In Historic Settlement, CA Dramatically Changes Its Solitary Confinement Practices

CA has long had a practice of putting gang affiliates in solitary confinement, not for any behavioral purposes, but to coerce people to inform on their gang-mates. Back in 2012, a group of prisoners — Todd Ashker, Sitawa Nantambu Jamaa, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, spanning several affiliations — sued to end the practice. Along the way they’ve also engaged in hunger strikes to call attention to the practice.

The suit just settled. Within short order, almost all of the prisoners who’ve been in long term solitary will be released into the general population. Solitary will be behaviorally based going forward, rather than affiliation based. For those put in solitary for behavioral issues, there will be a designated step-down process, and they’ll get significantly more out-of-cell time than currently. There will be new group housing alternative to solitary. And the prisoners will be a key part of ensuring compliance with this settlement.

The joint statement from the plaintiffs emphasizes the degree to which they won this settlement by working together.

This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country. California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action. This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters. Our movement rests on a foundation of unity: our Agreement to End Hostilities. It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence. From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings. As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle. We are fully committed to that effort, and invite you to join us.

Center for Constitutional Rights has more on the settlement here, including depositions from the plaintiffs dating to last year.

This is really great news. Let’s hope it serves as a model for reform elsewhere.

 

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David Petraeus, Whose Greatest Aptitude Lies in Rewriting History

As always in stories involving David Petraeus, this story about his plan to work with al Qaeda to defeat ISIS involves some rewriting or forgetting of history. There’s the fiction that what is usually called the surge but here is at least called co-opting members of al Qaeda “worked.”

The former commander of U.S. forces in Iraq and Afghanistan has been quietly urging U.S. officials to consider using so-called moderate members of al Qaeda’s Nusra Front to fight ISIS in Syria, four sources familiar with the conversations, including one person who spoke to Petraeus directly, told The Daily Beast.

The heart of the idea stems from Petraeus’ experience in Iraq in 2007, when as part of a broader strategy to defeat an Islamist insurgency the U.S. persuaded Sunni militias to stop fighting with al Qaeda and to work with the American military.

The tactic worked, at least temporarily. But al Qaeda in Iraq was later reborn as ISIS, and has become the sworn enemy of its parent organization. Now, Petraeus is returning to his old play, advocating a strategy of co-opting rank-and-file members of al Nusra, particularly those who don’t necessarily share all of core al Qaeda’s Islamist philosophy. [my emphasis]

To be fair to the Daily Beast, they call it a “tactic,” not a strategy, which is correct and part of the problem with it — it provides no path to lasting peace and can easily lead to the metastasis of new violent groups — as DB makes clear happened with the rise of al Qaeda in Iraq. The description of how Petraeus engaged the Sons of Iraq also neglects to mention the financial payoff, which seems important both to understand the play but also its limitations. Thus far, though, DB at least hints as why Petraeus’ plan is so batshit crazy.

Then there’s the silence in the story about how every attempt to train allied troops that Petraeus has been involved with has turned to shit: Iraq, Afghanistan, Libya. That seems worth mentioning.

But I’m most interested in this claim:

Petraeus was the CIA director in early 2011 when the Syrian civil war erupted. At the time, he along with then Secretary of State Hillary Clinton and Defense Secretary Leon Panetta reportedly urged the Obama administration to work with moderate opposition forces. The U.S. didn’t, and many of those groups have since steered toward jihadist groups like the Nusra Front, which are better equipped and have had more success on the battlefield.

While it is true that Obama did not systematically arm rebels in Syria in 2011, it is also a public fact that the CIA was watching (and at least once doing more than that) Qatar and Saudi Arabia move arms from Libya before Petraeus’ departure in 2012, and Obama approved a covert finding to arm “moderate” rebels in April 2013, with CIA implementing that plan in June.

That’s all public and confirmed.

So how is it that we once again are pretending that the CIA — the agency Petraeus led as it oversaw a disastrous intervention in Libya that contributed to radicalization both there and in Syria — didn’t arm purported moderates who turned out not to be?

In other words, the story here should be, “David Petraeus, after overseeing a series of failed training efforts and covert efforts that led to increased radicalization, wants to try again.”

Which would make it even more clear how crazy this idea is.

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John Yoo’s Assistance in Starting Iraq War Might Help Obama Avoid an Iran War

Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).

The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.

Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.

Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.

That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.

Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.

This memo authorized the Executive to withhold WMD information in Bush’s 2003 State of the Union address

First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.

Boy how wrong was I. Boy how inadequately cynical was I.

Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.

Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:

It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.

Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?

In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.

On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.

Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.

This memo means Obama doesn’t have to share anything about the Iran deal it doesn’t want to

Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.

By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.

If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.

Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.

I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).

A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations  — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.

The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.

I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.

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Did China and Russia Really Need Our Help Targeting Spook Techies?

LAT has a story describing what a slew of others — including me — have already laid out. The OPM hack will enable China to cross-reference a bunch of databases to target our spooks. Aside from laying all that out again (which is worthwhile, because not a lot of people are still not publicly discussing that), LAT notes Russia is doing the same.

But other than that (and some false claims the US doesn’t do the same, including working with contractors and “criminal” hackers) and a review of the dubiously legal Junaid Hussain drone killing, LAT includes one piece of actual news.

At least one clandestine network of American engineers and scientists who provide technical assistance to U.S. undercover operatives and agents overseas has been compromised as a result, according to two U.S. officials.

I would be unsurprised that China was rolling up actual HUMINT spies in China as a result of the OPM breach (which would explain why we’d be doing the same in response, if that’s what we’re doing). But the LAT says China (and/or Russia) is targeting “engineers and scientists who provide technical assistance” to spooks — one step removed from the people recruiting Chinese (or Russian) nationals to share its country’s secrets.

I find that description rather curious because of the way it resembles the complaint by CIA contractor whistleblower John Reidy in an appeal of a denial of a whistleblower complaint by CIA’s Inspector General. (Marisa Taylor first reported on Reidy’s case.) As I extrapolated from redactions some weeks ago, it looks like Reidy reported CIA’s reporting system getting hacked at least as early as 2007, but the contractors whose system got (apparently) hacked got him fired and CIA suppressed his complaints, only to have the problem get worse in the following years until CIA finally started doing something about it — with incomplete information — starting in 2010.

Reidy describes playing three roles in 2005: facilitating the dissemination of intelligence reporting to the Intelligence Community, identifying Human Intelligence (HUMINT) targets of interest for exploitation, and (because of resource shortages) handling the daily administrative functions of running a human asset. In the second of those three roles, he was “assigned the telecommunications and information operations account” (which is not surprising, because that’s the kind of service SAIC provides to the intelligence community). In other words, he seems to have worked at the intersection of human assets and electronic reporting on those assets.

Whatever role he played, he described what by 2010 had become a “catastrophic intelligence failure[]” in which “upwards of 70% of our operations had been compromised.” The problem appears to have arisen because “the US communications infrastructure was under siege,” which sounds like CIA may have gotten hacked. At least by 2007, he had warned that several of the CIA’s operations had been compromised, with some sources stopping all communications suddenly and others providing reports that were clearly false, or “atmospherics” submitted as solid reporting to fluff reporting numbers. By 2011 the government had appointed a Task Force to deal with the problem he had identified years earlier, though some on that Task Force didn’t even know how long the problem had existed or that Reidy had tried to alert the CIA and Congress to the problem.

All that seems to point to the possibility that tech contractors had set up a reporting system that had been compromised by adversaries, a guess that is reinforced by his stated desire to bring a “qui tam lawsuit brought against CIA contractors for providing products whose maintenance and design are inherently flawed and yet they are still charging the government for the products.” In his complaint, he describes Raytheon employees being reassigned, suggesting that contracting giant may be one of the culprits, but all three named contractors (SAIC, Raytheon, and Mantech) have had their lapses; remember that SAIC was the lead contractor that Thomas Drake and friends exposed.

Reidy’s appeal makes it clear that one of the things that exacerbated this problem was overlapping jurisdiction, with a functional unit apparently taking over control from a geographic unit. While that in no way rules out China, it sounded as much like the conflict between CIA’s Middle East and Counterterrorism groups that has surfaced in other areas as anything else.

The reason I raise Reidy is because — whether or not the engineers targeted as described in the LAT story are the same as the ones Reidy seems to describe — Reidy’s appeal suggests the problem he described arose from contractor incompetence and cover-ups.

I guess you could say the same about the OPM hack (though it was also OPM’s incompetence). Except in the earlier case, you’re talking far more significant intelligence contractors — including SAIC and Raytheon, who both do a lot of cybersecurity contracting on top of their intelligence contracting — and a years-long cover up with the assistance of the agency in question.

All while assets were being exposed, apparently because of insecure computer systems.

China’s hacking is a real threat to the identities of those who recruit human sources (and therefore of the human sources themselves).

But if Reidy’s complaint is true, then it’s not clear how much work China really needs to do to compromise these identities.

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Under What Jurisdiction Did DHS Send Out an Army of Agents Against RentBoy?

The NYT had a great editorial that echoes my amazement that the Department of Homeland Security sent an army of agents to take down RentBoy.com this week.

It’s somewhat baffling, though, that taking down a website that operated in plain sight for nearly two decades suddenly became an investigative priority for the Department of Homeland Security and federal prosecutors in Brooklyn. This week, the website’s founder and six employees were charged with violating federal law by facilitating paid sexual encounters.

Kelly Currie, the acting United States attorney for the Eastern District of New York, trumpeted the case against Rentboy.com, calling it an “Internet brothel” that “made millions of dollars from the promotion of illegal prostitution.” The website pulled in $10 million over the past five years, charging escorts for publishing their profiles, according to prosecutors. That’s less revenue than an average McDonald’s franchise generates.

[snip]

Prosecutors can credibly argue that the site’s operators were breaking the law. But they have provided no reasonable justification for devoting significant resources, particularly from an agency charged with protecting America from terrorists, to shut down a company that provided sex workers with a safer alternative to street walking or relying on pimps. The defendants have not been accused of exploiting sex workers, featuring minors on the website, financial crimes or other serious offenses that would warrant a federal prosecution.

DHS doesn’t seem to know why DHS was involved either. In a statement to the NYT, ICE’s spokesperson, Khaalid Walls, suggests ICE’s jurisdiction arises because this involves the illegitimate movement of people, goods and currency in domestic and foreign transactions, which suggesting the things moved were prostitutes.

Mr. Walls said: “As the investigative arm of the Department of Homeland Security, ICE is responsible for the enforcement of laws that promote the legitimate movement of people, goods and currency in domestic and foreign transactions. Our allegation with this case is that the business and its principals purported itself to be an escort service while promoting criminal acts, namely illegal prostitution.”

I’m rather curious that DHS claims jurisdiction over the movement of goods domestically. But I’m also not sure how a website constitutes moving anything.

But the claim this is about prostitution seems to conflict with ICE’s description of the bust on its website, which claims it’s a financial crime.

Screen Shot 2015-08-29 at 10.19.00 AM

As I’ve suggested, I wouldn’t be surprised if ICE used all those hard drives they seized this week to put together the money laundering case they leaked to some outlets. But they haven’t charged it yet. Which would mean they used the prostitution claim to take down an advertising site to be able to get the evidence to charge something that might be more squarely in ICE’s jurisdiction.

Add in the fact that NY DA Cy Vance — the entity that would have direct jurisdiction over prostitution headquartered in NYC — took his office off this release, and I’m genuinely confused about what DHS is doing.

None of that will mean the RentBoy defendants will be able to challenge this on jurisdictional grounds. But it does raise questions about what DHS is really doing.

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ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.

pic-5

Then, later…

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Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

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Government Recently Released Information Proving Larry Klayman Has Standing

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As I noted, the DC Circuit Court reversed Judge Richard Leon’s injunction against the phone dragnet. The judges disagreed on whether Larry Klayman had standing — because he is a Verizon Wireless but not Verizon landline subscriber, which had been the only thing confirmed by the government. All agreed he had not shown he had the high certainty of standing required to uphold an injunction against the program. But the per curium opinion did agree that the case has not been mooted, because by immediately restarting the bulk program after the passage of USA F-ReDux, the government showed that the harm could recur.

That’s important, because information proving that Klayman does have standing has recently been released in an official (albeit probably inadvertent) release.

Part of the IG Reports on the phone dragnet Charlie Savage obtained by suing shows that — at least in 2010 — the Primary Order for the phone dragnet went to AT&T, Sprint, Verizon’s subsidiaries (the former MCI part of Verizon’s business, which I believe is its backbone), and “Cellco Partnership d/b/a Verizon Wireless.”

I’ll say more about what I think this really means in a later post — and why I think the suit against bulk surveillance needs to be, and can be, tweaked somewhat to ensure standing.

But for the moment, know that for at least one 90 day period in 2010, Verizon Wireless as well as Verizon’s landline was ordered to turn over phone records.

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DC Circuit Reverses Judge Leon Order Overturning Phone Dragnet

In a per curium decision, a DC Circuit panel including Janice Rogers Brown, Stephen Williams, and David Sentelle has reversed Judge Richard Leon’s decision preliminary injunction against the phone dragnet. They reversed on standing (which I’ll return to) but found the issue remains ripe.

This will be my working thread.

The panel pointed to the immediate resumption of the dragnet after USA F-ReDux to argue that the alleged violation could recur.

Cessation of a challenged practice moots a case only if “there is no reasonable expectation . . . that the alleged violation will recur.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quotations and citations omitted). Here, any lapse in bulk collection was temporary. Immediately after Congress acted on June 2 the FBI moved the FISC to recommence bulk collection, United States’ Mem. of Law, In re Application of the FBI, No. BR 15-75 (FISC, filed Jun. 2, 2015), and the FISC confirmed that it views the new legislation as effectively reinstating Section 215 for 180 days, and as authorizing it to resume issuing bulk collection orders during that period.

Brown reversed because Klayman had shown it likely his records were collected, but had not reached the bar for a preliminary injunction.

However, plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers. Thus, the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.

[snip]

Contrary to the assertions of my colleagues, these facts bolster plaintiffs’ position: where the Clapper plaintiffs relied on speculation and conjecture to press their claim, here, plaintiffs offer an inference derived from known facts.

However, the burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must establish a “substantial likelihood of success on the merits.” Sottera, Inc., 627 F.3d at 893. Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction. [citation omitted]

Williams reversed because he doesn’t think Klayman has standing. He points to Amnesty v Clapper to suggest he has only speculative standing.

Plaintiffs’ contention that the government is collecting data from Verizon Wireless (a contention that the government neither confirms nor denies, Gov’t’s Br. at 38-39), depends entirely on an inference from the existence of the bulk collection program itself. Such a program would be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27 & n.36 (2013).

Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.”

[snip]

Here, the plaintiffs’ case for standing is similar to that rejected in Clapper. They offer nothing parallel to the Clapper plaintiffs’ evidence that the government had previously targeted them or someone they were communicating with (No. 3 above). And their assertion that NSA’s collection must be comprehensive in order for the program to be most effective is no stronger than the Clapper plaintiffs’ assertions regarding the government’s motive and capacity to target their communications (Nos. 2 & 4 above).

[snip]

Accordingly, I find that plaintiffs have failed to demonstrate a “substantial likelihood” that the government is collecting from Verizon Wireless or that they are otherwise suffering any cognizable injury. They thus cannot meet their burden to show a “likelihood of success on the merits” and are not entitled to a preliminary injunction.

Sentelle would boot the case entirely because Klayman doesn’t have standing.

Like Judge Williams, I believe that the failure to establish the likelihood of success depends at least in the first instance on plaintiffs’ inability to establish the jurisdiction of the court. I also agree with Judge Williams that plaintiffs have not established the jurisdiction of the court. That being the case, I would not remand the case for further proceedings, but would direct its dismissal.

[snip]

Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records. They have certainly not shown an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 180. I agree with the conclusion of my colleagues that plaintiffs have not shown themselves entitled to the preliminary injunction granted by the district court. However, we should not make that our judicial pronouncement, since we do not have jurisdiction to make any determination in the cause. I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district court, and I would remand the case, not for further proceedings, but for dismissal.

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Mankiw’s Tenth Principle: Society Faces A Short-Run Trade-off Between Inflation and Unemployment

The introduction to this series is here.
Part 1 is here.
Part 2 is here.
Part 3 is here.
Part 4 is here.
Part 5 is here.
Part 6 is here.
Part 7 is here.
Part 8 is here.
Part 9 is here.

Mankiw’s tenth principle of economics is: Society faces a short-run trade-off between inflation and unemployment. He admits that this is more controversial among economists than his other principles. He says that most believe this explanation:

  • Increasing the amount of money in the economy stimulates the overall level of spending and thus the demand for goods and services.
  • Higher demand may over time cause firms to raise their prices, but in the meantime, it also encourages them to hire more workers and produce a larger quantity of goods and services.
  • More hiring means lower unemployment.

This line of reasoning leads to one final economy-wide trade-off: a short-run trade-off between inflation and unemployment.

This gives economic policy-makers a tool for influencing economic trends. “By changing the amount of money it prints”, says Mankiw, government can put more or less money into the economy, and thus influence unemployment, at least in the short run. The Great Crash of 2008 is an example. Mankiw explains that it was caused by “bad bets on the housing market”, and led to high unemployment and lower incomes. The Obama administration responded with a stimulus package of spending and tax cuts, and the Fed increased the amount of money in the economy, in an effort to reduce unemployment. He adds: “Some feared, however, that these policies might over time lead to an excessive level of inflation.”

The frightened people were, of course, proven absolutely wrong, though they won the policy argument with the imposition of the Sequester. The stimulus package was too small, though at least it more or less happened, and of course spending on the military increased, which helped, though it would have been nice to have something for the money besides the worthless F-35. This discussion is fleshed out beginning at about page 490 (in the 6th Ed.) with a long discussion of the Phillips Curve. This Wikipedia entry is at least cheaper than buying Mankiw’s book. for those not familiar with the subject.

This isn’t so much a principle in the sense of an axiom as it is a theorem, worked up from axioms. The source of the idea is a 1958 paper by William Phillips, showing an historical correlation between inflation and unemployment in the UK, and extended to US data by Paul Samuelson and Robert Solow. The correlation and the explanation worked together to persuade people that both the grounds of explanation and the relationship were more or less permanent features of the economy. The ideas behind the explanation are neoclassical, so the correlation served to validate those neoclassical ideas.

Recently the Wall Street Journal published an essay by Ben Leubsdorf discussing the current understanding of the Phillips Curve debate: The Fed Has a Theory. Trouble Is, the Proof Is Patchy. [Paywall]. Jared Bernstein discusses it in this post and links to this New York Times post; both are worth reading to see just how unhinged we are from the simple explanation offered by Mankiw. This chart is from the WSJ article.

Phillips Curve Chart 3

To read the chart, select an expansion, find the line in that color, and look for the circle, which is the beginning of the period. Then follow the line as it moves showing the changes in inflation (y-axis) and unemployment (x-axis). Here’s Leubsdorf’s explanation:

But the simple link between U.S. unemployment and inflation described by the Phillips curve appeared to break down after the 1960s. High inflation coexisted with high unemployment in the 1970s. In the 1990s, the jobless rate fell as price pressures weakened. Over the past three years, inflation has declined despite a falling jobless rate.

Mankiw says there is dispute among economists about this, and Leubsdorf confirms that. He says that a recent WSJ survey found that 2/3 of economists “believed that the link exists.” Here’s a quote from a believer, Atlanta Fed President Dennis Lockhart.

“In the absence of direct evidence that inflation is in fact converging to the target and in the absence of compelling or convincing direct evidence, I think a policy maker has to act on the view that the basic relationship in the Phillips curve between inflation and employment will assert itself in a reasonable period of time as the economy tightens up ….

Economists are fully aware of the problems with the Phillips Curve, and there are plenty of attempts to make it better. This is from the conclusion of an April 2015 Working Paper by Laurence Ball and Sandeep Mazumder of the International Fund:

One of Mankiw’s (2014) ten principles of economics is, “Society faces a short-run tradeoff between inflation and unemployment.” This tradeoff, the Phillips curve, is critically important for monetary policy and for forecasting inflation. It would be extraordinarily useful to discover a specification of the Phillips curve that fits the data reliably. Unfortunately, researchers have repeatedly needed to modify the Phillips curve to fit new data. Friedman added expected inflation to the Samuelson-Solow specification.

Subsequent authors have added supply shocks (Gordon, 1982), time-variation in the Phillips-curve slope(Ball et al., 1988), and time-variation in the natural rate of unemployment (Staiger et al.,1997). Each modification helped explain past data, but, as Stock and Watson (2010) observe, the history of the Phillips curve “is one of apparently stable relationships falling apart upon publication.” Ball and Mazumder (2011) is a poignant example.

Even today people are looking for a way to find something useful in past data to predict future outcomes. As Leubsdorf noted, the Fed is using some version of this curve in deciding when to raise interest rates.

So, how does this fit with neoliberalism? One of the goals of neoliberal economics is the protection of established wealth. Inflation erodes wealth. Returns to capital may or may not keep up with inflation, depending on the strength of labor and other factors of production. Debtors are able to repay their debt in less valuable dollars, which erodes the assets of creditors. If the increased returns are less than the erosion, wealth suffers. As we have seen in the wake of the Great Crash, the governing power structure of neoliberalism demands that capital be protected whether in the form of equity or debt. This principle tells policy makers to put people out of work rather than suffer inflation.

The Fed follows this principle. This is a chart of the labor share of income.
labor share 1
The gray vertical bars are recessions. The chart shows that as the labor share rises, we get a recession. The following chart shows bank prime rates.
Bank Prime Rate
As interest rates rise, we get recessions. With the exception of the recession that followed the Great Crash, it’s fair to say that all of these recessions were engineered by the Fed because of inflation or fear of inflation.

The implications are fascinating. Before the Great Crash, almost all US money was created by bank lending and credit expansion. Mankiw’s Principle No. 9 tells us that when too much money is created, we get inflation. The Phillips Curve tells the Fed it has to raise interest rates to stem inflation, and that it does so at the cost of putting people out of jobs. So, businesses lend and borrow too much, creating inflation or fear of inflation, and to solve the problem created by the failure of capitalists, the Fed makes sure only the working people pay the price, by losing their livelihoods, and lately, by watching their incomes stagnate or drop. And that is the outcome of applying Mankiw’s Principles of Economics: damaging workers to protect the rich.

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From George Zimmerman to Dylann Roof to Bryce Williams

In a manifesto sent to ABC today, Bryce Williams — who shot several people on camera this morning before escaping then killing himself just before he was apprehended — explained that the Charleston Church shooting had been his last straw.

In the 23-page document faxed to ABC News, the writer says “MY NAME IS BRYCE WILLIAMS” and his legal name is Vester Lee Flanagan II.” He writes what triggered today’s carnage was his reaction to the racism of the Charleston church shooting:

“Why did I do it? I put down a deposit for a gun on 6/19/15. The Church shooting in Charleston happened on 6/17/15…”

“What sent me over the top was the church shooting. And my hollow point bullets have the victims’ initials on them.”

It is unclear whose initials he is referring to. He continues, “As for Dylann Roof? You (deleted)! You want a race war (deleted)? BRING IT THEN YOU WHITE …(deleted)!!!” He said Jehovah spoke to him, telling him to act.

In his own manifesto, Dylann Roof attributed his own radicalization to white supremacists’ reframing of the Trayvon Martin killing.

The event that truly awakened me was the Trayvon Martin case. I kept hearing and seeing his name, and eventually I decided to look him up. I read the Wikipedia article and right away I was unable to understand what the big deal was. It was obvious that Zimmerman was in the right. But more importantly this prompted me to type in the words “black on White crime” into Google, and I have never been the same since that day. The first website I came to was the Council of Conservative Citizens. There were pages upon pages of these brutal black on White murders. I was in disbelief. At this moment I realized that something was very wrong. How could the news be blowing up the Trayvon Martin case while hundreds of these black on White murders got ignored?

Meanwhile, George Zimmerman is selling Confederate Flags to help protect what he sees as the First and Second Amendment rights of a gun shop owner who  has declared his shop Muslim-free.

Update: And now Zimmerman has weighed in:

Screen Shot 2015-08-26 at 6.41.04 PM

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Emptywheel Twitterverse

bmaz RT @djsziff: Then referred to the President who saved the Union as a "McConaughey-shilled pseudo-luxury sedan." https://t.co/riWwXlkmwt
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emptywheel @ColMorrisDavis Martinis?!?!?! Have you ever even BEEN to Ann Arbor!?!?! Think I saw about 7 martinis in 15 years there. @JohnDingell
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emptywheel @ThusBloggedA See?!?! Also you're prolly a bacon loyalist. @JasnTru
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emptywheel @ThusBloggedA You don't know that. I liked dirtbags for my first ~5 boyfriends. Changed my taste after a while. @JasnTru
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emptywheel .@JasnTru What I'm struck by is I had remembered Miss Piggy to be buxom. But she's not, really. Maybe Kermit likes flat-chested women?
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emptywheel Kermit the Frog girlfriend cleavage is a weird thing.
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emptywheel @PhilPerspective No no no no. When a Wolverine Jet gets treated better than a Wolvering Pat you KNOW something's up.
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emptywheel RT @ProFootballTalk: Jay Feely told Judge Berman about the 2009 Jets K ball incident, which resulted in no investigation of the kicker http…
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bmaz No no, Khan was just collateral damage. Really, that's what my government told me. https://t.co/Bwu8CFx97h
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JimWhiteGNV When will the #Rays ever learn that Kirby Yates has no business in #MLB?
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emptywheel @Green_Footballs @nytimes @SusieMadrak Maybe @Sulliview has an answer for why NYT can't report this as critically as others?
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