unusualmusic_lj_archive

Raw Story reports:

A judge in Niagra County, New York, ruled Thursday that DNA evidence, obtained only after police applied a Taser to a suspect who refused to provide evidence against himself, may be used by the prosecution because the electric shock was not administered with malice. Judge Sara Sheldon Sperrazza, with this 17-page decision, becomes “the first judge in western civilization to say you can use a Taser to enforce a court order,” defense attorney Patrick Balkin said, according to The Niagara Gazette.
“Note that if Smith is guilty, he’s a pretty bad guy,” interjected The Buffalo News. “He’s charged with shooting a man in the groin after invading his ex-girlfriend’s home, tying up her two children and forcing her to take her to the home of the man he shot. He’s also charged with the shotgun-point robbery of a Niagara Falls gas station. DNA was found at both crime scenes.”
Smith, according to reports, had previously agreed to a court order for a DNA sample. But when authorities accidentally spoiled the sample, forcing them to return to the judge for a second order Sperrazza issued it without consulting the defense counsel, thinking the defendant would not mind.
“Smith did object, reportedly telling officers, ‘I ain’t giving it up. You’re going to have to tase me,’” added Buffalo News.
“Which they did, after consulting with a prosecutor, who either told them to use ‘the minimum force necessary’ (according to police testimony at last month’s court hearing) or ‘any means necessary’ (according to a police report written the day of the incident).”
After tasing Smith, a DNA swab was taken without consent.
“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” Smith’s attorney said, according to a separate report in The Buffalo News. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”
In the decision’s text, Sperrazza cited a Wyoming case in which a judge ruled police acted legally when they tased a man in order to force him to open his hand relative to a search.
“The Court is certainly concerned that the purpose of the Taser was to inflict pain, and has seriously considered the argument of the defendant that a line is crossed when such government action is sanctioned,” she wrote. “This Court would immediately condemn and sanction the actions of the police if there was any indication that the Taser was used maliciously, or to an excessive extent, or with resulting injury. The Court is convinced by the evidence presented that the exact opposite of those factors was present in this case.
“The court would not advice the government to systematically utilize pain compliance as a standard tool in future similar circumstances, because of the intense scrutiny the use of such tactics would receive from this Court. However, this case is perhaps best described as the ‘perfect storm’ where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was no malice or desire to injure the defendant.

The argument is very familiar to teh justification that we used to torture

A great-grandmother from the Hill Country has taken on legal representation after being tasered and jailed for resisting arrest.

Last Monday, 72-year-old Kathryn Winkfein was driving home to Granite Schoals after her bi-weekly shopping trip to Austin when she was pulled over by a Travis County Constable deputy. According to authorities, she'd been doing 60 down a 45-mph construction zone on Highway 71 near Bee Creek.

The officer wrote out a ticket to Winkfein and asked her to sign the stub, explaining that her signature wasn't an admission of guilt, but rather a promise to show up for a future court appearance. Winkfein, allegedly belligerent over the matter, refused to sign and asked the officer to take her to jail.

Further exacerbating the situation, Winkfein then got out of her car and proceeded to direct a litany of choice curse words towards the officer, who at that point told her that she would indeed be going to jail. Winkfein became violent, according to the officer, leaving him no choice but to zap the elderly lady her with his taser.

Winkfein was sent to Travis County Jail and booked for resisting arrest and detention. When interviewed by Fox 7 News, she dismissed the official report as being untrue.

"I wasn't argumentative, I was not combative," she said. "This is a lie. All of this is a lie, pulled away from him I did not."

A spokesman for the Constable office backed up the behavior of the arresting officer, saying that the use of a taser on Winkfein was appropriate.

We're currently occupying two Muslim countries. We're killing civilians regularly (as usual) -- with airplanes and unmanned sky robots. We're imprisoning tens of thousands of Muslims with no trial, for years. Our government continues to insist that it has the power to abduct people -- virtually all Muslim -- ship them to Bagram, put them in cages, and keep them there indefinitely with no charges of any kind. We're denying our torture victims any ability to obtain justice for what was done to them by insisting that the way we tortured them is a "state secret" and that we need to "look to the future." We provide Israel with the arms and money used to do things like devastate Gaza. Independent of whether any or all of these policies are justifiable, the extent to which those actions "inflame anti-American sentiment" is impossible to overstate.

And now, the very same people who are doing all of that are claiming that they must suppress evidence of our government's abuse of detainees because to allow the evidence to be seen would "inflame anti-American sentiment." It's not hard to believe that releasing the photos would do so to some extent -- people generally consider it a bad thing to torture and brutally abuse helpless detainees -- but compared to everything else we're doing, the notion that releasing or concealing these photos would make an appreciable difference in terms of how we're perceived in the Muslim world is laughable on its face.

Moreover, isn't it rather obvious that Obama's decision to hide this evidence -- certain to be a prominent news story in the Muslim world, and justifiably so -- will itself inflame anti-American sentiment? It's not exactly a compelling advertisement for the virtues of transparency, honesty and open government. What do you think the impact is when we announce to the world: "What we did is so heinous that we're going to suppress the evidence?" Some Americans might be grateful to Obama for hiding evidence of what we did to detainees, but that is unlikely to be the reaction of people around the world.MORE

It's inexcusable, Obama's flip-flop on the DOD abuse photos.
Not (just) because I think he's wrong on the law and he'll probably not get Cert with SCOTUS, making this a big pose.
Rather, it's inexcusable because Obama issued new guidelines on FOIA that he now abandons:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

Granted, a bunch of Generals and Colonels would undoubtedly be embarrassed by the disclosure of abuse that happened on their watch (above all--as Nell suggests--Stanley McChrystal, newly tapped to take over in Afghanistan). Granted, some of those Generals and Colonels (the aforementioned McChrystal) would probably lose their next promotion if these pictures became public. Granted, pundits speculate, abstractly, that the release of another round of torture pictures will inflame the already volatile Iraq and Afghanistan.
But those are all invalid excuses, according to President Obama's own FOIA guidelines. If you're going to set a rule, follow it yourself. http://emptywheel.firedoglake.com/2009/05/13/about-the-foto-flip-flop/">MORE

...A simple fact is being overlooked in the Bush-era torture scandal: the number of cases in which detainees have been tortured to death. Abuse did not only involve the high-profile cases of smashing detainees into plywood barriers (“walling”), confinement in coffin-like boxes with insects, sleep deprivation, cold, and waterboarding. To date approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.
The bottom line is that many detainee homicides in Iraq and Afghanistan were the direct result of approval and orders from the highest levels of government, and that high officials in the government are accomplices. MORE

There’s young man in Guantanamo Bay Detention facility, a young man who has been there since he was 15 years old, almost seven years. His name is Omar Khadr. He is a Canadian born in Toronto, Ontario, During that time, and that he has been tortured:

Murat Kurnaz

Mr. Kurnaz was born in Bremen, Germany, had always lived in Germany, and was of Turkish descent. In Germany, those of Turkish descent having a much more difficult time becoming German citizens even those born in Germany. In 2001, he decided to learn more about his religion, Islam, in preparation for his Turkish wife joining him, so he traveled to Pakistan to learn from peaceful Imams. Enroute back to Germany, on December 1, 2001, he was taken off a bus in Pakistan, and taken to a prison in Peshawar, Pakistan, then to Kandahar, Afghanistan, and, finally to Guantanamo Bay, where he remained until August 4th, 2006. {He wroet a book about his experiences and teh following is an excerpt:

In Kandahar:

Did they have a lie detector? I asked myself. The man was holding something in his hands. It looked like two irons that he was rubbing together. Or one of those machines used to revive people who have heart attacks. Before I realized what was happening, I felt the first jolt.

It was electricity. An electric shock. They put the electrodes to the soles of my feet. There was no way to remain seated. It was as though my body was lifting itself off the ground of its own accord. I felt the electric current going through my whole body. There was a bang. It hurt a lot. I felt warmth, jolts, cramps. My muscles cramped up and quivered. That hurt, too.

... I heard screams.

They were my screams

MORE

He was young, around my age, maybe nineteen or twenty. He lay on the ground making soft noises.
...
He didn't have any legs. His wounds were still fresh.

I sat in my cage, hardly daring to look, but every once in a while I had to look in his direction. The stumps of his legs were full of pus. The bandages wrapped around them had turned red and yellow. Everything was bloody and moist. He had frostbite marks on his hands. He seemed hardly able to move his fingers. I watched as he tried to get up. He crawled over to the bucket in his cage and tried to sit on it. He had to go to the toilet. He tried to raise himself up with his hands on the chain-link fence, but he didn't make it. He couldn't hold on with his swollen fingers. Still, he tried, until a guard came and hit his hands with his billy-club. The young man fell to the ground.
Every time he tried to hoist himself onto the bucket, the guards came and hit him on the hands. No one was allowed to touch the fence - that was an iron law. But a young man with no legs? They told him he wasn't allowed to stand up. But how could he have done that without any legs? He wasn't even allowed to lean on the fence or to crawl onto the bucket.
...
The bandages wrapped around Abdul's stumps were never changed. When he took them off himself, they were full of blood and pus. He showed the bandages to the guards and pointed to his open wounds. The guardsw ignored him. Later, I saw how he tried to wash the bandages in his bucket of drinking water. But he could hardly move his hands, so he wasn't able to. And even if he had, where would he have hung them up to dry? He wasn't allowed to touch the fence. He wrapped his stumps back up in the dirty bandages.MORE

Today I will share the story of Omar Khadr:

Omar was born in Toronto, Ontario, Canada. Much has been said about his family and his childhood. It is complicated, and to get the entire background I recommend the Wikipedia article, which has lots of links to the relevent original documents and news articles. I also highly recommend the book "Guantanamo's Child" by Michelle Shephard.
In the end, Omar was captured by US troops in Afghanistan on July 27, 2002, after a firefight during which a grenade was thrown. The grenade killed Sgt. Christopher Speer and allegedly blinded Sgt. Layne Morris in one eye. Omar is accused of throwing that grenade, but documents surfaced last year which cast doubt that he was the one who threw the grenade. He was severely injured in the firefight, including major wounds to his chest and at least one eye.
Omar was 15 years old when he was taken into custody.
...

Around the time of Ramadan in 2003, an Afghan man, claiming to be from the Afghan government, interrogated me at Guantanamo. A military interrogator was in the room at the time. The Afghan man said his name was "Izmarai" (Lion), and that he was from Wardeq. He spoke mostly in Farsi, and a little in Pashto and English. He had an American flag on his trousers. The Afghan man appeared displeased with the answers that I was giving him, and after some time both the Afghan and the military interrogator left the room. A military official then removed my chair and short-shackled me by my hands and feet to a bolt in the floor. Military officials then moved my hands behind my knees. They left me in the room in this condition for approximately five to six hours, causing me extreme pain. Occasionally, a military officer and the interrogators would come in and laugh at me. MORE

In The New York Times last night, James Risen and Eric Lichtblau -- the reporters who won the Pulitzer Prize for informing the nation in 2005 that the NSA was illegally spying on Americans on the orders of George Bush, a revelation that produced no consequences other than the 2008 Democratic Congress' legalizing most of those activities and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law. The article reports that the spying abuses are "significant and systemic"; involve improper interception of "significant amounts" of the emails and telephone calls of Americans, including purely domestic communications; and that, under Bush (prior to the new FISA law), the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East. The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers."

...

These widespread eavesdropping abuses enabled by the 2008 FISA bill -- a bill passed with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators -- aren't a bug in that bill, but rather, were one of the central features of it. Everyone knew that the FISA bill which Congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses. That was the purpose of the law: to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities. This was not an unintended and unforeseeable consequence of that bill. To the contrary, it was crystal clear that by gutting FISA's safeguards, the Democratic Congress was making these abuses inevitable. MORE

While at the Office of Legal Counsel, Jay Bybee wrote the "insect memo" to authorize the torture on Abu Zubaydah, an Al Qada operative captured in Pakistan in 2002. His experience became George Bush's prime example for the efficacy of and need for torture. From Bush's 2006 speech:

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.

...

So, the notion that we got anything of value from Zubayda is dubious -- but if we did, why did the CIA destroy the tapes of Zubaydah being tortured? Wouldn't they want it around as proof?


Bybee cites no medical evidenc for determining whether these techniques were "safe" or not, nor -- as Jane Mayer has documented -- was there ever any research into the efficacy of torture as an effective means of questioning. Bybee had no reason to believe, as Bush asserted, that these techniques were designed to be "safe." And contrary to George Bush's claims, the Red Cross has determined that the methods used against Zubaydah are "categorically" torture, which is illegal under both US and international law.
Jay Bybee's job, since 2003, has been sitting on the 9th Circut Court of Appeals, deciding what is an isn't constitutional. In the wake of the release of these documents, which Andrew Sullivan rightly calls an "unprofessional travesty of lawyering," he ought to resign.MORE

Briefs on FISA are coming out in Northern California so fast and furious it's hard to keep them straight. Just as a reminder there are two main cases:

* al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
* Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds

The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama's interpretation of "if."

Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if's" (and one "shall") appearing in FISA-related law. MORE

Mr. Tice talked at some length about the difference between large-scale technical surveillance and more focused directed surveillance. If I've understood him correctly, then I think I can explain what he was talking about by using email as an example.

If you were interested in screening huge amounts of email, but didn't have the capacity to capture or store it all, you might decide to just content yourself with the metadata. Metadata is just "data about data". For instance, in the case of email, some interesting metadata might be: (a) what language it's in (b) the sender's address (c) the recipient's address (d) the length in bytes (e) the length in lines (f) what kinds of attachments, if any (g) what mail program was used to compose it (h) what the Subject line was, and so on.

This sort of metadata is relatively easy to extract and takes up a lot less room than the actual data: the metadata for an email message with 2M of photos attached might fit in 1K. (And this is the point where it should dawn on you that similar metadata exists for faxes, phone calls, and every other electronic form of communication.)MORE

Yesterday, Russell Tice appeared on Countdown with Keith Olberman (video) (transcript) to talk about large-scale surveillance and data acquisition conducted during the Bush Administration. I wrote about it here, gimmeshelter wrote about it here, and mcjoan wrote about it here.
Tonight, Mr. Tice was back and was joined by James Risen of the NYT.

...

The two tiers of surveillance that Mr. Tice described consist of all-encompassing metadata acquisition and more tightly focused data acquisition. Here's an example of how that might work (using email to illustrate, as I did yesterday): suppose you know that The Bad Guys all picked up a certain brand of cheap digital camera and that's what they're using to take pictures of potential targets and share them. Suppose that this particular model of camera has a default setting of 1846x948 pixels, and suppose that The Bad Guys are transferring these files around via email, using accounts on free mail providers like Yahoo and Hotmail and Gmail.

What might happen is that somebody writes an algorithm that looks at all the email and flags anything that is to a free mail provider, from a free mail provider, has attached photos, and has attached photos that are 1846x948. That's the first tier, based entirely on metadata.

Whenever a message is found that matches those criteria, the sender and recipient(s) are noted and from then on, everything they send or receive gets vacuumed up. And that extends way beyond email: if the sender's phone number or fax number or IM account or anything else can be identified, then everything associated with those gets included too. And per Mr. Tice's comments about pulling in data from external databases: their credit card records, their bank records, everything else.
That's the second tier, where every scrap of data is picked up.

Which means that if you happened to buy the same cheap digital camera as The Bad Guys and you happen to use Gmail, you're going to be swept up by that same algorithm and all of your data will be given the same special attention as theirs.MORE

In addition to his two interviews with NSA whistle blower Russell Rice, Olbermann also had on NY Times journalist James Risen who first broke the story about this program in 2005.

?While the NSA and DHS do have not to date publicly discussed the specifics of their surveillance programs, we now have a whistle blower confirming that they do indeed exist, and that they are using machine learning and data mining techniques.

The sort of automated machine learning techniques that appear to be utilized by the NSA are are fairly common these days; on-line retailers use them to detect fraud, credit card companies use them to detect stolen cards, lenders (whether they actually use the results or not) use them to determine loan risks, and advertisers use them extensively to target ads.MORE

What happens, as a society, to us when our expectation of privacy is degraded, knowing that there is at least a chance that any electronic communication will be viewed by a stranger, let alone the government? How does the change in expectation of privacy change how we view ourselves? Our other views on our expectations of privacy? Our other freedoms? Other people's freedoms?

...

With the technical and non-technical (e.g., political, organizational, people level security, etc.) considerations taken into account, how does one prevent blackmail situations? How does one prevent those who run the system from using the data for personal gain?

Who would have access to the data collected, or portions of the data? Does one have the right to view one's own data set? If so, can one ask that mistakes be corrected? Who is responsible for the correctness of the data? Would corporations be able to, in any manner gain access to the data? Could one be able to look at a family member's data? A friend's? A stranger's? Could the data be sold? Could the data be subpoenaed in non-terrorist criminal and civil proceedings? Could it be used for as the basis for credit ratings? Could it be used by the IRS? By debt collectors? Could the military use it in the context of "don't ask, don't tell"?

How does one secure the system from hackers? And not just the actual data repositories, but also, the collection taps and the communication between those taps and the repositories. Compromising such a system would become the Holy Grail of identity thieves. Such a system would also become the primary target in e-warfare; a centralized repository with that level of information about every single US citizen would be irresistible. Computer security is a never ending competition in which the good guys can never loose a single round, but the bad guys only need to win once to achieve victory. Are we willing to take the risk of massive data theft inherent in having such a system?MORE

To be blunt, the reason there was a need for the list at all was because the media and the Democratic party didn’t do their jobs. The media did not report, underreported, misreported or reported far too late to matter most of what went on in the last 8 years. They fed us narratives filled with talking points, not facts. Access and he said / she said reporting became the order of the day. Real journalism occurred by accident or was perpetrated by a lonely few. Meanwhile the Democrats refused to raise any opposition and found silence and complicity the better part of valor. So to create the list I had to do what all of us in the blogosphere have had to do. I had to pick among the media, unpack, unspin, and deconstruct their narratives. I went to primary sources. And I did this not alone but benefiting from the collective effort of us all.

And what I found horrified me.

Our government has been hollowed out. It is not just the Justice Department but all departments and agencies whose mission it was to help citizens that were filled with Bush appointees whose job it was to dismantle them. Interior became a playground for drilling, mining, and developers, Labor for Big Business, the EPA for polluters, Energy for oil and gas companies, the Pentagon for neocons, the SEC for Wall Street. Nor was it just the top echelons where this rot occurred but went down to the fourth and fifth tiers, to the Monica Goodlings and Kyle Sampsons. And it wasn’t here or there but across the board that this demolition of our government occurred.

Our government has been looted. It began with tax cuts for the wealthy and corporations. It continued with the promotion of deregulation and the financial bubbles. It is finishing with us on the edge of depression. While the rest of the economy falls apart the government continues to announce one monster bailout of the financial industry after another.

Our Constitution and the rule of law have been trashed. The last 8 years saw the creation of a Presidential dictatorship: torture, indefinite detention, kidnapping, spying, kangaroo courts, signing statements, illegal wars, and for all these things there was no accountability, none.

What I hope the list conveys in its own imperfect way is that these were not isolated events committed by a few people. This was an undertaking that thousands in the Bush Administration worked on day in day out for 8 years. This was their job. They made a career out of doing in our government, and we were paying them to do it.

And yet, Americans did not take to the streets. Democrats did not oppose. The media cheered on. As I said, my list is a judgment on George Bush. He is the worst President in our history. My list is a testament to that fact. But it is also a judgment on us because we let it happen. Yes, some of us spoke out, but the question that haunts many of us, and certainly me, is could we have done more.