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Who We Are: Zeitoun and Camp Greyhound Five Years On

In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump) Read more

Court Faults Army Corps In Katrina Levee Breaches

hurricane katrina floodingLate last Wednesday, there was a blockbuster court ruling that got lost in the healthcare and oversight hearing onslaught. However, the decision by Eastern District of Louisiana Judge Stanwood R. Duval Jr. in the In Re: Katrina Canal Breaches Consolidated Litigation case is a game changer with immense and far reaching ramifications.

Duval excoriated the Army Corps of Engineers and held them, and the government, directly liable for much of the flooding that devastated New Orleans’ Lower 9th Ward and St. Bernard Parish in the Hurricane Katrina disaster of 2005.

The full opinion is here. It is long, 156 pages, detailed, and absolutely fascinating reading. Seriously.

The potential ramifications are huge and, if the decision holds up in the certain appeal, affect large swaths of policy from basic concepts of Federal governmental liability, the structure and performance of government contracting and the entire future of national flood control policy.

Duval finds:

The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions….

Clearly, in this instance, the Corps shortchanged the inhabitants of New Orleans and the environs by its myopic approach to the maintenance and operation of the [Mississippi River Gulf Outlet] ….. It simply chose to ignore the effects of the channel.

It is the Court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression “talk is cheap” applies here.

The government had asserted immunity under the Flood Control Act of 1928 which, along with other laws, generally protects the Army Corps of Engineers from liability for defective flood-control project and provides the government can’t be sued for acting with reasonable care or making a judgment call based on policy. Duval, however held the pertinent shipping channel to be a navigation canal, not a flood-control project under the Flood Control Act of 1928 and that the Corps breached the duty of due care in their construction, maintenance and oversight of the navigation canal.

Duval’s current ruling only covers six named plaintiffs, but is thought to potentially open the door to over 100,000 plaintiffs’ actions on behalf of private property owners and businesses pending in the areas described in the ruling. So now the obvious question is whether Judge Duval’s monumental decision will withstand appeal.

The New York Times, citing Tulane University law professor Oliver Houck, an expert in environmental and natural resource law, indicated:

The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.

“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.

Well that still leaves the law of course, in this case Duval’s interpretation and application of the Flood Control Act of 1928 and the other immunity sources claimed by the government, but there is no question that Duval has intentionally and meticulously crafted a piece of art designed to anticipate and withstand scrutiny. Here is the Appendix of charts, graphs, maps and specs that Houck described; specially downloaded from PACER for the discerning readers of Emptywheel.

The government has been placed in a game changing box. Duval’s opinion is a work of art and, despite being lost in the hubbub of the healthcare shuffle and cable shouting orgies over Sarah Palin, is of seminal importance. Enjoy.

“Trent Lott Called”

I haven’t been covering the Dickie Scruggs case mostly because folo has been covering it very nicely. The short update is the whole thing has exploded as four or five different cases merge into one–and none of it looks good for Scruggs. The Scruggses are due to give a deposition just after the new year in one of these cases, apparently to collect evidence on when they first contracted with two whistleblower-sisters who collected evidence against State Farm and got it into the Scruggses hands.

Lotus posted something today that deserves wider notice. In a post describing Trent Lott’s rather hasty retreat from the Senate (both in general, and last night at precisely 10:45 PM), lotus points out that Trent Lott shows up in some of the filings from this time period, in particular the notes of one of the engineers involved in the case. Trent Lott called, the notes begin.

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The notes go on and on about Trent’s anger at State Farm, ending with a record of just how mad Trent is.

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Now, lotus speculates more about what this might mean for Trent, particularly since it appears that the Scruggses tried to get State Farm in legal trouble in hopes it would make their lawsuits easier to win.

Asshole though he be, Trent Lott is not totally stupid (though he may have been for a while stupified by rage at State Farm). He knows that, despite all his long years’ effort to the contrary, a large number of Mississippians can read and reason and see this trail he’s left, and where it’s heading. There he is down on paper conferring with the whistle-blower (or thief, depending on your standpoint) who worked with Dickie and Jim Hood to coerce a civil settlement via state-applied – possibly criminally state-applied – pressure. Is he the one who hooked them up to the FBI and U.S. Attorney?

But for the moment, I’m interested in this note, which suggests that the sole reason Trent came back this year is so he could legislate his way to revenge against State Farm–or, at the very least, legislate away the insurance companies’ ability to collude.

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Now, perhaps I’m mis-reading this note. But it seems to reflect Trent’s well-publicized contemplation of retirement last year, rather than running for re-election. It seems to provide an explanation for why he decided, in the end, to run for re-election: to get even with State Farm. Read more