Baker returned to Providence Hall the next morning, he found the briefing book unopened on the table where he had deposited it. He knew immediately that Reagan hadn’t even glanced at it, and he couldn’t believe it. In an hour Reagan would be presiding over the first meeting of the economic summit, the only one held in the United States during his presidency. Uncharacteristically, Baker asked Reagan why he hadn’t cracked the briefing book. “Well, Jim, The Sound of Music was on last night,” Reagan said calmly.

I try to imagine myself on the eve of an important trial putting down the exhibits and the depositions transcripts because Julie Andrews is on television. I just can’t see myself concentrating on the movie and ignoring the task of refining my opening statement one more time.

The funny thing is, I also can’t remember ever having any insight on the eve of trial that was the slightest bit helpful. When I first read the Cannon biography, I was outraged that Reagan would slight preparation for an official task for the indulgence of a favorite movie. Now though, I find his confidence strangely reassuring. He did not need to cram and he knew it. A night of relaxation probably helped his performance far more than a night of cramming.

My trials usually come after a couple years of living with the facts and law of the particular case. It is very unlikely that I will discover something new and helpful on the night before the trial. Still, it is hard for me to see myself not trying to prepare just a little bit more. I might do better if I could.

Red Lake

Louis Jordain, son of Red Lake Indian Reservation tribal Chairman Floyd Jourdain Jr. was arrested in connection to the shootings that killed 10 people last week. [Thanks to jps in commnets]

Louis was taken to a magistrates’ court in Duluth, Minnesota, where he was arraigned and charged in a 15-minute closed hearing. Additional arrests are possible.

Updates as the story goes from the tape to text.

Breaking News -- Major Earthquake off Sumatra

Un séisme d'une magnitude de 8,2 sur l'échelle de Richter selon l'Agence américaine de surveillance géologique, 8,5 selon l'agence de presse japonaise Kyodo, a frappé, lundi, le nord de l'île de Sumatra, la région d'Indonésie qui avait été touchée par un tremblement de terre dévastateur le 26 décembre. L'épicentre a été localisé à 205 km à l'ouest de Sibolga, sur Sumatra, et à 245 km au sud-ouest de la la ville de Medan. Une alerte au tsunami a été lancée. (AFP)

Update: 8.7. No tsunami reported, so far.
Update: Kerry Sieh, USGS, just went on record that he personally puts the probability of a tsunami at 100%.

For those fixated on the most important story of this, or any, news cycle (Schaivo), Le Monde also reports that "M. Bush affronte la perspective d'une première défaite politique". His first political defeat. The conditional anticipatory perspective of. Wow.

Your Law Suit is Junk, Mine Seeks Justice

As I have previously mentioned, Deb and I are planning to move this summer. I foresee some difficulties. Two decades in Atlanta have resulted in our acquisition and retention of a whole lot of junk. We do not want to move all that useless clutter so we have agreed to throw out the junk and move only the important stuff. The problem is that we can not seem to agree on what is junk and what is important stuff.

I stand accused of considering my stuff to be important and her stuff to be junk. I was preparing to defend myself from that charge when she hit me with the big guns. She argued that my position was like that of many Republicans with regard to tort reform. Deb says that I want the “throw out the useless junk” rule to apply to her but not to me. Republicans want to limit the right of others to recover for torts but are quick to sue when they, or members of their family, have been harmed.

Tort reformers have a long litany of alleged abuses of the civil justice system. One item on that list is their contention that plaintiff’s lawyers file suit against deep pocket defendants who have only a tangential relationship to the harm. As the National Association of Mutual Insurance Companies puts it:

The theory of Joint and Several Liability allows that each defendant in a legal action is responsible for the entire amount of damages that a plaintiff is seeking, regardless of their relative degree of responsibility for the damages involved. This has come to be known as the “deep pocket” rule because it has had the effect of turning lawsuits into all out searches to find the most financially lucrative defendants. The search for deep pocket defendants has created a “lottery” atmosphere within the legal system in this country.

Republicans think that the joint and several liability rule should be reformed. At least one politician did not think that a search for a deep pocket was all that bad, at least not when he was doing the searching.

When one of his twin daughters was involved in a fender bender (in which no one was hurt), then Governor Bush filed a lawsuit to recover property damage to the car. I do not know which driver was at fault, but I found it interesting that Bush sued Enterprise Rental-A-Car.

His theory was that the other driver did not have a valid driver’s license and, therefore, that Enterprise should not have rented him a car. I leave it to you to decide if that is an example of looking for a deep pocket with only a tangential relationship to the damage. Bush collected a $2,500 settlement from Enterprise.

Another pet peeve of the tort reformers is forum shopping. Forum shopping is seeking out a favorable jurisdiction to file suit even if that jurisdiction has little or no relationship to the tort. The GOP astroturf organization, Progress For America calls forum shopping the search for the “magical jurisdiction” and terms such efforts a “significant abuse” of the legal system.

Not all Republican politicians, however, think that forum shopping is such a bad idea, at least not for them.

Before he became Governor of California, Arnold Schwarzenegger was perhaps best known for his roles in the Terminator movies. He was very aggressive about preventing his image as the Terminator to be used by others for commercial purposes.

A local Ohio car dealership used a tiny thumbnail photograph of Schwarzenegger in a full page advertisement in a local Ohio newspaper. Arnold sued the dealership and its ad agency claiming that used his photograph without his consent. He sought more than $37 million in damages.

Schwarzenegger filed the suit in California despite the fact that the ad ran only in Ohio and the car dealership had no connection to California. See, Republican politicians do not think that forum shopping (to say nothing of of outrageous damage claims) is always bad, at least not when they are the shoppers.

Another pet peeve of the pro-tort reform Republicans is plaintiffs who sue medical professionals in the hope of winning the "litigation lottery." Republican Senator Rick Santorum once noted:

We have a much too costly legal system. It is one that makes us uncompetitive and inefficient, and one that is not fair to society as a whole. While we may have people, individuals, who hit the jackpot and win the lottery in some cases, that is not exactly what our legal system should be designed to do.

How, then, does Santorum explain why his wife sued a chiropractor for half a million dollars alleging back injuries from a badly done spinal manipulation? He says it is a private matter. Of course, Santorum believes that everyone else's cliam for compensation is a public matter. Santorum does not think that "jackpot justice" is so bad when his wife is the winner.

Tom DeLay is a leading tort reformer. He has described his tort reform efforts as “10 years of tireless work on multiple fronts…”

DeLay seems particularly concerned with the effect of law suits on businesses. According to the L.A. Times, DeLay wants to:

rein in trial lawyers to protect American businesses from what he calls “frivolous, parasitic lawsuits” that raise insurance premiums and “kill jobs."…

Last September, he expressed less than warm sentiment for attorneys when he took the floor of the House to condemn trial lawyers who, he said, "get fat off the pain" of plaintiffs and off "the hard work" of defendants.

When a member of his own family suffered a tragedy, DeLay was quick to have his own family “get fat… off the hard work of defendants.”

The L.A. Times reports on a tragic accident that killed Delay’s father:

It was a pleasant late afternoon in the Hill Country of Texas on Nov. 17, 1988.

At Charles and Maxine DeLay's home, set on a limestone bluff of cedars and live oaks, it also was a moment of triumph. Charles and his brother, Jerry DeLay, two avid tinkerers, had just finished work on a new backyard tram — an elevator-like device that would carry family and friends down a 200-foot slope to the blue-green waters of Canyon Lake.

The two men called for their wives to hop aboard. Charles pushed the button and the maiden run began. Within seconds, a horrific screeching noise echoed across the still lake — "a sickening sound," said a neighbor. The tram was in trouble.

Maxine, seated up front in the four-passenger trolley, said her husband repeatedly tried to engage the emergency brake, but the rail car kept picking up speed. Halfway down the bank, it was free-wheeling, according to accident investigators.

Moments later, it jumped the track and slammed into a tree, scattering passengers and debris in all directions.

Congressman DeLay’s father died from the injuries he suffered in that accident.

How did DeLay react to the accident that killed his father?

The family then turned to lawyers.

In 1990, the DeLays filed suit against Midcap Bearing Corp. of San Antonio and Lovejoy Inc. of Illinois, the distributor and maker of a coupling that the family said had failed and caused the tram to hurtle out of control.

The family's wrongful death lawsuit accused the companies of negligence and sought actual and punitive damages.

Tom DeLay was a named plaintiff in that suit. The case settled for something in the neighborhood of a quarter of a million dollars. Three years after his mother received the settlement:

DeLay cosponsored a bill specifically designed to override state laws on product liability such as the one cited in his family's lawsuit. The legislation provided sweeping exemptions for product sellers.

Denny Hastert, the Republican Speaker of the House, has said:

I'm pleased to join my colleagues here today who support taking a historic first step towards breaking one of the main shackles holding back our economy and America's work force "lawsuit abuse."

Perhaps lawsuit abuse would not be holding back our economy and costing us so many jobs if Republican politicians did not file so many of those suits they deplore.

Firefox 1.0.2 released

Asa Dotzler just sent out a note that the Firefox 1.0.2 release is now available. She writes:

The Firefox 1.0.2 release resolves several important security issues since 1.0 and all Firefox users are encouraged to upgrade. You can find more on the security issues at www.mozilla.org/projects/security/known-vulnerabilities.html#Firefox.

For downloads and release notes, see the Firefox product page
www.mozilla.org/products/firefox.

I've placed a Firefox (mozilla browser) Windows/English installation image Firefox_Setup_1.0.2.exe here. I've also placed a Thunderbird (mozilla mail client) Windows/English installation image Thunderbird_Setup_1.0.2.exe here.If I don't die from flue, a fairly attractive prospect at present, I'll resync Jonah's Sleepless Mirror with the main Mozilla mirror some night or another. Code is poetry. Thanks for commenter Boelf.

Judge Selected For Nichols’ Trial

I have not written about the shootings at the Atlanta Courthouse. I knew two of the deceased and I did not feel like commenting. Now that some time has passed, it is easier to approach the subject.

The AJC reports that Dekalb County Senior Judge Hilton Fuller has been selected to preside over the trial of accused murderer Brian Nichols. The choice of Judge Fuller is getting rave reviews:

"That's a very good choice," said attorney J. Tom Morgan, former DeKalb County district attorney. "I'm not sure he's ever been reversed. He'll make sure both the prosecutors and the defense stay in line."

Attorneys describe Fuller, 64, as serious, knowledgeable and slow to anger.
"He, like Rowland Barnes, is universally loved — never treated anyone bad, ever," said veteran defense attorney Don Samuel.

"He ranks on everybody's list among the best judges in the state of Georgia," said Samuel…

Don Samuel, a prominent criminal defense attorney, and a former District Attorney like Tom Morgan both think Judge Fuller is a good choice. I agree.

I have two kinds of experience with Judge Fuller. I have appeared before him as a lawyer in civil cases and I served on a jury in a criminal trial before him.

I always found Judge Fuller to be polite, fair, and open minded. He does not permit any nonsense from lawyers or witnessess but he gives lawyers enough freedom to effectively try the case. If anyone wants to turn the Nichols trial into a circus, they will be very disappointed.

The only complaint I have heard about Judge Fuller is that sometimes he has been slow to rule on motions in routine civil cases. I suspect that such he found such cases boring, particularly later in his career.

Fuller will try the Nichols case in Fulton County rather than in his own courtroom in Dekalb County. That is necessary but it is a shame. Judge Fuller’s courtroom is the best place to try a case in the entire state. Not only is the room itself large with high ceilings, plenty of space for lawyers and exhibits, and ample spectator seating, but Judge Fuller is a leader in using technology to make trials more efficient.

His courtroom has a small screen by the seat of each juror. A lawyer can place any ordinary document or photograph on a device and an image of the document will appear on each juror’s screen. The witness can use a pen as a “telestrator” (think of John Madden on Monday Night Football) to point out and mark sections of the document. Everyone can see an exhibit at the same time. Everyone can see the portion of the document the witness is discussing at the same time. It makes the trial easier, more efficient, and more effective.

Judge Fuller is an experienced, capable judge. He will be scrupulously fair. With Judge Fuller in charge, the trial will not be either a circus or a lynching. There may be a media spectacle outside the courtroom, but Judge Fuller will make sure that inside the courtroom, there is a trial.

With emotions running high around here, he is a great choice.

PL 280 and Red Lake

Red Lake exists in a legal historical context. In 1953 termination was the oficial policy of the United States, and P.L. 280 ushered in the termination phase of tribal jurisdiction in federal Indian affairs. It gave Wisconsin, Oregon, California, Minnesota and Nebraska (the so-called "mandatory states") criminal and civil jurisdiction in Indian Country and provided a mechanism by which the states could assume permanent jurisdiction over Indian nations. The law applied to most of the Indian land within the boundaries of those five states except the Red Lake Reservation in Minnesota and the Warm Springs Reservation in Oregon.

When he signed it into law, even President Eisenhower expressed misgivings about the lack of tribal consent and urged immediate amendment of the law to require tribal referenda - no such amendment passed Congress until 1968.

The criterion for applying P.L. 280 was whether or not the United States judged that certain Indian nations were capable of handling their own affairs. The U.S. excluded those tribes that had law and order organizations that functioned in a reasonably satisfactory manner. The Red Lake Code is available from rlnn.com. Termination of the federal relationship with the Menominee, Klamaths and 50 other Indian nations soon followed. My first Forest Service job was on the so-called "Chiloquin Unit" of the "Klameth National Forest" -- for some reason the USDA FS filled jobs in the Klameth from outside of the Klameth communities like Chiloquin.

By giving jurisdiction to the states without the consent of affected Indian nations, the United States was blatantly ignoring American Indian sovereignty and, in many cases, ignoring treaties. The "termination phase" of Federal Indian Law continued until Richard Milhouse Nixon and the "Germans", Haldeman and Erlichman, lead the fight for Self-Determinatin, and in 1975 Congress passed the Indian Self-Determination and Education Assistance Act. The Nixon Whitehouse remains the high-water mark of American policy towards Indians, unapproached even by the Carter and Clinton Administrations.

Unfortunately, the legality of P.L. 280 has never been fully questioned by U.S. courts. This isn't really surprising, since in 1978 C.J. Rehnquist wrote the majority opinion in Oliphant, dissented to only by the aging C.J. Burger and J. Marshall, and federal Indian affairs fell down a dark hole entirely of the making of the diseased imagination of the most activist of judges -- Bill Rehnquist, who's leash was slipped when Nixon was forced to resign, leaving him to personally, cryptically restore the termination policy.

Democrats don't like Bill Rehnquist's legacy as C.J., but they are very selective about what part of that legacy they care to see.

Ten other states also opted to accept some degree of P.L. 280 jurisdiction. They are: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah and Washington. Additionally, the modern Settlement Acts, Alaska, Maine, and potentially and catastrophically, Hawai'i, the other shoe in the ANWR - Akaka pair of colassal contemporanious land thefts, have effected similar ends by means of the respective Settlement Acts. The Mashantucket Pequot Nation in Connecticut and the Ysleta Del Sur Pueblo in Texas have both been forced to accept P.L. 280.

A few mandatory states have successfully returned (or retroceded) jurisdiction back to the federal government since the 1968 amendments, including the following:

Wisconsin retroceded jurisdiction over the Menominee Reservation in connection with the Menominee Restoration Act (Public Law 93-197).

Nebraska retroceded jurisdiction over the Winnebago and Omaha Reservations.

Oregon partially retroceded jurisdiction over the Umatilla Reservation.

It is well past time to set out a policy for the retrocession of jurisdiction back to the Federal Government, ending an unfunded mandate on the states, a legal vacuum, and yes, dump some of that Homeland Security slush fund on Tribal Governments to hire more peace officers, judges, bailiffs, social workers and Tribal Code authors, and to take a long hard look at the works of William Rehnquist outside of the major metro markets.

Two tribal peace officers, a BIA teacher, six students and an unrelated adult in the household of one of the students went into the ground today. Their faces and lives, all of them, belong on a milk carton that the lactose tolerant majority can read over Cheerios, Wheaties and Fruit Loops -- Federal Indian policy has been kidnapped for a long time and it is time to start looking for it.

Two Years before the Mast

It wasn't what I wanted for my birthday mid-December -- Jim Bonham, Exec. Dir., DCCC, provided a note that when held up to the light of reason read "We're giving George his win in Iraq, and we're giving the NeoCons their win (again) on Israel being the 3rd rail of American domestic politics, and we're giving the Iron Triangle its 4% of the budget, and no, we don't know or care where the next big one lands, and we'll do our part to keep the movement orders secret until it is too late, and we're going to stage a mock struggle of epic, or at least Party Affirming proportions, over Social Security, but not Medicare and Medicaid, because we think we can win that one."

Everyone's happy to criticise how the cause for war was fabricated, but not how the war has been conducted, except at a couple of pushpins stuck in the map, and above all, few have ever said "Just go." With the exception of Howard Dean, Bob Graham, Dennis Kucinich and John Edwards, Joe Lieberman can look down comfortably at all the failed candidates and most of the leadership of the former opposition who've lined up for their cup of liberty cocoa. In cyberspace, where no one knows if a dog is a dog, three million anti-war activists are given prozac and vallium cocktails and stories about wolves and pigs and houses of straw, sticks, and bonds. The ones that don't take the wafer are e-garroted and their dead addresses dumped onto eBay where they can be sold in lots of thousands of geo- and lifestyle-targeted customer profiles to mortgage and pharmacy bulk mailers.

I recommend reading Riverbend this week.

A seemingly endless 40 minutes later, there was a slight lull in the bombing- it seemed to have gotten further away. I took advantage of the relative calm and went to find the telephone. The house was cold because the windows were open to keep them from shattering. I reached for the telephone, fully expecting to find it dead but I was amazed to find a dial tone. I began dialing numbers- friends and relatives. We contacted an aunt and an uncle in other parts of Baghdad and the voices on the other end were shaky and wary. “Are you OK? Is everyone OK?” Was all I could ask on the phone. They were ok… but the bombing was heavy all over Baghdad. Shock and awe had begun.

Two years ago this week.

Here it was different. The plan of record was lots of stand-off aerial and naval HE, but also some more sinister -- an HPM electro-magnetic pulse weapon, with neurological "collateral damage" -- fried brains in the pre-K demographic, which according to the sanctions afficionados, weren't hurt by that either.

gizsanda 17 mozokas (lundi 17 mars) [Monday March 17, 2003]
I cannot pray for a triumph of American Arms this evening. I think of children like my sons. Hands already floppy, eyes too ready to turn inward, neurologically atypical, about to be subjected to aerial bombardment. My sons' sleep disorders are my own.

Jonah and Sam have progressed greatly these two years -- that's Sam's hands and Jonah's eyes and sleep disorder.

If Louse Slaughter gets as little support for reforming rape out of the armed services as Barbara Lee got for preventing the war from starting, not only will we spend the rest of our lives listening to "Iraq war patriots" draw and quarter "Iraq war traitors" until the latter are extinct as a political species, but the Army, which used to be one of the most progressive institutions in American public life on the free vs slave caste or "color" issue, will change into something the US hasn't seen since the Colorado Volunteers rode back from Black Kettle's camp -- an Army sicker than the Government.

"No Action" On Sexual Assault ... at the (Iraqi) Air Force Academy

Joe and I met in 7th grade. Frida sent him zu mittelschule in lederhosen, which made his first day at school in coastal California memorable, and I was in my first year of post-Indian-I-pass adolesence -- away. Five years later Joe went to the Air Force Academy, and instead of becoming a Zoomie upon graduation he became a Grunt. The escape and evasion course sounded like lots of fun -- eating lizards and hiding from the Army -- actually quite Indian -- before we moved away I used to hunt lizards and work the pig tunnels in the impenetrable brush to get unseen from one place to another. And when the Army caught him, upper classmen actually assigned to the role of hostiles, he was tested and learned his real, not his imaginary, limits.

Which makes the existance of rape at the Air Force Academy, the one in the United States, not Iraq, and the determination by the Acting Secretary of the United States Air Force, not the Iraqi Air Force, that no administrative action is warranted against those officers identified in the Inspector General's report and the Fowler report on sexual assault at the Air Force Academy as bearing some responsibility for Academy's sexual assault problems, so hard to grasp. Escape and Evasion is required, and not just because it may be hazing in drag, but Zoomies get shot down and sometimes the hostiles get them, and sometimes they manage to not get got until the friendlies roter in, and within a year of getting clear of the Academy, some Zoomies may get orders to go to guns ...

In George Bush's military rapists, torturers, and murderers are doing pretty good for themselves, and look to be generally immunized from liability, either in the International Court, for war crimes, or under the UCMJ, for violating standing orders on rape, torture, and murder, or the civil courts. But the United States does not maintain a navy and a standing army and an air force to provide a safe haven for rapists, torturers, and murderers to express their libido, their desires, and to act out their conveniently all-exonerating "patriotism". They have no place in the American military, other than the stockade, the brig, and before courts martial.

I'm glad Louise Slaughter is fighting the enemy, because sexual predators and tacit approval of sexual predation in the military is an enemy we don't have to go to Central Asia not to find.

Update:Slaughter's office has released a report on the Sexual Assaults at the USAF Academy.

Writing about Red Lake (III)

In comments karbonkountymoos provides a link to Kent Nerburn's blog . Mr. Nerburn taught at RLHS for several years, and blogs temporarily from Oxford University.

Michael Barrett, who runs rlnn.com, writes The Red Lake Memorial Fund has been set up by the Red Lake Nation. The information is available on rlnn.com.

Red Lake Memorial Fund

Friends and family members have established a fund for the victims of the Red Lake shootings and their families. Donations can be made at any Wells Fargo Bank to the Red Lake Band of Chippewa Memorial Fund.

Writing about Red Lake (II)

I came across Mark Turcotte's Exploding Chippewas in an airport bookstore, and that was my good fortune. I found poem after poem about identity, about Indian identity. I was writing a friend this evening about the writing that was found on the Libertarian National Socialist Green Party bboard. She had compared that literaryJeff Weise to the younger protagonist in Toni Morrison's "The Bluest Eye", and a phrase from Turcotte's poem "Elsewhere in America" jumped rom my fingers and into the editor's cut buffer --

Big Tooth, the bottle prophet, once said to me
very seriously, you are lucky to be both Indian and white
That is, if it don't make you crazy ...

What occured at Red Lake High School was killing. What triggered the killing is not yet known. But it is not correctly characterized by a few code words to a war that took place 60 years ago, or as white skinheaded nihilism translated cunningly into redskin.

Mark Turcotte doesn't have the answer, but I recommend reading Exploding Chippewas, for the humor, for the non-humor, and for the moment. Airplanes are optional. Back when I used to be Indian ...

Donating to a Red Lake Rez Condolences Fund

I don't yet have an answer to the question "How do I send money to Red Lake". It took the Hopi Tribal Council several days to set up a fund for the children of Lori Piestew two years ago, and the scope of this tragedy is vastly greater.

Update: from Dan Patnode via a well-known list. A postal address for the memorial fund. We'll keep the PayPal button up for those that prefer to donate via link.

Contributions are now being accepted by the Red Lake Nation Memorial
Fund to assist the victims and the families of the recent shooting at
Red Lake High School in Minnesota.

Donations may be sent to:

Red Lake Nation Memorial Fund
P.O. Box 574
Red Lake, Minnesota 56671

For the time being we'll do this the same way we raised funds to cover the bandwidth cost during the Koufax period -- please use the PayPal button at the top left of the front page, or any means you used during the Koufax Awards, and we'll start accumulating Blogger condolence wampum for the Red Lake Indian community.

Since I operate the Tribal Law mailing list I'll get a tribal law practitioner to set up a proper fund, and to audit my books when we move the condolences to the appropriate account, along with anyone Chairman Floyd Jourdain Jr., Red Lake Band of Chippewa Indians, designates. Dwight too will have oversight.

In Wabenaki tradition condolences are very important. We share grief. We acknowledge that we are the killers of each others kin, our red hands, our black faces, harming and harmed. "Foreign War" becomes "Civil War", a domestic tragedy in which we lost on both sides. Only through condolences to ourselves are we at peace. The Condolences Ritual is an expression of our basic political relationship with ourselves, reciprocity.

Please send your condolences to all of Red Lake Band of Chippewa Indians. They are greatly hurt.

Our language is our culture

I've worked on language preservation for over a decade. This poster reflects the work of some of my peers in the technical community, work that had some flaws, but generally more flowers than failures.

One weakness is defining a single unified glyph repitoire for 100 years of scripts, which makes the representation of the archaic characters more difficult than the non-unified practice, and it complicates the use of glyphs as characters, having sort orderings and casing rules, in different character repitoires, which from a glyph comparison standpoint, are identical, or differ only by some glyphs. This is the same problem imposed upon the Asian languages which use Han (Chinese) characters -- Japan's based on the repitoire current circa 1000 AD, Korea's, based on a less archaic repitoire, Viet Nam's, based on an even less archaic repitoire, Taiwan's, based on "classical" modern Chinese, and China's, which was simplified and moderinzed in the latter half of the 20th century. A group of Europeans decided to "unify" all Han and treat glyphs as if they had no historic context in character sets, simply because to their eyes, some glyphs used in different character sets all looked alike. Eng1j2h w00d be very djHerent jf the 2ame ru1e2 were app1jed t0 the r0manjzed ph0necjn a1phabet, and writting collation and sorting would be wicked difficult.

This issue was the basis for my second working trip to Beijing in 2001 at the request of the Chinese Academy of Science and the China/Japan/Korea Joint Engineering Taskforce, as the IETF appeared to be dangerously set on adopting the European experts "Han Unification" for Asian character sets used in network standards.

A second weakness is that the Canadian National Standards Organization brought this proposal to the International Standards Organization, a defect in two parts. The first part is that the ISO will not accept technical submissions by the standards organization of Tribal Governments, which can result in inaccuracies, and the second is that the ISO is part of the UN, and it is the UN that cannot bear to have Indians define how Indians write.

As it happens, the US dominated and mostly North American and Western European IETF cannot bear to have Asians define how Asians write either.

Turning to another aspect of the problem, tags to identify language, like "en" for "English". The International Standards Organisation defined two-letter language tags in ISO 639, which contains a total of four (4) codes for all the indigenous languagesof the Americas, north and south. The situation is not greatly improved in the larger three letter version of ISO 639.

Klingon is not the national language, or the language of a protected national minority, of any UN member state, and so there is no two-letter, or three-letter ISO 639 code for a Klingon language tag.

The IETF created its own registry for language tags, and the tag for Klingon is i-klingon.

There is also a tag for Diné, the tag is i-navajo. The textual source(s) offered in support of the application for the i-tag is Analytical Lexicon of Navajo by Robert Young and William Morgan, published by the University of New Mexico in 1992.

The Center for Diné Teacher Education at Diné Collete (formerly "Navajo College"), an institution of higher learning of the Diné Nation, has no place in the IETF's scheme of how Diné is represented. The girls in the photo above are learning Diné as a first language.

The IESG just chartered a working group to update its language tags registry. The first working group draft can be found here. I've been attempting to educate these people for over a decade, but on the key points they are beyond reach. Hobbists, not user communities, properly manage languages. In so far as they are able, and displacing the Chinese National Standards for Chinese is no small feat, no standard offered by Government(s), particularly not Tribal Government(s), shall be an International Standard. Voyerism by remote Anglo-Americans (aka "global transparency and interoperability") trumps delivery of literacy as a design goal. Etc.

Homeric Greek is taught at every Land Grant and Ivy League college in the United States, there is always some money and some prestigue for Classics, but there is no money for Indian languages, either in municipal Adult Ed, pre-school Head Start, or anywhere in between, and less prestige.

Something as simple as the nemitôkusena is still illegal to recite as a language text in any school in Abenaki Maine.

nemitôkusena spemkik aian,
sôgmôwalmegwadets aliwizian,
amanta pachiwawittoak ketebaldamuawôganek;
ali kittôgwak kedelanldamuôgan spemkik dali io nôbi dali kik,
ali kiktôgwadets.
mômilina alemikisgak nedatasigiskwa abônemena;
ioba achi anhaldamawiago kagôwiulakeban,
ainiuna anhaldamauak kagôwihuhakedebanik;
muzak dali chigittawikkak tômôppa uji saagi-unemihinamega wôwalha dakki saagu azuômina mamajigek.
nialach.

This Easter, the nemitôkusena will not be recited as a religious text from any pulpit in Abenaki Maine either. No teacher or priest can say these words, or allow them to be said, and keep her or his employ.

The Republican and Democratic Americas have no interest in, or money for, the preservation and recovery of Indian languages, and the corrosive and controlling effect of the majority culture silences consonants, vowels, and voices.

2004 Koufax Awards

Koufax Awards Finalists

Koufax Awards Finalists II

Best Blog by a Non-Professional/Sponsored Blog

Best Blog by a Professional/Sponsored Blog

Best Group Blog

Most Humorous Blog

Best Single Issue Blog

Best Expert

Best Writing

Best New Blog

Most Deserving of Wider Recognition

Most Humorous Post

Best Series

Best Post

Best Commenter

Red Lake Update

Lefty at A la Gauche has just posted something both disturbing and enlightening -- a cached page from the Libertarian National Socialist Green Party bboard that contains the transcript of a web discussion between Jeff Weise and LNSGP members.

We're reading it a second and third time, and we will publish our analysis. LEO contacts.

Writing about Red Lake (I)

Red Lake Reservation will dominate the news cycle today, after Schiavo. With that are consequences. Intended and unintended. But Red Lake existed before 3pm March 21st. Red Lake High was the first all-Indian team to make the state championships in hoops. Red Lake will exist after the media crush departs, and after the last exploitive op-ed piece is written about Indian towns, or Indians in Indian towns, or Indian youth in Indian schools in Indian towns, and after the last exploitive "press opportunity" elsewhere.

Because Jonah isn't spending the day at the May Institute today, I'll be adding to this between taking the boys to the pediatrician and the barber, and thinking about Senômoziimlases -- its sap running time. I've an invite out to Red Lake writers, but it may be some time before writing, either about, or around, what happened, is possible.

"Making wild rice", Patrick DesJarlait, Red Lake, 1946. The image comes from Karen Strom's site.

24 people shot in Red Lake, the majority at Red Lake High School - 10 fatalities

Via MBarrett @ RLNN overnight, two parts from rlnn, mirrored here to isolate Red Lake's link b/w from possible link-flashloading (the popular link effect). The first part is the news as reported by RLNN, two of the three photos are in original are in the extended entry (to save your b/w). The Chairman's statement is part two. Part three is taken from the St. Paul Pioneer Press, as is the photo below from outside the Red Lake Hospital.

When a trust fund is announced, I'll post the info. RL HS has 300 students, and RL Rez has 3,000 residents.

---

Preliminary reports are sketchy and they are all unconfirmed, but it is believed as many as 24 people have been shot on the Red Lake Indian Reservation, and at the Red Lake High School, and as many as 10 are reported to have died as a result of those shootings. The majority of the shootings took place at the school.

At the time of this writing, the school was still under lockdown and considered a hostile area yet, with local police, FBI investigators, state police, Leech Lake Police and county deputies at the scene, although students still in the building had all been released.

According to early reports, sometime after2 p.m. a student of the school, allegedly shot his grandfather and grandmother at their home in the Back of Town (BOT) area in Red Lake, then went to the Red Lake High School in his grandfather's law enforcement vehicle, where he shot and killed a school security guard, 8 students and 1 teacher.. There are reports of 10-12 fatalities from the shootings, and 14 wounded--some critically.

The names of all the victims are being withheld pending notification of relatives.

The boy's grandfather was a veteran law enforcement officer for the Red Lake Police Department with over 30 years experience, and the entire reservation is shocked, stunned and grieving.

Although still under investigation and further details will be released at a conference scheduled for 2 p.m. tomorrow, the student was reportedly involved in a confrontation with Red Lake Police inside the school, and may have fatally shot himself.

The weapons he reportedly used may have belonged to his grandfather, and a fire department official stated the boy was wearing a police utility belt with service revolvers and also had used a shotgun

A press conference was scheduled for 7 p.m. at the Criminal Justice Complex in Red Lake.....

Prior to the conference in Red Lake however, Paul McCabe of the FBI issued a statement, confirming 8 had died in the shooting, 2 were male students and 2 were female students--including the shooter, a juvenile male--a female teacher, an adult male, and at the residence, a male and female. He said at this time they believed the shooter was acting alone and was among those who had died. He said those stodents who had died were in one classroom when they were shot.

McCabe wouldn't eleborate further, stating the investigation was ongoing with numerous law enforcement agencies taking part in the investigation, including the FBI, Red Lake and Leech Lake police departments, Beltrami Council Sheriffs Department and State police.

---

Statement of Floyd Jourdain Jr., Chairman, Red Lake Band of Chippewa Indians

Attention Red Lake Nation members.

I am sorry to announce that the events that took place today involving the
shootings at the Red Lake High School make this one of the darkest and most
painful occurrences in the history of our tribe.

Our thoughts and prayers go out to the families of the victims.

I can assure the Red Lake tribal members that the situation is under control and secure.
Several organizations and agencies have offered assistance in our time of need and the Red Lake Nation has graciously accepted.

The FBI, ATF, BCA, along with the Beltrami County Sheriff’s Department, the Minnesota State Highway Patrol and the Red Cross will be providing assistance to our public safety department through out the next several days. These agencies are all here with our permission.

An information line has been set up to handle your calls and to answer any questions you may have. The number is (not needed by wampum readers, ebw).This is a 24 hour emergency line.

Because of the tragic nature of this unfortunate occurrence, I am calling on all tribal entities and programs to stand alert in order to provide assistance to those in need.

I am ordering all Red Lake and United States flags to be flown at half staff until further notice.

Finally, I encourage all Red Lake Nation members to embrace and support one another in these tragic times.

Miigwetch

Floyd Jourdain Jr.,
Chairman
Red Lake Band of Chippewa Indians

---

The student who is alleged to have shot all of the victims, apparently including himself, was identified as Jeff Weise, a citizen of the Red Lake Band of Chippewa Indians.

Relatives said Weise was a towering loner who wore black all the time and was teased by other kids. Weise's father committed suicide four years ago, relatives said, and his mother lives in a nursing home in Minneapolis after suffering brain injuries in a car accident.

The shootings began in the early afternoon when Weise killed his grandfather, Daryl "Dash" Lussier, 58, and a woman at their home in Red Lake and then took his grandfather's police weapons. Lussier was a 30-year veteran of the Red Lake police force.

About 3 p.m. Weise drove a pickup truck to the high school, rammed the truck into the school and shot a security guard to death, Weise's relatives said. Then Weise went inside the school, killing a female teacher and five students, and wounding more, two of whom subsequently died in hospital.

Shootings at Red Lake Rez High

Six Eight dead. Three Four students, a teacher, a custodial worker, and a safty officer. Eight more wounded, two fatally, who die in hospital.

Red Lake Ojibwe Reservation, Minnisota. Ojibwe High School. Details as they become available.

Update: Two more dead. The student's grandparents.
Update: Two more dead. The wounded.

AP coverage in the extended entry.

The Gopher women had a good night in Minneapolis, eking out a win over USC in the last seconds. What a finale.

RED LAKE, Minn. (AP) -- Six people died Monday in a shooting spree apparently carried out by a student at Red Lake High School, the FBI said. The same student was suspected in the killings of two people at a home before the school shootings.

Those dead at the school were four students, among them the suspected shooter, along with a teacher and a security guard, FBI spokesman Paul McCabe said at a news conference in Minneapolis.

Before the shootings, a man and a woman were fatally shot at a home in Red Lake, McCabe said.

The suspect was a male student, McCabe said. He would not comment on reports that the boy shot himself. He also declined to talk about a possible connection between the suspect and the couple killed at the home but the Red Lake fire director Roman Statley said they were the grandparents of the shooter. Stateley told several media outlets that the grandfather was a police officer whose guns may have been used in the shootings.

Fourteen to 15 more students were injured, including two critically. All of the dead students -- two boys and two girls -- were in one room, McCabe said.

The school was evacuated after the shootings, which happened about 3 p.m., and was locked down for investigation, McCabe said.

''It will probably take us throughout the night to really put the whole picture together,'' McCabe said. He said it was too early to speculate on a motive.

Diane Schwanz, a teacher, told The Pioneer of Bemidji that the shooter tried to break down a door to get into a room where some students were.

''I just got on the floor and called the cops,'' Schwanz said. ''I was still just half-believing it.''

Four victims were being treated at North Country Regional Hospital in Bemidji, said Sherri Birkeland, the hospital's vice president of development and planning. She had no specific information on the victims or the shooting.

Other victims were expected at MeritCare Hospital in Fargo, N.D., said an administrator who declined to give her name.

The Red Lake Indian Reservation is in far northern Minnesota, about 240 miles north of the Twin Cities, and about 75 miles south of the Canadian border.

A Day as Long as Night

One might ask, if one were so inclined, how federal jurisdiction displaced tribal jurisdiction over cases involving tribal members on tribal land in possession of, or trafficking in, controlled substances. In 1868 the United States and several Tribes entered into a Treaty at Fort Larmie. The terms of that treaty gave jurisdiction over Indian wrongdoers in Indian country exclusively to the tribe. Because of that jurisdiction, the United States Supreme Court overturned the conviction of Crow Dog, who killed another Indian and was tried, convicted, and sentenced to hang, in Federal Court in Deadwood in 1883.

In ex parte Crow Dog the Court ruled that the federal government possessed no legislative power giving it criminal jurisdiction over the tribes and that criminal disputes involving tribal members were to be settled according to tribal law. In spite of the passage of the Indian Intercourse Acts from 1790 to 1834 [1], the Federal enclave Act in 1817 [2] and the Assimilative Crimes Act in 1825 [3], the court ruled that under the 1868 Treaty the tribe had jurisdiction over Crow Dog’s crime.

In a climate of Judeao-Christian indignation at the failure of the Tribal Court to condemn Crow Dog to death for having killed another Indian, Congress attached a bill to the general appropriation act of 1885 enacting the Major Crimes Act. The act identified seven major crimes, none of which involved controlled substances.

One might then ask, if one were also inclined, how unilateral bicameral federal legislation displaced multi-national Treaty negotiation and unicameral (Senate) Treaty ratification. The answer is Lone Wolf v. Hitchcock (1903).

''The power of Congress is so vast in the field of Indian affairs that it may even be used to eradicate the country's pledges to the tribes without their consent. Congress can abrogate treaty promises as old as the country, alter tribal powers of self-government, and extinguish not only title to land, but even the special relationship of a tribe to the federal government.''

from Getches, Wilkinson and Williams Federal Indian Law

But still, the plenary powers of Congress to abbrogate Treaty provisions without the consent of Tribes is not unqualified. The Court held 1976 that a Congressional statute must clearly indicate its intention to change a treaty [4].

The 1885 Major Crimes Act was amended in 1988 to include 14 crimes. Again, no crime involving controlled substances was contained in the list of enumerated crimes. Of course, if Federal jurisdiction over a drug case involving Indian criminal defendants in Indian Country were sucessfully challenged, like the Crow Dog Congress, the current Congress could simply extinguish tribal sovereignty over drug crimes by legislation.

At this point, the basic contours of the jurisdictional consequences of the Bill that became Law at 1:11AM, March 21st, 2005 should begin to be clear. States jurisdictional claims are now indistinguishible from Tribes jurisdictional claims, and Federal jurisdiction is subordinate to Federal legislation.

Welcome to Indian Country. You won't like it here, but your Chief touched pen, so it is law.

---

[1] Formulated by Secretary of War Henry Knox in 1790, and modified four times, the final modification being in 1834, four years after the Removal Act.

Getches, Wilkinson & Williams, Cases and Materials on Federal Indian Law (4th edition, 1998), 73-74; 87-93; 286-298 (The Non-Intercourse Acts)

For an explanation of congressional intent in passing the Trade and Intercourse Act of 1834, see H.R. Rep. No. 474, 23rd Cong., 1st Sess., 5(1834):

"It is rather of courtesy than of right that we undertake to punish crimes committed in that Indian territory by and against our own citizens. And this provision is retained principally on the ground that it may be unsafe to trust Indian law in the early stages of their government. . . ." (Emphasis added).

[2] An Act of March 3, 1817, Ch. 92, 2,3 Stat. 383, provided for federal enclave jurisdiction over crimes committed both by Indians and non-Indians except for crimes "by one Indian against another, within any Indian boundary."

[3] Sponsored by Daniel Webster in the House of Representatives, Congress expressly adopted the fundamental policy of conformity to local law.

[4] U.S. v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976).

Is Pakistan? (VII)

I was not surprised to see the paid media speculate that yesterday's bombing of a Sufi shrine in Fatahpur, Baluchistan during the annual pilgrimage is already linked to al Qaida. The death toll will approach 100. There are conflicting reports that there were two timed bombs, one of which exploded, the other was detected and removed, and that there was one bomb and suicide bomber.

Some facts.

The spokesperson for the Baluchistan Liberation Army (reading the BLA story in the satribune is manditory, the link is in the prior installment of this series) has already claimed responsibility for the bombing. This was reported in The Nation, an english language Baluch newspaper that I haven't gotten my hands on yet, but is cited in the Chinese press, and quoted in several South Asian media outlets.

This doesn't make a lot of sense, since there are some wicked good targets elsewhere in Baluchistan, like the gas lines out of the Sui field, which when shut down during the January clashe between Mari tribe militias and the Punjabi Army/Frontier Corps, shut down all gas consumption, residential and industrial, in Pakistan for a week. The Punjabi Army/Frontier Corps just tried to assassinate the Bugti tribe chief in Dera Bugti on Thursday, I'll update the casualties here later this morning, but at present there are about 1,500 Bugti militias and about the same number of Pak Army/FC in place at Dera Bugti, facing off with RPGs, morters, heavy machine guns and the usual infantry weapons against helicopter gunships, tanks, artillery, mechanized infantry, and the usual infantry weapons. The three or four trainline and power line bombings since Thursday are more in keeping with prior Baluch response, and tend to isolate Baluchistan (periphery) from the Punjabi center.

There was an arrest of an al Qaeda linked person, who appears to have killed quite a few people, about two weeks ago. Ramzan Mengal, a member of the outlawed Lashkar-e-Jhangvi militant group, was arrested March 4 in the provincial capital, Quetta. Lashkar-e-Jhangvi is an Al Qaeda-linked group.

The targeted population, Sufi pilgrims, were comingled with Sunnis, Shi'is, and Hindus -- between ten and twenty thoursand and all peacefully sitting down for an evening meal, when someone blew a hole in the dinner hour. The pilgrimage to the shrine of Raqil Shah in Fatahpur is the largest, and most non-sectarian event of the year in Baluchistan.

Religious Beliefs Jhall Magsi District

As already mentioned, Muslims and Hindus reside in the district. Muslims are in a overwhelming majority. According to the 1981 census 97 percent of the population was Muslim and 3 percent Hindu. The Muslims are divided into Suni and Shia sects. The majority of the Suni sects is Brailvi or follower of the saints (Sofi). The mullah, he performs Nikah, leads Eid, Juma, prayer at the time of a burial (Janaza) and five times prayers. Persons belonging to the Syed family are also respected and are called Sain.

Important festivals are Edi-ul-Fitur, Eid-ul-Zuha, Eid-Milad and Mohrum. In addition, when an important Sofi dies, a three days gathering is held, called Uris or Milla. During these three days different singers called Faqir sing the poetry of the Sofi. A very important gathering of this type was held at Fithapur, when Sofi Rakhal Shah and Chaizel Shah died.

The influence of the religion in the district is positive. There are no fundamentalist trends. Religious practices are limited to saying prayers at the time of birth, death and marriages.

Hindus have their different religious belief. Their religious leaders are called Bava or Bambhan. A Bambhan is usually a Brahman, while a Bava is the religious leader of a specific temple called Marhi. Important Hindu festivals are Shiv, Holi, Dasahra and Dewali, which are celebrated in February, March, August and October respectively, according to adjustment to their own calendar. Hindus are divided into two sects vegetarians and non-vegetarians.

Government of Balochistan

I suppose it is too much to ask why Musharraf decided to start a war with the Bugti tribe in central Baluchistan, and someone else decided to blow up a mostly Sufi pilgrim group, also in Baluchistan, allowing finger pointing at both Sunni and Shi'i extreamists, or al Qaeda, or the BLA, days after Condi Rice left Karachi.

Update:

To tie two events together:

The government should be asking why so many people in Balochistan support the BLA.

Former chief minister Nawab Akbar Bugti

Rice came and left. Musharraf tried to hit Akbar Bugti on Thursday, and on Saturday the BLA "takes credit" for the least popular act in Baluchistan since the gang rape of Dr. Shazia Khalid, the OBGYN at the Sui gas field hospital last January. Dr. Khalid fled from Pakistan with her husband Friday or Saturday, and is now in England, in route to Canada.

Anti-War Open Comments Thread

Burn sage and sing

Dwayne James McFarlane, Jr., 20, of Cass Lake, Leech Lake Anishnabeg
Harry Shondee, 19, of Ganado, Dineh
Lee Duane Todacheene, 29, of Lukachukai, Dineh
Lori Piestewa, 23, of Tuba City, Hopi
Sheldon Hawk Eagle, 21, Cheyenne River Reservation, Cheyenne River Sioux

via GNN

The Bush-Blair reconstruction cum occupation of Iraq has entered history as the most corrupt ever.

The body count is either 100,000, if you follow Lancet, or some number closer to the entire population of Portland Maine if you don't follow Lancet, and thats just the non-combatants killed by the Occupation Forces.

The election was a charade, predicated on the Rape of Nanking being replayed in Falluja, because unfree Sunnis could not vote, and wierder than the Ohio Deibold vote tallies, a triumph of process because free Sunnis would not vote, and the victors are ... packs of weasels.

Syria has already "blinked", and Iran won't ever.

So other than complete Bush-buy-in or cluster fuck maintenance in the hope of something somehow improving somewhere because of someone, what purpose does six figures of US troops serve in Iraq, other than Iran war pre-possitioning? Oh, for the next two to ten years.

Stripped of the pussyfooting, MoveOn.Org decided that Iraq isn't an issue anymore because Riverbend's "Just Go ..." ran a wicked close second in the Best Post category, but didn't garner a majority of the votes cast. Did anyone who voted for any of the other nominees, including Juan Cole's “If America were Iraq, What would it be Like”, which won, think they were voting to take "out now" or "ceasefire" or "No Attack Iran" off the table?

So MoveOn.Org is a resistance organization of the determined and organized progressive left, except in Iraq. Mssrs. Rove, Cheney, Rumsfeld, Wolfowitz, Perle, Frith, ... must be pleased.

The GNN coverage is here.

Is Pakistan? (VI) -- Comments on Clark's think piece on OBL et al

Update: I really should have read this in the South Asia Tribune before I wrote this.

I've been thinking about Wes Clark's position paper on the pursuit of Osama Bin Ladin and the al Qaida network or movement. It might work, but ... the reading I've done for the Baluchistan and adjacentcies (trans-boarder Afgan/Pak/Iran) series (i,ii,iii,iv,v) and the Pakistani exiles and election series: (a,b), and the Arabian and Persian Gulfs, Indian Ocean and Andoman and Nicobar Command Sea Power series: (A,B,C), causes me to reach a different recommendation.

First, I don't thiink that the target is correctly identified. I think the best course forward is investigatory, followed by arrests, the legal response within the international law framework, a course rejected by Bush, possibly even before 9/11, not retaliatory pursuits, the military response within the force structure framework. The intelligence product of these two approaches can be distinguished, and the point of last August's article in Le Monde is that European law enforcement and intelligence services have reached conclusions different from the American military and intelligence services. The European legal and Intel consensus is that a second generation of planning and operational leadership now exists, and is in fact adapting to conditions. I covered this August 21st, 2004.

Second, the Bush program of retaliatory pursuits is unilateralist. It does not predicate action on the cooperation of local law enforcement, rather, it predicates acton on the destruction of local law enforcement. In a nutshell, the Bush program is to blow up a lot of the trans-boarder Afgan/Pak/Iran region, with the happy concurrence of the military dictatorship in Islamabad that wants to repeat the 1970s war against Kalat (Baluch) nationalists, using the Americans instead of the Shah of Iran's force, and the ambivalent concurrence of the narcotics dictatorships that, when the TV cameras aren't rolling, are the "state" in most of Afganistan, and over a vast number of hypotetically dead bodies of Iranians -- Iranians who inter-alia assisted in the American-lead but multinational invasion of Afganistan, and who have been bagging and holding al-Qaida operatives for most of the past three years -- see my pieces on the MEK cadres held at Camp Ashraf (i,ii,iii).

There is an alternative.

First, we can abandon the shoot-first, aim-second, ask-questions-later model, and put law enforcement back in charge. Second we can define the Iranian state, and the tribal societies that the Punjabi state exploits for oil and gas resources and nuclear weapons testing sites and "strategic depth" for the next Pak-India war as our partners in the elimination of banditry and worse in the trans-boarder region, and abandon the worst ambitions of both the Bush regime vis a vis Iran, and the Mushareff regime vis a vis the North West Territory and Baluchistan.

More broadly, we can stay the course with the existing states model colonial period left, which requires the US to entice then betray the Iraqi Kurds (Turkish and Iranian states beneficiaries), the Marsh Arabs (Iraqi state beneficiary), the Baluch (Iranian and Pakistani states beneficiaries), and the Sindh (Pakistani state beneficiary), and maintain cordial relations with the centers of each state, at least until their internal dissonances force them to war with each other, or we can do something different.

That's where I'd gotten before opening up Al Jazeera and the South Asia Times this morning. Overnight Nawab Akbar Bugti, the leader of the Bugti tribe, and one of the three Sheiks (Nawabs in Punjabi) who took 10,000 troops into safety, in exile in Soviet Afganistan, until forced to leave Taliban Afganistan, was in the media explaining the circumstaces of the heavy firefight that took place at Dara Bugti yesterday. So far, at least 20 Punjabi Army and Frontier Corps troops are reported KIA, with wounded counts several multiples of the KIA number, under circumstances that suggest that General Mucharaff has decided to assassinate Sheik Akbar Bugti.

What happend yesterday in Dara Bugti and Quetta was really important. Helicopter gunships firing on escaping groups of the mothers, wives and daughters of opposition leaders. Artillary fire on the occupied residences of opposition leaders. Telephone intercepts and targeted assassinations, all in one dawn-to-dusk period. Apparently the Army achived a 5-1 kill ratio firing on tribal militias, women and children, using air and artillary, as well as infantry assault weapons, and of course, the element of surprise.

I highly recommend the South Asia Tribune, in addition to Al Jazeera. Condi Rice might have noticed that her host just tried to eliminate a Baluch leader and provoke war with the Bugti tribe, who own the area where the US is sending troops (Khuzdar, Baluchistan).

I've written about the South Asian nuclear weapons inventories, but that's more a consequence of writing about the uranium enrichment issue [todo: collect links].

If you want, you can write comments to info@wespac2004.com. Rather than out-source the problem to the Saudi military, which has no more clue than anyone else 1,500 km distant from the area of operations, going to Oman and asking Persians, Baluch, Afgans and Punjabis to meet on neutral (or historic) territory and discuss law enforcement and economic development as regional issues, not issues monopolised by periphery-suppressing states seems the better course. We want the local LEOs to suppress banditry and worse, not simply because we can pay the ones we decide not to wipe out as incidental collateral damage, but because suppressing banditry and worse is what they want to do for their own interests.

Autism Mercury Update

L.A. Times:

Texas researchers have found a possible link between autism and mercury in the air and water.

Studying individual school districts in Texas, the epidemiologists found that those districts with the highest levels of mercury in the environment also had the highest rates of special education students and autism diagnoses.

The study does not prove that mercury causes autism, cautioned the lead author, Raymond F. Palmer of the University of Texas Health Science Center in San Antonio, but it provides a "provocative" clue that should be further investigated.

"Mercury is a known neurotoxin," said Dr. Isaac Pessah of UC Davis' MIND Institute, who was not involved in the study. "It's rather intriguing that the correlation is so positive," meaning that there was a strong, direct relationship between mercury and autism levels. "It makes one worry."

Yes, it does make one worry. It also makes me want to cry.

Programming Note

Deb and I are leaving soon for our third house-hunting trip to North Carolina. The Grands have kindly agreed to stay here and take care of the kids for a few days. Just think, several whole days without diaper duty (we have been changing diapers every day since November, 1993). We may even get to eat in a restaurant that doesn’t have a mascot!

My blogging will likely be non-existent until we return, so I will leave you in Eric and MB’s very capable hands.

While on the subject of house-hunting, can anyone explain the popularity of houses with two-story entry ways and two-story dens?

Doesn’t anyone else worry that their kids will climb over or fall through the railing and die? Wouldn’t you really rather have an extra room upstairs (office, library, sitting room off the master bedroom, etc)? How do you clean windows and ceilings that are 15 to 18 feet high? Doesn’t the two-story feature screw up the zoned HVAC?

Is there some advantage to that style that I am missing, or is this just another example of how I am out of step with popular culture?

Senate Votes For Drilling in ANWR

The Senate voted down an amendment to prevent drilling in the Artic National Wildlife Refuge. The vote was 51 to permit drilling and 49 to prevent it.

There are two ways to see how each Senator voted. You could go here for an official vote list, or you could go to the Wampum archives for last November and read our prediction on the vote. Not only was the final margin predictable but there were no surprised among the individual votes of Senators. Each Senator voted as has long been expected.

Jim Jeffords and 41 of the 44 Democratic Senators voted against drilling. The three Democrats voting to permit drilling were Mary Landrieu of the oil producing state of Louisiana and the two Senators from Hawaii, Inouye and Akaka.

When I was writing the prediction, I wondered why the Hawaii Senators were pro-drilling. Eric quickly explained it to me.

The seven Republican Senators voting against drilling were, as predicted, were McCain, Coleman, Collins, Snowe, DeWine, and Smith.

This was a battle that Democrats have been destined to lose since last November’s elections. If Republicans in the House agree with their brethren in the Senate on the overall budget bill, it appears that there will be drilling in the refuge.

Return of the ... One True King (XIX)

Police Chief Brigadier General (head of the national police) Mohammad Baqer Qalibaf tossed his hat into the ring Sunday. His previous billet, prior to leading the powerful internal security forces was head of the air wing of the Revolutionary Guards. President Khatami bumped him up to fight Saddam's PMOI, so it is ironic that the Americans are running the PMOI as the local color face on round 3. Another pragmatic capable of running the defense.

Payvand has a nice write up on Rafsanjani, who on Monday held a press opportunity and announced he was "completely ready" for a comeback in the June 17 election. The link is here.

IRNA fielded a poll of 7,100 people in 11 cities. The most popular candidate was former president Rafsanjani (1989 to 1997), with 13.9 percent.

The next most popular candidate was former parliament speaker Mehdi Karroubi, with 4.8 percent.

In a three-way tie for third are: former foreign minister Ali Akbar Velayati, with 4.2 percent, former education minister Mostafa Moin with 4.1 percent, and National Security Council member and media mogule Ali Larijani with 3.9 percent.

Overall, the conservatives aren't doing that well in the poll, which either means that the regime in Washington's rhetoric about the necessity of "freedom" in Iran refers to some other Iran, or a consensus has formed that running the defense against the American assault isn't a job for jumped up social conservatives, which is pretty much what the Imam decided when he let the Shah's air force out of pokey to kill Iraqi armor and artillery and end the movement phase of the Iraqi invasion.

This Wiki is recently developd a surprisingly good section on the election: http://www.answers.com/topic/iranian-presidential-election-2005

See also: Return of the ... One True King (XIV).

When this line is removed, it means I think I'm done with this installment of Rot ... OTK.

The Return of Wes Clark

For background, Wes had a piece on the urban operation in Falluja, my comments are here, published in the NYTimes last November, two weeks after Operation Steal the Election in Ohio. Since then he's been below my radar, and i did try to ping him in mid-December.

He's sent out a note today to announce the launch of the new WesPAC website.

Over the next few days I'll post comments on what I find there. The gems of the last cycle were Senator Bob Graham's economic plan, Senator John Edwards' "two Americas" stump message, Representative Dennis Kucinich's adamant rejection of military folly in Iraq, General Clark's quick grasp of Indian issues and Eisenhower's vision of the corrosive and risk-prone military-industrial complex, and Governor Howard Dean's grassroots campaign model and frontal assault on Romano-Bapto-Evangilico-puritanism -- the social issues.

You all can comment there or comment here.

Update: email to info@wespac never got answered, not even "stop sending mail if you're not going to read mail", so I've unsubbed from the money-milking-machine I thought was a pre-campaign. Unidirectional "political" campaigns are a thing of the past, though they still are effective mechanisms to exchange soap flakes for currency.

Mercury and Autism Open Thread

We need a new autism open thread around here. This time, let’s discuss mercury.

I probably do not need to remind you of MB’s reference to a new study out of Texas that found that:

There was a significant increase in the rates of special education students and autism rates associated with increases in environmentally released mercury.

On average, for each 1000 lb of environmentally released mercury, there was a 43% increase in the rate of special education services and a 61% increase in the rate of autism.

The association between environmentally released mercury and special education rates were fully mediated by increased autism rates.

Currently, power plants dump 96,000 pounds of mercury per year into the environment.

I was going to write about the new article about mercury in Discover, Our Preferred Poison, but I do not have to because Julia wrote it for me.

The Bush administration’s new rule on mercury emissions not only will permit more mercury to continue to be dumped into the environment for many more years than the competing proposal of the Clinton administration, it will actually allow more mercury to be dumped than current law in some states. The AP reports:

A newly announced federal order to reduce mercury pollution from coal-burning power plants will require weakening more stringent state controls that were enacted in Wisconsin only last year, a state official says.

"It's a little frustrating," said Lloyd Eagan, bureau director for the air management program at the Wisconsin Department of Natural Resources, in a telephone interview Tuesday night.

The Bush administration ordered Tuesday that power plants cut mercury pollution from smokestacks by nearly half within 15 years, but the worst polluters will be able to buy pollution "credits" from plants that give off less mercury than allowed.

By contrast, the state rule, effective last Oct. 1, required the state's four major power plants to cut mercury emissions in two phases - by 40 percent by 2010 and by 75 percent by 2015.

The rule also established a goal of an 80 percent reduction by 2018 to encourage more progress in reducing mercury pollution from the plants.

"Now we're going to have to true up to the federal rule, so we'll have to backslide," Eagan said.

Mercury levels in Wisconsin are already such as to cause “all Wisconsin lakes” to be “under a fish consumption advisory alerting people to limit the number of fish they eat…”

Wisconsin has also suffered an increase in autism rates and budget woes have caused it to cut back on important services to the autistic.

So, at least in Wisconsin, we are going to change standards for mercury emissions to increase the amount the law permits despite new evidence linking mercury emmissions to autism, and despite the fact that Wisconsin’s lakes are already polluted, and despite the fact that Wisconsin has seen a dramatic rise in the incidence of autism, and despite the fact that Wisconsin has cut social services for the autistic.

The ship is headed in the wrong direction. We need a course correction.

Your comments are highly valued.

Three sheets to the wind

A friend popped three sheets of paper out my fax yesterday. Recall William Meyers, in the costumed role of Solliciter for the Department of the Interior of the United States of America, with purview over all BLM, Monument, and Park lands, but not Forest lands, and all Indians and the Governments and territorialites of all Federally Recognized Indian Tribes, as well as all water (the real currency of the west) under Federal control, opined that a marginal (450 tons of rock per troy ounce of gold) extraction operation, using subsidized water to deliver wicked toxic cyanide to the emponded "leach heap", may, without penalties, seize or destroy any and all artifacts of human origin, including human remains, associated burial goods, and lithographic sites, regardless of prior findings of fact that the artifacts are culturally significant, or findings of law that the human remains and associated burial goods are protected by NAGPRA, the Native American Graves Protection and Repatriation Act.

• letter from Herman A. Williams, Jr., Chairman, Board of Directors, The Tualalip Tribes (the sucessors in interest to the Snohomish, Snoqualmie and Skykomish tribes and other tribes and band signatory to the Treaty of Point Eliot, WA) to Senators Hatch and Leahy. We find that Meyers has a balanced record to defend the interest of Native Americans.
• letter from John L. Berry, Chairman, Quapaw Tribe (OK) to Senators Hatch and Leahy. He has a long history as a public servant; he was a former aide to Senator Alan Simpson, and practiced law in Boise, Idaho for twenty years before joining Interior in 2001 as Solicitor. His writings, public statements and legal work also reveal his sharp legal mind. Mr. Meyers appears to be a qualified choice for this court.
• letter from Bill Anoatubby, Governor, The Chickasaw Nation (OK) to Senators Hatch and Leahy. Based upon [his] work as solicitor in the DOI, we know him to be fair and impartial. He listened to our concerns and acted upon them. He is extremely well-qualified to fill the post in the 9th Circuit and has demonstrated his ability to listen and to reason. We believe Mr. Meyers will be an asset to the Court.

Pretty strong stuff neh? Except that Chairman Williams didn't disclose that the Tualalips have been represented by the firm Holland and Hart (Colorado), which employed Williams in their Idaho office. Why Quapaw Chairman Berry or Chickaswa Governor Anoatubby went to the bother of writing, contrary to the high profile opposition to his nomination ABQ-03-061(pdf)by the National Congress of American Indians is something I don't know yet. I recommend reading the NCAI text, which the link above provides, its just a few pages, and the gist of it is that Meyers ignores the law, which requires Federal-Tribal consultations, not opening the DOI Consultative door to Tualalips, Quapaw and Chickasaw Tribes, not to mention Glamis Gold, Ltd. (trading symbol GLG), and slamming the DOI Consultative door on every other Tribe. There is nothing more fundamental in the Federal-Tribal relationship, which is why Richard Nixon would have had the Germans, Haldeman and Ehrlichman, escort DOI Solliciter Meyers out to Indian Pass and staked him out over an ant hill.

If there was any overarching point that Geoff Garin (Hart Research) provided in the conference call for "grassroots/grasstops leaders in key states and to the DC grassroots/field staff of those respective organizations", which we were invited to earlier this month, it was that the most effective message about a nominee, as measured by the Hart poll, was specific dirt.

We've pulled together specific dirt on Meyers and Griffith. I've no idea what the Fair Court Coalition are going to run with today. I lost interest rapidly when the nice person at the Maine Women's Policy Center said they were going with the local clique.

Answering Cornyn

The American people should ask why Democrats are threatening to shut down the Senate. They should ask why Democrats are willing to block funding for health care, education, farms and families in order to prevent a simple up-or-down vote on the president's judicial nominees. Sen. John Cornyn R-Texas.

Cornyn was responding to Henry Reid's letter of today that the Minority intend to slow or stop most Senate business if Republicans unilaterally change the rules to assure confirmation of Thomas Griffiths 1,2,3, Williams Meyers 1,2, and others.

Dwight asks in two earlier pieces 1 and 2 "What should the Democratic response be to the Republican strategy of provoking "no consent"?"

Henry Reid's letter exempted military and national security legislation from the threat of "no consent", and that the Minority would not block passage of measures needed to assure continuation of critical government services.

Absent an attack by Iraq on the US or its treaty allies, not to mention WMDs of any type or vintage, is Iraq "national security" or just "foreign aid" or merely "omnibus Pentagon pork"? Is it "military" or is it only "pre-UN peacekeeping". Is there any part of the current can't-form-a-government-because-minority-rights-are-in-the-Transitional-Administrative-Law mess in Iraq that meets the national defense means is-it-worth-it test? That's a political question, and we already know the polling data.

Where is the next sacred cow?

Frist, Cornyn and Lott want to burn the Senate's Minority rule over the failure of the Republicans to act out six decades of "Social Security must Die" rhetoric. Its their call that there are no "critical government services" which require continuity. Gingrich Rides Again.

MBNA reports on ... MBNA

I'd an atypical "research opportunity" last night. Jonah had (and now Gracie has, and before him Sam had) a stomach virus. So I put this quality time (between towel and tupperware runs) to good use, motivated by yesterday's segment on Democracy Now! on fake news, and mild curiosity about the dollar connection between MBNA, Susan Collins and Olympia Snowe.

The Portland Press Herald, Kennebec Journal, Morning Sentinel ran a re-write of MBNA's press reliease. Tux Turkel's rewrite incorporated bits of the PR piece run by the local Chamber of Commerce, out shopping for cruise ship dockings, and bits of Susan Collins' PR piece. The Foster Daily Democrat (Dover, NH) ran the AP re-write of the MBNA PR, as did WMTW 8 (Blethem) and WSCH 6 (Gannett).

Leanne M. Robicheau, writing for the Bangor Daily News, did significantly better, managing to put the 2003 and 2004 P&L numbers ($2.05/share and $2.34/share, resp., a 15% growth in profits) into the text, adjacent to the money quote from the MBNA spokesperson "efficiency", and actual quotes from elected municipal officials.

The unnamed Staff writer(s) who wrote a downsizing context piece mined the NYTimes archives and the 3/13/05 piece by Ted Griffith in The News Journal (Deleware).

Broadly, most of Mainers are informed best about MBNA by ... MBNA.

The under reported stories are the stagnation of the credit card industry (recession anyone?), the dynastic exterminations in Rodney Square (new top cat Hammonds is biting the skulls of all of old top cat Cawley's kittens, and Cawley summers in Camden, so Camden and Rockport are deja de trop), the timing of the closure annoucement and the final vote on S. 256, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and the dollar connection between MBNA, Susan Collins and Olympia Snowe.

Point your browser here for the original data.

MBNA paid over $1,087,372 in bribes to members of the Federal legislature. 71% of the bribes being paid to Republicans (who voted 100% for the MBNA bill).

Top Recipients

Senator	Total	From Indivs.	From PACs
Snowe, Olympia	$176,750	$158,750	$18,000
Biden, Joseph	$173,575	$173,575	$0
Collins, Susan	$108,550	$80,050	$28,500

Smoking gun...it's not just about thimerosal

I'm still without a laptop, but wanted to get this up, particularly since the Bush Administration officially unveiled it's "Clear Skies" policy this week, dramatically pushing back the lowering of mercury emissions by decades.

This abstract arrived in this morning's Schafer Autism Report. I'll link to the full report when it comes out, but I think this sadly speaks for itself:

Environmental Mercury Release, Special Education Rates, and Autism Disorder: An Ecological Study of Texas

http://tinyurl.com/68ssl

Raymond F. Palmera, Corresponding Author Contact Information, E-mail The Corresponding Author, Steven Blanchardb, Zachary Steina, David Mandellc and Claudia Millera, aUniversity of Texas Health Science Center, San Antonio Department of Family and Community Medicine, 7703 Floyd Curl Drive, San Antonio, Texas 78229-3900, USA, bDepartment of Sociology, Our Lady of the Lake University, San Antonio, Texas, USA, cUniversity of Pennsylvania Center for Mental Health Policy and Services Research, USA doi:10.1016/j.healthplace.2004.11.005 Accepted 1 November 2004. Available online 17 February 2005. [Thanks to B. Manning.]

Abstract

The association between environmentally released mercury, special education and autism rates in Texas was investigated using data from the Texas Education Department and the United States Environmental Protection Agency.

A Poisson regression analysis adjusted for school district population size, economic and demographic factors was used.

There was a significant increase in the rates of special education students and autism rates associated with increases in environmentally released mercury.

On average, for each 1000 lb of environmentally released mercury, there was a 43% increase in the rate of special education services and a 61% increase in the rate of autism.

The association between environmentally released mercury and special education rates were fully mediated by increased autism rates.

This ecological study suggests the need for further research regarding the association between environmentally released mercury and developmental disorders such as autism.

These results have implications for policy planning and cost analysis.

This is particularly troubling for us, as the frontpage of the Portland Press Herald last week screamed that the EPA found numerous mercury "hotspots" around New York, New England, Quebec and Atlantic Canada, Maine being particularly effected.

More on this as it develops and when my laptop returns.

Why Not Raymond Burr? – Thomas Griffith Edition

Recently, I looked at the trial experience of William Myers, President Bush’s nominee to the bench of the 9th Circuit Court of Appeals. I found it remarkable that Mr. Myers was nominated to a post in which correcting trial errors is an essential function without any experience as a judge, and having never handled a criminal matter of any kind, and having never tried a single case before a jury. Indeed, Raymond Burr’s fake trial experience as TV’s Perry Mason exceeds Mr. Myers’ jury trial experience.

What is equally remarkable is that Senate Judiciary Chairman Arlen Specter chose to bring up Myers’ nomination first “for the explicit reason that he may have a good chance of being confirmed and breaking the deadlock.”

Apparently, actual experience to prepare a nominee for a position on the federal appellate bench is seen as a negative.

Perhaps Mr. Myers’ lack of traditional qualifications for the appellate bench is an aberration among President Bush’s nominees. Surely, there could not be another nominee to the Circuit Court bench who exhibits such a lack of important experience, could there?

Let’s look at the career of President Bush’s nominee to the Circuit Court of Appeals for the D.C. Circuit, Thomas B. Griffith. His answers to the Senate Judiciary Committee Questionnaire may be found here (pdf). Is he more qualified to decide if an error has been made at trial than Raymond Burr?

I first note that, like Mr. Myers, Thomas B. Griffith has never served as a judge. In comments, Charles Kuffner informs us that at the beginning of the first Perry Mason movie, Raymond Burr plays the part of a judge. Playing a judge in a made for TV movie is not much, but it is more than Mr. Griffith can boast.

Like Mr. Myers, Thomas Griffith has never tried a case to a jury. He has never exercised a preemptory strike, never submitted or objected to a jury charge, and never kept his voice down to prevent the jury from hearing the sidebar discussion. As far as I can tell, Mr. Griffith has never represented a human being in any civil case whatsoever. If any jury issues arise on an appeal to the D.C. Circuit, and such issues will frequently arise, he will have no experience on which to draw.

Indeed, Mr. Griffith’s jury trial experience is so lacking that in response to the Senate questionnaire, he was reduced to citing his experience in the case of Houston General Insurance Company vs. American General Lloyds. That case never went to trial but Mr. Griffith did point out to the Judiciary Committee that, in preparing the case, his firm conducted a mock trial. Mr. Griffin participated in that mock trial. Raymond Burr, of course, tried more than 250 mock cases on TV. Mr. Griffith can boast of only one.

I suggest that some Senator ask Mr. Griffith at his confirmation hearing to give a few examples of what would be an acceptable and a not acceptable response to a Batson challenge. Perhaps he could be asked be asked under what circumstances he would uphold or overturn the use of an Allen charge. Those are among the type of issues Mr. Griffith will confront on the bench and it would be useful to know if he has any expertise in those areas.

Even if we consider non-jury trials, Mr.Griffith’s experience is very limited. According to his answers to the Senate questionnaire, Mr. Griffith has tried a grand total of six cases to judgment. In three of those six, half of his total trial experience, he was “associate counsel” as opposed to lead counsel. As associate counsel, his duty was to watch, learn, and assist the lawyer who had the responsibility of actually trying the case. We call that “second chair.” In only three cases was Mr. Griffith lead counsel. In all six instances, the trial was before a judge and not a jury.

With regard to criminal matters, Mr. Griffith has never participated in a proceeding to determine guilt or innocence. Unlike Mr. Myers, he does have some criminal experience. While an associate, his law firm participated in the ABA’s death penalty project. Mr. Griffith was one of three lawyers in the firm (including a criminal law expert) who brought state and federal habeas proceedings on behalf of death row inmate Joseph Payne. The habeas proceedings were not successful (a pattern in Mr. Griffith’s cases we shall explore later). Nonetheless, on the eve of Payne’s execution date (after Mr. Griffith left the case to pursue other career options), the Governor of Virginia commuted Payne’s sentence to life in prison. The ABA death penalty project is admirable work and Mr. Griffith and his former firm are to be commended for it. It is, however, the only experience Mr. Griffith has with any criminal case.

When we look at the cases Mr. Griffith lists as his “most significant” a couple of items jump out. The first listed case is the 1998-1999 Impeachment Trial of President Clinton. Mr. Griffith served as Counsel to the Senate, then under the control of Majority Leader Trent Lott. Mr. Griffith says he planned the trial, attended the trial, and advised the Senate leadership throughout the trial.

As was pointed out last summer at Paperwight’s Fair Shot, at the time of the impeachment trial, Mr. Griffith’s law license had been suspended. Thus, while Mr. Griffith was leaning over to whisper “Rule of Law, Rule of Law” in Trent Lott’s ear, he was practicing law without a license.

It should also be noted that in the most significant case of Mr.Griffith’s career, he lost. In the second and third listed “most significant" cases (Clinton vs. City of New York, and Raines vs. Byrd), Mr. Griffith represented the interests of the Republican Senate in an effort to have the line item veto held constitutional. He lost both of those cases in every court in which the matter was heard.

In his fifth listed “most significant” case, Mr. Griffith defended the accounting firm of Ernst & Young in an action by the Office of Thrift Supervision. That case settled with Mr. Griffith’s client paying $400,000,000.00 to the OTS. It is a rare case in which you can claim victory if your client pays $400 million.

Of the first five cases Mr. Griffith listed as the most significant of his career, he lost three outright and his client paid nearly half a billion dollars to settle a fourth. The other case was settled and, as Mr. Griffith was representing the defendant, it is a fair inference that his client paid in that one too.

Let’s be frank about Mr. Griffith's career. He has very little trial experience and he lost most of his important cases. Mr. Griffith does not list a single case among his most significant in which 1) he was lead counsel, 2) the case was tried, and 3) his client won.

Perhaps if Mr. Griffith had a long and outstanding career as a lawyer and a judge, we could overlook the fact that he violated ethical rules and statutes by engaging in the unauthorized practice of law for four years. Mr. Griffith’s experience, however, is not long and distinguished. It is very thin at best.

Given that he did practice law without a license and that he lacks experience, it would be irresponsible to give him a lifetime appointment to the second highest court in the land.

At the corner of Pearl and Federal ...

This just came in over the transom. I'll go with the material Dwight and I have managed to put together on some of the nominees, and the rather serious possibility that the election thieves of '00 and '04 will bury a vote on the only policy they've got (other than hysterical morality and wars with weapons that do exist over weapons that don't exist) and fiinish their domestic revolution by abolishing the defense against mob rule -- the 60% rule -- in the Senate.

Fair Court Coalition Asks Senators Snowe and Collins not to go Nuclear on Supreme Court

(Portland) Members of the Fair and Federal Court Coalition announced today they will hold a press conference on March 16 urging Senators Snowe and Collins to oppose a Senate the nuclear option. If passed, the nuclear option would end the 200 plus year tradition of unlimited debate in the Senate and allow Republican leaders to steamroll extreme judges into the US Supreme Court and US Court of Appeals. The press conference will take place on the corners of Pearl and Federal Streets in front of the Federal Court House at 11 am.

"The Senate has a vital advise-and-consent role when it comes to judicial selection. Without the option to filibuster, the Senate's duty to check and balance the appointment powers of the President would be seriously compromised. The Senate must ensure that judicial nominees are subject to the highest standard of scrutiny", said typo in the original

"The impact of Senators' rulings extends far beyond the term of the president who nominated them and often the senators who voted to confirm them. At this time, the decisions that senators make about judicial nominations are more important than ever because rights and liberties that many thought were secure have been jeopardized by federal court decisions".

In his first term, President Bush nominated over 200 judicial nominees and it is likely that he will be able to nominate one or more judges to the Supreme Court within the next four years, and more importantly numerous justices to the Circuit Courts. The Supreme Court reviews less then 100 cases a year so often the Appeals Courts make the final rulings on the law and the Constitution.

The Fair and Independent Federal Courts Coalition is a group of over 30 diverse organizations who have pledged to monitor judicial nominations to the federal bench and alert Maine people to those nominees - including potential Supreme Court nominees- whose views are far outside the mainstream of the rights and liberties that Maine people hold dear.

Bring lunch and sunglasses, the forecast is sunny and way above freezing.

Update: We're not in the in crowd. Guess I'll take the kids to the library.

Not Counting

When faced with the challenges of raising a neurologically atypical child, one gets used to the small slights by school system personnel, social services workers, the health care system, merchants and other commercial enterprise employees, parents of neurologically typical kids, and the public at large. The origin of most of those slights is ignorance, not malice. Nonetheless, it is easy to get the idea that autistic or other neurologically atypical kids and their families just do not count. It is distressing to learn that it is now government policy for us not to count.

Chris Mooney, writing at The American Prospect, has done an admirable job of covering the policy making process with regard to mercury emissions.

In his first piece on the subject, Mooney demonstrated that the administration has systemically skewed the science in an effort to minimize the health risks of mercury emissions from power plants. Those risks are most acute in pregnant women for whom mercury exposure risks having neurologically damaged children.

In today’s installment, Mooney looks at how the administration rigged the cost/benefit analysis of various mercury emissions policies to support their preferred option. This point caught my attention:

Mercury is a toxic substance, emitted from power plants (among other sources), which contaminates fish and poses the strongest dangers to pregnant mothers and their unborn children. Clearly, there are going to be non-negligible economic benefits to be reaped from protecting children from the kinds of neurological and developmental problems that can result from being exposed to mercury in utero. In deciding how to regulate mercury, you probably wouldn't want to downplay such considerations, much less leave them out of your regulatory calculus….

And maybe most stunningly, the GAO added that the EPA had failed to "quantify the human health benefits of decreased exposure to mercury, such as reduced incidence of developmental delays, learning disabilities, and neurological disorders."

When doing a cost/benefit analysis of mercury emissions policy, the administration did not count preventing neurological disorders such as autism as a benefit.

My son’s autism is, inevitably, one of the central organizing facts of his life, my life, and my entire family’s life. Avoiding that neurological disorder would certainly have been a benefit to him and to us. Preventing other families from having to organize their lives around a child’s neurological disorder really ought to count for something. I realize that, in certain circles, it will always count for less than power company profits. Nonetheless, for our government to tell us that it counts for absolutely nothing is pretty hard to take with any degree of equanimity.

More SCOTUS News ...

Steve Russell (Tsalagi) sent this to Triballaw. Its wicked funny, particularly the bits about ... well, your milage may vary. Originally published here, and a pretty good candidate for the 2005 Koufax humor award.

The Court ruled, 5-4, that the police may open fire on vehicles speeding through the TollTag lanes provided they first fire "an attention-getting" warning burst into the air.

In Gonzalez v. Texas Interstate Authority, a San Antonio man sued when his car was riddled with bullets after he went through the TollTag lane at 38 miles per hour. Writing for the majority, Justice O'Connor noted, "While the presence of 187 bullet holes suggests zeal, even delight, on the part of the officers who disabled Mr. Gonzalez's vehicle, their actions were consistent with existing local statutes providing for 'extraordinary measures' when dealing with TollTag lane violators."

The Court struck down, 7-2, a controversial Connecticut state constitutional amendment granting full civil rights to raccoons. In a sharp dissent, Justice Stevens, a moderate liberal, suggested that Justice Scalia "was on drugs" when he wrote the majority opinion. "The Founders," Stevens warned, "purposely left vague whether raccoons, regardless of the fact that they carry rabies and upset garbage cans in the middle of the night, are second-class citizens." Furthermore, he wrote, "this will, and should, inspire fear among Connecticut's porcupines, whose civil liberties have already suffered irreparable harm at the hands of juridical Blackshirts." Supreme Court guards separated the two justices, and a brief recess was called.

In Krud Coal Co. v. Wrings Water From Rocks, the Court ruled, 6-3, that a Wyoming coal company that drained the entire water supply of a nearby Indian reservation in order to pump coal through its pipeline was not obliged to provide "compensatory hydration" to 2,300 Arapaho left parched by the drainage of the aquifer they have been using since 1000 A.D. In his majority opinion, Chief Justice Rehnquist pointed out that "there are Coca-Cola machines on the reservation," and that the Arapaho "are by reputation excellent rain dancers." In a withering dissent, Justice Ginsburg pointed out that Justice Rehnquist owns 6% of the Krud Coal Company "via his Cayman Islands offshore corporation," and that it has not rained in that part of Wyoming since 1974.

In Bigelow v. M&Ms, the Court ruled, 7-2, that a candy manufacturer could not be sued by someone seeking damages for adolescent acne. In a scathing majority opinion, Justice Scalia wrote, "Those who bring such suits deserve far worse than acne. They should, per antiqua lege Romana, be put in burlap sacks with wildcats--or, if Justice Stevens prefers, raccoons-and thrown into the Potomac." In his dissent, Justice Souter said that the ruling violates the equal protection clause, "as not all Americans have access to cats and water, or, pari passu, burlap."

The Court ruled, 5-4, in Lamar Buford Podine v. State of Florida that a state is entitled to seek compensation for the voltage used in executions by electric chair. Writing for the majority, Justice Thomas cited the 16th-century precedent of tipping the headsman. In a dissent, Justice Stevens wrote, "Hel-lo, Clarence: Being put to death is not the same as getting a good table at a swanky qua swanky restaurant," and suggested that Thomas "check his Day-Timer to see what century this is." Justice Rehnquist, who co-wrote the majority opinion, suggested that there should "definitely" be compensation if the electric chair in question was powered by coal.

The Court strengthened the hand of bank examiners by ruling 6-3 that they should be permitted to administer physical torture during routine audits. In another banking-related case, the Court ruled along ideological lines on whether Screen Actors Guild actors who use ATM machines should be paid residual royalties for appearing in the film taken by security cameras during transactions.

In a bitter dispute involving Chief Justice Rehnquist's basement parking space, the Court ruled, 8-1, that he must immediately repair the leaking crankcase of his 1997 Chevy Impala, which has been spilling oil onto the parking spaces of justices Kennedy, Souter and Ginsburg. Writing for the majority, Justice Souter noted that, "The Founders clearly intended for high officials of the land to maintain undercarriages that were not 'loathsome' (Madison v. Conoco) to their fellow man." Justice Rehnquist, writing for the minority, cited Messy v. Ferguson, "in which some court, somewhere, Ohio, Iowa, one of those," ruled that it was "legal, if not, okay, a hundred percent considerate" for a man to empty a 45-gallon container of radioactive waste in the parking garage on the grounds that he had paid the full daily rate for the space.

I trust you all noticed that a humorist managed not only to get a Federal Indian Law case into the mix, but actually got Rehnquist framed spot on. That makes this piece more factual than large stacks of lefty civil liberties only SCOTUS "news".

Points for those who can correctly identify Krud Coal.

Wisdom Confirmed

The wisest man I have ever known has long been a proponent of the health benefits of laughter. He has often remarked that “the time you spend laughing does not count against your life expectancy.”

I never doubted the truth of that wisdom but it is nice to see it confirmed by science. Lambert at corrente points us to an article in the Bangor Daily News:

Researchers at the University of Maryland School of Medicine have documented, for the first time, that laughter is in fact good for the heart because it makes blood vessels work more efficiently….

Lead researcher, Michael Miller, director of preventive cardiology at the university in Baltimore, said laughter should not supplant exercise, which also increases blood flow, but should be added to one's daily routine. He suggested 15 minutes of laughter daily and 30 minutes of exercise three times a week to improve heart health.

In their small study, Dr. Miller and his colleagues showed one humorous and one stressful movie clip to 20 healthy volunteers and then tested their blood flow, blood sugar levels and blood pressure. In 14 of the 20 volunteers, blood flow was reduced by more than one-third on average while watching the stressful clip, the opening scene from the World War II drama "Saving Private Ryan." The funny film clip, from "Kingpin," increased blood flow an average of 22 percent when 19 of the volunteers laughed.

The researchers specifically analyzed the lining of the blood vessels, called the endothelium, which is the first place where hardening of the arteries, a common form of heart disease is evident. They believe the relaxing of the endothelium was prompted by the release of nitric oxide. The compound relaxes blood vessels much like endorphins do during exercise.

The Slacktivist will improve your health:

So this gorilla walks into a bar. The gorilla slaps a $10 bill on the counter and says, "Give me a beer."

Bartender figures what does a gorilla know? So he gives him the beer, but only gives him $1 in change. It's a slow night, though, so the bartender figures he should make some conversation. "We don't get many gorillas in here," he says.

Gorilla says, "Yeah, well at $9 a beer I'm not surprised."

What follows is the Fundamentalist and the Premillennial Dispensationalist interpretation of that passage. It is good for at least a recommended daily allowance of laughter.

Sandy Says

This may not translate well for a non-legal audience but the funniest law post I have read in a long time is Jack Balkin’s My Prediction on the Ten Commandments Case. It is so short that I will reproduce the entire post:

Justice O'Connor upholds five, strikes down five.

Talking Trans-Atlantic Trash

When I wrote recently about the upcoming election in the UK there were comments to the effect that Michael Howard, the Home Secretary under the prior Conservative Government, was a pretty dark act, that any vote for John Kenedy and the Liberal Democrats would be a wasted vote, and anything but a Labor win would be a very bad thing, along with some hand waving about getting Tony Blair dumped by a backbench revolt or ... the stroke of the Good Fairy's Wand.

I've been following the debate on the powers of arrest the Blair government wants. To back up, at IETF-48 (Pittsburg, '00) we decided to ignore a national government's statement that no standard require strong cryptography. That national government was the government of the United States, then still elected. At IETF-51 (London, '01) we decided to ignore a national government's statement that any machine protected by strong cryptography was subject to pre-emptive search and seizure. That national government was the government of the United Kingdom.

Watching the back and forth between Michael Howard and Tony Blair, we were struck by Blair's statement that the terrorist threat now endangering all the UK electorate was unprecedented. We each turned to the other and said "But the IRA killed hundred of Brits during the bombing campaigns."

In Tony Blair's crazed modern history of the British Isles, handfulls of spooky Arabs two thousand kilometers from London are a greater threat than the hundreds of Irish Republicans who've bombed London and every other major urban area.

Michael Howard's response was interesting. He rejected the current exceptionalism, the elevation of the Arab to Super Evil Genius, and talked about the limits to power during his time as Home Secretary when "terrorist" ment "IRA". That made up my mind.

The problem with Blair is that he seems to be Labor, albeit New Labor, that is somewhere to the economic right of the DLC when translated into American, but he's really something else. He's trafficking exagerated threat into extraordinary state powers. Listening to him, you'd think that al Quida was created for the purpose of pumping up the Labor Party.

i lived and worked in London the year of the coal strike. I haven't forgotten Thatcher. But the authoritarian boot is on Labor's (New) foot.

Why Not Raymond Burr? -- William Myers Edition

It is one of the tasks of The United States Circuit Court of Appeals to correct any errors made in the District Courts. Those errors may be in evidence rulings, motion practice, jury instructions, or in any one of the whole panoply of issues that arise in criminal and civil cases brought in federal courts under federal or state law.

In order to fulfill the error correction role, the best experience for a Circuit Court judge is long years as a trial judge. That experience will provide familiarity with the entire range of issues likely to come before the Circuit Court.

Perhaps the second best experience for a Circuit Court nominee is long years of practice as a lawyer in the state and federal courts. The experience of trying cases will help the nominee understand the myriad of issues presented to a court engaged in error correction.

A person without trial or judging experience is a poor pick for the Circuit Court of Appeals. A complete lack of such experience calls into the question whether the nominee is qualified to fulfill the error correction function of the Court. This post will look at the experience of William Myers.

William G. Myers, III, is President Bush’s nominee for the 9th Circuit Court of Appeals. His bio is here, his resume is here and his answers to the Senate Judiciary Committee Questionnaire (pdf) are at the link.

Eric recently wrote that Raymond Burr, by virtue of having played Perry Mason on TV, had more courtroom experience than William Myers. He was not exaggerating by much.

Reviewing the answers to the Senate Judiciary Committee Questionnaire, we first note that Mr. Myers has the very same amount of experience as a judge as Raymond Burr. That is, none at all.

When it comes to criminal cases, Mr. Burr has the clear advantage over Mr. Myers. Burr tried 256 cases, albeit as a fictional lawyer trying fictional cases before fictional juries on television. Mr. Myers has never handled any criminal matter as a judge, lawyer, actor, or (presumably) defendant. Fictitious experience is not really very helpful on the Circuit Court but it is better than none.

When it comes to civil jury trial work, Burr and Myers are dead even. As far as I know, Perry Mason limited his practice to the criminal side. He never took or tried a civil jury case.

Mr. Myers, nominated to a post where an essential function is to correct errors made by judges in jury trials, has never picked a jury, made a closing argument to a jury, questioned a witness before a jury, or participated in any way in a jury trial. All of his very limited practice (according to his questionnaire, he has only handled about 12 cases in his life and in some of those he was not the lead attorney) has been in non-jury cases.

That is right, President Bush’s nominee to the Unites States Circuit Court for the 9th Circuit has never handled a criminal case and has never in his life appeared before a jury.

Forget Raymond Burr, Barbara Hale played Della Street. In that capacity she got to watch an actor play a lawyer and present fictional cases to a fictional jury on television. That is more experience with juries than Myers can claim.

Each judicial nominee is asked by the Senate Judiciary Committee to list the ten most significant cases in his or her career.

The list Myers submitted is instructive. In one, he successfully challenged a plan to go to a four day school week. In another, he unsuccessfully tried to probate a tape recording, claiming it was a holographic will. Those are not exactly earth shattering cases.

In two of Myers’ “most significant cases,” his role was to file an amicus brief. Thus, in 20% of Mr. Myers' "most significant cases", he represented neither the plaintiff nor the defendant. He represented some interest group that was only tangentially related to the litigation. He examined no witnesses and presented no evidence in those cases. He just wrote a brief.

Perhaps most telling is that in one of Myers most significant cases he described his involvement as follows:

I facilitated review of filings and client participation in the case in concert with co-counsel. Attended hearings as co-counsel.

In other words, Mr. Myers looked over pleadings someone else wrote, talked to the clients, and then went to court to watch another lawyer work. Folks, if that is one of Mr. Myers’ “most significant cases,” he has no business on the 9th Circuit bench. Perhaps the co-counsel, who did all the heavy lifting in one of Myers’ most significant cases, should be up for the 9th Circuit.

We have now mentioned half of the most significant cases in Myers' career. It would be remarkably charitable to describe Mr. Myers' trial experience as thin. If an associate came to my firm with that degree of trial experince, I would have him or her second chair a few cases before permitting him to try our least important case to a jury by himself.

Now, if the 9th Circuit needs letters to the editor promoting the rights of ranchers, Myers will be their go to guy. By my count, he has published forty or so of them. If they need speeches promoting the agenda of ranchers, Myers will be very able. He has given dozens of them.

Alas, if they need a judge to decide whether jury instructions in a federal criminal case were in error, Myers is less qualified than Raymond Burr or Barbara Hale.

Social Security and the Nuclear Option Update

A few days ago, I noted that President Bush’s difficulty selling private accounts for Social Security made it more likely that Republicans in the Senate would choose the Nuclear Option with regard to judicial nominees.

I wrote:

If the GOP thinks that they may lose on big second term initiatives such as Social Security and tax cuts, they may decide that having the work of the Senate grind to a halt, and then blaming Democrats for obstructing legislation, is the best alternative available to them. Halting the work of the Senate would at least prevent Republicans from having to decide whether to vote for or against a Social Security phase out bill that could lose.

The cost to Republicans of having the Senate shut down is directly related to the prospects of passing legislation they favor. If the prospect of passing Republican favored legislation erodes, so does the cost to Republicans of having Senate business grind to a halt by going nuclear.

The GOP may decide that the smartest move is to ram through as much legislation as they can (class action, bankruptcy, tort reform, Anwar, etc) and then go nuclear to cause the Senate to shut down before Republicans face defeat on Social Security and tax cuts.

Today, via Josh Marshall, I noted the following in the
Washington Times:

The senior Republican senator said privately that the only way to avoid a bad deal on Social Security may be "to pull the trigger on the nuclear option."

This, he said, would mean changing Senate rules to force an end to Democratic filibusters and a vote on Mr. Bush's judicial nominees. The Democrats likely would retaliate by filibustering all Republican bills. Republicans then could blame Democrats for blocking Social Security reform.

I still do not know what Democrats should do about that possibility but the scenario seems less far fetched all the time.

Heavy Snow

It is 10am in the morning, and I can just make out the dark outlines of trees behind the houses across the road -- it is snowing frogs -- wicked huge clumps of snow. A pickup with a blade spins out attempting the turn off of a side street, hesitates between scything down a man and a dog, and slicing open a passing family sedan, fishtails against the snowbank where Charlie and Denise Harlow set their "Vote Insane Criminal Candidate" sign festooned with hooks and barbs last Spring, and steadies and passes on.

It is remotely possible that an Indian might have attended the October 2004 meeting of the Environmental Grantmakers Association, but unlikely. It is less likely that an officer of a environmental agency of a tribal government might have attended. But the "news" from that meeting was the publication of Michael Shellenberger's and Ted Nordhaus' essay The Death of Environmentalism (.pdf, .5MB) .

Here in Portland Greens took re-took a house seat they'd been gerrymandered out of, and ran highly competitive races in an additional three, for a total of four out of six races, with two house seats, and both senate seats uncontested in that cycle.

In the state-wide race in the '02 cycle the defining Green issue was single-payer. In the '04 races the Green issues were renter and low-income issues (economic justice and class issues) on the urban peninsula, and mercury, sprawl and livibility off-peninsula.

It seems to me that not only was the oxen gored not a tribal governmental environmentalism, but it was also not a Green electoral enviornmentalism, at least not a Maine Independent Green Party electoral enviornmentalism.

I was thinking about Elizabeth Trice and her efforts to get the city to do snow removal elsewhere then just "downtown" after an elderly woman was struck and killed walking into the street to get around a snow pile the city plows built up clearing the roads, and the words many older voters in the district said when I was doing doors during the primary for MB, or the general for Elizabeth -- that Charlie (see above) was a "down town guy" when he was on the city council, and pretty indifferent about the district.

So far in this session, one of the three Democrats we almost beat in the '04 general has decided that Central Maine Power ("conservation depricated") should be the ISP (no kidding, he bought "broadband over electrical power lines") for the rural Maine, and another that the elderly should be defrauded out of their freeholds to balance the state budget. Fortunately for Maine's homeowners of a certain age, John Baldacci has decided to cut $60,000,000 primarily from children's health services and early childhood development, in-home support and mental health to balance the state's budget.

Autism in Maine has increassed 1700% since 1990, and even the Press Herald's north-woods-fetichists who write the Maine Guide Glamor pieces (Men's pages not otherwise committed to "Women are from Venus" fluff) have stopped writing "how to wring the mercury out of your trout before frying it", or "mercury in lieu of floride" pieces.

A Judicial Nominee Didn't Practice Law (enuf) With A License

Prior to taking up the black mantle of the U.S. Court of Appeals, 9th Circuit, a nominee should have:

1. been in a court room in a professional capacity, whether bailiff, clerk, counsel, or judge, or
   
2. been in a court room in a professional capacity, whether bailiff, clerk, counsel, or judge, or
   
3. been in a court room in a professional capacity, whether bailiff, clerk, counsel, or judge.
   

William Myers actually has less real-life court-time than Raymond Burr, who did more than 256 fictional cases, and who now is only slightly less qualified than William Myers for a lifetime appointment to the court second only to the Supreme Court due to the modest impediment of being dead.

But that wasn't what caught my attention, and William Myers does present a myrid of distractions.

No. It was religion. The 49 known sites eligible for listing on the National Register of Historic Places, items subject to the Native American Graves Protection and Repatriation Act, and religious sites, and those not known. Mere waste, overburden to an open-pit cyanide heap-leach gold mine. Or so says the Solicitor of the Department of the Interior of the Bush Regime.

Update: I've found a large hi-res photo of Kw'st'an at the Nationaltrust's 2002 catalog of the 11 most important endangered religious sites in the United States.

Things to keep in mind: your modernity. What looks like "desert" is the cross roads of the lower Colorado. Denied to Spain by the Kw'st'an, limiting the attack and subsequent occupation of Alta California by overland forces and the root cause for the structural frailty of the Mexican states proximal to the Yuma Crossing -- the "why" of the overland American successes in California and Arizona, and until the dams of the mid-20th century quieted the Colorado -- created by Kumastamxo by tracing a course through the desert with the tip of his lance -- part of an economy defined by annual flooding and and agriculture, the center of trade in abalone shell to the east and turquoise to the west.

Wearing my TL hat I'll contact Mike Jackson, Sr., the current President of the Quechan Tribal Council, and Quechan Tribe attorney Courtney Ann Coyle. Updates.

Thomas B. Griffith Update

You may recall Thomas B. Griffith as the Bush nominee for the D.C. Circuit Court of Appeal who practiced law without a license.

According to a local NBC affiliate, he had a “contentious confirmation hearing” earlier this week.

Griffith serves as an in-house counsel for Brigham Young University in Utah, but he's never passed the bar in that state, which drew some controversy.

Griffith told the Senate committee that Utah law does not require him to be a member of the state bar, as long as he is closely associated with members of the Utah bar and as long as he doesn't make any court appearances.

That, of course, does not explain why Griffith practiced law in the District of Columbia without a license for three years. It also does not explain why he practiced law in Utah for a year when he was not licensed in any jurisdiction whatsoever. Does Utah permit that as long as the non-lawyer “closely associated with members of the Utah bar?”

Whether or not Griffith skirted the requirements of Utah law for the last four years he was there, he violated D.C. rules and Utah law for the previous four years.

One would not expect a person nominated to the bench of the second most important court in the land to really be so afraid that he would flunk the Utah bar exam.

Another Update:

The New York Times notices that Griffith was practicing without a license.

In addition to prcticing without a license in two jurisdictions, Griffith gave false information to the Utah bar. As the Washington Post reported last November:

Thomas B. Griffith, President Bush's nominee to the U.S. Court of Appeals for the District of Columbia Circuit, appeared to provide inaccurate information to Utah bar officials about his legal work and lapses in obtaining law licenses over the past year, according to documents released yesterday at his nomination hearing....

Even as Griffith defended his record yesterday, the new documents added to that controversy.

They show Griffith reported to Utah state bar officials last year that his law license had never been suspended. It had been suspended from 1998 to 2001. He also told the state bar that he relied on his D.C. license to practice law in Utah.

As I have previously noted, the Utah statute in effect when Griffith began practicing law there specifically prohibited the practice of law by anyone who had a suspended law license.

The Salt Lake City Tribune weighs in:

A clerical oversight should not disqualify someone from being a judge. But this looks like more than that. It looks like carelessness, or worse, arrogance.

A license is the essence of being a professional. Plumbers and teachers know that, and so should lawyers.

Playing by the rules is what the law is about. Any lawyer who does not exemplify that concept in his own behavior should not be on the bench, especially one as important as the appellate court in D.C.

Exactly so.

Just Some Stuff

Here is some stuff that caught my attention.

First, via Dougpetch comes the story of a high school teacher, dean of students, and head football coach who licked the bleeding knee of one of his players. There is no word on whether the coach thought the student had a snakebite or if the he just wants a role in the next installment of the Blade movies.

Second, via Great Scat, we learn that those crafty Al Qaeda terrorists wanted to destabilize American culture by kidnapping New Zealander Russell Crowe. I would pay $3.95 ransom at Blockbuster to rescue “A Beautiful Mind,” but they could keep "Gladiator" and "Master and Commander."

In Italy, a man was injured in a motorbike accident. He and the insurance company agreed to a settlement of more than half a million dollars.

As a result of his injuries, the man has developed a fatal infection of the spine. Doctors give the man six months to live. The insurance company has delayed making the payment under the settlement. The man sued the insurance company to speed up the payment. The court said to come back in fourteen months and it will hear the case.

What is up with cops and Tasers? Norwegianty links to a story of cops twice using a Taser on a drug suspect who was already chained to a bed. Cops in Colorado used a Taser on a man who failed to pay for a salad at Chuck E. Cheese. Talk Left links to a story alleging that Jacksonville, Florida police twice used a 50,000 volt Taser on a 13 year-old, 65 pound, little girl. I bet they don’t show that on Cops.

Teresa suggests a Rule of Thumb for delineating a church from a cult:

If, on appropriate occasions, the members tell, enjoy, trade, and/or devise transgressively funny jokes about their denomination, it’s a church.

If such jokes reliably meet with stifling social disapproval, it’s a cult.

I cannot think of a single example where that rule fails.

Rebates, Please

Mark Kleiman makes a point about the bankruptcy bill that I had not seen before:

[T]he bankruptcy bill has the curious feature that it changes the rules under which existing contracts are adjudicated. Thus debtors who go bankrupt next year will have to repay money borrowed three years ago under the new rules rather than the old rules.

In addition to the question of equity involved here, there's an efficacy question. The argument for tightening the bankruptcy rules is that, by reducing lenders' default costs, the change will tend to make it easier to borrow, either in terms of lower rates or increased credit access. But note that the windfall to the creditors from changing the rules on existing debt -- unlike the creditors' gains with respect to newly-lent money -- can't logically have that benefit, as long as we assume that the firms are forward-looking rather than backward-looking in their decision-making.

That is right. The current credit card debt was “priced” by the lenders under the old rules. The debtors agreed to the terms of those loans with the understanding that, in an emergency, they could discharge the debt in bankruptcy. By making the new rules apply to the old debt, the credit card industry reaps a windfall while the debtors are bound to pay higher rates and fees than a free market would suggest. That is unfair.

How big is the windfall to the credit card companies? Elizabeth Warren, writing on the adjunct Talking Points Memo page notes:

I’m going to be standing by my mailbox, waiting for my $400 back from the credit card industry. Industry representatives told me, in the news and in testimony before Congress, that the cost of bankruptcies filed by people who can afford to pay their debts, was $400 for every man, woman and child in America.

The population of the United States is 295,633,790. The windfall to the credit card companies is about $120 billion.

The American people can expect a rebate on their next credit card statement, right?

Graphics help needed

Now that my laptop is on some HP geek's desk, presumably under the knife as we speak, I am lacking the wonderful software tools I've used in the past to create stunning graphics.

Alright, so I'm lying. Not about the sick laptop part, but about possessing even the slightest ability to render anything even remotely recognizable with a pen, let alone a mouse. Not that I didn't try, but it's quite possible that the results are what broke my computer.

For our new autism travel blog, Trip to Wonderful, I'd like to have as our "symbol" (or whatever you call it), an image of a minivan in motion, the car's exterior painted with the traditional autism "puzzle pieces" (see the ribbon on the ASA website). I also thought of adding a trailer or pop-up, but that's mostly unimportant. When we take our trip, we will have puzzle-piece magnets to stick to the sides and back of the vehicle, in all likelihood with TtW's URL as well.

Anyone with the skill have the time to put together such a graphic? It need only be a few inches in height and width, enough to fit in a blog's banner next to the title.

Read the Footnotes

One thing I learned in law school is to read the footnotes, especially in annual reports and judicial opinions. I now think that rule should also apply to blog posts. If you skip the footnotes in annual reports or judicial opinions, you may miss something important. If you do not read the footnotes to a blog post you may miss something hilarious.

I was greatly enjoying Religious Fools by Greg at the Talent Show when I noticed that he had included a footnote. I read it, clicked through to the link, and now I have shamelessly stolen the idea for this post from Greg. Help me express my appreciation to him by heading over and reading Religious Fools.

Last October, KnowledgePlex published a summary of cases pending before the 7th Circuit Court of Appeals. That is the link Greg put in the footnote. The second case summary at the linked page is a description of William A. Books v. Elkhart County, Indiana.

Elkhart County, Indiana wanted to display the Ten Commandments in the lobby of the public administration building. Of course, in order to do so without running afoul of the Constitution, the County would have to comply with the “Plastic Reindeer Rule.”

The Plastic Reindeer Rule is a technical rule of constitutional law. It says that if a city or county wants to put a manger scene on public property at Christmas, at least one of the Wise Men has to be Frosty The Snowman and every animal in the manger has to be a plastic reindeer. Or something like that.

Perhaps to satisfy the rule, Elkhart County did not limit the display to just the Ten Commandments:

In March 2003, the county passed a resolution authorizing the display of such historical documents as the Declaration of Independence, the preamble to the Indiana Constitution, the Magna Carta and the Ten Commandments. The county said each of the documents had special historical significance to the community and country, and that each document and symbol "positively contributes to the educational foundation and moral character of the citizens of the county."

The county placed an explanation next to the display describing each of the documents. Next to the representation of the Ten Commandments, the display stated that the Ten Commandments "provide the moral background of the Declaration of Independence and the foundation of our legal tradition."

Predictably, someone sued and the case wound up in the 7th Circuit. I have often wondered why folks in small towns do not just display the Ten Commandments or the manger scene in front of the local bank or funeral home. It would save a mountain of legal fees. Does anyone really think that vast numbers of the public will decide not to covet their neighbor's wife because the display is in front of the building where you pay your parking tickets?

So far, we have just an ordinary Establishment Clause case of the kind that arises all the time. Note however, the plague that Elkhart County put up to explain the display. That explanation said that the Ten Commandments “provide the moral background of the Declaration of Independence…”

Fast forward to the recent oral argument before the Supreme Court in the Kentucky Ten Commandments case, McCreary County v. ACLU.

Slate’s Dahlia Lithwick provides the blow by blow of the argument. In that account we find the following:

David Friedman of the ACLU speaks against the Kentucky display….

Breyer asks (probably to pre-empt Scalia), "What's wrong with saying there is a religious role in history?" Friedman replies that "there's a difference between saying that religion played a role in our history and saying it is the moral foundation." He adds that the counties were claiming the commandments as "the moral background of the Declaration of Independence."

"If that what it meant, that's idiotic," snaps Scalia. "You can't get the Declaration of Independence out of the Ten Commandments!" (Emphasis Supplied)

If there were a constitutional prohibition against government establishment of idiocy, Elkhart County would not stand a chance.

Automata

For MH users:
1. create a form file in your mh directory
% cat mh/sformfile
To: olympia@snowe.senate.gov
cc:
Subject: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
--------
2. create a script in your bin directory
% cat bin/snowe
forw -form sformfile
3. make the script executable
% chmod +x bin/snowe

For each item of credit card and mortgage spam in the inbox, as it becomes current, simply use the script snowe to forward to Olympia Snowe the item of mail. She or her staff will know which mortgage offer actually converts into a credit card offering, and which credit card offering actually originates from MBNA.

Other MUA users feel free to contribute the mechanisms that work for your Mail User Agent. There has to be a way we can get credit card and mortgage comment spam redirected to her blog too...

Another Autism Open Thread

The last Autism Open Thread is about to fall off the front page, so here is another. Just to provide a little grist for us to grind, please allow me to note the following:

Natasha at Pacific Views links to and discusses an article about new neurologial research on autism and face perception. Natasha writes:

In autistic children, an overactive amygdala causes them to perceive all faces as somewhat threatening, leading them to want to look away. The March issue of National Geographic is out, and research cited in its leading article on the mind indicates that even in adults, brain regions can shrink or grow their active connections within weeks of uncharacteristic use or disuse. Persistent disuse of the region responsible for face recognition seems to cause it to atrophy, but the lack of a fundamental problem with this area is a great source of hope for future therapy for autistics of all ages.

Over at Bloggg, Moi links to new research into a genetic cause of autism. On a lighter note, Moi recounts a most mortifying (but very funny) moment. Click that link, for sure.

I will withhold comment on a report (thanks Moi) that Merck continued selling infant vaccines containing thimerosal until 2001, two years after the risks were known. I have a rule against writing about such things when I am this angry.

In Chicago, a Special Ed teacher has been removed from the classroom and reassigned to administrative duty after she bit a nine-year-old autistic student on the stomach during the boy's tantrum. I think she got off pretty easy. There are plenty of ways to handle autistic tantrums by a nine-year-old without biting. And, believe me, I should know.

A lawsuit in Oregon caught my eye.

Max Lehman is a 46-year-old autistic man. He, apparently, is rather large, as his lawyer has described him as a “gentle giant”. Lehman has no language and communicates only through grunts and gestures. He has a “measured” IQ of 20.

Lehman wandered away from the group home where he lives and was walking down the middle of a busy street, blocking traffic when found by a police officer.

The officer tried to talk to him without success. Allegedly, the police officer then tried to physically stop Lehman. Lehman’s lawyer contends that Lehman does not like to be touched, recoiled from the officer, and kept moving away.

"He made no aggressive movements," Engle said of Lehman's actions. "But Max is autistic. . . . And autistic people don't like to be touched."

The officer then tried to use a “pain compliance” hold on Lehman to prevent him from leaving. When that didn’t work (presumably because of the "giant" part of being a “gentle giant”), the officer pepper strayed him. When the pepper spray failed to stop Lehman, who was trying to return to the group home, the officer called for backup.

Once the backup arrived, three officers subdued Lehman through physical force. Lehman’s arm was broken in the struggle.

The officer contends that his actions were completely appropriate.

Wagner, the defense attorney, argued that Snider's actions were appropriate to the situation.

"He can't tell what's wrong with him," Wagner said. "Traffic is backed up. Lehman is walking down the middle of Main Street. He can tell something is wrong with him. . . . He could be on drugs, or a mental patient."

Wagner said that Lehman carried no identification, that he continued to pull violently away from Snider and that he was uncooperative. All his training, Wagner said, told Snider that he couldn't let Lehman get away from him and get into the house he was heading for…

The blame for what happened that day, Wagner argued again and again, lies squarely with the employees of the group home, who were never supposed to let Lehman out of their sight.

"The group home was not supposed to let him off the property," Wagner said. "There is no amount of training that would have helped the officers in this situation."

He added that Lehman's attorney would have the officers know not only how to deal with developmentally disabled people but also "diagnose them, too."

The autistics I know do not act like they are on drugs. They act like they are autistic. It is easy to see the difference once one gains experience in observing autistic behaviors.

And yes, I think police officers should be trained to recognize autistic behavior and be trained in how to deal with autistics.

I am not sure how much, if any, blame should be placed on the officer. He was confronted with a difficult situaltion and he had not received the training needed to handle it. I do blame the police department for not providing the proper training.

That is a lot of grist to grind. Please choose one or more of those to discuss, or if you prefer, some other autism related topic. The floor is open.

A Judicial Nominee Practiced Law Without A License

Discussions about the nomination and confirmation of federal judges usually center around political ideology, judicial temperament, past opinions, and the like. Those discussions assume that the nominee has certain other characteristics needed by a federal judge. Among those other characteristics are respect for the courts and the legal profession, an adherence to the requirements of the law, and sufficient attention to detail to make sure that things are done correctly.

Occasionally, a nominee comes along who has such a deficiency in the latter group of traits that it is not necessary to inquire into the former.

Let me introduce you to Thomas B. Griffith. Griffith is President Bush’s nominee to the United States Circuit Court of Appeal for the D.C. Circuit. The D.C. Circuit is perhaps the second most important court in the country after the Supreme Court. Because it is located in D.C., it hears many high profile cases, many with constitutional implications. Some people see serving on the D. C. Circuit Court as a steppingstone to the Supreme Court.

I know nothing about Griffith’s political ideology or judicial temperament. I do know that he has no business being confirmed to the bench because he has demonstrated a lack of respect for the courts and the profession, he has violated the law and ethical rules, and he has ignored the details necessary to be a lawyer, much less a judge.

For at least four years, in two jurisdictions, Mr. Griffith practiced law without a license. That is a violation of law as well as ethics. In my mind, that disqualifies him for a position on the second most important court in the land.

Griffith’s Department of Justice bio is here and his resume is here (links via Tapped).

Mr. Griffith’s resume shows that from 2000 through the present, he has been the General Counsel to Brigham Young University. That job involved the practice of law. The Washington Post reports:

According to Brigham Young's Web site, Griffith "is responsible for advising the Administration on all legal matters pertaining to the University. . . .

The General Counsel directs and manages all litigation involving the University."
On his nomination questionnaire, in an answer about the "general nature of [his] law practice," Griffith lists that he has worked on "higher education law" from 2000 to the present.

I went to the Utah State Bar Membership page. That page allows one “to locate a current or past member of the Utah State Bar.” I searched for “Griffith” and found several entries but none for a Thomas B. Griffith. It does not appear that Mr. Griffin ever took the trouble to gain admittance to the Utah bar despite practicing law there for five years.

Tapped points us to a Washington Post story from last summer that explains how that came about:

Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.

Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.

Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once.

He applied to sit for the exam, but never took it, Utah bar officials confirm…
Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases…

Griffith discovered in November 2001, a year after he joined Brigham Young that his District law license had lapsed several years earlier, in 1998, for failure to pay his dues. He immediately paid his dues and renewed his D.C. license, Nowacki said.

Mr. Griffin practiced law without a license for three years in Washington. He practiced in Utah without a license in any jurisdiction for a year. Even after discovering that he was practicing in Utah without a license, he never decided to take the bar examination to acquire a Utah license and just continued to practice law in Utah for four more years and continues to do so today.

At the time Griffith “discovered” that he was practicing in Utah without a license, Utah Code Annotated § 78-9-101 was in effect. That code section provides:

Practicing law without a license prohibited -- Exceptions.

(1) Unless otherwise provided by law, a person may not practice law or assume to act or hold himself out to the public as a person qualified to practice law within this state if he:

(a) is not admitted and licensed to practice law within this state;

(b) has been disbarred or suspended from the practiced of law; or

(c) is prohibited from doing so by court order entered pursuant to the courts' inherent powers or published court rule.

(2) The prohibition against the practice of law in Subsection (1) shall be enforced by any civil action or proceedings instituted by the Board of Commissioners of the Utah State Bar.

(3) Nothing in this section shall prohibit a person from personally and fully representing his own interests in a cause to which he is a party in his own right and not as an assignee.

Ignoring that law demonstrates a lack of respect for the courts and the legal profession that should be required of nominees to the Federal bench.

Mr. Griffith’s excuse for engaging in the unauthorixed practice of law in D.C. is that he lost his D.C. license because of an oversight by the staff of his law firm. That does not help his cause. It is clear that Griffith violated D.C. Bar rules. Rule 49 (a) states:

General Rule. No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The D.C. bar publishes an advisory for lawyers practicing in the District. That advisory notes:

[T]he failure to pay Bar dues, particularly if swiftly remedied to avoid the unauthorized practice of law, may be viewed as a relatively minor disciplinary infraction, but the length of time that the lawyer neglects to pay dues may cause a simple failure to ripen into a more serious disciplinary matter.

Griffith failed to maintain his D.C. license for three years. That exhibits such a disregard for the rules and such a lack of attention to detail as to disqualify him from the bench.

Griffith’s unauthorized practice of law in Utah is a serious matter. Two Georgia lawyers were indicted for practicing law in North Carolina without a license. In that case, two Atlanta lawyers helped a North Carolina college investigate a grade fixing scandal in its basketball program. The lawyers were licensed in Georgia but not in North Carolina.

Griffith assisted Brigham Young in its legal work and was not only not licensed in Utah, but until 2001, he was not licensed in any jurisdiction. Griffith’s conduct is at least as bad as the two lawyers who were indicted on criminal charges.

With regard to the time Griffith was engaged in the unauthorized practice of law in D.C., that too is a serious matter. It is a violation of Rule 5.5(a) of the District of Columbia Rules of Professional Conduct and is a breach of ethics. The D.C. bar advisory notes:

In fact, in In re Kennedy, the court found an ethical violation and imposed discipline where an administratively suspended lawyer was found to be practicing law in the District of Columbia.

Mr. Griffith has acted unethically and illegally. His resume notes that he was first admitted to the bar in North Carolina in 1985. Of the 20 years that he has practiced law, four of those years, or 20%, were done illegally.

Mr. Griffith has demonstrated his lack of respect for the courts, the law, and the legal profession. His failure to maintain his D.C. license shows a lack of attention to detail and a lack of respect for the rules governing lawyers. Even more disturbing is that once Griffith discovered that he was practicing law in Utah without a license, he never chose to take the bar exam to acquire a license. That shows a degree of arrogance that also disqualifies him for the bench.

Mr. Griffith should not be confirmed.

(Note: This is a significantly and substantively edited version of one I posted last night and then removed).

Who was Shay?

S.Amdt. 16 to S. 256 (Bankruptcy Abuse Prevention and Consumer Protection Act of 2005):

To protect servicemembers and veterans from means testing in bankruptcy, to disallow certain claims by lenders charging usurious interest rates to servicemembers, and to allow servicemembers to exempt property based on the law of the State of their premilitary residence.

Snowe (R-ME), Nay

S.Amdt. 31 to S. 256 (Bankruptcy Abuse Prevention and Consumer Protection Act of 2005):

To limit the amount of interest that can be charged on any extension of credit to 30 percent.

Snowe (R-ME), Nay

S.Amdt. 28 to S. 256 (Bankruptcy Abuse Prevention and Consumer Protection Act of 2005):

To exempt debtors whose financial problems were caused by serious medical problems from means testing.

Snowe (R-ME), Nay

This replaces the post "Paging Simon Dodd".

Vindication sucks sometimes

For years, many families of children with autism and their supporters, including many in the medical and psychiatric fields, have argued that the autism epidemic is real, that there is no "hidden hoard". Those on the opposite side of the argument, including a large segment of the purported "experts" on autism (Seigel, Fonbomme, Yale, the CDC, yadda, yadda) have claimed that changes in the diagnostic criteria for autism in the DSM-IV account for the skyrocketing rates of autism in the US and other countries, 1700% in Maine alone since 1990. However, they were never able to fully account for the millions of adults, either miraculously cured or misdiagnosed as mentally retarded, hiding in the general population. In addition, once the DSM-IV changes were made, why weren't all those initially misdiagnosed adults then properly re-diagnosed as autistic?

Fortunately, those of us who never drank that Kool-Aid don't have to continue to bang our heads against the wall any more. Or, at least, a little less. From yesterday's AJC:

U.S. Autism Rates Rise Sharply

MONDAY, March 7 (HealthDay News) -- The apparent rise in the proportion of children in the United States with autism appears to be real, a new analysis suggests.

Autism prevalence is increasing with successively younger children, particularly those born between 1987 and 1992, epidemiologists report in the March issue of Pediatrics.

It's a worrisome trend, experts said, magnifying questions on the causes for the increasing rates while placing a tremendous strain on the nation's special education resources.

No, what is truly worrisome is that our government has done little to learn the cause of the fastest growing childhood condition, now affecting one-in-166 three to eighteen year-olds. The annual budget of autism research at the National Institutes of Health is a fraction of that of other childhood diseases, including Type I diabetes and pediatric AIDS, despite the fact that occurence of autism now far surpasses both diseases in this country (fortunately, pediatric AIDs has nearly been wiped out in the US.) This is not to impune that all diseases and conditions do not deserve adequate funding. That in fact is the point. Autism research funding at the NIH, while slightly growing in recent, still equals less than $50 per year per autistic child in the US.

Occam's Razor would indicate that the key dates are somewhere between 1987 and 1992. Ironically, that is also the period that the two separate culprits in the vaccine-causation theories, MMR and thimerosal, entered the scene. This, of couse, does not in any way prove causation. But both of these potential villains should be properly investigated, and not in the half-assed way Big-Pharma apologists have pointed to as purported negative "proof" of causation. Studies need to be specific in scope, and researchers above reproach for bias or conflicts of interest.

In the meantime, we should be looking for other potential causes, not only in the generation experiencing the skyrocketing rates, but in the previous generation as well (remember that DES primarily effects the offspring, not the mothers who were given the drug.) Since we now understand that what we are seeing is in fact a time sensitive event, money currently being dumped enmass into genetic studies should be re-evaluated, as it is highly improbable that alterations in DNA alone can now account for this epidemic.

I think I am not alone in viewing this as a bittersweet moment. On one side, relieved that we who argue the "epidemic" viewpoint have not wasted years barking up the wrong tree, and saddened that the tree is not only real, but still growing, with no means in sight of pruning it back.

Social Security, Tax Cut Difficulties Make Nuclear Option More Likely

One of the things that makes politics so complicated is that seemingly independent issues are politically related. The political prospects of any policy proposal changes the political calculation not just for that issue but, rather, for a whole range of issues. Here is one example of how seemingly diverse issues are in fact related.

It has been apparent for a while now that the President’s Social Security phase out proposal is in deep political trouble.

Bush has not been able, as yet, to generate much public support for the phase out. He has not been able to secure Democratic support for his proposal, thus denying Republicans the political cover needed to comfortably grasp the third rail.

The effort to phase out Social Security may just be in the first quarter and President Bush certainly has not given up. Be that as it may, the Democrats are playing as a cohesive unit, they are up a touchdown or two, and they seem to have the home field advantage in the form of public opinion. Bush may pull it out but, at this point, he does not seem like a favorite to do so.

Over the weekend, the Washington Post reported that the GOP tax cutting agenda may also be in political trouble:

Bush's call for Congress to make permanent all the tax cuts enacted in his first term faces increasingly strong resistance among some Republicans concerned about rising deficits. The chairmen of the Senate Budget and Finance committees said in interviews last week that Republicans might wait until next year, or later, to consider the Bush plan, because the cuts do not expire until the end of the decade…

Several Republicans are voicing opposition to making permanent some or all of the first-term cuts, which include reductions in tax rates on income, dividends and capital gains…

Senate Finance Chairman Charles E. Grassley (R-Iowa) said at least six Senate Republicans have signaled opposition to extending the cuts. "They could keep it from getting done," he said. "But I think most people would like to make them permanent."

The political difficulties of the tax cut agenda and the Social Security phase out do not exist in isolation. Those difficulties effect the political calculations on other issues. Once such issue is whether or not Senate Republicans decide to “go nuclear” on judicial nominations. The greater the political trouble for the phase out plan and for the tax cut agenda, the more likely it is that Republicans in the Senate will invoke the Nuclear Option with regard to judicial nominations.

In politics, the second best result, behind only winning, is to avoid blame for losing. With regard to Social Security, the worst result for Republican lawmakers is to have a vote on the phase out plan, lose the vote, and then have their vote in favor of the plan used against them in their next campaign.

With regard to the tax cut agenda, the worst result for Republicans is to have the effort to make the tax cuts permanent defeated by the defection of Republican Senators. In each case, the GOP (especially President Bush and Senate Majority Leader Frist) would not get their preferred policy but would remain available for the assignment of blame.

Senate Republicans may invoke the nuclear option to take the worst possible results out of play.

During President Bush’s first tem, the Senate approved more than 200 federal judges nominated by President Bush. Senate Democrats blocked 10 of the most extreme nominees by use of the filibuster.

Not getting their way less than 5% of the time infuriated some Republicans. Republicans have called the use of the filibuster to block judicial nominees, “unacceptable” and “unconstitutional.” Senate Majority Leader Bill Frist has proposed a procedure to eliminate the filibuster with regard to such nominees.

That plan is called the nuclear option because Senate Democrats promise to use every tactic available to them to halt the work of the Senate if Frist and the Republicans follow through on eliminating the power of a substantial and cohesive minority to block judicial nominees.

It has been said that the Senate runs on unanimous consent. Any one Senator may insist on reading the entire text of a bill as well as the entire text of any amendment. If Senate Democrats withhold unanimous consent from the everyday, non-controversial business of the Senate, the work of the Senate will become a slow crawl.

If the GOP thinks that they may lose on big second term initiatives such as Social Security and tax cuts, they may decide that having the work of the Senate grind to a halt, and then blaming Democrats for obstructing legislation, is the best alternative available to them. Halting the work of the Senate would at least prevent Republicans from having to decide whether to vote for or against a Social Security phase out bill that could lose.

The cost to Republicans of having the Senate shut down is directly related to the prospects of passing legislation they favor. If the prospect of passing Republican favored legislation erodes, so does the cost to Republicans of having Senate business grind to a halt by going nuclear.

The GOP may decide that the smartest move is to ram through as much legislation as they can (class action, bankruptcy, tort reform, Anwar, etc) and then go nuclear to cause the Senate to shut down before Republicans face defeat on Social Security and tax cuts.

What should the Democratic response be to that strategy? I am not yet sure but it is worth thinking about ahead of time.

Before I forget ...

Courtesy of Jonah's sleep disorder I'd another opportunity for uninterrupted whatever passes for thought

The Lilly story (midnight rider on the original HSD bill) broke here.

If someone had a story about Iran and Nukes that couldn't get published in any venue that only publishes stories in the Iran's-got-bombs line of business, where the hell would they go to ... surface some dirty underware from the Cheney-et-alia mills of fabrication and fiction?

As Dwight pointed out, following channels for discrimination claims within the federal government isn't an effective course of action.

When Virginia's wise men decided to make concelment of menstration an offense it wasn't "news" until it hit Chez Mis and the Vagina Posse rode towards the sound of thunder.

The Apple v Blog case is also about where sources seek publication, and where publication is effective. Any fool can "talk to a reporter" about any of these and a wicked large heap of other stories, and get less utility from the exercise than chatting with the parlor mirror while brushing their hair. But when the fool picks feminist bloggers because feminism is rather constrained in print, somewhere between the women's pages and men gerrymandering the Court on Roe v Wade, or POAs because we don't posit Lilly and the FDA are off the hook ab initio, or commie defeatists because the rest of the US is wrapped up in patriotic triumphalism ...

That, not paid v unpaid, wide circ v niche, ink v electron, schooled v unschooled, is the amicus argument Jonah, and Dwight and MB gave me.

Where will the next Mordecai Vanunu go, to break a story fundamentally critical of power in her (or his) country and its supine media? A covert "vacation" to London or email to a blogger? Norma Rae couldn't afford the fare to London, and Karen Sikwood couldn't, and Erin Brockovitch couldn't. The truth (and a lot of other crap) is out there. Where it manifests is part of the Apple v Blog suit.

The Monty Hall Problem

I recently read The Curious Incident of the Dog In The Night-Time, a novel by Mark Haddon. The narrator and protagonist is a 15 year-old autistic boy who, among many other things, is a whiz at math. I highly recommend the book for anyone but particularly for anyone within the autism community. MB, have you and Eric read it yet? If not, let me know and I will arrange for a copy to find its way to your mailbox.

In the book, the autistic boy discusses the Monty Hall Problem:

Suppose you're on a game show, and you're given the choice of three doors: Behind one door is the Grand Prize; behind the others, Booby Prizes. You pick a door, say Door A, and the host, who knows what is behind each door, opens another door, say Door B, revealing a Booby Prize. The host then offers you the opportunity to change your selection to Door C. Should you stick with your original choice or switch? Does it make any difference?

I should note that after you make your original selection, the game show host will never open a door that reveals the Grand Prize.

Should you stick with your original choice or switch?

This quiz is open to everyone but Charles Kuffner of Off the Kuff and frequent commenter Bernie Yomtov. They are bridge players and I know that they already understand restricted choice.

The answer is below the fold.

You should switch. Switching will win the Grand Prize 2/3 of the time while sticking will win it only 1/3 of the time. The reason is what bridge players call restricted choice.

If you chose the Grand Prize originally, the host had a choice of either of two doors he could open to reveal the booby prize. If you chose a booby prize, the host had no choice in the matter.

Lets say that the Grand Prize is behind door A. If you chose door A, half the time the host would open door B and half the time he would open door C. If your original choice was a booby prize, door B, the host was forced to open door C.

As a result of the forced choice, if your original choice was the booby prize, it is twice as likely that the host would open door C than if you’re your original choice was Grand Prize.

Regardless of whether or not you choose A or B originally, once door C is opened to reveal a booby prize, it is twice as likely that the Grand Prize is behind the door you did not originally choose.

If that seems counter intuitive, or if you think it is a fifty-fifty choice, it is because you do not play enough bridge.

The statement of the problem and a better explanation of the solution is here. An excellent explanation of restricted choice is in Kit Woolsey’s Matchpoints, edited by Bernie Yomtov.

Cleaning His Desk

I once knew a lawyer who liked to maintain a clean desk. His problem was that he was not nearly so punctilious about completing his work. Motions, discovery requests, letters, and phone messages would pile up on his desk. To keep his desk clean, at the end of each day he would take all of the paper from his desk and pile it neatly in the corner of his office. He would then promptly forget about it, and the corner pile would grow larger and larger as the number of matters he left unattended grew and grew. His desk, though, was clean every night.

Eventually, his method of keeping his desk clean caught up with him and he faced court sanctions for failing to respond to discovery, a bar complaint, and a legal malpractice suit. Despite the trouble, as far as I know, he never changed his ways.

I lost track of him a decade or so ago. For a brief moment today, I thought he had joined the Bush administration in the U.S. Office of Special Counsel. The OSC is supposed to be a watchdog over the Civil Service system:

The U.S. Office of Special Counsel is an independent federal investigative and prosecutorial agency. Our basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing…

OSC receives, investigates, and prosecutes allegations of PPPs, with an emphasis on protecting federal government whistleblowers.

In January of 2004, President Bush appointed Scott Bloch to head the OSC.

Bloch was in a difficult position. By his own admission, he did not know much about the job when he was appointed. When he arrived in office, his desk was a mess. In a letter to members of Congress (pdf), Bloch notes that when he arrived, there was a backlog of cases at the OSC. Bloch had nearly 700 backlogged “whistleblower disclosure claims. ”

A whistleblower disclosure claim arises when a Federal employee reports instances of “waste, fraud, or abuse” within the government. At a time when the Federal budget deficit is at an all time high, those claims have the potential to save the government some money. Indeed, the elimination of waste, fraud and abuse is a staple of efforts to reduce the deficit. One might expect and administration committed to reducing the deficit and making the government more efficient to value those claims, aggressively investigate, prosecute wrongdoers, and strive to eliminate the problems and save the money. It appears that Scott Bloch chose instead to just clean his desk much like the lawyer I once knew.

In the last year, the number of backlogged whistleblower disclosure cases has been reduced to from about 700 to about 100. How did Bloch accomplish that reduction?

The AP reports:

The head of the federal office responsible for protecting government whistleblowers is the focus of a complaint filed Thursday by some of his own employees, who say he is undermining laws that encourage workers to expose wrongdoing.

Scott Bloch, who runs the U.S. Office of Special Counsel, refuses to enforce laws that protect whistleblowers in the federal workplace, especially gays, and is retaliating against his own staff, the employees alleged.

Bloch's office called the allegations a set of "baseless charges" and said they would be forwarded to the President's Council on Integrity and Efficiency "in the hope that they will be able to put them to rest once and for all."

According to the employees' complaint, a new policy instituted by Bloch resulted in the agency closing more than 600 cases in only a few months, without referring any of them for investigation of whether the employees' allegations of government misconduct are true.

Under the policy, the employees allege career staff in the agency's disclosure unit are not permitted to contact whistleblowers but are required to close their cases unless their written filings are sufficient on their face to establish a basis for investigation.

"While publicly congratulating himself for reducing the caseload ... Mr. Bloch has failed to explain just what happened to all of the cases he closed," said the complaint filed in Washington.

With the backlog of cases drastically reduced, presumably Bloch’s desk is now clean and neat. When a watchdog group submitted a Freedom Of Information Act request to the OSC to find out what happened to the 600 dumped cases, the OSC replied that it was too busy to respond to the request until at least next summer. After all, the FOIA requests can make a desk very messy.

It is not just the whistleblower cases that can clutter a desk. The OSC is also charged with investigating and prosecuting “prohibited personnel practices.”
One of the prohibited practices is to:

discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others.

The Washington Post described one of Bloch’s first acts upon taking office:

A newly arrived Republican appointee has pulled references to sexual orientation discrimination off an agency Internet site where government employees can learn about their rights in the workplace.

The Web pages at the Office of Special Counsel, an independent agency whose mission is to protect whistleblowers and other federal employees from retribution, has removed references to sexual orientation from a discrimination complaint form, training slides, a brochure titled "Your Rights as a Federal Employee" and other documents.

The Washington Blade, a publication with which I am not familiar, alleges:

Sources familiar with the agency said Bloch targeted a total of 12 employees — including the only two known gay staffers — for involuntary transfers, in part, because they disagreed with his decision to curtail OSC’s role in investigating and adjudicating complaints of employment discrimination against gay federal workers…

Since Scott Bloch came on board at OSC, sexual orientation discrimination claims have been dead on arrival,” said one of the OSC employees ensnared in Bloch’s reorganization, who spoke on the condition of anonymity.

“I believe it was his motive all along to get rid of people tied in any way to the past administration or people who disagree with him on the sexual orientation policy,” the employee said.

Another source familiar with OSC said, “cases involving sexual orientation discrimination are treated differently than any other complaints” under Bloch’s tenure. According to this source, gay cases are “initially reviewed by career employees in the complaint’s examining unit and then sent to one of Bloch’s political assistants for review.”

The complaints examining unit serves as the intake center, which decides whether or not cases will be investigated, the source said.

“In all other cases, the career staff in the complaints examining unit would not be reporting to a political assistant, they would be reporting to a career supervisor,” the source said. “This is very unusual.” Prior to Bloch’s appointment, the Special Counsel, which is Bloch’s title, and his or her political staff, “rarely became involved at all in cases at this stage, much less reviewing them,” said the source.

Complaints of sexual orientation discrimination can make a desk oh so very messy. It is much easier to just dump the complaint than to have to actually investigate and prosecute.

When the lawyer I knew just piled his work up in a corner to as to have a clean desk, he eventually faced repercussions. I wonder if Scott Bloch will ever face any.

Autism Open Thread

The comments to MB's Autism Speaks post are getting pretty long. Please continue the discussion here.

Nancy Grace’s "Extensive Pattern of Inappropriate And … Illegal Conduct"

Atrios sends us to a Variety article about the ratings slide at CNN:

CNN posted steep viewer losses during the month of February, slipping 21% in primetime and 16% overall, according to Nielsen Media Research.

One exception to that slide has been the new Nancy Grace show. According to one report:

“Nancy Grace Premiere Week” goosed the longtime ratings laggard Headline News by 81% in the 8 p.m. (ET) timeslot and outpaced Keith Olbermann’s Countdown on MSNBC.

I have never seen the show but I know of Nancy Grace from her days as a Fulton County (Georgia) prosecutor. I have no doubt that she is feisty, attractive, and compelling on TV. I would not be surprised if she is quite the success as a TV personality. That said, it would be wise to take what Ms. Grace says with a large shaker of salt. During her days as a prosecutor, Nancy Grace was not above “inappropriate and … illegal conduct.” I know of no reason that she would be any more trustworthy as a journalist or pundit or whatever she is on CNN.

One of Nancy Grace’s most prominent cases as a prosecutor was the murder trial of Weldon Wayne Carr. Carr was a wealthy business owner in Atlanta. His wife died in a fire at their home. Nancy Grace was assigned to prosecute him for the murder.

Grace obtained a conviction. That conviction was overturned by the Georgia Supreme Court. The opinion does not seem to appear for free on the web. The citation is Carr v. State, 267 Ga. 701, 482 S.E.2d 314 (1997).

The Georgia Supreme Court described the basic facts of the case:

Carr's wife died in a fire in their home. He recounted to authorities that he awoke and realized there was a fire downstairs in their home; that he tried to get his wife to escape with him through a bedroom window, but she resisted and tried to go toward the fire; and that he lost her in the smoke and confusion after a struggle, but finally saved himself by jumping out of a second-story window. The State's theory of the case was that Carr set the fire, then injured his wife so that she could not escape. Although she died of smoke inhalation, Carr's wife suffered other injuries, including cerebral bleeding. Prior to the fire, the couple had been experiencing marital difficulty and had been seeing a marriage counselor. Ms. Carr was having an affair, of which Carr had learned, and she had told several persons that she intended to divorce Carr and marry her lover. In a short period before the fire, Carr engaged in conduct which appeared suspicious after the fire: checking on fire insurance; getting copies of his and his wife's will; telling their adult son, who resided elsewhere, to remove some of his belongings from the family home; putting valuables into a safe deposit box; and conducting an uncharacteristic spring cleaning of the house.

Nancy Grace was the lead prosecutor at Carr’s trial. The unanimous opinion of the Georgia Supreme Court included a sharp rebuke of her conduct as prosecutor:

We conclude that the conduct of the prosecuting attorney in this case demonstrated her disregard of the notions of due process and fairness, and was inexcusable… We trust, however, that if this case is to be retried, the prosecuting attorney and the trial court will bear in mind the special responsibility of a prosecuting attorney:
…

It has often been stated that it is the duty of a prosecuting attorney to see that justice is done and nothing more. That duty should not be forgotten in an excess of zeal or the eager quest for victory in his case. The people of the state desire merely to ascertain beyond a reasonable doubt that the accused is guilty of the crime charged, and do not countenance any unfairness upon the part of their representatives in court. (Citations Omitted).

Grace did a number of improper things in the case. Just before the trial started, Grace submitted a witness list that contained a number of people who had not been previously disclosed to the defense. She failed to disclose a romantic relationship between two of her star witnesses (the deceased’s lover and the deceased’s best friend) that might have aided the defense. Those acts and omissions were part of what earned Grace another rebuke from the Court:

We wish to register our stern disapproval of tactics which give rise to the appearance that the prosecution, by act or omission, has attempted to subvert or circumvent the right of an accused to have reasonable pretrial "access to evidence," [cit.], as that right is protected by the Georgia and U.S. Constitutions, the statutes of this State, and the Uniform Superior Court Rules.

The pattern continued at trial. As early as opening statements, Grace made reference to the defendant having abused his wife when Grace knew she had no admissible evidence of such abuse. The Supreme Court:

the transcript of the opening argument shows that the prosecuting attorney repeatedly made references to physical abuse although the trial court had ruled out all evidence of purported abuse ("There is no occasion and no excuse for attempting to influence the jury in advance by improper statements as to evidence which counsel knows he cannot prove or will not be permitted to introduce."). (Citations Omitted)

Grace also engaged in flat out deception. Grace’s closing argument included:

patent misrepresentations of fact such as the prosecuting attorney's use of a chart falsely indicating that a defense expert had not disagreed with a specific opinion by a State's witness

Perhaps the most unusual misconduct by Grace involved two instances of entering into the Carr home without Carr’s knowledge or consent. The first involved an expert witness viewing the house:

During the trial, the State brought in an expert witness from out-of-state to testify about the cause of the fire. Without the knowledge or participation of the defense, the prosecuting attorney presented an order to the trial judge permitting entry into Carr's home so that the expert could view the scene.

The State’s expert entered the house after breaking down the locked front door. The Supreme Court found it error to permit the witness to break into the Carr house and to testify but, for our purposes, the more interesting aspect is how Grace got the trial judge to issue the order permitting the entry:

the trial court, after a hearing on a motion to suppress evidence gathered through illegal use of subpoenas, specifically found that the prosecuting attorney abused the subpoena process by, among other things, inserting false information regarding hearing dates (Emphasis supplied).

In other words, Grace submitted false information to the court during an ex parte proceeding in an effort to gain a tactical trial advantage.

There was one other entry into the Carr home. It does not appear to have been for the purpose of gathering evidence but rather for the purpose of raising Grace’s personal profile:

The alleged misconduct of the prosecuting attorney included participation in and facilitation of unauthorized entries into Carr's home, once in person to film a CNN television special featuring the prosecuting attorney...

The unanimous Supreme Court of Georgia summarized Nancy Grace’s conduct in the Carr case as follows:

Our review of the record supports Carr's contention that the prosecuting attorney engaged in an extensive pattern of inappropriate and, in some cases, illegal conduct in the course of the trial.

When you hear Nancy Grace say something on TV, believe it if you must, but I will discount it unless and until I hear from someone I can trust.

802.11x

The use of radio controlled IEDs along the roads of Iraq is frowned upon by the regime. Using a laptop and a wireless NIC to intersect a passing Hummer and a 1,000 feet/sec expanding projectile field is considred tactless. Rafiq al-Hariri's security detail included radio transmitters to jam roadside radio controlled IEDs. I don't know yet if the munition that got him in Tripoli last week was controlled by wireless receiver, a cell phone, wireline, or a dedicated operator, but that is the use model. War Driving (802.11x Access Point Mapping) for military ends.

Broadly speaking, adding highly kinetic energy devices to the mix of web cams and wireless access points and mocha javas available at any metro Starbucks is not likely to improve café culture.

So it should come as something of a surprise that CENTCOM is deploying radio controlled IEDs along the roads of Iraq.

Aside from the increassing absurdity of turning perimeter defense into Dr. No's playground, and the liklihood that mappiing perimeter defense will be the lot of persons kidnapped for the purpose, rather than opfor mortar and rocket fire teams, and the unmitigated risk that perimeter breach will be via repurposed "friendlies", that is, the fundamentally ineffective resource utilization of this new adventure in "low cost" defense, there is the more serious policy issue.

But before going to policy, there is time. Requirements were delivered to Picatinny Arsenal in New Jersy in August, funding was redirected to it in October and development was completed in December. The product is a laptop with a touchscreen, a wireless cloud, and a 10lb strap-on to any electrically discharged munition. The system appears to be spec'd at 100+ leaf nodes (mines) per controller. Stripped of its nom de procurement ("Matrix"), its just an IED anyone in the Mobile Ad Hoc Networking (MANET) community could have kludged up in no time at all, assuming s/he were sociopathic and unsupervised by a competent perimeter defense planner and incapable of reasoning that others would adopt any effective innovation, against a larger and better defined target.

The US has not used antipersonnel mines since the Gulf War in 1991. It has prohibited export of all antipersonnel mines since 1992. It has not produced antipersonnel mines since 1997. It has destroyed some 3.3 million stockpiled “dumb” antipersonnel mines. The US military does not maintain minefields anywhere in the world, other than the Korean DMZ, having cleared its minefields in Cuba in 1999. The US has been in many respects in de facto compliance with the Mine Ban Treaty for many years.

The Bush regime decided a year ago to go back to the minefield in policy, and it decided during the campaign season to go, or rather, to send troops back to the minefield in practice. And this month 25 sets of 802.11x infrastructure kit, touchscreen user interface kit, and 2,500 units of disposable sub-laptops plus battery, hardening, wireless NIC and electrical connectors and cable, marry up with 2,500 existing electrically discharged claymore mines.

Revenge of the Nerds anyone?

Like the Non-Proliferation Treaty and the Test Ban Treaty, the Ottowa Treaty on Landmines is the collective articulation of concerned, intelligent men and women. Its violators are unconcerned, unintelligent men and women.

The US has had a law banning the transfer of all antipersonnel mines since 1992, but it will expire in October 2008, unless it is extended. It is a potential campaign issue. Is "supporting the troops" sending them landmines, or is "supporting the troops" removing landmines from the battlefield? Ask a candidate near you.

Travels With Bobby – Part III

After deciding to take a family trip with an autistic child, you flirted with the idea flying but did not have the courage and decided to drive. Your old friends, demonstrating more kindness than judgment, invited you to stay with them, assuring you that Bobby would be no problem. Since everything your old friends know about autism, they learned from Rainman, and because you value their friendship, you politely declined the offer. Now you have to decide where to stay.

Eric and MB plan to have a pop-up camper. For those without the equipment or inclination to camp, a motel is the logical choice. Making the motel stay work involves issues of both safety and familiarity.

Bobby does best in familiar surroundings. He is comfortable in his room, with his stuff, his food, and his routines. Traveling involves new places, different people, a different bed, restaurants instead of his food in his own kitchen, and a break in the routines that permit him to function at his best.

In comments, a Mom from Blue Ash, Ohio, notes that even a different TV cable system can be problematic:

Staying in motels is also not fool-proof, as we discovered over our Presidents' Day weekend trip to Chicago. We unknowingly chose a hotel that did not subscribe to the Cartoon Network. We went through all the channels, no cartoons anywhere. So our evening's entertainment included a meltdown.

Each child is different. We do not have the Cartoon Network problem because of Bobby’s obsession with Channel 8. Our local cable system has PBS on Channel 8. Bobby has never been much of a TV watcher because he cannot rewind and replay the snippets he likes. When he was little, PBS had a few shows that he liked (TeleTubbies, in particular, repeats the same snippets over and over without the need to rewind. If only Tinky Winky was not such a bad role model). Because he liked some PBS the programming, Bobby began to insist that if a television was on, it had to be tuned to Channel 8.

Tuning the TV to Channel 8 has become part of Bobby’s routine. If the television is on another channel when Bobby enters a room, he will immediately change it to Channel 8.

It does not seem to matter whether or not he likes the programming. At home, Clifford and Jim Lehrer are both on Channel 8 and Bobby is as likely to watch one as the other. Even Channel 16, which is a different PBS station with almost identical programming, will not do.

At motels or at other people’s houses, it does not matter if Channel 8 is PBS or not, Bobby insists on Channel 8. That, of course, has led me to scour the country for motels that put ESPN on Channel 8. CNN will do in a pinch, but when on vacation, I prefer ESPN. Deb objects, but I remind her that it could be worse. The Home Shopping Network, R-rated fair, or even pay-per-view could be on Channel 8.

I digress. We go to great pains to make a hotel room as familiar as possible for Bobby. We bring his blanket and pillow from home. We carry a small combination TV VCR so that he can play his favorite tapes (when Bobby has his tapes available, he will actually permit others to make channel selections. That makes his brother happy). We set up the bathroom as much like at home as possible. We make sure to have familiar and well-liked food on hand. Those few familiar items provide some continuity to the new accommodations and help Bobby feel at home.

Some safety issues are common and some are not. One year, we rented a seventh floor condo at the beach. We arrived late at night, checked in, and went to bed. The next morning, I was about to take my coffee out onto the balcony overlooking the ocean when Deb told me to keep the balcony door closed and locked. I had not noticed anything amiss but since I had the good judgment to marry someone far smarter and more perceptive, I knew better than to open the door.

The balcony had a railing that consisted of four horizontal bars, each separated by gap of several inches. It might have been esthetically pleasing to many, but what Deb saw was potential kid death. Given that Bobby has no fear and no judgment, the railing was, in effect, a ladder to a seven-story fall. We spent the entire week with the balcony door locked until the kids were asleep.

The more common safety issue is that of escape. We often take two motel rooms, connected by an interior door. Just outside the exterior door to the kid’s room is a parking lot, perhaps a busy street, strangers, unfamiliar territory, and all manner of potential catastrophe. We need to do something to make sure Bobby does not leave the room while we sleep or are occupied in the other room.

Bobby is a creature of habit. We try to prevent him from ever getting the idea that he can leave the room through the exterior door. When we check in, we herd Bobby into the adult room while keeping the connecting door closed. I exit the adult room, close it so that Bobby cannot see what I am doing, then enter the kid’s room. I put a permanent “do not disturb” sign on the kid’s exterior door, close it, turn the dead bolt, and flip the interior safety lock.

Most motel rooms have a small hallway at the door. I move a table or other piece of furniture into that hallway to block the door. I then pile the kid’s bags and other stuff on the table to completely close off the escape route. Only after the exterior door is completely blocked do I open the connecting door and allow Bobby into the room in where he will be staying.

I call housekeeping and inform them that under no circumstances are they to enter the kid’s room through the exterior door. They are to come into our room and enter through the connecting door. I make sure my older son knows that opening the exterior door in the kid’s room, for any reason, is a capital offense.

That procedure results in Bobby never seeing that the exterior door to his room opens to the outside. He always enters and exits through our room. It becomes his habit to go to the door in our room if he wants to go outside.

To open the exterior door in his room, he would have to move a lot of stuff, which, we hope, would awaken us or alert us to his intentions. We have had no escapes or even attempts since instituting that procedure.

Oh, one more thing. When I open the connecting doors between the two rooms, I turn both deadbolts to the “out” position. That prevents the interior doors from closing. It also prevents Bobby from locking himself in the kid’s room while the other three of us are in the adult room.

With deadbolts on both the interior and exterior doors to the kid’s room, the only way to gain access to Bobby is to have management take the interior door off its hinges. It just thrills motel management, particularly if you are checking in late at night, to have to do so.

Staying at a motel is doable. It just takes a little planning.

Hate Legislation in Maine

Rep. Ronald Collins (MoronParty-R-Wells) introduced a gem -- An Act to Amend the Operators' License and Nondriver Identification Card Requirements for Nonimmigrants, a/k/a LD 501.

Before discussing the text however, there is the politics. When I was doing doors with Elizabeth Trice (Maine Independent Green) in her three-way against Charlie Harlow (MoronParty-D) and John Linscott (Sane-R), we came across a voter who after she warmed up to having yet another candidate on her stoop, but a woman, shared how creepy Charlie Harlow came across to her a few days earlier. Can't quite put your finger on it gender creepy. Then she dropped the bombshell. Charlie also said ALL ASIANS LOOK ALIKE. I interviewed the voter a few days later to double check her story. That's when she recalled the context. He was talking about the location of the polling places and that Asians would be able to vote more than once, because they all look alike.

Charlie goes non-linear on Maine Indians too. Wicked opposed to "special rights" cause we're all "Native Americans".

Portland and Lewiston have large communities of Somali refugees. When Elizabeth and I did doors in the projects we met quite a few, some voters, some not, and families that contained adults and children, some citizens, some not.

Charlie, and the rest of Portland's white male political crony club don't do doors in the projects (MB notes: with the exception of Herb Adams.) People we spoke to were constant on the theme that Liz and I were the only people they'd seen doing doors and listening to voters. At the NAACP dinner last fall one of the speakers pointed this out too -- the Dems ask for the non-White vote, but they don't do doors in the projects, where the Asian and African immigrants are a plurality, along with poor Whites, dislocated from somewhere, Portland or somewhere else in Maine.

That's to set expectations. The altruistic fraction of the Portland delegation will vote against this trash without hesitation. However, the cronyism fraction of the Portland delegation will vote for it. The only interesting question is where the boundary is between the two fractions. Quite a few Portland Dems are Charlie's chums.

LD 501 creates a class of persons distinguished by the State as incapable of holding a motor vehicle license for six years. Members of this class are not defined by those most likely to suffer rapid progressive debilitation, and mostly likely to be benefited by, and mostly likely to reduce risk to persons and property, by holding a motor vehicle license for two years, that is, the elderly and persons with progressive debilitative disorders. Members of this class are also not defined by those most likely to be mortally foolish, and wicked dangerous behind the wheel to themselves and others, that is, teenage males and anyone with a no proof of insurance or drunk or risk-prone moving violation or domestic abuse charge sheet.

Nope. The class of inherently less capable persons is defined as ... all persons who are not US citizens or lawful permanent residents. The extent of the legal incapacity of this class of persons is not simply limited to moter vehicle operating license cards, but also to all those classes of activities for which a State issued card for purposes other than operating a motor vehicle is facillitated. That means buying a six pack at RSVP, where Rep. Tom Allen (D ME) and I both buy our booze. To buy beer legally, persons who are not US citizens or have permanent residency status (that "lawfull" bit in the LD 501 language is dumb, but that goes with the whole bill) would have to go to the BMV three times more often than citizen or permanent resident alcoholic nonagenerians or early twenty-something motorists with rap sheets of arbitrary length.

Here is the contact info for the co-chairs of the Joint Standing Committee on Transportation
Co-Chair: Sen. Dennis Damon (D-Hancock): 287-1515;
SenDennis.Damon@legislature.maine.gov

Co-Chair: Rep. Boyd Marley (D-Portland): 838-2450 (note bene: Charlie chum)
RepBoyd.Marley@legislature.maine.gov

The rest of the Committee membership can be found here:
janus.state.me.us/house/jt_com/tra.htm.

Predictably, in addition to the drooling racists "for fair immigration" that splattered testimony, the Bush regime's toadies in Immigration Customs and Enforcement tried to sell their brand of bad national government to Maine. These guys might as well be working for Osama Bin Laden. They want to tie up State resources carding people who want to be looked at closely, and don't want to get a fake ID many alcoholic teens manage to acquire with the resources available to alcoholic teens, let alone determined and resourceful criminals or even more determined, resoruceful and trained agents of a hostile state or non-state entity set on the course of war.

The racists and the morons on the Committee will vote with the Bush regime for national security, and necessarily against Maine, reason and the comon defense.

Funding Tribal Government functions

Cherokee Nation of Oklahoma et al v Leavitt, Secretary of Health and Human Services, et al and Leavitt, Secretary of Health and Human Services v. Cherokee Nation of Oklahoma were announced today. They were argued last November. The syllabus ends with the sweetest line.
Rehnquist, C. J., took no part in the decision of the cases.

The Indian Self-Determination and Education Assistance Act authorizes the Federal government and Federally Recognized Tribes to enter into contracts in which tribes promise to supply federally funded services that a government agency normally would provide, and requires the government to pay a tribe’s “contract support costs,” which are “reasonable costs” that a federal agency would not have incurred, but which the tribe would incur in managing the program.

In real life, Tribal governments pony up the cost of the service, frequently Indian Health Service, and the BIA pays less than the Tribe paid, and points the finger at Congress, arguing that Congress failed to appropriate sufficient funds. It works like a mini "Plenary Powers Doctrine", which holds that the Congress may unilaterally abrogate Indian Treaties, but in the real of contract law, not Treaties.

Held: The Government is legally bound to pay the “contract support costs” at issue. Here is a link to the case link.

Simon Dodd's Draft Snowe site goes live

Simon Dodd has put together a website promoting the idea of having Olympia Snowe contest the Republican primaries in the '08 cycle. The website is olympiasnowe2008.com, initially implemented on an IIS/asp platform. There are a few dangling links as of today, but overall it is a very impressive start.

My personal concerns are the filibuster and judicial nominees, the subject of a post last week, and the latest incantation of Bill Frist's Eli Lilly get-ouf-of-liability-free bill, which I think is, like the chicken who crossed the road because it was stapled to a punk rocker, is attached to Iraq misadventure death benefits, possibly under the theory that lead and mercury are both heavy metals, and 9 grams of one in an adult or way too many milligrams of the other in infants and children amount to the same thing.

So I hope Olympia is a leader, and not a follower.

The Prospect Is Good

The American Prospect has a bunch of good articles posted. Among those are On Another Planet by Chris Mooney, Class Action Warfare by Stephanie Mencimer, Bear Any Burden by Mark Leon Goldberg, and Freedom Plus Groceries by Matt Yglesisas.

Please read and enjoy.

Travels With Bobby, Part II

Once you have decided to drive to your destination instead of flying, the next question about traveling with an autistic child is where to stay.

Sometimes, friends and family graciously invite us to stay with them. They assure us that they have childproofed their house and that Bobby will be just fine. While those offers are kindly made and greatly appreciated, they do not know what they are talking about.

When others say that they have childproofed the house, they mean that dangerous things (poisons, solvents, power drills) have been removed or put in a safe place. That is important but protecting Bobby from danger is only half the problem. We also need to protect other people’s house and property from Bobby.

One grandmother took it very well when she lost a very expensive and very beautiful decorative egg similar to the one at the link.

It is not just fragile things that may get damaged. Bobby gnawed the wooden knob off of a bedpost at his other grandmother’s house. He once ripped about a yard of fabric from the back of a chair and ate it. He has left tooth marks on rocking chairs, doors, desks, picture frames, and tables.

Electronic equipment is at serious risk. Bobby loves to play snippets of videotapes or DVDs. He plays the snippet, backs it up, and plays the same snippet again, hundreds of times. The buttons on those machines are not designed for that type of use. When the buttons fail, Bobby becomes frustrated because the machine no longer works. He informs us of that fact by picking up the device, ripping out the cabling, and throwing the device to the floor.

I long ago found a source for very cheap video players ($26 each, $35 with the extended warranty which I always bought until the store wised up). I have become expert at repairing video equipment. Nonetheless, at one point we had more than twenty broken video players in our garage. They tend to last about two or three weeks each, maybe a month or two with repairs. Most people do not consider putting their DVD player in the attic as part of childproofing a house.

Messes are a whole other category of necessary childproofing. Most folks who say that their house has been childproofed don’t realize that you can’t leave shampoo, lotion, soap, ground coffee or even spices unguarded without the possibility of having a massive cleanup operation.

Other folks don’t and can’t know what it means to prepare their house for Bobby to visit. We can’t take them up on their offer of a place to stay as the offer was made in ignorance of the potential consequences of their kindness. We do just fine in a motel.

The only sure fire way to childproof a house for an autistic child is to wait six months. Whatever you have left is indestructible. I hope MB and Eric will visit us this summer on their trip. We really have childproofed our house. We don’t have anything left.

Travels With Bobby, Part I

Mary Beth, Eric, and family are planning an extended trip for this summer. As they have two autistic kids, that trip requires careful planning. MB has been sharing her planning, and expects to share her travel experiences, with us at Trip To Wonderful. She already has a lot of good stuff up. Personally, I think she should be cross posting here at Wampum, but regardless, I am just happy she is sharing it with the 1 in 166 (if the last figures I saw about the incidence of autism are correct) who are interested in information about traveling with autistic children.

MB invited me to discuss traveling with my nine and a half year old autistic son, Bobby, and I decided to take her up on the offer. Please understand that I have no particular training or expertise in the matter. All I have are the scars of bad choices and a degree of wariness resulting from those scars.

In today’s installment, I want to discuss the issue of the mode of transportation. That is, should we fly or drive?

We choose to drive. There are a lot of reasons for that. Airports are not good environments for Bobby. They are brightly lit, crowded and noisy. Bobby is uncomfortable in crowds and doesn't like bright lights. He prefers noise that is of his own making. There is a lot of waiting in line at airports. We can't yet do much waiting. Taking turns is not our strong suit.

With very careful planning, we could probably handle those obstacles but there is one hurdle to flying that may be just too high. Bobby is particularly sensitive to certain types of sounds. We are not sure if it the volume, tone, consistency, or frequency of the sounds (or a combination of two or more of those factors) that Bobby finds offensive. Whatever the reason, there are some sounds that Bobby just cannot bear.

The sound of a bus or a UPS truck rumbling outside our house causes Bobby to push behind his ears to close the canals and dampen the sound. Similarly, he closes his ear canals whenever he is in a crowded mall, grocery store, school assembly or similar environments. When he encounters really offensive sounds, he just melts down until either he or the sound is removed.

We are not sure, but an educated guess is that that the roar of jet engines is within the category of sounds that Bobby cannot tolerate.

I keep thinking about the poor schmuck who innocently bought a plane ticket from Atlanta to Seattle and was unlucky enough to be seated next to us.

Everything might seem fine until the engines revved up. Then that poor guy gets to spend five hours ducking thrown objects while listening to a child scream, shriek, wail, and cry. The passenger might have to try to avoid being pinched, hit, or kicked as a child without language desperately seeks to inform us that the sound of those engines MUST STOP RIGHT NOW.

When planning new experiences with Bobby, we always try to have an exit strategy in case things go bad. It is hard to have an exit strategy when you are thirty thousand feet up in an aluminum tube and four hours of flight time remain.

Also, if the flight is bad, we are stuck at our destination with no way home but to put Bobby, other passengers, and us through another five hours of agony. If the same poor schmuck is on the return flight, we might prompt a complete nervous breakdown or worse.

It is possible that Bobby would just adore flying and that the jet engines would pose no problem. We have not yet chosen to test that hypothesis. For us, the safer choice is to drive. If the distance is too far to drive, we just do not go.

Cole on Lebanon

Today's post is a must-read.

link