Friday, June 29, 2007

Giuliani v. Clinton

No, not that one. Apparently, in an attempt to hang on to the 9/11 mantle that is his ticket to ride, Rudy Giuliani is trying to blame Bill Clinton (albeit indirectly) for 9/11. It should be interesting as the campaign spins forward how Giuliani's perception as "America's mayor" are in danger of being lanced by things like the 9/11 firefighters who got sick because of Giuliani's grandstanding, Giuliani's lack of preparation for a terrorist attack, Giuliani's abandoning of the 9/11 panel, not to mention all of the crooks that Giuliani has had working for him or has recommended for high appointments. Nice piece from the Center for American Progress (http://www.alternet.org/stories/55409/?page=2) that details some of what should be Giuliani's problems.

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Faiz Shakir, Nico Pitney, Amanda Terkel, Satyam Khanna and Matt Corley contributed to this report.

During a speech Monday at Pat Robertson's Regent University, former New York City mayor Rudy Giuliani indirectly blamed President Clinton for the Sept. 11 terrorist attacks. Echoing arguments offered frequently by Bush administration officials, Giuliani claimed that Clinton treated the 1993 World Trade Center bombing "as a criminal act instead of a terrorist attack," which "emboldened other strikes" on the Khobar Towers in Saudi Arabia, Kenya, and Tanzania, and later on the USS Cole. "The United States government, then President Clinton, did not respond," Giuliani said. "Bin Laden declared war on us. We didn't hear it." The claim that Clinton "did not respond" to global terrorism during his administration is demonstrably and flagrantly false. (Giuliani himself knows this. Just last year, before he became a presidential candidate, he said, "The idea of trying to cast blame on Clinton [for the 9/11 attacks] is just wrong for many, many reasons, not the least of which is I don't think he deserves it.") Giuliani's fundamentally misguided approach to counterterrorism is evidenced not only by his dishonest smears of President Clinton, but by his embrace of the same national security strategy as President Bush, under whom global terrorism is rising, Osama bin Laden is resurgent, the Middle East is deeper in violent unrest, and the U.S. military is in the midst of a readiness crisis.

CLINTON'S TERRORISM RECORD: The Clinton administration's efforts to "thwart international terrorism and bin Laden's network were historic, unprecedented and, sadly, not followed up on." Richard Clarke, who served as counterterrorism czar for Bush I, Clinton, and Bush II, detailed Clinton's counterterrorism record after Vice President Cheney claimed in 2004 that the United States had "no great success in dealing with terrorists" during the 1990s: "It's possible that the vice president has spent so little time studying the terrorist phenomenon that he doesn't know about the successes in the 1990s," Clarke said. "There were many. The Clinton administration stopped Iraqi terrorism against the United States, through military intervention. It stopped Iranian terrorism against the United States, through covert action. It stopped the al-Qaida attempt to have a dominant influence in Bosnia. It stopped the terrorist attacks at the millennium. It stopped many other terrorist attacks, including on the U.S. embassy in Albania. And it began a lethal covert action program against al-Qaida," including military strikes against al Qaeda targets. Giuliani claims Clinton "did not respond" to bin Laden. In fact, Roger Cressy, former National Security Council director for counterterrorism, has written, "Mr. Clinton approved every request made of him by the CIA and the U.S. military involving using force against bin Laden and al Qaeda."

TERRORISM AS A CRIMINAL ACT: Giuliani's criticism that the 1993 World Trade Center bombing was considered "a criminal act instead of a terrorist attack" shows a deeply flawed understanding of counterterrorism. In fact, the United States "has long regarded [terrorist] acts as criminal," according to the 9/11 Commission Staff Report. This practice continues under Bush; last year, for example, Bush introduced a plan to "improve national legal and regulatory frameworks to ensure appropriate criminal and civil liability" for nuclear terrorists. However, it was under Clinton that terrorism was first treated as a national security threat. The 1993 World Trade Center attack, which occurred one month after Clinton took office, "called attention to a new kind of terrorist danger." Not until July 1995 did the U.S. intelligence community identify this "new terrorist phenomenon" characterized by "loose affiliations of Islamist extremists" who were "more fluid and multinational than the older organizations." Clinton had already taken action. A June 1995 Presidential Decision Directive issued by Clinton for the first time emphasized concern about terrorism "as a national security issue," not just a matter of law enforcement. Clinton's directive declared that the United States saw "terrorism as a potential threat to national security as well as a criminal act and will apply all appropriate means to combat it." By 1997, U.S. intelligence confirmed "the existence of al Qaeda as a worldwide terrorist organization," and for the last three years of his presidency, Clinton "raised the issue of terrorism in virtually every important speech he gave."

THE USS COLE MYTH: Giuliani has frequently repeated the claim that Clinton did not respond to the bombing of the USS Cole. "You know, we get attacked on the Cole. We don't do anything about it," he told Fox News earlier this month. In fact, President Clinton was eager -- at the recommendation of top counterterrorism aides -- to retaliate against al Qaeda for the USS Cole. But that attack took place in October 2000. As Clinton explained in a 2006 interview, both the CIA and FBI "refused to certify that Bin Laden was responsible" for the attack on the Cole until early 2001, which foreclosed the possibility of a full response during the Clinton administration.

THE BUSH/GIULIANI COUNTERTERRORISM STRATEGY -- INVADE IRAQ: When President Bush came into office, his administration was warned that no foe but al Qaeda posed "an immediate and serious threat to the United States." Yet in May 2001, Bush declared that "today's most urgent threat" was not terrorism but "ballistic missiles" in the hands of rogue states, specifically Iraq. In June 2001, Bush "outlined the five top defense issues" to NATO allies, and the "only reference to extremists was in Macedonia." Even as 9/11 occured, the focus remained on Iraq. On the day of the attacks, then-Defense Secretary Donald Rumsfeld told aides he wanted "best info fast. Judge whether good enough hit S.H." -- meaning Saddam Hussein. One day later, Bush "testily" told Richard Clarke and other aides, "Go back over everything, everything. See if Saddam did this." Within three months, Bush began drawing up plans for the Iraq invasion. This singular, ideological focus culminated in a policy that has consumed countless resources that could have been used to eliminate global terrorist networks and bolster homeland security. Yet to this day, Giuliani remains supportive of Bush's approach. He said recently that invading Iraq was "absolutely the right thing to do," and claimed the war would "help reduce the risk for this country."

Tuesday, June 26, 2007

No free speech in schools for you!

The Supreme Court, by a 5-4 vote in Morse v. Frederick, ruled that a school district may punish a student for speech which could reasonably be found to advocate drug use. According to the majority, finding the phrase "BONG HiTS 4 JESUS" somehow advocates drug usage is "plainly reasonable."

While I'm not so sure that's so plain (and, evidently, neither did four members of the Supreme Court), there's good arguments to be made on either side. But Justice Clarence Thomas' concurring opinion is pretty shocking. He's for ditching Tinker v. Board of Education altogether, and finding that students have no free speech rights whatsoever.

Yeah. How about that. Someone should go argue a case before the Supremes with a black armband in protest of that opinion. Just more evidence of what a loose cannon Thomas is with his opinions. First he doesn't think the Establishment Clause applies to states. Now he doesn't think students should have any First Amendment protection. Wow. Here's the highlights.

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In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools.

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I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker stan-dard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

Monday, June 25, 2007

How Not To Counter Terrorism

Another in a long line of articles from intelligence and diplomatic professionals (you know, the grown-ups who do this stuff for a living, not just to win votes) describing why the police-state tactics of the current President are not only bad for our freedoms, but are not successful in fighting the bad guys. Torture doesn't produce good information. Indiscriminate military action breeds more terrorists. You know, the kinda stuff we've seen in the past six years.

This piece is signed by a number of former members of the CIA, FBI, and NSA - which carries a hell of a lot more credibility than most of the neocons like Paul Wolfowitz, in my book.

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How Not To Counter Terrorism
Veteran Intelligence Professionals for Sanity
June 20, 2007
The following memorandum by the steering group of the Veteran Intelligence Professionals for Sanity is signed by Coleen Rowley former FBI special agent; Larry Johnson, former CIA analyst; former counterterrorism manager, Dept. of State; Tom Maertens former NSC Director for Nonproliferation; former Deputy Coordinator for Counterterrorism, Dept. of State; Ray McGovern, former CIA analyst.

On June 6, 2002, former FBI Special Agent Coleen Rowley testified before the Senate Committee on the Judiciary about the attacks of Sept. 11, 2001 and how the FBI could do a better job detecting and disrupting terrorism. Time magazine had acquired (not from Rowley) a long letter she wrote to FBI Director Mueller listing a string of lapses in the month before 9/11 that helped account for the failure to prevent the attacks. As painful and embarrassing as it was after such tragedy to unravel the mistakes, Rowley insisted that the unraveling was necessary in order to address effectively the threat of further terrorist attacks. Her VIPS colleagues asked Rowley to review what has happened in the five years since her testimony, and we have contributed to this memorandum. In what follows, Rowley outlines how the primacy given to PR and other political factors has encumbered still further the FBI's ability to deal in reasonable and effective ways with the challenge of terrorism.

Given the effort that many of us have put into suggestions for reform, how satisfying it would be, were we able to report that appropriate correctives have been introduced to make us safer. But the bottom line is that the PR bromide to the effect that we are "safer" is incorrect. We are not safer. What follows will help explain why.

Wrong-headed actions and ideas had already taken root before that Senate hearing on June 6, 2002. Post 9/11 dragnet-detentions of innocents, official tolerance of torture (including abuse of U.S. citizens like John Walker Lindh), and panic-boosting color codes, had already been spawned from the mother of all slogans-"The Global War on Terror"-rhetorically useful, substantively inane. GWOT was about to spawn much worse.

Within a few hours of the Senate hearing five years ago, President George W. Bush reversed himself and made a surprise public announcement saying he would, after all, create a new Department of Homeland Security. The announcement seemed timed to relegate to the "in-other-news" category the disturbing things reported to the Senate earlier that day about the mistakes made during the weeks prior to 9/11. More important, the president's decision itself was one of the most egregious examples of the doing-something-for-the-sake-of-appearing-to-be-doing-something-against-terrorism syndrome.

As anyone who has worked in the federal bureaucracy could immediately recognize, the creation of DHS was clearly a gross misstep on a purely pragmatic level. It created chaos by throwing together 22 agencies with 180,000 workers-many of them in jobs vital to our nation's security, both at home and abroad. It also enabled functionaries like the two Michaels-Brown and Chertoff-to immobilize key agencies like the previously well-run Federal Emergency Management Agency (FEMA), leading to its feckless response to Hurricane Katrina.

Radical, Reckless Departures From the Law

There were so many other missteps, so much playing fast and loose with the law, that it is hard to know where to begin in critiquing the results. One transcendent error was the eagerness of senior political appointees to exploit the "9/11-Changed-Everything" chestnut to prime people into believing that effective detection and disruption of terrorism required radical departures from rules governing our criminal justice and intelligence collection systems. Departures from established law and policies were introduced quickly. Many of the worst of these came to light only later-extraordinary rendition, "black-site" imprisonment, torture, and eavesdropping without a warrant. (We now know that senior Justice Department officials strongly objected to the eavesdropping program.)

The first protests came from those most concerned with human rights and constitutional law. But, by and large, the fear-laden populace "didn't get it." The prevailing attitude seemed to be, "Who cares? I want to be safe." Everyone wants security. But all too few recognize that security and liberty are basically flip sides of the same coin. Just as there can be no meaningful liberty in a situation devoid of security, there can be no real security in a situation devoid of liberty. It took a bit longer for pragmatists to observe and explain how the draconian steps departing from established law and policy-not to mention the knee-jerk collection and storing of virtually all available information on everyone- are not, for the most part, helping to improve the country's security.

The parallel with the introduction of officially sanctioned torture is instructive. TV programs aside, many if not most Americans instinctively know there is something basically wrong with torture-that it is immoral as well as illegal and a violation of human rights. Pragmatists (experienced intelligence and law enforcement professionals, in particular) oppose torture because it does not work and often is counterproductive. Nevertheless, the president grabbed the headlines when he argued on Sept. 6, 2006 that "an alternative set of procedures" (already outlawed by the U.S. Army) for interrogation is required to extract information from terrorists. He then went on to intimidate a supine Congress into approving such procedures.

Virtually omitted from media coverage were the same-day remarks of the pragmatist chief of Army intelligence, Lt. Gen. John Kimmons, who conceded past "transgressions and mistakes" and made the Army's view quite clear: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."

Who should enjoy more credibility in this area, Bush or Kimmons?

The War on [Fill In The Blank]

"War! Huh... What is it good for? Absolutely nothing!" This 1969 song lyric turns out to be even more applicable to Bush's "global war on terror" than to the Vietnam War. As for "The War on Drugs," that one was readily recognized as little more than a catchy metaphor helpful in arguing for budget increases. But the use of our armed forces for war in Iraq was guaranteed to be self-defeating and to increase the terrorist threat.

Military weapons are inherently rough, crude tools. Our rhetoric makes bombs and missiles out to be capable of "surgical strikes," but such weapons also injure and kill innocent men, women, and children, taking us down to the same low level inhabited by terrorists who rationalize the killing or injuring of civilians for their cause. Civilian casualties also serve to radicalize people and swell the terrorist ranks to the point where it becomes impossible for us to kill more terrorists than U.S. policy and actions create. (In one of his leaked memos, former defense secretary Donald Rumsfeld asked about that; he should have paused long enough to listen to the answer.) This inherent "squaring of the error" problem in applying military force in this context has been a boon to terrorist recruitment, and has spurred activity to the point of having actually quadrupled significant terrorist incidents worldwide.
Declaring "war" on the tactic of terrorism elevates to statehood what actually may be scattered, disorganized individuals, sympathizers, and small groups. It empowers the terrorists as they add to their numbers and provides the status of statehood to what often should be regarded and treated as a rag-tag group of criminals.
There is, of course, political advantage for a "war president" to rally Americans around the flag, but the negatives of the axioms "truth is the first casualty of war" and "all's fair in love and war" far outweigh any positives. Ultimately, the recklessness and cover-up mid-wived by the "fog of war" (everything from the friendly fire that killed Pat Tillman to the torture at Abu Ghraib and other atrocities) just magnify the "squaring the error" effect. Judiciousness-and just plain smarts-tend to be sacrificed for quick action.
Perhaps the most insidious blowback from war is that it weakens freedom and the rule of law inside the country waging it. James Madison was typically prescient in warning of this: "No nation can preserve its freedom in the midst of continual warfare;" and "If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy."
From Fire Hose to Niagara to Tsunami

Administration pressure on intelligence collection agencies, together with an extraordinary lack of professionalism and courage in the senior ranks of such agencies, have resulted in not only over-reaching the law, but over-collecting information. Those on the front lines striving to prevent future attacks face the kind of pressure a soccer goalie would feel trying to keep the other team from scoring when his own team's offense is off playing in an adjacent field-as when President George W. Bush sent our offense to invade Iraq, the wrong country with negligible ties to terrorism. Facing that kind of pressure, and lacking strong professional coaching, the defense can feel hopelessly outmatched, leading to still further mishap.

Former Defense Secretary Donald Rumsfeld spoke of the difficulty of getting a sip from the fire hose of intelligence being collected and flowing through the system. The stream of intelligence before 9/11 was also described by others as gushing from a fire hose, rendering it hard to find the dots, much less connect them-making it impossible, for example, to find, translate, and disseminate until 9/12 a key 9/11-related intercept acquired shortly before the attacks. Compounding the problem is the FBI's unenviable record in acquiring computer technology to facilitate its work-witness the junking of a computerized records system two years ago after wasting $170 million on defense contractors hired to create the system.

But the fire hose soon became Niagara Falls. FBI Director Robert Mueller set the tone early on as he kept telling Congress, "The greatest threat is from al-Qaeda cells in the U.S. that we have not yet identified." (sic) Blindly following Mueller's White House-induced fixation with the "greatest" (though not yet "identified") threat, the FBI diverted about half its agents and other resources from areas like violent crime to work on terrorism.

Small wonder, then, that tons of additional data have been collected as a result, for example, of the "No-Tip-Will-Go-Uncovered" policy and the hundreds of thousands of National Security Letter requests. And who is surprised that most of that tonnage will never be evaluated? There is no denying that the threat from al-Qaeda has grown over the past five years, and today probably better fits the earlier inflated warnings of multiple terrorist cells already in place in the U.S. Hard questions must be asked, however, when it appears as though collectors are being paid by the ream, while the drowning analysts go down for the third time.

Extraneous, irrelevant data clutter the system, making it even harder for analysts to make meaningful future connections. A needle is hard enough to find in the proverbial haystack, without adding still more hay. And once the extra hay is piled onto the stack-by adding still more names to the 40,000-plus already on the "no-fly list," for example-there doesn't seem to be any way of reducing it. Ask Northfield (Minnesota) Police Chief Gary Smith and other law enforcement officers whose very common names have gotten onto this seemingly indelible list and who get stopped every time they try to fly.

The Ghost of Poindexter: "Total Information Awareness" Revisited

Just when it appears this insanity cannot get any worse, here come still more dots. Recent news reports indicate that the FBI-presumably having hired different contractors this time around-is compiling a massive computer database that will hold 6 billion records by 2012. This equals 20 separate "records" for each man, woman and child in the United States. "The universe of subjects will expand exponentially" is the proud spin being put on this recycled version of the Pentagon's discredited "Total Information Awareness" program.

Data-mining experts are not convinced this program is worth the effort. Since there are so few known terrorist patterns of behavior, one specialist has written that this kind of search would not only needlessly infringe on privacy and civil liberties, but also waste taxpayer dollars and misdirect still more time and energy by "flood[ing] the national security system with false positives-suspects who are truly innocent." If this were not enough, we learn that the terrorist watch list compiled by the FBI and the National Counterterrorism Center is out of control, having apparently swelled to include more than half a million names. So instead of trying to get a sip from a fire hose, or from Niagara Falls, the data-mining challenge is going to be more like sipping from a tsunami.

The good news is that this predicament is creating unusual consensus among people concerned with human rights and those dealing with pragmatic law enforcement. As one specialist on civil liberties observed recently, "There's a reason the FBI has a 'Ten Most Wanted' list, right? We need to focus the government's efforts on the greatest threats. When the watch list grows to this level, it's useless as an anti-terror tool."

Quantity cannot substitute for quality. Higher quality data collection depends not only on better guidance with respect to relevance, but also on judiciousness applied from the beginning and throughout the collection process. Unfortunately, case and statutory law has come to be regarded as some kind of nicety-or a barrier that needs to be overcome. Not so. That law sets standards of relevancy for collection that used to hold down data clutter. One might view the process of investigation, intelligence collection, increased intrusiveness, and erosion of liberties as a pyramid with the least intrusive actions and methods on the bottom of the pyramid entailing little or no interference with one's civil liberties. As a suspect proceeds up the pyramid from being the target of an investigation, to temporary detention, interview, search, arrest, and finally subject to criminal charges and long-term incarceration, each higher level of intrusiveness should correspond to a greater amount of evidence. What the "war on terrorism" has done, however, to a large extent, is simply invert this pyramid on its head, allowing long-term incarceration with little or no corresponding evidence.

In the past, general awareness that collected data could either become publicly known through criminal processes (criminal discovery), or through a plain Freedom of Information/Privacy Act request, built an extra degree of judiciousness into data collection. Classifying all information about international terrorism secret, perpetually secret, which is the current practice, removes this natural safeguard.

Former FBI agent Mike German, whose life depended on government secrecy when he was working under cover in domestic terrorism investigations, has an acute understanding of the need for operational secrecy in undercover work. At the same time, German has pointed to the pitfalls of secrecy where it is not essential, and has emphasized the importance of transparency within the government, even when conducting sensitive operations:

"While my activities were covert during the operational phase of
my undercover work, I knew from day one that I would have to be able to defend in court my actions. This gave me extra incentive to do everything by the book, so as to avoid the kind of mistakes or over-reaching that could prejudice efforts to bring domestic terrorists to justice. Operations designed with the understanding that they can remain forever secret do not require this kind of diligence and this can easily lead to abuse."

But What About Emergencies?

J. Edgar Hoover's vision during the early part of his 48-year control of the FBI not only led to creating the fingerprint identification system, but also brought in highly professional agents who could then be trained and trusted to conduct their own investigations and law enforcement actions without unnecessary interference from superiors. The FBI became the role model for law enforcement due to its insistence on high educational standards and continuing legal and professional training. Thus, before the "Miranda Rule" became law as the protocol for conducting interrogations, the FBI had already voluntarily adopted and implemented such a procedure as part of its professional approach to interrogation.

At the same time, the law of criminal procedure, including search and seizure, interrogation, and the right to an attorney need not be a barrier to effective investigation (or to the prevention of crime or terrorist acts), because "emergency exceptions" have already been carved into that law. So, for example, if an FBI agent finds him/herself outside a home with probable cause to believe that evidence of a crime exists inside and is being destroyed, that agent can legally conduct a search pursuant to the "exigent circumstances" exception in the law, without having to wait for a court warrant. Similar emergency exceptions exist under the statutes for monitoring of wire and/or electronic communications. This is one reason why it was difficult for us to understand why President Bush decided simply to ignore the Foreign Intelligence Surveillance Act (FISA) in ordering warrantless surveillance that included U.S. citizens. There is in that law an explicit exception allowing emergency monitoring up to 72 hours if, for example, a cell phone of an al-Qaeda operative were suddenly discovered.

For some reason the media have not done a good job of informing the American people about this exception. Those of us who are aware of it have difficulty avoiding the conclusion that the president's decision to violate FISA means the surveillance program is so intrusive and all-encompassing that it could not bear scrutiny. The program has already been ruled both unconstitutional and illegal by U.S. District Judge Anna Diggs Taylor but, despite that, continues in operation.

The FISA emergency exception is not hard to obtain; it simply requires that the Attorney General approve. That approval is what my colleagues in the Minneapolis field office desperately sought in mid-August 2001 so that they could search the personal effects and computer of Zacarias Moussaoui, who was already in the custody of our immigration service. The approval was denied for reasons that make little sense. Suffice it to point out a supreme irony here: because FBI headquarters personnel were reluctant, for whatever reason, to seek this emergency case-specific authority from the Attorney General and because the attacks of 9/11 were not thwarted, the net result was a presidential decision to ignore FISA altogether and institute a surveillance program in clear violation of the Fourth Amendment as well as FISA, as Judge Taylor has ruled.

A similar exception covering life-and-death situations allows law enforcement officers to dispense with the protection ordinarily afforded by Miranda warnings. The way the so-called "ticking-bomb scenario" has been disingenuously used to justify torture makes one reluctant to mention a scenario in which something like it might apply. However, unlike TV-glorified "ticking-bomb torture," there have in fact been cases in which a kidnap victim's life was in serious, time-sensitive jeopardy. One such kidnap victim was buried alive with limited oxygen supply.

In such cases, the normally required Miranda warning-protection can legally give way to the need to protect the life or lives hanging in the balance. What often gets blurred here, sometimes deliberately by advocates of torture, is the significant difference between the issue of truly involuntary confession-one produced by torture, for example, and thus with no guarantee of reliability-and the much larger area that is protected by the prophylactic Miranda Rule.

Delegate Down

Judicious application of any emergency exception, of course, must obtain in order to prevent such exceptions from swallowing the rule. In the past, individual law enforcement officers have been trained and trusted to behave in such a way as to prevent that. Some of us VIPS were trained to use deadly force under narrow "emergency" circumstances when an imminent threat existed to our lives or to other innocent victims and there was no reasonable alternative to stopping the imminent threat. This delegation-down, this investing of trust in junior officers to exercise the enormous power of using lethal force under limited circumstances and after sufficient training, is necessary in order to protect their own and others' lives. So, too, it can be argued that investigators and intelligence gatherers should be trained to spot the type of life-and-death circumstances that might allow them to conduct an emergency search without a warrant or to dispense with Miranda protections.

Pendulum Swing

The existence under current law of these "emergency exceptions" means there is no need to paint over civil liberties with a broad brush from on high, in order to effectively detect and disrupt terrorism. Despite the intense political and PR pressures, it is extremely unwise to allow the pendulum to swing in the reckless way it did post 9/11:

From ranking terrorism as the Justice Department's lowest priority in August 2001 to establishing it as the FBI's only real priority now. (Despite the word games, anything that consumes half of the FBI's resources is its only real priority).
From ignoring specific instances where emergency action under the law (FISA, for example) was warranted to now simply ignoring long-standing law.
From the failure to follow up promptly on specific, well predicated tips pre-9/11 to the "No-Tip-Will-Go-Uncovered" tsunami post 9/11.
From training interrogators on the finer points of the Miranda Rule to training on torture techniques.
The bottom-line result of this pronounced pendulum swing is not only that our own constitutional and legal protections are jeopardized as seldom before, but also that-far from bringing any real benefit-these practices impede efforts to find and stop actual terrorists, and they lengthen the waiting lines at al-Qaeda recruiting centers.

Friday, June 22, 2007

Can the government search your laptop without a warrant?

Interesting article from Wired magazine by Ryan Singel (http://www.wired.com/politics/law/news/2007/06/laptopsearches), discussing a case where border agents took someone's laptop, without a warrant, booted it up and rifled through it, using the "border exception" to the warrant rule. The lower court threw out the search, the Government is appealing the decision.

Someone please explain to me how a file on a computer could possibly be a direct threat to the safety of the plane. That IS the only purpose of the border searches ... isn't it?

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Is your laptop a fancy piece of luggage or an extension of your mind? That's the central question facing a federal appeals court in a case that could sharply limit the government's ability to snoop into laptop computers carried across the border by American citizens.

The question, before the 9th U.S. Circuit Court of Appeals, arose from the prosecution of Michael Timothy Arnold, an American citizen whose laptop was randomly searched in July 2005 at Los Angeles International Airport as he returned from a three-week trip to the Philippines. Agents booted the computer and began opening folders on the desktop, where they found a picture of two naked women, continued searching, then turned up what the government says is child pornography.

In June 2006, a judge from the U.S. District Court for the Central District of California threw out the evidence, finding that customs officials must have at least "reasonable suspicion" to begin prying into the contents of an electronic storage device, a decision the government is now appealing.

"Electronic storage devices function as an extension of our own memory," Judge Dean Pregerson wrote. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound. Therefore, government intrusions into the mind -- specifically those that would cause fear or apprehension in a reasonable person -- are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature."

While it's not clear how many laptops are searched at the border each year, both business and recreational travelers are increasingly toting computers with them, complete with hard drives full of personal pictures, confidential corporate documents and revealing internet logs. An October 2006 survey of business travel executives revealed that some companies were rethinking rules on proprietary information being stored on traveling laptops, and 1 percent of the respondents reported they had, or knew someone who had, a laptop confiscated at the border.

The reach of such searches will likely widen as more and more people opt for smartphones, such as Apple's upcoming iPhone, which combine elements of traditional computers with the voice capabilities of a cell phone.

The California decision is the first to challenge that trend, and it makes laptops, and even USB memory sticks, very different from every other item brought across the border, including luggage, diaries, prescription drug bottles and sexual toys -- all of which customs and border agents have been allowed to search without cause for years under the "border exception" to the Fourth Amendment.

The government says the rationale behind that exception -- that border agents are responsible for protecting the safety of the nation and enforcing copyright and obscenity rules -- logically extends to laptops. "For constitutional purposes nothing distinguishes a computer from other closed containers used to store highly personal items," the Department of Justice argues in its appeal brief.

Moreover, requiring government agents to have a reasonable suspicion before searching a laptop will invite smugglers and terrorists to hide contraband and evidence there, the government argues. "If allowed to stand, the district court's decision will seriously undermine the nation's vital interest in protecting its borders by removing the significant deterrent effect of suspicionless searches," reads the filing.

Arnold's lawyers, Kevin Lahue and Marilyn Bednarski, disagree, arguing that it's not very difficult for law enforcement agents to come up with "reasonable suspicion."

"No ordinary traveler would expect their private files to be searched at the border without any reasonable justification," they told the appeals court. "The government's argument that a traveler can simply avoid exposure by leaving the laptop at home is an oversimplification of its function and role in daily life."

Lahue has support from the Association of Corporate Travel Executives and the Electronic Frontier Foundation. The two groups submitted a friend-of-the-court brief Tuesday arguing that suspicionless searches of laptops are overly invasive, and that prior to the California ruling, the government had no limits on what it could do when it seizes a laptop and makes a copy of the hard drive.

Already travelers have reported customs agents seizing laptops, making copies of the hard drive and returning the computers weeks later. That practice scares the travel execs' association and the EFF, which argue that under the government's reasoning, border authorities could systematically copy all of the information contained on every laptop computer and cell phone that crosses the border, without any court oversight.

"A suspicionless unrestricted search of a laptop computer is simply electronic eavesdropping after the fact," the groups told the court. "(It) is distinguishable from the forbidden general searches of Colonial times only by the technologies involved."

The case's outcome is far from clear-cut, according to Lahue.

"A lot will depend on whether the court decides it's like searching a piece of luggage or like a body-cavity search," Lahue told Wired News. "A diary, even one that is labeled 'my secret sexual fantasies,' has always been fair game."

The government's reply brief is due June 26, and the case will likely be argued sometime in the fall.

... and the good news about journalism

Just to prove I'm not all doom-and-gloom, here's a great story about an Idaho newspaper that did real journalism, a six-day expose on a pedophilia scandal that was covered up by all the local heavies. The paper withstood threats from their advertisers, the local church, and the general public, the outing of a gay staffer, and stood tall ... and saw their circulation INCREASE as a result.

Here's the quote from Dean Miller, executive editor of the Idaho Falls Post Register and hero of the story:

"Find the civic heart of a story, steer a steady course to it, and serve the public's legitimate interests in openness and justice. Do that and, even when the story rocks your boat, trust that the waves won't capsize it."

Wow. Take that, Wolf Blitzer.

Could it be, just maybe, that people really do want actual facts, actual reporting, and actual journalism from their papers and from their television instead of the infotainment-ized gruel we've been served? Perhaps, just perhaps, there's hope.

Thanks to Rory O'Connor of AlterNet (http://www.alternet.org/stories/54493/?page=1) for the post.

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In Snow White and the Seven Dwarfs, the beautiful but wicked Queen would ask her mirror each day, "Mirror, mirror on the wall, who is the fairest one of all?" And the talking mirror would respond, "Oh My Queen, it seems to me, there is none fairer in the land than thee!"

The fairy tale sprang to mind recently at the first annual Mirror Awards for "the best in media industry reporting," sponsored by Syracuse University's S.I Newhouse School of Public Communications. It's no secret (at least in media circles) that the media loves nothing as much as awards ceremonies. This is especially true when the awards are being presented to the media ... And given this century's explosion of new forms of media content and technology, with its concomitant boom in reporting about that media, it's not surprising that awards ceremonies for media about the media would soon follow. The Mirror Awards, which honor reporters, editors and teams of writers "who hold a mirror to their own industry for the public's benefit," are but the latest entrant in the media awards sweepstakes.

As someone who regularly reports, comments on and criticizes "the media industry" (this meta-media post -- a media commentary about media about media -- was inevitable) I welcomed news of the competition, which drew 140 entries in seven categories. (Variety editor-in-chief Peter Bart received the inaugural Lifetime Achievement Award.) The winners were feted at a Manhattan luncheon attended by "the media's top writers, readers and leaders" and hosted by Meredith Vieira who, having worked variously for ABC, NBC and CBS, is kinda meta-media herself! Vieira began by citing "the vital journalistic activity of reporting on the media," which she opined was "something completely new," and noted "journalists covering the media are watching the watchdogs and holding a mirror up to the media."

So who's the fairest of them all? To my mind, not the Big Media boys like David Carr of The New York Times, whose his weekly column won for 'Best Commentary,' or Philip Weiss and Clive Thompson of New York magazine, who won for 'Best Profile' and 'Best Single Article,' respectively -- as worthy as their entries may have been.

Instead, my favorite was culled from Nieman Reports, the small (and, to some of "the media's top writers, readers and leaders" in attendance, obscure) publication of The Nieman Foundation for Journalism at Harvard University. The category was 'Best Coverage of Breaking Industry News,' and the author is Dean Miller, executive editor of the definitely small and obscure Post Register in Idaho Falls, Idaho.

Miller's article in the Summer 2006 Issue of Nieman Reports, entitled "A Local Newspaper Endures a Stormy Backlash," tells an amazing story of how his paper exposed Boy Scout pedophiles and those who failed to kick them out of the scouting program," and how "three of our community's big forces ... the community's majority religion, the richest guys in town, and the conservative machine that controls Idaho," tried to punish the paper for doing so. Why? Because Miller and his team chose "to tell the story of powerless people who'd been hurt by powerful people who counted on the public never learning what they'd done."

Here's what happened: after receiving a tip that a pedophile caught at a local scout camp in 1997 had not two victims (as the paper reported at the time) but actually dozens, Post Register reporters went to the courthouse to look for a civil suit filed by victims, only to be told that there was no such case. They later learned that the national Boy Scouts of America and its local Council had hired two of Idaho's best-connected law firms to seal the files -- thus covering up the entire affair.

Or so they thought ... But the Post Register went to court and "dragged the case file into the light of day." What reporters found astonished them; scout leaders had been warned about the pedophile years earlier, but hired him (again!) anyway. Lawyers for the Boy Scouts knew about more victims, but never told those boys' parents. Top local and national leaders of the Mormon Church, which sponsors almost all area scout troops, had also been warned.

The Post Register ran a six-day series about the affair. The first story featured a 14-year-old camper -- "the son of a Mormon seminary teacher and a cinch to become an Eagle Scout" -- who forced adult leaders to call the police about the pedophile.

Then the backlash began. Mormon church members were among the first to complain, characterizing the paper's coverage as an attack on their faith. "The drums banged, and we were flooded with calls and e-mails and letters to the editor from readers who told us that holding the Grand Teton Council accountable was Mormon-bashing," Miller recounted.

The backlash came as well from advertisers, and the economic pressure built everyday the paper ran the series. "It's one thing to lose an account when you're an employee," Miller wrote. "It's quite another when you're also a stockholder; 140 employees hold close to 49 percent of the company's stock. For many families, this is their retirement." Nevertheless, he recalled, "Most of what I heard inside our building were words of support." Publisher Roger Plothow was also staunchly unapologetic throughout, "standing up with a stoic and clear-eyed defense ... for the values of journalism."

The attacks weren't just financial, but personal as well -- including the outing of a gay staff reporter, Peter Zuckerman, by a local multimillionaire who bought full-page ads devoting several paragraphs to establishing that Zuckerman is gay. "Strangers started ringing Peter's doorbell at midnight," Miller wrote. "His partner of five years was fired from his job. Despite the harassment, Peter kept coming to work and chasing down leads on other pedophiles ... I spoke at his church one Sunday and meant it when I said that I hope my son grows into as much of a man as Peter had."

By then the paper had secured evidence of four other pedophiles in the local scout council, "about as many documented cases as the 500,000-member Catholic diocese of Boston when that scandal erupted in The Boston Globe," as Miller noted.

Laboring in obscurity, and without Big Media resources, community journalists "often end up dreaming small," Miller wrote. "But my 34 colleagues at the Post Register -- in particular the cadre of editors who have worked together for a decade and lead a largely entry-level staff -- refused to pull back in the face of much opposition."

In his Nieman report, Miller asks, "Was what any of us did courageous?" I'll say it was! Moreover, the story has a happy ending -- one all too uncommon in these days of massive layoffs, dwindling circulation, disruptive technologies and fears that the entire newspaper industry might be rapidly crumbling. I'll let Miller tell the tale: "One of the sweeter moments of our year occurred when we received figures from our circulation audit. While the sales numbers of other U.S. newspapers were in free fall, we were among the nation's faster growing daily papers."

So what's the moral of this fairy tale? To Dean Miller and the other ordinary heroes at the Post Register, it's clear: "For us, these numbers testified to the value of fortitude. Publishing uncomfortable truths needn't be an act of hot-blooded courage; it should be a cool-headed exercise in focus: Find the civic heart of a story, steer a steady course to it, and serve the public's legitimate interests in openness and justice. Do that and, even when the story rocks your boat, trust that the waves won't capsize it."

The bad news about journalism ...

Nice piece on FOX News (or, Noise, as Keith Olbermann refers to is because it really isn't in the "news" business), and how it acts as a tool of propaganda and disinformation, using its' "Fair and Balanced" slogan as a means to legitimize its' position and blur the line between objective truth and manufactured spin. It's the closest thing to Orwellian-style thought control we've seen in a long time, and this piece by Joseph Minton Amann and Tom Breuer of Nation Books (http://www.alternet.org/mediaculture/54228/?page=1) does a nice job of discussing it.

Quite honestly, any post that can mix in a reference to Thor in discussing journalism gets bonus points from me.

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The following is an excerpt from Fair and Balanced, My Ass!: An Unbridled Look at the Bizarre Reality of Fox News, by Joseph Minton Amann and Tom Breuer (Nation Books, 2007).

Well, that's your opinion!

Those of us who watch Fox News professionally, or simply to unwind at the end of the day with a few well-earned belly laughs, dismiss the network at our own peril.

While there may be a considerable measure of Schadenfreude involved in tuning in to, say, The O'Reilly Factor, it's hard to overlook the fact that he influences millions of people nearly every day. Indeed, watching Fox can be a little like watching Jeopardy! During kids' week. Even if you know more than they do -- and you probably will -- it's hard to feel good about yourself for the experience. But it's not like the leading lights at Fox actually enjoy turning America into a nation of fatuous morons. If they could accomplish the same goals by not making their viewers morons, they'd probably do so, just as the tobacco companies would probably prefer their products didn't cause cancer, and Ann Coulter probably wishes the sound of her voice didn't make young men's and small animals' testicles shrivel. But none of that is going to stop any of them from making their money and spreading their propaganda. To be sure, Fox News' sensationalistic brand of personality and opinion-based journalism is a well-crafted sales strategy. And whatever else you want to say about them, they're excellent salesmen. Indeed, with just about any story on Fox, you can ask yourself three questions: Are they pandering to their viewers, peddling right-wing propaganda, or both?

Now, preaching to the choir can be quite lucrative, particularly if the choir has an almost unlimited budget for Rascal Scooters and Civil War chess pieces. And there's not necessarily anything wrong with that. Lots of media outlets preach to the choir. For some, it's their bread and butter. The Nation's not going to solicit a commentary on Social Security privatization from Grover Norquist, after all, and Us Weekly is certainly not going to report that Brad and Angelina aren't hot.

But most people who are engaged in some form of advocacy journalism -- be they Rush Limbaugh or Al Franken -- have the decency to admit it. Fox not only doesn't admit it, it famously cloaks themselves in a tawdry veil of objectivity, endlessly shouting their "Fair and Balanced" and "We Report, You Decide" slogans until their viewers are finally programmed, Clockwork Orange-like, to believe them.

But again, by objective measures, Fox does a demonstrably poor job of presenting the cold, hard facts in a spin-free fashion. For instance, according to the Project for Excellence in Journalism's 2005 State of the News Media report, 24 percent of the stories on MSNBC's Hardball With Chris Matthews contained the host's opinion, compared with 97 percent on The O'Reilly Factor. The report also analyzed coverage of the war in Iraq, finding that 73 percent of Fox's Iraq war stories contained opinion, compared with 2 percent for CNN and 29 percent for MSNBC. Fox was also around twice as likely as its competitors to run positive stories about the war and far more likely to run positive stories than negative ones. So what we're seeing more and more in today's news business, and particularly at Fox, is that personality and opinion sell. Not reasoned and informed opinion but blustering, loud, obnoxious, in-your-face opinion. Archie Bunker opinion. We're right and you're wrong. We're going to heaven and you're going to hell. We're patriots and you are traitors. We're men who love women, while you, my good sir, are a homo.

Of course, Fox News' one saving grace is that it's hilarious. Watching Hannity pummel Colmes won't make us better people, but it's kind of like seeing the school bully beat up the really irritating kid. It's not right, but you don't really want anyone to stop it. Seeing O'Reilly get his panties in a bundle when someone questions his ratings is always a good laugh. And having those three loons on Fox & Friends spout hateful lies with racist overtones is like music -- sweet Clay Aiken music.

But Fox can be frustrating, too, because its employees are so unswervingly dedicated to denying their true nature. If your local weatherman dressed up as a Viking every day, called himself Hjørt Bjornsen, and told you there was a 60 percent chance of snow flurries and a 30 percent chance that Thor would rain fire and canned hummus from the sky during midmorning rush hour -- all the while claiming he absolutely was not dressed as a Viking -- eventually it would stop being cute. That's essentially what it feels like to be sane and reasonably intelligent and tuned in to Fox News. It's hard to look away, because there's a guy on TV making a complete ass of himself while saying obviously untrue things. But it would be nice to get the forecast every once in a while. So we understand your pain.

And we're here to turn that frown upside down.

I see your stupid argument, and I raise you, Michelle Malkin

Let's start off with just one concrete example of Fox's special brand of lunacy.

While the commentators and anchors at Fox do the bulk of the heavy lifting, they're not afraid to farm out some of their dirtier work to subcontractors. And this is where Fox loves to be an equal- opportunity employer. A person of color on Fox is certainly something to behold, yet these are not your traditional minorities. This is the rainbow coalition of far-right conservatism and apologetic liberalism -- and they're given free rein to be even loonier than their WASPy counterparts.

Take, for instance, Michelle Malkin. Malkin is a rising right-wing star who has, ironically enough, authored books on how liberals are unhinged and out of control as well as how the forced eviction and imprisonment of innocent Japanese-Americans during World War II was a pretty solid idea. If she still doesn't ring a bell, picture a pilot fish following a shark around cleaning scraps of shredded cabana boy from its host's teeth, and that will give you a good sense of why she shows up on Fox so often. Watch Michelle Malkin for any length of time, and it's hard not to want to actually put her in one of those internment camps she's so fond of. Of course, we wouldn't actually support putting Malkin in an internment camp, even though she does pose a clear and present danger to Western liberal democracy. To paraphrase Voltaire, "We disapprove of what Michelle Malkin says, but we will defend to the death her right to say it." Then again, we'd also defend to the death your grandmother's right to say Kelly Ripa is sending her coded satanic messages through her television. That doesn't mean O'Reilly should book her on his show. But the fact that O'Reilly does book Malkin on his show -- over and over and over again -- is as good an example as any of how Fox conducts its business.

Attractive in a superficially intellectual way? Check. Toes the party line? Check. Mirrors the viewers' fears and core beliefs? Check. Blustering right-wing demagogue? Check. Nutty as a holiday cheese log? Check.

And while an appearance by Michelle Malkin offers just the right blend of pandering and propaganda for the perfect Fox stew, on May 8, 2006, it took a vigorous stir from that big homophobic spoon she carries around to really get things cookin'. On that bright, sunshiny, gaybashing spring evening, Malkin and O'Reilly did their level best to misrepresent a California bill that dealt with public school history curricula and sexual orientation. Essentially, the bill amended a law that was already on the books prohibiting curricula that discriminated on the basis of such things as race, sex, creed or handicap. The proposed bill simply added gays and lesbians to the list of protected groups. The bill also said social sciences curricula should include "an age-appropriate study of the role and contributions of both men and women, black Americans, American Indians, Mexicans, Asians, Pacific Islanders and other ethnic groups, and people who are lesbian, gay, bisexual or transgender, to the economic, political and social development of California and the United States of America."

So it was merely a recognition that gay people shouldn't be smeared for their sexual orientation and that prominent gays should be duly recognized for their contributions to society. Pretty simple, really.

And likewise, it should have been pretty easy to grasp, unless you're congenitally dishonest, a rank homophobe, or stupid. Here's how Loofah Man and Internment Girl framed the debate:

MALKIN: Well, this is much more radical than ensuring that homosexuals and other people of minority sexual orientation status are respected in the schools. It's already against the law in California to discriminate against anyone based on their sexual orientation.

I looked this bill over very closely, and it is a very radical, very extreme, dangerous bill. It says that no teacher can even say anything that would, quote unquote, "reflect adversely" on anyone, a historical figure, whatever, based on their sexual orientation. And so, now, there are real concerns that this could be interpreted broadly in the liberal Ninth Circuit Court of Appeals and other liberal courts as saying that you can't even have sports teams, for example, that discriminate based on gender. And this is pure political propaganda.

O'REILLY: Well -- and also, if you are a teacher, what are you -- you're not going to be able to say bad things about Jeffrey Dahmer? He's a cannibal, a gay cannibal, and you can't say, "Well, that's wrong. "I mean, if what you're saying is true, teachers would not be able to cast aspersions on even villains if they were homosexual.

MALKIN: Yeah, that's right ...

OK, there's so much bullshit stuffed into those five paragraphs, you practically need a ZIP file. Now, if you actually want to research the bill instead of taking Malkin's and O'Reilly's word for it, that's fine -- though unnecessary. We promise you, there was nothing in there about special rights for gay cannibals.

All the bill said is that you can't trash historical figures because of their race, gender, religion or sexual orientation. So basically, a teacher can't stand in front of his class and exclaim, "You know what they're saying about Alexander the Great, don't you? FLAM-er!" Similarly, you can't say JFK was a dirty papist, or use the n-word when referring to Martin Luther King Jr. That just makes sense.

And if you're taking art history and learning about the ceiling of the Sistine Chapel, it probably also makes sense to discuss Michelangelo's homosexuality. Is it absolutely necessary? Probably not. But if you're discussing his life, and his impact as an artist on 16th-century Europe, then you should probably mention that he was a gay guy. This fact had a significant impact on his work. Is it necessary to read his love poems to Tommaso dei Cavalieri? No. Let's face it, gay love letters from the 1530s are kind of a snoozefest anyway.

Furthermore, what the fuck? Really, what's with the gay cannibal crack? Is O'Reilly really imagining a bleak futuristic dystopia where gay cannibal history is brutally suppressed by sinister government jackboots and where kids can't be told that storing your homosexual lover in your Sub-Zero is frowned upon? Oh, how will our children ever be able to compete in the world marketplace? Anyway, what history class are your kids taking where they're learning about Jeffrey Dahmer? Seriously, if you happen upon a copy of your son's American history syllabus and it says, "Sept. 7: Ideological Foundations of American Revolution in New England Agrarian Communities in the Early Colonial Period. Sept. 14: The Fabulously Gay Cannibalism of Jeff Dahmer," you should probably move to a new school district.

We grant you, it was a long time ago, but when we were in school we're pretty sure we never had classes where we learned all about John Wayne Gacy ... our Trapper Keepers filled with gruesome crime scene photos and sketches of creepy birthday clowns. But this argument is actually quite typical of Fox News -- the ugly twin heads of pandering and propaganda are out there in the open for all the world to see.

Malkin went on to say, "And in any case, I think school teachers in California and everywhere else ought to be paying more attention to whether or not third graders can find, oh, Sacramento or Washington, D.C., on a map than what the sexual orientation is of historical figures in America."

Be assured, Malkin and O'Reilly are a lot more concerned about whether kids know Henry David Thoreau was gay than whether Jeffrey Dahmer was. Or whether they can find the Castro District on a map, for that matter.

It's like news for 14-year-olds

Of course, the above is just a small sampling of the cornucopia of insanity you get every day from Fox. But O'Reilly's thoughts on gay cannibalism are actually the deep end of the pool compared to the stream of inane chatter and bright, shiny things the network likes to toss at TV screens minute by minute. "News with a pulse . . . News not boring" was the old mantra of Shepard Smith's Fox Report. Somewhere along the line he's dropped it -- probably because it's an awful slogan. Yet it really sums up the Fox approach to journalism.

While the "elite" media bore you with straightforward news couched in civility, Fox is like the dentist who tries to lure people to his practice by handing out fudge and Snickers bars. Flashy graphics and bombastic music, women who look like they may have started out in the soft-core porn industry, and stouthearted men who talk loud enough to cover up the fact that they don't know what the hell they're talking about -- that's Fox News.

As Fox News anchors go, we like Shepard Smith. Of all the network's personalities, he's one of the few who dares take little digs at O'Reilly, and he still appears to be walking around with two intact legs. But let's face it, he's running the McDonald's of the news world.

His show has taken the already dummied-down approach of Fox News and hammered it into a thin film that can be eaten like a Fruit Roll-Up. The graphics are bolder, the music more intense, and the copy even "hipper." You'll hear stuff like, "Now with your G-Block Quick Hits. "What does that even mean? It's the sort of thing you'd hear if they made Ashlee Simpson managing editor of the CBS Evening News.

Rest assured it's much the same throughout the broadcast day. For instance, on nearly all Fox News Channel shows, random local car chases have become programming staples. And we're not talking about the ones featuring wife-murdering football stars. Those are kickin'. We're talking about the guy who steals a Camaro from the parking lot of the Travelodge in Van Nuys and spends the next 15 minutes driving down Sepulveda. Will the guy get shot? Will an innocent pedestrian get creamed? Will the police drag one of those spiky things across the street to blow out his tires? How far can he drive on the rims? Most important, why is this a national story? And why is a report on nuclear disarmament talks being interrupted to cover it? Is this news for people who find Deal or No Deal too intellectually taxing? And why, when we do return to regular programming, is there a little box in the corner of the screen to show you exactly how things are going back in Van Nuys?

But that's Fox for you. When it's trying to be serious, it's laughable. When it's trying to be light and breezy, it's like a railroad spike in your frontal lobe.

The sad part is, this lowest-common-denominator approach to journalism is working. Whatever else you want to say about him, O'Reilly's right when he says his show is crushing his competition. The easy response to that is it doesn't matter. After all, what do ratings really have to do with running a respectable newsroom? But it does matter. We should all be concerned when so unworthy an enterprise triumphs -- whether in the marketplace or, even more crucially, in the marketplace of ideas. In this introductory chapter, we've given just a few examples of Fox's unbound hubris, stupidity, tawdriness, fear mongering and not-so-subtle bigotry. Ah, it is but an aperitif. We hope you'll follow us to the feast, where we'll serve up the full smorgasbord of crazy, insipid, inane, oafish, dishonest, didactic, quasi-entertaining delights that together make up Murdoch's nightmare. As they say in the publishing world, if you like Bill O'Reilly, you'll love Fox News.

Now, if you were able to hop in a time machine and go back 12 years to warn the people of 1995 about Fox, and they asked you to describe this dreadful new phenomenon, you'd probably say, "It's as if you approached G. Gordon Liddy and the Entertainment Tonight crew and asked them to go cover the war in Bosnia." Indeed, this is where the sacred of old-school journalism meets the profane of pop-culture disinfotainment. Truly, Edward R. Murrow would not be amused. But that doesn't mean you shouldn't be.

Thursday, June 14, 2007

Terrorists: Criminals, Soldiers, or Something Else?

Great article by Adam Liptak of the Internation Herald Tribune (http://www.iht.com/articles/2007/06/13/america/terror.4-75238.php) discussing and comparing the law and the politics of treating a terrorist like a criminal, like a soldier, or like some middle-of-the-road hybrid of the two. Although there's no real conclusion to the article, it does a very good job of at least raising the issue that, I believe, is central to the discussion of how we address terrorism. It is a critical distinction between, say, Rudy Giuliani or Mitt Romney and John Edwards.

And, of course, I have my own favorite part of the article, which states:

"Supporters of the administration say that analogies like that are not only naïve but also prove the need for a third category. On one hand, they say, terrorists cannot be considered civilians because they could not then be singled out for military attack or assassination or held for intelligence gathering. On the other, they are not entitled to the protections granted to soldiers because they do not fight on behalf of nations or follow the laws of war.

Critics of the administration say that reasoning is convenient, as it gives the government essentially complete discretion to seize and hold anyone it wants without recourse to the courts."

Because, as we know, absolute power corrupts absolutely. But the Republican Party, the party of Ronald "the best government is the least government" Reagan, now stands for a "unitary executive" and absolute power at the hands of the President.

Hmm. Wonder what that might lead to ...

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News Analysis: Still seeking a new category for a new kind of criminal
By Adam Liptak

Wednesday, June 13, 2007
NEW YORK: Before the terrorist attacks on the United States on Sept. 11, 2001, there were soldiers and civilians and it was pretty easy to tell them apart.

Soldiers fought for countries. If captured, they could be held until the hostilities ended and were generally immune from prosecution for fighting the enemy. Civilians, on the other hand, could be prosecuted in ordinary courts for grave and politically motivated crimes, like the bombings of the federal building in Oklahoma City in 1995 and of the World Trade Center in 1993.

On Monday, a federal appeals court rejected a new, intermediate category proposed by the Bush administration in 2001: "unlawful enemy combatant," a term intended for people affiliated with the Taliban or Al Qaeda.

The administration had argued that supporters of Al Qaeda represented a novel sort of threat and required a new approach. They are neither soldiers nor civilians, the administration said, and the president should be entitled to have the military detain them indefinitely whether they are captured abroad or in the United States.

A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, rejected that assertion, at least for people who had been lawful residents of the United States. President George W. Bush may not on his own authority, the majority said, "subject civilian alien terrorists within the United States to indefinite military detention."

Last week, two military judges in Guantánamo Bay, Cuba, also underscored the importance of the new category, dismissing charges of war crimes against two prisoners there, saying they had not been properly designated "unlawful enemy combatants."

Both decisions may yet be overturned. But they have started to bring fundamental questions into focus. What does it mean to be at war with a terrorist organization? And are the old distinctions between soldier and civilian sufficient, or do we need a new category?

John Yoo, an early architect of the Bush administration's legal position, said the Sept. 11 attacks required a new paradigm, one the judges in the Fourth Circuit majority failed to appreciate.

The judges, Yoo said, see the terrorists as ambitious criminals. But Yoo argues that they are dangerous combatants whom the government should be free to hold without the constraints of the criminal justice system.

Others say the old distinctions are perfectly capable of addressing terrorism.

Eric Freedman, a law professor at Hofstra University who represents men held at Guantánamo, said it was nonsensical and counterproductive to go to war against a group of terrorists. He offered an analogy.

"The Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes," Freedman said. "They're criminals. You can't go to war against the Colombian drug cartel. If you could, then when they shot down an American military airplane, they wouldn't be guilty of anything. They'd have combat immunity."

Supporters of the administration say that analogies like that are not only naïve but also prove the need for a third category. On one hand, they say, terrorists cannot be considered civilians because they could not then be singled out for military attack or assassination or held for intelligence gathering. On the other, they are not entitled to the protections granted to soldiers because they do not fight on behalf of nations or follow the laws of war.

Critics of the administration say that reasoning is convenient, as it gives the government essentially complete discretion to seize and hold anyone it wants without recourse to the courts.

On Monday, the Fourth Circuit agreed. "The Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process," Judge Diana Gribbon Motz wrote for the majority, "and this is so even if he calls them 'enemy combatants.' "

Detlev Vagts, emeritus professor of international law at Harvard Law School, said the "really puzzling" aspect of the administration's approach was that it applied to people apprehended anywhere in the world. "The idea that someone who is not captured during battle is an unlawful combatant is new," Vagts said.

Even assuming a new category is required, some legal experts said, it is hard to know what criteria would distinguish enterprises like drug cartels, the Mafia or the men behind the Oklahoma City bombings, which are subject to the criminal justice system, and groups like Al Qaeda, which the administration says it can choose to subject to military law.

Yoo said several factors should be considered in deciding how to classify a given group, including whether its goals were political or financial, the scale of the destruction it caused and whether the purpose of its attacks included wiping out U.S. leadership.

What is clear, said Professor Glenn Sulmasy, who teaches international law at the U.S. Coast Guard Academy, is that the old rules require new scrutiny. "It is a hybrid warrior we're fighting in a hybrid war," Sulmasy said, "and it doesn't fit neatly in the criminal-justice structure or in the law-of-war structure."

President Giuliani?

Interesting piece from Jeffrey Feldman (http://www.alternet.org/blogs/peek/53938/) about Rudy Giuliani, and what it was like in New York while he was mayor. We've all seen Giuliani be at the forefront of the Republican candidates in trying to scare the American people into voting for him. This piece, while maybe a bit hyperbolic, does go into some detail as to what Giuliani would do with that rule by fear. One interesting part in the piece is a link to a speech Giuliani gave in 1994. Here's an excerpt:

"What we don't see is that freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do."

While there is some truth to what he's saying (basically making the argument that anarchy is not freedom), the disturbing part is that there is no counterbalancing discussion about how the power of that "lawful authority" has to be significantly limited in order to prevent tyranny. And by focusing on the "you have to submit to authority to be free" without also focusing on the "government must be limited in order to protect the liberties of the people" you have a recipe for oppression and tyranny.

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For those lucky enough to have never lived under the Stasi-style rule of Mayor Rudy Giuliani, it may come as a shock to learn that "Rudy's" formula for the good life in America is: 200 strip-searches per day (give or take few).

This is no theory, mind you. It is a formula derived from Giuliani's record as mayor. Specifically, the data about Giuliani's use of strip-searches as police policy came to light when a large class action law suit was filed against the city in 1997, resulting in the largest civil rights settlement against New York City ever, and one of the largest against any municipality anywhere.

At the directive of Mayor Giuliani's office, over a ten month period from 1996 to 1997, the New York City police conducted over 70,000 strip-searches of ordinary citizens for minor offenses including: trying to board the subway without paying a fare and jaywalking.

If 70,000 strip-searches were conducted by Giuliani's policy squads over 10 months, that meant roughly 233 per day, about 10 per hour or one every 6 minutes.

Ah, yes, America. That cool breeze you feel on your naked legs as you stand spread eagle in a police precinct--that's the refreshing sensation of Giuliani-style freedom. Invigorating, eh?

Seem excessive? Worried that a hypothetical "President Giuliani" would turn the whole country into a 21st-Century version of East Berlin? Well, that just means you are one of those "liberals" who does not yet understand Rudy Giuliani's core operating principle--that "freedom" can only come about if we are willing to willfully "cede" all our rights to the absolute authority of the police.

For some New Yorkers, ceding freedom to thug-style police brutality authorized by Mayor Giuliani was a great way to get rid of muggers and subway station panhandlers, but for most it just increased the likelihood of being strip-searched or--even worse--gunned down by Rudy's trigger-happy cops.

Scaring Our Pants Off

While he likes to brag about stopping crime in New York, what really happened under Rudy's reign was the rise of Stasi-style police brutality. The theory was that crime is not just stopped by enforcing the law, but by preemptive attacks on any citizen suspected of breaking the law.

The broader logic in Giuliani's 200-strip-searches-per-day approach was that crime happens when citizens are not afraid of the state. Fighting crime, therefore, is not just about arresting people for criminal acts, but about spreading fear of the police. Once the fear spreads, crime is supposed to stop.

In practice, however, it did not work that way.

What resulted from the 200-strip-searches-per-day policy of Mayor Giuliani was a massive spike in human rights violations that offset the crime rate decreases.

One can only imagine what Giuliani-ism would bring on a national scale.

Rather than turn back the bestial human rights violations of the Bush administration, a Giuliani administration would probably increase it.

A Strip-Search Approach to Immigration Policy?

In all likelihood, Giuliani as president would result in the application of his strip-search-approach to America's current immigration question.

In theory, Giuliani has called for "tamper proof" ID cards to be distributed to every immigrant in America. But in practice, it is far more likely that America would see the 200-strip-searches-per-day formula applied to immigration.

If this were to come about, suddenly America would become a country were people were suspected immigrants were routinely stopped and searched--first on the suspicion that they did not have ID cards, but subsequently on suspicion of just about anything.

Why? Because in Giuliani's worldview, social order is not the product of people following the rules--of just having the right ID card--but of fearing the policy. And so Giuliani would likely see an escalation in fear of policy by immigrants as the only path to solving the current immigration issue.

A Strip-Search Approach to Foreign Policy?

That fear-brings-order approach on the domestic front would also, likely, bring about a fear-brings-order approach in a Giuliani administration's foreign policy.

To date, Giuliani has already been arguing that America is not yet winning the war on terror because we are not afraid enough of Islamic Jihadism. His logic? Freedom from terrorism can only come about through even more ceding of rights by American citizens to the state.

You thought Bush was bad on this front? Giuliani would likely be even worse.

A Strip-Search Approach to Education?

In terms of education policy, Giuliani likes to talk about vouchers and individual choice, but if he became president, it seems likely that he would bring his strip-search approach to our children's schools, too.

Education, he would likely tell America, cannot happen effectively unless our children are taught to cede their freedom to authority. That would mean more metal detectors, more police in schools, more locker searchers and--you guessed it--more strip searches in school. And all this would most likely be put forth under the guise of improving education and stopping violence.

The United States of Strip-Searches

Nobody can know for sure what the future will bring. But if the past is any indicator (and it always is), a Giuliani presidency would likely make strip-search-style policies a regular part of our American culture. That is to say: more regular than they have become in the Bush presidency.

Of course, the idea that freedom from social ills comes by ceding one's rights to authority--that is not the basis of democracy, but rhetorical marker of tyrannical monarchy and dictatorship.

In our constitutional democracy all citizens enter into a mutual compact together, thereby imbuing our government with a degree of authority. And that authority at no time has the power to demand that citizens cede their rights. In fact, if the government that we empower every tries to defraud us of our rights,then we as citizens have an obligation to depose that government.

In its own limited way, that is exactly what the citizens of New York City did with their class action suit against Giuliani's government in 1997.

Hopefully, knowing about Giuliani's strip-searching past will stop him before he has a chance to bring strip-searches to America's future.

Tuesday, June 12, 2007

Grown-up talk about terrorism

Amazing how there's actually someone who is talking about the Iraq war and the "global war on terrorism" like an adult instead of insulting our intelligence with brainless propaganda (they'll follow us home if we lose, they hit the Twin Towers because they hate our freedoms, etc.) like certain Presidents who I won't name here.

So, God bless Ron Paul, who torpedoed any chance he had at the Republican nomination for President by discussing the issue like a thoughtful adult instead of the embarassing fear-machine that is our current President, and bought into almost completely by the lapdogs in the mainstream media. Here's a nice sample.

Paul said U.S. foreign policy was a "major contributing factor" to 9/11. "Have you ever read the reasons they attacked us? They attacked us because we've been over there; we've been bombing Iraq for 10 years."

"We're building an embassy in Iraq that's bigger than the Vatican," plus 14 other permanent bases in the Middle East. "What would we say here if China was doing this in our country or in the Gulf of Mexico? We would be objecting. We need to look at what we do from the perspective of what would happen if somebody else did it to us."

Citing Professor Chalmers Johnson, author of Blowback: The Costs and Consequences of American Empire, Paul said:

"Bin Laden attacked us in 1993, 1995, 1998 and 2000. Throughout that period, and again just after 9/11, he stated his motivations: the 'infidel' presence on the Arabian peninsula, the economic sanctions on Iraq that took the lives of hundreds of thousands of Iraqi children in the 1990s and our support for Israeli expansionism."

Paul answered the question if he is suggesting that the United States is responsible for the 9/11 attack.

"I'm suggesting that we listen to the people who attacked us and the reason they did it, and they are delighted that we're over there because Osama bin Laden has said, 'I am glad you're over on our sand because we can target you so much easier,'" was Paul's answer.

How about that. Analyzing the behavior of Osama bin Laden and al Qaeda as real people with real motives, instead of creating a cartoon character that's useful for whipping up support for a war in Iraq and threatening opponents with the "unpatriotic" cudgel.

So, let's think about it. If we were interested in finding the best way to combat bin Laden and his ilk, we would first try our very best to understand why he was doing what he did, so we could anticipate and counter his moves.

But if, instead, we wanted to create an Orwellian-like climate of fear and use bin Laden as the tool for a broader power-grab, we would create him as a Cobra Commander-like villain, do our best to scare people in the country to death, and use that fear as a lever to claim as much raw power as we could.

Which sounds more like what's happened?

(thanks to Sean Gonsalves of AlterNet (http://www.alternet.org/stories/53804/), whose post I liberally lifted from in the creation of this post)

Monday, June 11, 2007

More Bush follies

Maybe this is just piling on a President I dislike. But this kind of seat-of-your-pants policy-making is one of the many maddening and frightening things about the current President. It's funny to laugh at mis-statements people in power make, but the fact of the matter is that everyone has a slip of the tongue now and then that makes them look foolish. This example isn't that. The current President is making a specific promise to a group of people, then less than 24 hours later is surprised that he's even said it. This shows, I think, that the current President either has no idea what he is talking about (and therefore wouldn't remember what he is parroting back to people), or is so comfortable lying to people that he doesn't even remember doing it.

Again, I'm pretty biased when it comes to the guy, so maybe I'm not being fair. Read it for yourselves and decide. From an article from the International Herald Tribune by Sheryl Gay Stolberg (http://iht.com/articles/2007/06/10/frontpage/prexy.php)

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The future of Kosovo, a largely Albanian breakaway province of Serbia, is of paramount interest here. Some Kosovars traveled to Tirana to join the crowd awaiting Bush. The United Nations Security Council is considering a plan for independence, but Russia objects the proposal.

On Saturday in Rome, the president agreed there should be a deadline to end the UN talks, saying "In terms of a deadline, there needs to be one - it needs to happen." But Sunday, less than 24 hours later, Bush tried to backtrack when asked when that deadline might be.

"First of all, I don't think I called for a deadline," Bush said at an appearance with Prime Minister Sali Berisha in the courtyard of a government ministry building. He was reminded that he had.

"I did?" he asked, sounding surprised. "What exactly did I say? I said 'deadline?' O.K., yes, then I meant what I said. The question is whether or not there is going to be endless dialogue on a subject that we have made up our mind about. We believe Kosovo ought to be independent."

Friday, June 08, 2007

More on how Iraq is not Korea

Nice piece from Michael Hirsh from Newsweek on how the Korean analogy to the current President's adventure in Iraq doesn't work. More disturbingly, in looking at the contradictory and murky releases from the White House recently, it appears that there really isn't any plan in place as to what the troops in Iraq are doing and what happens next. This leads to one of two conclusions, both disturbing.

First, that the current President really has no idea what's happening, and is just throwing more soldiers at Iraq because it's the only thing he knows how to do, and it "makes sense" in a very superficial way. Even with everything the current President has done, that kind of callous stupidity is still too hard to accept as plausible.

The more likely scenario, which has been discussed here previously, is that the current President is simply trying to do everything he can to prolong an end-game strategy, because he knows the only possible way to start extracting the United States from this mess would be an admission of failure on his part, and he is unwilling to do so. Therefore, he's trying to run the clock out to January 20, 2009, and let the next President "declare failure" in his eyes.

That, to me, is the only thing that explains wild swings from "train the Iraqi army" to the surge which is now retarding our ability to train the Iraqi army. It's enough to make your head swim - or to start crying, when you realize that we've just gone over the 3,500 mark in terms of American soldiers killed in this misadventure in Iraq.

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Hirsh: Iraq After 2008
What follows the surge? Will it be ‘Plan B,’ ‘Plan B-H’ (Baker-Hamilton), or something like South Korea? Bush seems as hazy on this as he was on the initial occupation plan. All that’s certain, says a White House official, is that a ‘fairly robust’ U.S. force will long be in Iraq.
WEB-EXCLUSIVE COMMENTARY
By Michael Hirsh
Newsweek
Updated: 3:45 p.m. CT June 7, 2007

June 7, 2007 - While roaming around Balad Air Base north of Baghdad a year ago, I thought that the most telltale signs of how long George W. Bush intended to stay in Iraq were the cracks. Runway cracks, that is. Brig. Gen. Frank Gorenc, the base commander and leader of 332nd Air Expeditionary Wing, was very worried about them. The Saddam-era concrete was getting pummeled by the constant landings of U.S. F-16s, C-130s and other aircraft that flew in and out so regularly they had turned Balad into the busiest hub in the world outside of Heathrow. So Gorenc was slowly, painstakingly, rebuilding the runways to U.S. specs. No short-term plan, this. When it came to controlling the airspace over Iraq, Gorenc told me, “We will probably be helping the Iraqis with that problem for a very long time."

Just how long is the issue of the day in Iraq-obsessed Washington. And frighteningly, no one seems more confused about the plan than Bush himself. In two separate appearances in the last week, he alternately invoked last fall’s Baker-Hamilton report—which envisioned a substantial pullout by early 2008—and America’s South Korea occupation, which has been a robust front-line presence for more than 50 years. Which is it?

Neither, as it turns out. The Washington commentariat has suggested recently that Bush seems ready to pronounce the imminent end of his “surge,” which by several accounts has failed both to secure large parts of Baghdad and, on a more strategic level, to prod the still-paralyzed Iraqi government to govern. “I would like to see us in a different configuration at some point in time in Iraq,” the president said at a Rose Garden news conference on May 24. So is he talking about a “Plan B?” he was asked. “Actually, I would call that a plan recommended by Baker-Hamilton, so it would be a Plan B-H,” the president joked.

In fact Bush has no intention of going back to Baker-Hamilton, says a senior White House official, who requested anonymity because he is not authorized to speak on the record. Sure, he’s paying a lot more lip service to its recommendations, partly in an effort to gain new bipartisan consensus on Capitol Hill after the White House’s successful effort to thwart a Democrat-led withdrawal plan. But one of the central recommendations of the Baker-Hamilton report called for a dramatic consolidation of the U.S. presence onto a handful of large bases like Balad. There, U.S. air units and special ops would mainly focus on killing Al Qaeda and leave the Iraqis more or less to their own devices. A long-term presence at Balad is still part of the plan—it always was—but the White House official told NEWSWEEK this week that the Baker-Hamilton panel misunderstood the mission. “What Baker-Hamilton didn’t get right is the military feasibility of doing anti-Al Qaeda missions based primarily on special forces operations,” he told me. “That isn’t feasible because Al Qaeda is so entrenched in the population.” When the National Intelligence Estimate “gamed this out,” he said, it concluded that sectarian violence was now so out of control that to allow Shiite reprisals to occur while the Americans remained hunkered down on their bases would only fuel support among the Sunnis for Al Qaeda, which would grow even more entrenched. Hence the surge’s effort to rein in Moqtada al-Sadr’s Mahdi Army and other chief culprits.

This will continue for many months. So while the president supports Baker-Hamilton’s “end state”—stabilizing Iraq—he doesn’t intend to get there using its recommendations. That means “a fairly robust presence beyond the end of 2008,” the official said. “A sustainable presence.” How would you define that? I asked him. “Well, sustainable has always been kind of a 10-[combat-]brigade presence. We’re at 20 now.” A plan for 10 U.S. brigades amounts to about 50,000 combat troops, and another 30,000 troops in support. So about 80,000 U.S. troops will need to stay in Iraq over the long term, about half of the force planned for the height of the surge this summer.

All of which brings us to Bush’s recent invocation of South Korea, where tens of thousands of U.S. troops have been stationed along or near the border since the truce that ended the Korean War—there is no peace treaty—54 years ago. But here the president apparently hasn’t thought things through either. Secretary of State Condoleezza Rice, in an interview last week, told me that there was no Status of Forces Agreement with the Shiite-led government, which is increasingly dominated by the virulently anti-American Sadr, that would legally permit a long-term U.S. presence. <> Nor is there any sign of a truce between Sunnis and Shia. So Iraq really is nothing like South Korea.

Some of Bush’s putative Republican successors, like Mitt Romney, don’t like the Korean model. “Our objective would not be a Korea-type setting with 25,000 to 50,000 troops on a near-permanent basis remaining in bases in Iraq,” the former Massachusetts governor told The Associated Press on Thursday. Romney and most of the other candidates embrace the Baker-Hamilton recommendation of rapidly training up the Iraqi Army to take over security. Under the plans put forward last fall, that meant quadrupling the number of U.S. training teams. Why was such an increase necessary? Last fall, the military brass were moving toward a consensus that to be really effective, U.S. training teams needed to operate down at the company level, not just embedded within a battalion (which is made of three companies). That meant as many as 20,000 to 30,000 additional U.S. advisers would be required, up from the 5,000 or so then being budgeted.

But to do that effectively, U.S. combat brigades needed to be shifted out of Iraq so their officer corps could be turned into trainers. And under the surge, that’s not happening either. To do so, it would mean “a fairly significant change to the [U.S.] force laydown in Iraq,” Maj Gen. Carter Ham, the commandant at Fort Riley, the U.S. Army’s adviser-training center, told me. The big trade-off of the surge that few people are taking note of—what it really has cost us—is that it is taking precious time away from the program to bring the Iraqi Army to readiness. The surge is therefore ensuring that U.S. troops will have to remain longer on the front lines of an intractable sectarian war.

The upshot is there really is no Plan B, or Plan B-H, or indeed anything coherent. The goal is Baker-Hamilton’s “end-state,” but without the training up of Iraqis that would allow the recommended pullout to happen by March 2008. It’s the South Korean occupation without the truce, or a status-of-forces pact. It’s just Iraq, in other words— a quagmire that is as resistant to solutions as ever.

URL: http://www.msnbc.msn.com/id/19099768/site/newsweek/page/2/

Thursday, June 07, 2007

More of those darn pro-evolution arguments

Interesting article from "Lab Notes" by Sharon Beighley, debunking the "irreducible complexity" argument of the intelligent design movement. Just some additional grist for the mill, put forward with just enough snarkiness to make it entertaining without being unprofessional.

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'Irreducible Complexity' is Reducible After All
Wednesday, June 06, 2007 7:49 AM
By Sharon Begley

Now that evolution has become an issue in the presidential campaign (in the May 3 debate among Republican presidential hopefuls, when moderator Chris Matthews asked if any candidates did not “believe in” evolution, three hands—Tom Tancredo’s, Sam Brownback’s and Mike Huckabee’s—shot up), it is always amusing when biologists put another brick in the solid wall that is evolution. The latest comes from a study in which researchers discovered clues to the evolutionary origins of the nervous system.

For anyone who just arrived from Neptune, the “nuanced” stance against evolution—that is, the one that doesn’t make you look like a complete Neanderthal—is to note that of course you know that microevolution occurs, with bacteria evolving resistance to antibiotics and mosquitoes to pesticides, for instance. It’s macroevolution—in which one species evolves into another—that gives you pause since, after all, who has seen such a thing?

The intelligent design camp also argues that some biological structures are just too darn sophisticated to have evolved through random mutation and natural selection. They must therefore have been designed by an intelligent agent. In particular, since complex structures have lots of components, how could the components have been just hanging around for eons waiting for the final component to emerge? Think of it this way: if you don’t already have all the other components of a mousetrap, why would you keep a spring around? A spring is only useful if you also have the base, the bar and the rest. This is the argument called “irreducible complexity,” and it has proved very persuasive to the public.

It’s always dangerous to base your argument on some version of “scientists have never found X” (with X in this case being components of a complex structure existing and serving a function before the rest of the components showed up). That’s because those darn scientists keep making discoveries. If you want to say they “have never found . . . ,” you’d better understand that what you really mean is “they haven’t found it yet.”

Which brings us to the latest discovery in evolution: DNA needed to make synapses, the sophisticated junctions between neurons, in none other than the lowly sea sponge. Considered among the most primitive and ancient of all animals, sea sponges have no nervous system (or internal organs of any kind, for that matter), notes Todd Oakley, assistant professor in the Department of Ecology, Evolution and Marine Biology at the University of California, Santa Barbara. But, he adds, they “have most of the genetic components of synapses.”

The first neurons and synapses appeared something like 600 million years ago, in a group of animals called cnidarians which, today, include hydra, sea anemones and jellyfish. Sea sponges are even older. “We look at the evolutionary period between sponges and cnidarians as the period when the nervous system came into existence, about 600 million years ago,” says Ken Kosik, co-director of UCSB’s Neuroscience Research Institute.

He, Oakley and the rest of the team listed all the genes known to be operative in synapses in the human nervous system. They then examined the sponge genome. “That was when the surprise hit,” said Kosik. “We found a lot of genes to make a nervous system present in the sponge.”

What were genes for synapses doing in a sponge, which has no neurons and therefore no synapses? This is where the irreducible-complexity crowd makes a fatal error: they assume that whatever the function of a biological component (gene, protein, biochemical pathway . . . ) today must have been its function in the past. Maybe you noticed that my mouse trap example above wasn’t very persuasive; even without a base and a bar, a spring can be a useful little device. So it goes with biological systems. For instance, of the 42 proteins known to make up the bacterial flagellum, 40 have been found to serve as ion channels or something else in bacteria. It is therefore perfectly plausible that they really were hanging around—serving some function that would have allowed evolution and natural selection to keep them around generation after generation—until they all got together and formed a flagellum.

So it seems to be with the genes for synapses. The sea sponge did not use them for their current purpose, but that doesn’t mean the genes had no use. “We found this mysterious unknown structure in the sponge, and it is clear that evolution was able to take this entire structure and, with small modifications, direct its use toward a new function,” said Kosik. “Evolution can take these ‘off the shelf’ components and put them together in new and interesting ways.”

Read it for yourself at the open-access journal PLoS ONE,