Saturday, December 15, 2007

I love

I believe in truth, justice and the American way. I also believe in Wikipedia. Where else would I get the information I need at my fingertips? You can't take everything written there as gospel, but it's a good start.

I also believe in sourcing. Giving credit where credit is due. I do not believe in waving your opinions around wildly. I believe in facts. Just the facts, ma'am, as Joe Friday said. If you want to tell me something is going on tell me: where you heard about it, and what exactly was said, written or established. If you tell me you read about the results of an opinion poll done by The New York Times, that's fine. If you tell me about the results of an opinion poll done by Fox News, that's fine too, as long as I know that it comes from Fox News.

I don't want your unvarnished opinions without facts. I can rant all by myself.

Friday, August 24, 2007

The Lighter Side of the Republican Party: Roger Stone

Roger Stone is a top Republican strategist. He costs some $20,000 per month. He is what Republicans love: a dirty fighter who (supposedly) leaves no fingerprints. He cut his teeth on Richard Nixon's Committee to Re-Elect the President (or CREEP) and later was a partner of the legendary Lee Atwater.

New York State Republican legislators hired Roger near the end of the legislative session in June. As the N.Y. Times put it on 8/23/07 in their story, "Political Consultant Resigns After Allegations of Threatening Spitzer's Father":

Mr. Stone's reputation for hard-edged political tactics appeared to be a selling point for the Senate Republicans, who after Mr. Spitzer's election last fall were facing an aggressive Democratic governor eager to wipe out the state's last redoubt of Republican strength.

In a closed-door meeting last month, Mr. Stone presented a road map for agressively defending and rebuilding the party. Coinciding with Roger's emergence in Albany were web sites dotting the horizon with harsh accusations against Governor Spitzer. Reporters and others around the capital began receiving e-mail messages from addresses like and, most of them reprinting newspaper stories critical of Mr. Spitzer or containing political cartoons about him. Those two services are run by Michael Caputo, a Buffalo-area Republican who has worked for Mr. Stone in the past.

The mainstream media (if you called the New York Post "media") then featured stories about how Eliot Spitzer used the entire New York apparatus at his disposal to hound and stalk Senate Majority Leader Joseph Bruno. Roger must have been pleased as punch. Then something strange happened, which can either be attributed to temporary insanity, being drunk with power or just plain being drunk: Roger decided to call up Eliot's father, an 83-year old man with Parkinson's Disease, and threaten him (anonymously). Just before 10 P.M. on August 6th, a message was left at Bernard Spitzer's Manhattan office that he would be "compelled by the Senate sergeant at arms" to testify about "shady campaign loans" he made to his son during Eliot Spitzer's unsuccessful campaign for attorney general in 1994.

"If you resist this subpoena, you will be arrested and brought to Albany," the message says, according to a transcript given to the New York Times. Bernard Spitzer hired Kroll Associates, the private investigative firm, to trace the message. They found that the number on Bernard's caller ID system linked it to listings under the name of Mr. Stone's wife, Nydia.

Has Roger Stone never heard of Caller ID? Even six-year-olds understand how Caller ID works and that everyone has it. The message continues in a rather uncouth vein: "There is not a goddamn thing your phony, psycho, piece-of-shit son can do about it. Bernie, your phony loans are about to catch up to you. You will be forced to tell the truth and the fact that your son's a pathological liar will be known to all."

Forget about the fact that the Times printed the phrase, "piece-of-shit". Just listen to how Roger tries to repair the damage. Caught with his pants down, he admitted yes it was his number and it was also shared by a Florida law firm for which he does public relations work, Rothstein Rosenfeldt Adler. But he denied making the call. He says his apartment building is owned by a prominent Spitzer fundraiser, and suggests that allies of the governor may have given access to his apartment to someone who made the threatening call. As Roger says, "They have unfettered access to my apartment. I am on television constantly. As Gore Vidal said, never pass up the chance to have sex or be on television."

Actually, that part about sex is pretty funny and makes a lovely sidebar. Back in about 1996 Roger was working for Bob Dole as the presidential nominee. The National Enquirer published a salacious expose of Roger and his wife Nydia. It seems they are both swingers and advertise themselves in swingers' magazines and on the internet. Huge headline: "Top Dole Aide In Group Sex Ring". Even though a chunk of his expensive advice urges Republicans to emphasize family values and integrity, he and his ex-model wife Nydia, aka as Nikki, posted an ad on their Internet web site featuring a vavavoom picture of Nikki ("Hot insatiable babe, 40DD-24-36 seeks exceptional [threesomes] with her and her bodybuilder husband...Prefer athletes, bodybuilders, jocks and military.") The Stones solicited sex partners in as many as 70 swingers' magazines across the country. Nikki invited men in uniform to take part in sex games with her and Roger during the Republican convention in San Diego. The web site has been accessed thousands of times.

Nikki (I mean Nydia) was very helpful during the 2000 Florida recount. GWB enlisted her to rally support among Cuban exiles in Miami (she is of Cuban ancestry). During that jolly time, Roger was also instrumental in organizing the so-called Brooks Brothers Riot (according to Jeffrey Toobin's book "Too Close To Call", about the recount), when hundreds of Republican activist stormed a county election office in Miami and demanded that workers there cease recounting presidential ballots.

Anyway, the day the story about the "anonymous" phone call came out, Bruno fired Roger. Roger continues to insist that H. Dale Hemmerdinger, who owns the building on Central Park South where Roger and "Nikki" live, let unauthorized persons into his apartment. Mr. Hemmerdinger responded, "Roger's off his rocker." No actually he issued a statement, "Stone's allegations about me are untrue."

Roger also said that he had attended a performance of the Broadway play "Frost/Nixon" on the night of the alleged call and could "highly recommend it to Governor Spitzer. It shows you what hubris and lying brings you."

However, a blogger for New York magazine pointed out that the play (like most plays) had no Monday night performances.

Roger's response? "Well, then, I'm mistaken. My wife already reminded me I actually saw the play on a Wednesday. I still recommend the play to the governor."

Although he fired him, Bruno still pays homage to Roger's elaborations: "Roger's statement is that he didn't do it and that somebody got into his apartment and that someone who owns his apartment is a big contributor to Eliot Spitzer."

Case closed!

Thursday, July 12, 2007

The Private Equity Industry--Billionaire Vultures Strip Your Bones

Some of you may have read my post on how Wall Street is destroying the value of pension funds by investing their money in mortgage-backed securities based on subprime mortgages, which are mortgages granted to people with lousy or no credit. To make a long story short, many pension funds for middle class workers such as teachers and policemen invested in these securities, which are now looking like the German mark during the Weimar Republic, where 1 million marks couldn't buy you a loaf of bread.

Private equity firms use these kinds of bonds to buy public companies, strip them to the bone by firing everyone, then resell the companies at a handsome profit. These deals are known as leveraged buyouts, leverage meaning debt. In other words, in order for a private equity firm such as Blackstone or Kravis Kohlberg to buy, for instance, Chrysler for $65 billion dollars, they borrow $2000 for every $100 they put in, then use the combined $2100 to buy Chrysler. (Not all of Chrysler. Just giving this as an example of how they operate.) Private equity firms don't risk any of their own money, they use Other People's Money (OPM) to make these deals, collect the profits, and pay capital gains tax rates on them (15%). Everyone else including the secretaries at their firms pay 35% on their income.

Why is this important? Because Congress is trying to bring the private equity tax rate in line with ordinary income and tax it at 35% instead of 15%. This makes the private equity firms very upset. Right now, Henry R. Kravis, billionaire founder of the corporate buyout movement, is roaming the halls of Congress, hoping to kill the legislation that would raise his taxes and those of other investment firm executives.

He sees private equity enterprises as good for the little guy, citing examples of how his firm produced many jobs by turning around troubled businesses. The lower tax rate benefits all Americans, he insists, and the increase in tax rates would harm American competitiveness abroad. When asked if the higher tax rates would affect pension fund returns, first he said no, then an adviser to KK said he believed the legislation could have an adverse effect on pension fund returns.

$15 billion per month of tax payer money goes to pay for the wars in Iraq and Afghanistan. The Democrats are looking for additional revenue to help finance educational tax credits, broaden health programs for lower-income families and other initiatives to improve the lot of the American people.

The Big Moment for this tax legislation will come when the Joint Committe on Taxation in Congress estimates how much money the proposals would raise if they became law.

Henry Kravis has some good connections, though.

Kravis' ties to the Bush family go back decades, to the time when his father was friends with Senator Prescott Bush, the president's grandfather.
The private equity firms have hired an army of lobbyists to fight this legislation. They call it unpatriotic. Wayne Berman, managing director at Ogilvy Government Relations and a major Republican fundraiser, said, "It will be ...a fight about the fairness of capital gains having a lower tax rate. It will be about rewarding risk and recognizing when you reward risk you create economic growth." Then he growses about capital's enemy, labor. "This is about politics. This is about the AFL-CIO's longstanding policy objectives of ending the beneficial tax treatment of risk versus the treatment of wages from work. It is not about Steve Schwarzman's birthday party."

Who the hell is Steve Schwarzman and what about his birthday party? As reported in the Times and on Page Six of the Post on 2/14/07, glittering guests such as John Thain, the Chief Executive of the New York Stock Exchange Group which operates the NYSE, Donald & Melania Trump, Barbara Walters and Vernon Jordan were there. It was held at the Seventh Regiment Armory, which is a huge space on Park Avenue, decorated like the Hall of Mirrors at Versailles. There were non-stop gourmet meals, free flowing wine and a $1,000,000 concert by Rod Stewart. The party was estimated to cost $3 million.

Steve Schwarzman, is the Chairman of Blackstone, a prominent private equity firm. The party celebrated his 60th birthday like a coronation. He is an active Republican donor with tentacles into the worlds of finance, politics and the arts. Maybe he's not too much like the little guy. As Damon Silvers, associate general counsel at the AFL-CIO, which has been lobbying in support of increasing the tax rates, said:

The tax subsidy to the wealthiest Americans created by these lower rates on equity funds is a significant drain on the ability to do important things for the good of the country. The top 25 individuals in the industry got paid over $10 billion taxed at 15%. These 25 people got paid 3 times the amount that was paid to all 80,000 people who teach in the New York City schools, and they paid roughly one-half to one-third taxes on a percentage basis.

An article in the Times blog Dealbook from 3/11/07 mentions the pending legislation introduced by Charles Grassley (R-IA), the ranking Republican on the Senate Finance Comittee, which will tax the enormous fees that the private equity firms take on the profit of investments as ordinary income instead of as a capital gain. The question is, should the 20% fees that private equity firms collect from the profits of its investments be considered capital gains or as regular income? The writer says of course, no doubt about it:

The Internal Revenue Service should clearly be considering it regular income. After all, [the private equity firms'] own money is not at risk--it's a fee. (By contrast, when they invest their own money in the funds, the profit is obviously a capital gain.)

Let's be honest: it is a charade that private equity firms have claimed their 20% performance fees at the lower capital gains rate. To qualify, they invest a nominal amount of their own money to demonstrate that they have put something at risk, but it's a ruse. They are paying capital gains rates for doing their job, which should be taxed at the regular income rate.

You would think that all the buyout kings who wear American flags on their suit lapels would be proud to pay a big tax bill.

The reason I bring up this lengthy explanation is that I want this tax legislation passed. Unfortunately, private equity firms are swimming in cash. They have strong connections with both parties. They gave millions to presidential and Congressional campaigns. They are counting on the support of powerful Democratic lawmakers who rely on Wall Street as a major source of political contributions. They include Senators Chuck Shumer and Chris Dodd, and Representative Rahm Emanuel. The Congressmen have not taken a public position on the bills.

Let them know we know which way the wind blows. If Congress sells us out on this golden opportunity to fund our programs, then money does buy influence (duh!).

Monday, July 9, 2007

Irrational Exuberance Runs Amok

Alan Greenspan, the party-crossing Chairman of the Board of Governors of the Federal Reserve for 20 years, was very circumspect in his pronouncements, positively cryptic. As the Wall Street dot-com frenzy hit its peak in 1999, he actually ventured into straight talk. He called what was going on "irrational exuberance", as share prices of dot-coms grew higher and higher, unjustified by any existence of profits. Even dot-coms which were barely more than domain names managed to collect millions of dollars from eager investors, until the frenzy peaked and share prices collapsed.

Maybe Greenspan should have said something before that happened, but "irrational exuberance" caught on as an apt expression of a market bubble, that is, bidding up the price of something until it's all out of proportion and the next stage is a collapse of prices. Wall Street seems like a rollercoaster with each car filled with gamblers betting on the next big thing until they reach "irrational exuberance", irrational meaning "deprived of reason" and exuberance meaning "effusive and almost uninhibited enthusiasm". They're riding high and there's no end in sight. They refuse to believe despite all evidence to the contrary that reality will set in and prices without foundation will collapse.

That is what is happening in the housing market. It accelerated in value from (year) until (year), when the tipping point occurred and housing prices began their descent. It was inevitable that the housing boom would start to bust, or that the housing bubble would begin to burst (whichever metaphor you prefer). The boom was fueled by an atmosphere of low inflation and cheap, easy credit And Wall Street introduced some innovations to the previously staid practice of granting mortgages.

It used to be that you'd go to a bank for a home loan (mortgage) and the bank would determine whether you were creditworthy by assessing factors such as whether or not you were employed, whether you paid your bills on time, had a steady income and could make monthly mortgage payments. In exchange for giving you money, the bank wanted to know if it could be repaid. The quality of your creditworthiness would determine the interest rate on the mortgage. If your credit was good, you'd get a lower interest rate. If it wasn't so good, you'd get a higher interest rate. And if you were deemed a bad risk, you didn't get a mortgage, period, until you could build up your creditworthiness.

Then the lending structure changed. Wall Street smelled the opportunity to make a lot of money from so-called subprime mortgages--mortgages given to people who wouldn't normally be considered qualified buyers. Instead of banks granting mortgages, Wall Street investment firms would hire a lender who would in turn hire a mortgage broker who would grant the loans to unqualified buyers so they could become homeowners.

There were plenty of incentives to sell these loans: brokers and lenders could charge exorbitant fees (much more than with prime loans) to grant these loans and Wall Street could turn around, repackage the loan into something called a "collateralized debt obligation" and sell it to investors on the premise that even though these CDOs were based on bad credit, the interest rates were higher than junk bonds and housing prices kept going up. In turn, they wouldn't look very deeply into the creditworthiness of the borrowers. In fact, in Wall Street circles these subprime loans were known as "liar loans" because the borrowers often lied about their income. Wall Street wasn't too concerned as to whether or not the borrowers could pay them back; housing prices kept escalating so the value of their homes kept increasing. If a borrower couldn't meet his obligations, he would just borrow some more money (refinance) based on the higher equity he could extract from his home. Everything was jake until housing prices stabilized and buyers began withdrawing from the housing market because they couldn't automatically "flip" the house (resell it for more money). Sellers began outnumbering the buyers and prices went down. So did the equity in these sub-prime financed homes. Borrowers in over their heads with these subprime loans couldn't refinance and became delinquent in their mortgage payments. Foreclosures multiplied. Soon whole neighborhoods were dotted with empty, boarded-up houses, which had the effect of driving down the value of the perfectly nice borrower next door who did have a prime mortgage. So even those with good credit began being affected. The inventory of unsold existing homes increased. There are still construction contracts requiring builders to build new homes in the face of an oversupply of existing homes.

Most subprime mortgages are ARMs (adjustable rate mortages). An ARM is a mortgage with an interest rate that may change, usually in response to the Treasury Bill rate or the prime rate. The purpose of the interest rate adjustment is primarily to bring the interest rate on the mortgage in line with market rates. ARMs usually start with better rates than fixed rate mortgages in order to compensate the borrower for the added risk that future interest rate fluctuations will create. So far the subprime borrowers have been paying the lower rates; soon the mortgages will adjust and monthly mortgage rates will increase, leading to more foreclosures. And around and around it goes, the roller coaster turning into the ferris wheel, an endless loop of cause and effect with no end yet in sight.

Wednesday, July 4, 2007

"Made In China" Means "May Be Hazardous To Your Health"

China is importing dangerous, sometimes toxic products to the United States. The American people are just finding out about this practice, although the Food and Drug Administration (FDA) has known about it and does little to protect us. There is no oversight either in China or here in the U.S.

The problem rose to the surface when dogs and cats began dying of kidney failure after eating pet food. The pet food was analyzed and melamine, an industrial product, was found in the wheat gluten used to bind pet food ingredients, making the "gravy" in wet pet food. Melamine is normally used to make plastic kitchen utensils and fertilizers. It was traced to a Chinese manufacturer who was not certified to make agricultural products. Menu Foods, the leading North American manufacturer of wet pet food products, had to recall more than 100 brands consisting of millions of cans of pet food. Some were sold under well-known brand names (i.e. Mighty Dog). Menu Foods currently produces more than 1 billion cans of pet food per year.

Then came the problem with diethylene glycol (DEG). DEG is a chemical cousin of anti-freeze that causes kidney and neurological damage if ingested. An industrial solvent, it is an odorless, colorless, sweet tasting syrup, used by unscrupulous manufacturers as a substitute for the more expensive product glycerin.

In 1937 more than 100 people died in the U.S. after ingesting a DEG-contaminated drug used to treat infections. That led to the enactment of the Federal Food, Drug and Cosmetic Act, the nation's primary statute on the regulation of drugs.

In September 2006, dozens of Panamanian citizens were hospitalized and at least 40 were dead from ingesting cough syrup laced with DEG. Investigators from 4 countries identified the manufacturer of the "glycerin" ingredient in the cough syrup as the Taixing Glycerin Company in Hengxiang, China. The factory is not certified to sell any medical ingredients.

When the investigators examined the records for the shipment, they found that the names of the suppliers were removed from the shipping documents as they passed from one place to another. The manufacturer's certificate of analysis showed the batch of "glycerin" to be 99.5% pure.

At the end of May 2007, federal officials found Chinese-made toothpaste loaded with DEG in U.S. stores. They said it was only in discount stores. In fact, the toothpaste was distributed much more widely. 900,000 tubes containing DEG have turned up in hospitals for the mentally ill, prisons, juvenile detention centers and some hospitals serving the general public. Four states (Georgia, North Carolina, South Carolina and Florida) reported receiving Chinese-made toothpaste tainted with DEG. A major national pharmaceutical distributor said it was recalling the toxic toothpaste.

In response, the FDA has advised Americans to discard all Chinese-made toothpaste. As Dough Arbesfeld, spokesman for the FDA, said, "This stuff doesn't belong in toothpaste, period."

The Case of the Chinese Tires: According to, the National Highway Traffic Safety Administration has ordered Foreign Tire Sales (FTS), a tire importer based in New Jersey, to recall 450,000 light truck tires that are at risk for tire tread separation because they lack a gum strip (which costs a few cents) that holds the tread together. Tread separation is the same defect that led to the recall of millions of Firestone tires in 2000.

FTS had a contract with the Chinese company Hangzhou Zhongce Rubber Company to manufacture tires according to FTS' specifications. Initially, there were no problems. Gradually, however, customer complaints rose in volume. Then in August 2006 two men died and another sustained permanent brain damage when their Chevrolet van rolled over after the tire tread separated. When FTS was named as a defendant in a suit against them regarding this accident, it performed tests on the tires and found that they had an insufficient gum strip or no gum strip. A gum strip is a rubber feature that helps prevent the tire from separation or from damaging the rubber. FTS also found that the tire treads begin to come apart after 25,000 miles.

Originally the tires were exclusively imported to FTS, but now they are sold to several other importers.

Hangzhou Zhongce told the Wall Street Journal on 6/25/07 that in its own testing, there were no defects. They said the recall may be an effort by foreign competitors to hamper the company's exports to the United States. Quoting from The New York Times 6/27/07 article, "Chinese Company Denies Tire Defect", Xu Yourning, manager of legal affairs at Hangzhou Zhongce, said that, "This is concocted out of thin air. The structure of a tire cannot be decided by an individual. Any change in the tire requires technical assistance. Zhongce couldn't possibly leave out the gum strip on purpose."

NO RECALL is actually taking place. FTS claims in documents filed with the NHTSA that it simply cannot afford the expense of recall. The NHTSA is threatening FTS with retaliatory action if it doesn't comply. Meanwhile, millions of people are driving around on dangerous, possibly deadly, tires.

The case of the tainted seafood: On June 28, 2007, the FDA blocked the sale of 5 types of farm-raised seafood from China. It was contaminated with carcinogens and other banned additives. The FDA had been aware of tainted Chinese seafood for at least 6 years. It warned the Chinese about it and even visited Chinese fish ponds. Dr. David Acheson, the FDA's assistant commissioner for food protection, stressed that the seafood posed no immediate health threat, though long-term consumption could result in health problems.

China is the world's largest producer of farm-raised fish. It is the biggest foreign supplier of seafood to the United States.

The FDA issued an "import alert" covering the following seafood: shrimp, catfish, eel, basa (similar to catfish) and dace (similar to carp). Some of the contaminants have been known to cause cancer in laboratory animals, and others increase resistance to antiobiotics that are used to fight anthrax poisoning. The FDA asserts that the seafood can only be sold in the United States if importers provide independent testing that it doesn't contain contaminants.

Chinese seafood farmers often use the banned contaminants to prevent disease caused by pond overcrowding. "You may have 10-20 times the density of fish that you have in a natural environment," said Robert Romaire, professor of aquaculture at Louisiana State University.

Shipments of imported Chinese seafood were valued at $1.9 billion in 2006, a 193% increase since 2001.

The Food and Water Watch, a Washington-based nonprofit group, found that more than 60% of the seafood rejected at the border by the FDA came from China.

The percentage of seafood shipments pulled out for laboratory analysis has declined from 0.88% in 2003 to 0.59% in 2006.

One of the most serious problems in China is that the government lacks the power to control the nation's businessmen. Bribery and government corruption are rampant.

"China effectively has no oversight over anything," said Oded Shenkar, a business professor at Ohio State University and the author of "The Chinese Century: The Rising Chinese Economy and Its Impact on the Global Economy, The Balance of Power and Your Job." "People have this idea that they are Big Brother and everyone's under watch," Mr. Shenkar said. But that's entirely false. "In China, local authories often turn a blind eye to problems because maybe they're invested in it."

How can the United States allow its citizens to be endangered? Keep in mind several factors: 1) The Chinese government doesn't want to scare off foreign investors; 2) Multinational corporations want to set up shop in China (they're probably already there) and take advantage of its cheap labor force and billions of consumers; 3) Chinese businessmen can be as unscrupulous as any American businessman: In some of these cases, a Chinese businessman gets a big contract from a United States importer (like FTS), promises to deliver the product according to specifications, then substitutes cheaper, sometimes toxic and/or dangerous ingredients or leaves out an item entirely; 4) It can be extremely difficult to trace a dangerous shipment. It could come with forged documents or it could have been transshipped. Transshipping refers to the practice of "trade laundering", whereby products are transferred and shipped out through another country to avoid detection of their origin. So far the Chinese have denied there is a problem and the FDA is, at best, ineffectual at protecting us.

Sunday, June 17, 2007

Home Health Aides: Who Takes Care of Them?

A basic rule of thumb is that supply and demand sets prices. If there's a large supply of something, say, plasma TVs and less demand, prices for plasma TVs go down (check out any electronics store). Conversely, if there's a huge demand for something and smaller supply (gasoline), prices go up. Supply and demand rules cover salaries as well as widgets. Salaries are driven up when the labor market tightens. Salaries go down when there are too many applicants for too few slots.

It seems when poor, minority women are involved, the rules of supply and demand fly out the window. As the population ages, demand for home health aides is exploding. There are an estimated 250,000 home health aides currently employed, mostly by private, for-profit agencies that charge their clients around $25 per hour (or more). The home health aides that work for these agencies earn a median hourly wage of $8.81, generally without benefits like paid vacations and health insurance, Bureau of Labor Statistics, Department of Labor, Occupational Outlook Handbook, 2006-07 Edition

Some backstory: Overall employment of home health aides is the fastest growing occupation as a result of both growing demand for home services for an aging population and efforts to contain costs by moving patients out of hospitals and nusing care facilities as quickly as possible.

Recently the Supreme Court refused to do anything about a 1975 Labor Department regulation that excluded home health aides from basic labor protections like the minimum wage and time-and-a-half for overtime. Evelyn Coke, 73 and in poor health herself, made her argument and there was no dispute about the facts.

Employed for 20 years by the agency Long Island Care at Home, she was often on duty for more than 8 hours a day, including many 24-hour stretches in the homes of elderly people she was assigned to care for. Care included such things as: lifting an elderly person out of bed, taking him to the bath, bathing him, changing his diapers, going shopping and cooking for him, making sure he takes his medicine and turning him over in bed if he's immobilized, and many, many other tasks. Because people are living so long due to better medical care and nutrition, many more get Alzheimer's disease and other dementias, so they require all the care I mentioned before and then some. Alzheimer's patients can be very unpredictable, hostile to the point of physical violence, and often require close 24-hour a day monitoring.

All 9 Supreme Court Justices rejected Ms. Coke's argument the Congress intended to include home health employees in the labor law and to exclude only certain domestic workers, like baby sitters and companions from the elderly who are paid by the families they work for.

The Supremes are strict when the mood strikes them. They ruled that Congress authorized the Labor Department to write the regulation on who was to be covered under the law and that the Labor Department properly did that. Justice Stephen Breyer wrote that, given those circumstances, deferring to the Department's rule "is what the law requires."

"Fair Labor Standards Amendments of 1974 exempted from the minimum wage and maximum hours rule of the Fair Labor Standards Act of 1938 (FLSA) persons "employed in domestic employment to provide companionship services for individuals...unable to care for themselves." 29 U.S.C. Sec.213(a)(15) Under a Labor Department regulation...the exemption includes those "companionship" workers "employed by other than the family or household using their services." 29 C.F.R. Sec.552.109(a)

The fact that the use of home health aides can cut costs flies in the face of powerful forces opposing reregulating home health aides, such as the Bush administration and the Bloomberg administration. They opposed Ms. Coke's claim to overtime pay by arguing that federal labor law protections for home health aide workers would drive up the cost of Medicaid and Medicare which cover many home health care bills.

As The New York Times wrote in their editorial, "Congress and the Caregivers" on 6/15/07, "Refusing to pay employees fairly for the word they do is not an acceptable way to keep costs down."

Monday, June 11, 2007

Promising Developments in Alzheimer's Research

A change of scenery from politics: There are signs of hope in the treatment of Alzheimer's disease. [I work at a non-profit that deals with Alzheimer's disease.] As you may or may not know, Alzheimer's is a dreadful disease which robs the afflicted of their minds and eventually their lives. Though we know that many people over 85 will get Alzheimer's disease, we don't know the cause or have a treatment for the disease.

I will share what little I know about the disease. It causes memory loss, physical loss, and loss of reasoning and judgment. Through autopsies of the brains of people with Alzheimer's, we see plaque and tangles in their brains rather than neurons. Their brains have shrunk to a much smaller size. It's as though the disease consumes the brain.

There are different explanations for the tangles and plaque. One source blames something called an amyloid protein for AD. Amyloid is one of various complex proteins that occur in a number of diseases. Scientists heatedly disagree as to whether amyloid causes Alzheimer's or is simply a sign of the disease apart from its source. Many proponents of the amyloid-as-cause theory believe that the depositing of beta-amyloid protein kills neurons and thus causes Alzheimer's. Others believe that the accumulation of the protein tau is a defining feature of Alzheimer's. Tau lives in the cell and holds the cellular structure in shape. According to this theory , tau collapses on itself and becomes tangled. Meanwhile, the amyloid protein, which in a healthy brain is usually a clear liquid, gets gooey and forms plaque between cells, interfering with neural communication. The tau tangles and the amyloid plaque cause brain cell death.

The plaque and tangles start in the hippocampus, which is the central brain area that takes short term memory and converts it to long-term memory. By the time an AD sufferer dies, 50% of the hippocampus is destroyed.

You may well ask, if scientists know that amyloid and tau cause problems in the brain, why can't we stop them? The problem is, we're not sure that's what's causing the Alzheimer's. Even the diagnosis of AD is subjective. You go to an Alzheimer's Research Center and have physical, neurological, cognitive functioning and memory tests. In NYC these centers are located at Mt. Sinai, NYU and Columbia hospitals.

Often people worry that they have Alzheimer's if they forget where they put their keys or forget a name attached to a familiar face. But there are benchmarks that are specific to Alzheimer's. In the early stage, the person starts to lose his or her executive functioning (not being able to manage a checkbook; hard time going grocery shopping; can't come up with a plan and implement it to solve problems; Forgets to pay bills; Starts losing ability to communicate ("searching for words"); Forgets appointments and doesn't recall he or she has one; Loses initiative to organize activity; Grooming changes (not so meticulous).

In the middle stage, the person is: Asking the same question over and over; disinhibited (forgetting social niceties and says what they're thinking without interior censor; Reason and judgment severely impaired; Communication losses continue; Very frustrated; May hallucinate and become paranoid; Can remember more long-term memories as opposed to short-term memories.

In the late stage, all language is lost (maybe retains 1-3 words). Can utter sounds and syllables. Loses ability to walk. Incontinent. Can't feed themselves. Needs 24-hour, around-the-clock care.

It is a sobering list, especially disquieting in light of our ignorance about the cause and treatment for the disease, let alone a cure. There are several FDA-approved drugs on the market that treat the symptoms of the disease. Aricept and Excelon keep acetycoline from being destroyed. Acetylcholine is a neurotransmitter found in the central nervous system. It is a chemical that allows neurons to communicate with each other. Acetylcholine's role in learning and memory is unclear but Deutsch in 1970 believed that because most of the acetylcholine in the neocortex originates in the basal forebrain, that cholingeric synapses themselves were the site for memory storage. These drugs also replace the depleted levels of acetylcholine. Rasidine stimulates brain cells to produce more acetylcholine (it inhibits a naturally-occurring anti-acetylcholine chemical). Other drugs are used to enhance the brain's cholingeric system. The drug Namenda acts like glutamate, another neurotransmitter like acetylcholine. These drugs do not reverse disfunctionality, or even arrest progressive deterioration, but they do extend some functionality over a short time.

However, there are discoveries all the time about possible cures and treatments for Alzheimer's. We mustn't give up hope. I mean, it's true that Alzheimer's is a progressive, degenerative and irreversible neurological disease with no cure, but there are hopeful signs on the horizon. There was an article in the 6/10/07 New York Times on the first page of the Business Section, headlined, "Taking on Alzheimer's". Wyeth Laboratories used a vaccine to attack the amyloid plaque in the brain. (It did have mixed results in human testing, but some patients responded very well.) To prevent any more side effects, Wyeth decided against continuing to use a vaccine to induce natural antibodies in the participant. They developed passive immunization, infusing participants with the antibody product bapineuzumab.

At Wyeth's research laboratory, scientists tested this product on mice that had been genetically altered to induce Alzheimer's. Normal mice could remember where a raised platform was in a pool after they found it once, but the genetically altered mice couldn't. They kept swimming around in circles, unable to find dry ground. After they were treated with bapineuzumab, they were able to remember better where the platform was, and in scan pictures their brains improved. They had less plaque and tangles than they did before they were given bapineuzumab.

In a more recent article in the 6/11/07 New York Times, patients in a drug trial treated with the antihistamine Dimebon did better than those receiving a placebo on all five measures of cognition and behavior. As with the other drugs mentioned, Dimebon treats the symptoms, not the underlying disease.

The results of the drug trial after 12 months showed that patients on the drug were better or the same as at the start of the trial. This suggests that the drug improves functionality, not merely slowing decline.

People affected by Alzheimer's disease, whether they are caregivers, persons with Alzheimer's or in the family of someone with Alzheimer's, are organizing and becoming politically active, increasingly advocating for more funds for the disease. As the population ages and more become ill, research on Alzheimer's is more urgent than ever.

Saturday, June 9, 2007

We Have Met the Enemy, and He is Us

We truly live in Orwellian times.

Orwell was heavily influenced by the tactics of Joseph Stalin when he wrote 1984. During the late 1930s, Stalin orchestrated the Great Purge, the name given to campaigns of political repression and persecution in the Soviet Union. It was a period marked by omnipresent police surveillance, widespread suspicion of "saboteurs", imprisonment and killings. During the Great Purge, there were the Moscow trials, a series of trials of political opponents of Joseph Stalin. Today the Moscow trials are universally acknowledged as "show" trials, in which the verdicts were predetermined using extorted confessions. The defendants were accused of conspiring with the Western powers to assassinate Stalin and other Soviet leaders, dismember the Soviet Union and restore capitalism.

In 1984, the party with its figurehead, Big Brother, holds absolute power. The physical descriptions of Big Brother mirror that of Joseph Stalin with his omnipresent pictures everywhere. The party's slogans are, "War is Peace, Freedom is Slavery, and Ignorance is Strength". The meanings of words are turned against themselves. Bush constantly asserts that America represents the beacon of democracy and freedom in the world, and that our goal in the Mideast was to allow democracy and freedom to flourish. As Bush mouths these words, turned hollow and meaningless by his actions and the events that followed, America adopts totalitarian tactics similar to those under Stalin.

We talk about democracy and freedom while our government engages in the darkest sort of behavior. We emulate our Cold War adversary, the Soviet Union, in how we mete out justice.

In The New York Times article of 6/3/07, "Soviet-style "Torture" Becomes "Interrogation", the reason for the striking similarities between America's recently adopted form of questioning prisoners and the Soviet Union's is starkly etched. In 2002, the C.I.A. and the Pentagon felt their usual tactics of interrogation were inadequate for suspected terrorists. They turned to a military training program called S.E.R.E., which stands for Survival, Evasion, Resistance and Escape. The purpose of the S.E.R.E. program was to expose soldiers at high risk of capture to Soviet-style interrogation techniques, including:

  • Disrupted sleep
  • Exposure to extreme hot and cold
  • Hours in uncomfortable stress positions
  • Waterboarding, where a prisoner's face is covered with cloth and water is poured from above to create a feeling of suffocation

Some of these techniques have been used on prisoners at Guantanamo Bay, Afghanistan, Iraq and at the C.I.A.'s overseas jails for high-level operatives of al-Qaeda.

When S.E.R.E. trainers learned that the C.I.A. and the American military adopted the Soviet-style methods used in the S.E.R.E. program against captured al-Qaeda members, they were aghast. Charles A. Morgan III, a Yale psychiatrist who has woriked closely with S.E.R.E. trainers for a decade, asked, "How did something used as an example of what an unethical government would do become something we do?"

As discussed in the Times piece, a 1956 article, "Communist Interrogation" published in the Archives of Neurology and Psychiatry shows that methods embraced after 2001 were once considered torture that would produce false information. In other words, these Soviet-style techniques were ineffective in yielding usable information.

The 1956 report describes basic Soviet N.K.V.D. (later K.G.B.) methods:

  • Isolation in a small cell
  • Constant light
  • Sleep deprivation
  • Cold or hot
  • Reduced food rations

The effects of these methods produced disturbances of mood, attitude and behavior in nearly all the prisoners.

Other techniques were not considered "torture" by either the interrogators or the prisoners even though they produced excruciating pain, such as requiring the prisoner to stand throughout the interrogation or maintain some other physical position until it becomes painful.

American and Soviet approaches to interrogation are eerily similar. In the Soviet system, closed trials and military tribunals were standard. Just as in American law, military tribunals were not public courts, they were held in secret, with only the interrogator, the state prosecutor, the prisoner and the judges present. In the American system, evidence derived under "torture" was admissible.

The Bush administration concluded that the Geneva Conventions did not apply to al-Qaeda detainees; similarly, the Soviets argued that international law did not apply to foreign detainees.

Communist-style interrogation routinely produced false confessions.

"The cumulative effects of the entire experience may be almost intolerable. [The prisoner] becomes mentally dull and loses his capacity for discrimination. He becomes malleable and suggestible, and in some instances he may confabulate (to fill gaps in one's memory with fabrications that one believes to be facts). By suggesting that the prisoner accept half-truths and plausivel distortions of the truth, [the interrogator] makes it possible for the prisoner to rationalize and thus accept the interrogator's viewpoint as the only way out of an intolerable situation." (1956 Report)

A more recent Times article, "Rights Group Offers Grim View of C.I.A. Jails" (6/9/07), gives a bleak description of life in the secret prisons run by the C.I.A. in Eastern Europe. This description was given in a report prepared by Dick Marty, a Swiss senator investigating C.I.A. operations for the Council of Europe, a 46-nation rights group. According to the report, prisoners guarded by silent men in black masks and dark visors were held naked in cramped cells and shackled to walls. Ventilation holes in the cells released bursts of hot or freezing air, with temperatures used as a form of extreme pressure to wear down the prisoners. Prisoners were also subjected to waterboarding and relentless blasts of music and sound, from rap to cackling laughter and screams.

The report relies heavily on testimony from C.I.A. agents.

A spokesman for the Polish Ministry of Foreign Affairs said, "There were no secret C.I.A. detention centers on the territory of the Republic of Poland." But Mr. Marty said at a news conference that the anonymous testimony of the agents was backed by thousands of flight records showing prisoner transfers, including private jets linked to the C.I.A., that made 10 flights from Afghanistan and Dubai to the Szczytno-Szymany International Airport in Poland between 2002 to 2005. That was the closest airport to a Soviet-era military compound. The C.I.A. jails were set off from the country in which they were located by a buffer zone. The jails were run exclusively by Americans.

The details of prison life were given by retired and current American intelligence agents who were promised confidentiality. As Mr. Marty said, "For 15 years I have interviewed people as an investigating magistrate and I have always noticed that at a certain point, people with secrets need to talk."

According to the report, suspects were often held for months with no contact to the outside world except with masked, silent guards who would push meals of cheese, potatoes and bread through hatches.

Friday, June 1, 2007

The Age of Unreason

Al Gore's book, "The Assault on Reason", is #1 on Amazon's list. Does this mean people are engaging in reason, logic, fact-checking? Unfortunately, as studies on advertising have shown, people are engaged on a more primitive, emotional level before their rational mind kicks in.

I haven't read the book, but I looked at the pictures (and read reviews, commentaries and saw him discuss the book on several shows, including Jon Stewart's). I believe his thesis is that the American people are being manipulated by cagy Machiavellians who use fear, pride and patriotism to infuse them with fact-free convictions
. To repeat what Dr. Joseph Goebbels said (someone who I'm sure Karl Rove takes to heart):

"If you tell a lie big enough and keep repeating it, people will eventually come
to believe it. The lie can be maintained only for such time as the State
can shield the people from the political, economic and/or military consequences
of the lie. It thus becomes vitally important for the State to use all of
its powers to repress dissent, for the truth is the mortal enemy of the lie, and
thus by extension, the truth is the greatest enemy of the state."

Bush & Company rely on stirring up our emotions, instilling fear, evoking pride and patriotism. Whenever Bush's poll numbers go down perilously, he mentions 9/11.

He was also recently "emboldened" (his favorite word for what people who disagree with him do to the enemy) by the Democrat's cave-in on the Iraq War supplemental funding bill. The Democrats completely neutered the bill they passed. There are no stipulations; neither the U.S. nor the Iraqi government are required to meet any benchmarks and even if there were benchmarks, there would be no penalty for not meeting them.

When the Democrats retreated from their strong initial stance, Bush crowed and preened himself as if he faced down Osama Bin Laden. He declassified and "leaked" intelligence that bin Laden was defeated somehow in 2005 (I'm not clear on the details; the gist was that the government had been doing something about someone who actually planned and executed 9/11.)

Another argument Gore makes is that Bush & Co. came in with predetermined goals, such as "let's invade Iraq" and "let's make the U.S. a wholly owned subsidiary of the Republican Party." In that case, there is no room for facts. As Goebbels said (see above), "(T)he truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State." All inconvenient facts are made to conform to the ideology. The ends justify the means.

Another Guantanamo detainee killed himself yesterday. There were about 380 people kept there. Now there are about 379. Some of the detainees have been there for 5 years. They are told they will never be released. Most of these people have not been charged and the legal rules have changed to prevent them from ever challenging their situation. It's inevitable that there will be more suicides.

I saw the spokesman (don't remember his name) from on Countdown yesterday. He was sadly resigned. At Fort Lewis the decision was made not to hold individual funerals honoring one fallen soldier, but to hold one funeral a month to honor all the soldiers that died that month. The spokesman from Fort Lewis said it was done because "there were too many soldiers dying."

Meanwhile, Bush says we will stay there indefinitely (like in Korea). Only Iraq is not Korea. In Korea we had multi-national agreement. We have had relative peace for decades. Anyway, Bush's statement is a recruiting slogan for al Qaeda. I briefly glimpsed a picture of the new American Embassy in Iraq. It's huge (larger than 3 football fields) with all the amenities of home and then some.

Republican candidates fervently declare their support of torture as an interrogation technique despite all evidence that it doesn't produce valid intelligence. And Joe Lieberman goes to Iraq to declare that "progress is being made", resolutely refusing to hear the soldiers' cries, "When are we getting to go home? We're riding around waiting to be shot."

Somehow this is related: An article in the N.Y. Times yesterday described the plight of refugees seeking entry into the United States. Their fates vary widely depending on what immigration judge they draw. In some cases, with judges from the same court (for instance, Miami), one will allow 70% of the cases to remain in the U.S.; the other will allow 5%. There is no real rhyme or reason, no system or legal structure to guide these decisions.

At the end of the article, the reporter slipped in that Monica Goodling, the liaison between the DoJ and the White House, not only vetted potential DoJ prosecutors and civil servants, she also passed judgment on immigration judges.

Next entry: How is Bush & Co. like the Nazi regime? (I already gave you a clue with Goebbel's quote.)

Monday, May 7, 2007

Murder Complicates Prosecutorgate

Following the threads of Prosecutorgate gives rise to more questions. In the case of John McKay, former U.S. Attorney from Washington State, was he fired to cover up a murder?

The Washington Post reports that McKay was singled out for dismissal 18 months earlier than previously revealed because senior Justice Department officials did not like his interest in investigating the murder of a federal prosecutor.

On October 11, 2001, federal prosecutor Tom Wales was killed by a bullet through his neck while sitting in front of his computer at home. If the murderer was motivated by Wales' work as an assistant United States attorney, it would have been the first time a federal prosecutor had been slain on the job. FBI agents sent to investigate suspected Wales was targeted by a Bellevue airline pilot who was once prosecuted by Wales. The pilot, a firearms enthusiast, is also believed by agents to have resented Wales' off-duty activities as a gun-control advocate. The agents could never prove conclusively that the pilot was their man.

Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, told congressional investigators he believes he "may have" recommended McKay's removal in March 2005 because of conflicts with senior Justice Department officials over the Wales murder investigation.

The connection between the Wales investigation and McKay's firing first came to light as former deputy Attorney General James Comey testified before a Congressional hearing on Thursday, May 3. He said that McKay "cared very passionately about finding the person who killed" Wales.

No Justice official traveled from Washington, D.C. to attend Wales' memorial service.

I don't want to sound conspiratorial but look at the facts. Kyle Sampson told Congressional investigators that John McKay was a problem 1-1/2 years before previously noted because of his ardent pursuit of the murderer of an assistant federal prosecutor in the Seattle office. Senior Justice Department officials didn't like that. Why? Did they not care for Wales because of his politics? Did they just not care? Or is there something more sinister at work?

Friday, May 4, 2007

The Trial of 1984

It is said that our government is like the fictional authorities in Orwell's 1984 and Kafka's The Trial.

Do Bush's maxims include "Ignorance is Strength" and "Freedom is Slavery"? Does he want to eliminate language so as to constrict thought? After all, expansive, nuanced language leads to complicated ideas. Round-the-clock surveillance? Pshaw. A constant state of warfare? Balderdash.

Can you be arrested for no reason and subjected to the "judicial" process without ever knowing what it is "they" think you have done? You are never told what you are on trial for. When you declare your innocence, you're asked, "Innocent of what?"

Please read the two previous postings (they make up a series) about the scary state of affairs we find ourselves in.

Thursday, May 3, 2007

How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy the Constitution and all our rights, Part II

In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), Hamdan petitioned for a writ of habeas corpus, claiming that the military commissions set up by the Bush administration to try detainees at Guatanamo Bay, "violate both the Uniform Code of Military Justice and the four Geneva Conventions." In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay. The Court effectively agreed with Hamdan, declaring that trying the detainees under the Guantanamo military commission (also known as the tribunal) was illegal under U.S. law and the Geneva Conventions.

Quoting the judgment (Paragraph 4, Page 4): "The military commission at issue lacks the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

This ruling presented the Bush administration with the risk of liability for war crimes. The War Crimes Act of 1996, passed by Congress and signed into law by President Clinton, defines a war crime to include a "grave breach of the Geneva Conventions". All the Conventions consider a "grave breach" to be an act "...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health." Therefore, though the Bush administration tried to get around the legal protections of prisoner of war status by calling the detainees "enemy combatants", the administration was still subject to judicial oversight. If the administration committed a "grave breach" of the Geneva Conventions, they could be held liable.

To address this legal dilemma, on September 29, 2006 Congress approved the Military Commissions Act of 2006, a bill that would suspend habeas corpus for any alien determined to be an unlawful enemy combatant engaged in hostilities or having supported hostilities against the U.S., by a vote of 65-34. President Bush signed the Military Commissions act into law on October 17, 2006. This legislation stripped the right of habeas corpus from the detainees. It also took away judicial jurisdiction.

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Section 1005(e)(1), 119 Stat. 2742.

On February 20, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the Military Commissions Act in a 2-1 decision in the case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the appeal.

There is a Catch-22 attached to the Military Commissions Act. Under it, the law restricts habeas corpus appeals for only those aliens detained as enemy combatants or awaiting such determination. However, after such a determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warranted the detention. If the status is upheld, then their imprisonment is lawful. If not, then the government can change the prisoner's status to something else and there would be no restriction on habeas corpus. There is, however, no legal time limit that would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

The rules guiding a military commission are like Alice through the Looking Glass. They are a mirror-image of the guiding principle that you are innocent until proven guilty. It's a kangaroo court:

  • The accused are not allowed access to all the evidence against them. The presiding officers are authorized to consider secret evidence the accused have no opportunity to refute.
  • It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques.
  • The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning and without explanation.
  • The proceedings may be closed at the discretion of the Presiding Officer so that the commission may discuss secret information.
  • The accused are not permitted a free choice of attorneys as they can only use military lawyers or those civilian attorneys eligible for secret security clearance.

And for a final irony, because the accused are charged as enemy combatants, former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of release.

By labeling detainees of the "War on Terror" enemy combatants, the Bush administration did an end run around the Constitution and the Geneva Conventions. You are guilty until proven innocent, and even if you do prove your innocence, you have no guarantee of freedom. The state can hold you indefinitely, without charge, without legal recourse, and without hope.

You may say at this point, well, that's them, the aliens, the non-citizens. Didn't Hamdi v. Rumsfeld protect our right of habeas corpus?

On January 17, 2007, Attorney General Alberto Gonzales asserted in Senate testimoney that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee the habeas corpus right to U.S. citizens or residents.

Therefore, the lack of rights enshrined in the Military Commissions Act could be extended to U.S. citizens and upheld if left unchecked.

How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy Our Rights

To expand on this title, I must delve into history.

In common law, habeas corpus is the name of the legal action or writ. (A "writ" is a formal written order issued by a legal body with jurisdiction. The legal body is generally a court. Warrants and subpoenas are types of writs but there are many others.) A habeas corpus writ is the means by which detainees can seek relief from unlawful imprisonment. It is an important instrument for safeguarding individual freedom against arbitrary state action. The "Great Writ" as it is known, is a court order addressed to a prison official (or other custodian) ordering that the prisoner be brought in front of the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner or someone on his behalf can petition the court or an individual judge for a writ of habeas corpus.

The right to petition for the writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject.

Our system of law came out of English common law. Writs with similar effect as those of modern-day habeas corpus had been issued as early as Henry II in the 12th century. Blackstone, the esteemed jurist and writer on the law, explained the basis of the writ, saying, "The King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

The writ was codified by the Habeas Corpus Act of 1679, which established that a writ issued by a Superior Court in the name of the Sovereign commanded that the addressee (a lower court, a sheriff, or private person) to produce the prisoner before the Royal Courts of Law. This petition could be made by the prisoner or a third party on his behalf, and could be made regardless of whether the courts were in session by presenting the writ to a judge.

In the United States, the U.S. Consitution specifically includes the English common law procedure in the Suspension Clause, in Article One, Section 9. It states, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Habeas corpus proceedings are typically to determine whether a court, which imposed sentence, had jurisdiction and authority to do so, or whether the defendant's sentence expired.

Under U.S.C. Sec. 2251, the Congress granted all federal courts jurisdiction to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following cases:

  • In custody by the authority of the United States or commited to trial before some court, or;
  • In custody for an act done or omitted in pursuance of an Act or Congress, or an order, process, judgment, or decree of a court or judge of the U.S., or;
  • In custody in violation of the Constitution or laws or treaties of the U.S., or;
  • Being a citizen of a foreign state and committing an infraction of the law which is allowed under any alleged right, title, authority, privilege, protection or exemption of any foreign state, the validity of which depend on the law of nations; or
  • It is necessary to bring the person into court to testify or for trial.

In the 1950s and 1960s, decisions by the Warren Court greatly expanded the use and scope of the federal writ. However, the Antiterrorism and Effective Death Penalty Act of 1996 limited the use of the federal writ by imposing a one-year statute of limitations and having the federal judiciary defer to decisions previously made in the states.

Lincoln suspended habeas corpus during the Civil War in response to riots, local militia actions and the threat that the border state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. His action was challenged and overturned by the U.S. Circuit Court in Maryland, Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md., 1861).

In 1862 southern belligerents were sentenced to hang by a military court. Their execution was not set until May 1865 so they were able to argue their case after the Civil War ended. In Ex Parte Milligan 71 U.S. 2(1866), the Supreme Court decided suspension of the writ was unconstitional because the President was not empowered to try and convict citizens before military tribunals. The trial of citizens by military tribunals is allowed only if the civil courts are closed. This is the key Supreme Court decision that dealt with wartime civil liberties and martial law.

Now you may be asking yourself, this is a nice legal history lesson, habeas corpus sounds like a great idea to safeguard our liberties, but what does this have to do with enemy combatants? And what is an enemy combatant? Isn't it a label made up by the Bush administration?

An enemy combatant has historically referred to members of the armed forces of a state with which another state is at war. A 1942 Supreme Court ruling held that unlawful combatants (which is not the same as "enemy combatant") are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful. An enemy combatant, who, without uniform, comes secretly into our borders for the purpose of waging war by destruction of life or property is an example of soldiers who are not entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

A prisoner of war (POW) is a combatant who is imprisoned by an enemy power during or immediately after an armed conflict. POWs are protected by Article 4 of the Third Geneva Convention. It applies from the moment a prisoner is captured until he is released. One of the main provisions of the Convention makes it illegal to torture prisoners and states that a prisoner can only be required to give his name, date of birth, rank and serial number.

As defined by the United Nations Convention Against Torture, torture is defined as:

"any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity."

In the wake of the September 11, 2001 attacks, the United States Congress passed a resolution, known as the Authorization for Use of Military Force, on September 18, 2001. By doing so, Congress invoked the War Powers Act of 1973. This Act limits the power of the President of the United States to wage war without the approval of Congress. Thereupon the Congress authorized the use of military force with its approval.

Using this authorization granted to him by Congress, on November 13, 2001, President Bush issued a President Military Order, "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." The order:

  • Specifies that those individuals who were to be tried would be tried before military comissions. (On September 28 and September 29, 2006, the Congress passed the Military Commissions Act of 2006, a bill that allows the President to designate certain people with the status of enemy combatant, thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

If someone under this Order was detained as an enemy combatant, it was asserted that that person could be held indefinitely without charges being filed against him, without a court hearing and without entitlement to legal consultation. This directly contradicts the doctrine of habeas corpus. But in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of U.S. citizens to seek writs of habeas corpus even when declared enemy combatants.

Regarding the status of non-citizens, Congress passed the Department of Defense Appropriations Act of 2006, which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":

  • Except as provided in Section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider application for a writ of habeas corpus filed by or on behalf of an alient detained by the Department of Defense at Guantanamo Bay, Cuba.
  • The jurisdiction of the U.S. Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination...was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals..., and to the extent that the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and the laws of the United States."

The rest of my closing argument is in Part II, the next posting.

Sunday, April 22, 2007

The Mystery of the Missing E-Mails

Representative John Conyers (D-MI) and Senator Patrick Leahy (D-VT) exchanged letters with White House Counsel Fred Fielding recently. They are chairmen of the House and Senate Judiciary Committees, respectively, and they want Republican National Committee emails on the domain. Fielding responded that the White House is steadfast in its refusal to let the RNC supply the e-mails. From ThinkProgress:

Representative Conyers and subcommittee chairwoman Linda Sanchez (D-CA) wrote to the chairman of the RNC [on 4/12/07] to demand White House officials' emails related to the U.S. attorney firings investigation. You can see their letter on TPMMuckraker linked here:

The White House claims executive privilege protects the RNC emails. What exactly is executive privilege? It's the power claimed by the POTUS and other members of the executive branch to resist certain search warrants and other encroachments on their purview.

Executive privilege is not mentioned anywhere in the Constitution but the Supreme Court confirmed the legitimacy of the doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was a relatively untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President.

The Supreme Court held that it not only has the power to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a President, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases. I quote Warren Burger, Chief Justice:

"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The Presidential need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."

Our current Supreme Court demonstrates its willingness to overthrow precedent in its latest ruling on "partial birth" abortion (also known as "dilation and evacution" by medical doctors) by outlawing a medical procedure without providing an exception for a woman's health. (This is quite an activist court.) It's guesswork to know what side they'll come down on regarding the powers of the POTUS.

Monday, April 16, 2007

Why are federal prosecutor firings important?

In my previous post, I discussed the meaning of the Unitary Executive Theory ("The President is the Law") with the use of secrecy (Executive Privilege) and how the courts ruled on these questions. Combining the unitary executive theory with executive privilege gives rise to certain queries. Can Bush be charged with the same Articles of Impeachment as Nixon? In 1974, the House voted "yea" on the crimes of obstruction of justice, abuse of power and contempt of Congress. Is Bush a criminal? Did he obstruct justice? Did he lie to Congress? Did Gonzales lie to Congress? What does Patrick Fitzgerald know and when did he know it? Does Fitzgerald have any of Karl Rove's secret RNC/private domain e-mails? Did the White House and cronies weave an illegal conspiracy? Let's put some activities together: the outing of Valerie Plame, a top-secret CIA covert operative, for which Lewis (Scooter) Libby was found guilty of perjury even though the chain of events obviously began with his higher-ups; the firing of federal prosecutors to be replaced by loyal "Bushies"; the Power Point presentation of Rove's aide to the head of the General Services Administration about how the GSA can help undermine Democratic candidates nationwide and insert Republicans; the Republican-led pursuit of "voter fraud" despite the lack of proof that it occurs; "Voter Fraud" as a code word for disenfranchising the elderly, poor and/or minority voter by creating fear and requiring expensive and time-consuming applications for Voter IDs; the expunging of so-called "felons" from the voting rolls in Florida in 2000, a tactic still in use and many, many more items. Remember push polling?

David Iglesias, the former New Mexico federal prosecutor, was ostensibly fired because he did not bring enough cases of voter fraud. The partisan nature of this firing is proven by actions taken by Republican congresspeople shortly before the 2006 elections. Heather Wilson, a New Mexico representative, called Iglesias to ask him about a case under sealed indictment at the time. Iglesias felt surprised and uneasy. He doesn't (or maybe, cannot) discuss pending indictments under seal. Then Wilson's mentor, Senator Pete Domenici, Republican from New Mexico, called Iglesias at his home. He asks Iglesias if he's going to bring charges against some Democrat before the elections. Iglesias says no. Domenici answers, "That's too bad," or some such phrase, and hangs up on him. What's wrong with this picture? A Senator does not call a federal prosecutor at his home to discuss a case. It's against protocol, it's unseemly, it's threatening (but is it illegal)? Domenici was obviously leaning on Iglesias to use his post to win one for the team at the cost of justice. Then Domenici goes back to Rove, Gonzales, Bush, Sampson, whomever in the obscured chain of command, and complained about Iglesias. A major New Mexico Republican campaign contributor also complained about Iglesias. Iglesias was fired with the other prosecutors on the date that will live in infamy: December 7, 2006, right after the mid-term elections.

Iglesias is going to protest his firing. He was a member of a branch of the military (either the National Guard or the Army Reserves) for whom the law states that the employer must leave a position open when the member returns to civilian life. The Justice Department claims now one of the reasons he was fired was because he was out of the office too often. That's because he was in Iraq. These prosecutors were fired because they weren't loyal "Bushies"; that's the only conclusion one can come to after examining the evidence. Federal prosecutors are often purged at the beginning of a President's first term, but very rarely in the middle of his second term. It's just part of the master plan of Rove, Bush, Cheney, et al to replace Democrats and liberal (if there are any), moderate, centrist or even ordinary conservative Republicans with radical Republicans of the "Bushie" stamp. What is the "Bushie" type? They're easy to distinguish. They are members of the Federalist Society. They have the correct stance on Roe v. Wade. They've done fundraising for the Republican party. They've attended Regent University, a school founded by Pat Robertson of the 700 Club.

At least 150 graduates of Regent's law school have served in the Bush administration. Before 2001, it was rare for Regent graduates to get government jobs. However, the Bush administration's appointment of the Dean of Regent's Government School, Kay Cole James, as Director of the Office of Personnel Management, caused "the doors of opportunity to be thrown open to Regent alumni." Although the Regent Law School is accredited by the ABA, it is ranked in the fourth tier (the lowest tier) by U.S. News and World Report, tied for 136th out of 170 law schools surveyed. It is ranked lower than the typical alma mater of Department of Justice employees. These Regent graduates have less experience in (among other things) civil rights.

This is all part and parcel of the conspiracy to wed church and state throughout the three branches of government, replacing the Founding Fathers' vision with Pat Robertson's vision, "There is no such thing as separation of church and state in the Constitution. It is a lie of the left and we are not going to take it anymore" (November 1993 during an address to the American Center for Law and Justice). The marriage of the Bush administration and Robertson's evangelicals is mutally beneficial. Bush gets loyal, unwavering proselytizers who toe the company line. The "Bushies" get jobs and treasure during this lifetime. They don't have to wait for Judgment Day to get their due.

The question is not so much, why did Rove, Bush, Gonzales, Cheney et al get rid of those prosecutors. They got rid of them because they were not reliable "Bushies". The question is, who did they put in place as loyal "Bushies"? What are these prosecutors doing? What kind of cases are they pursuing? I remember the federal prosecutor in New Jersey bringing corruption charges against Senator Menendez right before the midterm elections. Menendez was in a close race and with the corruption charges tacked on, the race got even closer. This is a typical Rovian tactic, to slash-and-burn right before an election. Remember the push poll question about John McCain right before the South Carolina primary in 2000? "Would you vote for John McCain for President if you knew he fathered an illegitimate black child?" Does everyone tied in with Bush et al share this vision of a permanent Republican majority? Who needs "democracy" when you can put in place the building blocks to wield power in perpetuity? (If you're a Regent University-trained lawyer, look up "perpetuity". It means "the rest of us are in deep do-do.")

Back to the fired federal prosecutors and the missing and redacted emails. The administration (or the Justice Department, or both) admits that it told one soon-to-be-fired prosecutor he was to be replaced by a Rove protege. The parties involved probably thought that pseudo-nepotism was better than blatant partisanship covered up with obvious lies. To sum up, is what they did wrong and if so, is it illegal? Can we prove it? It's not illegal to fire a federal prosecutor. As their talking point goes, "They serve at the pleasure of the President." Is it illegal to put machinery in place to sustain your dominion forever? Is it legal to wipe your opponents off the face of the earth? If the Bush administration exists to install a permanent Republican majority and rape and pillage the taxpayer-supported government, if Bush, by virtue of the "unitary executive theory" promulgated by the Federalist Society, is actually "the Law", do we not live in a kingdom not of God, but of avaricious men headed by the smirking face of a true amoral leader?

Saturday, April 14, 2007

The Unitary Executive Theory and Executive Privilege

George W. Bush, our 43rd President, believes in the unitary executive theory. It is a controversial theory of constitutional interpretation that addresses aspects of the separation of powers. The theory argues for strict limits to the power of Congress to divest ("deprive") the President of control of the executive branch.

The strict limits derive from the Vesting Clause of Article II, which states, "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language, along with the Take Care Clause ([The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under direct control of the President." Congressional power to divest the President of control of the Executive branch is limited. The President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the President.

This theory is associated with conservative thought and members of the Federalist Society and originally came to prominence in regard to the independent counsel law.

The Federalist Society for Law and Public Policy Studies, usually called simply the Federalist Society, began as a student organization that challenged the perceived orthodox American liberal ideology found in most law schools. Liberalism is a broad political and philosophical mindset favoring individual liberty and opposing restrictions on liberty, whether they come from established religion, from government regulation or from the existing class structure. The United States Declaration of Independence speaks of "unalienable rights" to "life, liberty and the pursuit of happiness and asserts that government may exist only with the "consent of the governed." The Preamble of the Constitution enumerates among its purposes to "secure the blessings of liberty to ourselves and our posterity"; the Bill of Rights contains numerous measures guaranteeing individual freedom, both from the authority of the state and the tyranny of the majority; and the Reconstruction Amendments after the Civil War freed the slaves and aimed to extend to them and to their descendants the same rights as other Americans. "Liberalism" in the sense of John Locke and freedom to acquire property was a parallel concept.

The Federalist Society states that it is founded on the principles that "the state exists to preserve freedom", that "the separation of governmental powers is central to our Constitution," and that the duty of the judicial branch is "to say what the law is, not what the law should be."

However, the traditional conservative view of a limited Presidency still had its defenders. Legal expert Morton Rosenberg of the non-partisan Congressional Reference Service contends that Alexander Hamilton believed that a unitary executive's power was "confined to commerce, banking and monetary policy." And in March 2007, last month(!), four prominent conservatives formed the American Freedom Agenda to protect the checks and balances of the Constitution from what they regard as dangerous advances by the President. Their mission statement as posted on their web site includes the following statement, "Especially since 9/11, the executive branch has chronically usurped legislative or judicial power and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chillingly reminiscent of the kingly abuses that provoked the Declaration of Independence."

What does the unitary executive theory have to do with executive privilege? Well, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other encroachments on their purview. (Purview--n. The extent or range of function, power or competence; scope.)

Now, executive privilege is not mentioned anywhere in the Constitution. Some consider it part of the separation of powers doctrine, and/or derived from the supremacy of the executive branch in its own area of Constitutional activity.

Presidents since Washington and Jefferson have argued that each branch of government may operate with some degree of freedom from the control of the supervision of the others. The Supreme Court confirmed the legitimacy of this doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was an untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President. The remaining justice, William Rehnquist, recused himself.

What were the arguments that led to this decision? Nixon argued that he did not have to submit to a subpoena issued by independent counsel Leon Jaworski to turn over White House tapes related to the Watergate investigation. However, the White House stated he would abide by a "definitive order" by the Court. Those privy to court deliberations described unusual circumstances: that the majority held the subpoena to be enforceable; that a minority disagreed but were concerned that a split decision might be claimed by Nixon to fall short of "definitive" and thus increase the possibility of his defying the Court's authority, and that in practice the political dangers of such defiance were unacceptable. Therefore, the justices agreed upon a unanimous decision despite the diversity of their actual views in order to reduce the likelihood of such a "constitutional crisis."

The Supreme Court held that it has not only the power established in Marbury v. Madison (the basis for the exercise of judicial review of Federal Statutes by the Supreme Court of the United States) to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a president, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases.

"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The Presidential need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises." -- Chief Justice Warren Burger.