everywhere there’s a US post… there’s a diplomatic scandal that will be revealed —Bradley Manning

Yesterday, in anticipation of Ecuador’s imminent (and now announced) official decision to offer Julian Assange, the British sent this letter to the Ecuadorans.

You should be aware that there is a legal basis in the U.K. the Diplomatic and Consular Premises Act which would allow us to take action to arrest Mr. Assange in the current premises of the Embassy.

We very much hope not to get this point, but if you cannot resolve the issue of Mr. Assange’s presence on your premises, this route is open to us.
We understand the importance to you of the issues raised by Mr. Assange, and the strong public pressure in country. But we still have to resolve the situation on the ground, here in the U.K., in line with our legal obligations. We have endeavored to develop a joint text, which helps both meet your concerns, and presentational needs.

Then they sent several vans of police to the Ecuadoran embassy.

In short, the British are threatening to enter the Ecuadoran embassy, purportedly to carry out an extradition for a crime that Assange has not yet been charged with. Actually entering the mission would violate the Vienna diplomatic convention that holds that “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Craig Murray reports [mirror] that the Brits have decided to do so, in response to American pressure.

I returned to the UK today to be astonished by private confirmation from within the FCO that the UK government has indeed decided – after immense pressure from the Obama administration – to enter the Ecuadorean Embassy and seize Julian Assange.

[snip]

The government’s calculation is that, unlike Ecuador, Britain is a strong enough power to deter such intrusions. This is yet another symptom of the “might is right” principle in international relations, in the era of the neo-conservative abandonment of the idea of the rule of international law.

The British Government bases its argument on domestic British legislation. But the domestic legislation of a country cannot counter its obligations in international law, unless it chooses to withdraw from them. If the government does not wish to follow the obligations imposed on it by the Vienna Convention, it has the right to resile from it – which would leave British diplomats with no protection worldwide.

I hope to have more information soon on the threats used by the US administration. William Hague had been supporting the move against the concerted advice of his own officials; Ken Clarke has been opposing the move against the advice of his. I gather the decision to act has been taken in Number 10.

Now, I suspect with all the attention, with Ecuador’s quick response, and with the presence of a bunch of Occupiers at the embassy, the British may end up just waiting this out.

But even if they don’t–even if they do raid the embassy–I do think the US and the UK are inflicting the same kind of damage to themselves that WikiLeaks did.

If the Brits enter the embassy it will only expose publicly what has become true but remains largely unacknowledged: the US and its allies find international law and protocols to be quaint. That was obviously true under Bush, with the illegal Iraq war and his disdain for the Geneva Conventions. But Obama, too, continues to do things legally authorized only by the most acrobatic of legal interpretations.

Which is why I consider it so apt that one of the most embarrassing–albeit frankly rather minor–details that WikiLeaks published about the Obama Administration is that Hillary ordered her staff to help intelligence officers collect intelligence on their counterparts, including credit card data and biometrics.

A classified directive which appears to blur the line between diplomacy and spying was issued to US diplomats under Hillary Clinton’s name in July 2009, demanding forensic technical details about the communications systems used by top UN officials, including passwords and personal encryption keys used in private and commercial networks for official communications.

It called for detailed biometric information “on key UN officials, to include undersecretaries, heads of specialised agencies and their chief advisers, top SYG [secretary general] aides, heads of peace operations and political field missions, including force commanders” as well as intelligence on Ban’s “management and decision-making style and his influence on the secretariat”.

Frankly, everyone violates diplomatic protection in this way (Bush did so famously in the lead-up to the Iraq War), though we of course have a wider range of resources to dedicate to the effort. So it should not have been treated as a shock.

But nevertheless this generated outrage at how arrogant and cynical Hillary’s order was.

While other cables exposed the Obama Administration to far more legal trouble–such as the one apparently showing that we were targeting Anwar al-Awlaki before we believed him to be operational–it was the exposure of diplomatic spying that seemed to piss the Obama Administration off. Exposure as cynical power brokers, not idealistic world citizens.

Yet if the UK does seize Assange to serve our interests–hell, even just by sending those vans and threatening to do so–it will confirm, in truly astonishing fashion, everything the Obama Administration has been most embarrassed about with the release of WikiLeaks.

Update: As Ian Welsh reminds us, the British showed no such concern over rape allegations when they refused to let Augusto Pinochet be extradited.

As the LAT first reported, Judge Cormac Carney has dismissed a suit, Fazaga v. FBI, brought by Southern California Muslims against the FBI for illegal surveillance. Carney actually made two rulings, one dismissing most of the suit on state secrets grounds and one dismissing part of the suit against the government–but not individual FBI officers–on FISA grounds.

The rulings are interesting for four reasons:

• Carney has basically accepted the government’s claims in a case that is closely related to one where–three years ago–he called out the government for lying to him personally
• Carney overstates the degree to which the Administration appears to be adhering to its own state secrets policy
• The case is an interesting next step in FISA litigation
• Carney suggests the FBI now investigates people for radicalization

Liars get to invoke state secrets

Three years ago, Carney caught the government lying to him about what documents it had collected on Southern Californian Muslims in this and related investigations. In an unclassified version of his ruling released last year, he revealed part of the government’s breathtaking claim.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Yet in finding the government’s state secrets invocation here, he is effectively accepting the government’s word–which in some way claims to have a real predicate for its investigation into Southern Californian mosques–over the word of their former informant, Craig Monteilh, who says he was instructed to collect information indiscriminately because “everybody knows somebody” who knows someone in the Taliban, Hamas, or Hezbollah.

Now, I’m not surprised by this outcome. Carney’s earlier ruling basically held, correctly, that the government needs to share its top secret information with judges even if it plans to withhold it from ordinary citizens. So now that the government has started sharing classified information with him, I bet it puts more pressure on him to keep all this information secret by approving the state secrets invocation.

But Carney’s plaintive insistence that this ruling doesn’t amount to rubber-stamping  abusive federal powers make it sound like he doubts his own decision.

In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security. El-Masri, 479 F.3d at 313 (“[A] plaintiff suffers this reversal not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.”);

[snip]

Plaintiffs raise the specter of Korematsu v. United States, 323 U.S. 214 (1944), and protest that dismissing their claims based upon the state secrets privilege would permit a “remarkable assertion of power” by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as “counterterrorism” and “state secrets.” (Pls. Opp’n to Gov’t, at 20, 41–42.) But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here. The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds.

Carney, having been brought into the government’s secret club is now complicit in choosing to sacrifice Muslims’ First Amendment rights for the security of the nation.

Carney overstates the degree to which the government appears to be adhering to its own state secrets policy

That’s made more interesting because Carney bases his acceptance of the government’s state secrets invocation on part on their purported adherence to their own state secrets policy.

Second, even before invoking the privilege in court, the government must adhere to its own State Secrets Policy, promulgated by the Obama administration in a memorandum by the Attorney General in September 2009, effective October 1, 2009.

It’s not at all clear the government does adhere to this policy. As a threshold matter, the policy “commits not to invoke the privilege for the purpose of concealing government wrongdoing.” But this case almost certainly involves activities–the surveillance of Americans in part because of First Amendment protected activities–that were not permitted until the FBI’s Domestic Investigations and Operations Guide made them permissible at the end of 2008. Thus, the state secrets invocation serves, in part, to cover up the fact that FBI officers were spying on Muslims because they were Muslims at a time when that was prohibited by the department.

The policy also promises to refer credible allegations of wrong-doing–as this case involves–to Inspectors General for investigation. Maybe they are doing that. If so, they’re not telling. DOJ wouldn’t even tell Sheldon Whitehouse whether or not they were really following that practice, and the absence of any report on this matter suggests they didn’t do so.

“The Department’s policy is not to disclose the existence of pending IG investigations.  Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department policy on state secrets privilege.”

“However, to the extent IG investigations are undertaken, the Government has typically released public versions of final IG reports,” the DoJ reply stated.

No such public versions of final IG reports have been released in the Obama Administration, as far as could be determined.

Now, whether Carney is aware of these developments or not, he doesn’t say. But he does admit that, even if DOJ violated its own state secrets policy (as they appear to have done), there’s nothing he could do about it.

The Court cannot and does not comment on whether the Government has properly adhered to its State Secrets Policy, as this is internal to the Executive branch, and the Policy does not create a substantive or procedural right enforceable at law or in equity against the Government. (See Holder Decl., Exh. 1 ¶ 7.)

Which says all you need to know about how much judges–particularly those who have been lied to on related issues–ought to take the state secrets policy requirements.

This case is the next step in FISA litigation

Carney may not have cited these recent developments in state secrets, but he is well aware of the latest developments in FISA law, because he points to the 9th Circuit’s recent decision in al-Haramain in throwing out the plaintiffs’ suit against the government on FISA grounds. Based on the 9th Circuit’s holding that the government enjoys sovereign immunity even when it illegally wiretaps someone, Carney threw out the part of the suit against the government for all the allegedly illegal wiretaps used here. The part of the case that remains is against the FBI officers for illegal wiretapping people. We shall see what becomes of that.

Carney suggests the FBI now investigates people for radicalization

Finally, I wanted to point to one passage in which Carney speaks in very general terms about what Eric Holder said about the surveillance program. Speaking in hypotheticals, Carney explains the scope of what might be an adequate predicate for an investigation.

In the context of a counterterrorism investigation, subject identification may include information about persons residing in the United States or abroad, such as Afghanistan, Lebanon, the Palestinian Territories, Yemen, and other regions in the Middle East, whom law enforcement has and has not decided to investigate depending on their nexus to terrorist organizations, such as al Qaeda, the Taliban, Hezbollah, and Hamas. Subjects and their associates may also be investigated because they are suspected of or involved in the recruitment, training, indoctrination, or radicalization of individuals for terrorist activities or fundraising for terrorist organizations. More directly, individuals subjected to counterterrorism investigations may be involved in plotting terrorist attacks. [my emphasis]

Recruiting, training, and fundraising terrorists are all crimes, especially under Holder v. HLP.

But is “radicalization”? I don’t know the answer to that. But that seems to push the limits of even Holder v. HLP’s limits on First Amendment activities further than we’ve known.

Today is primary day in Florida. It is being held on the earliest date in the past 40 years since Florida is hosting the Republican National Convention later this month. While there has been much attention paid to Rick Scott’s infamous voter purge that has prompted legal action from the Justice Department, today I encountered a much more insidious situation that could lead to many more people not voting in November.

I have resided at my current address since 2004 and have voted at a wonderful little country church whose building dates back to 1886 (there is music on autoplay at this link). But when my wife and I stopped by to vote on our way to lunch today, we got quite a surprise. The poll workers could not find either one of us on the voter list. After we joked a bit about being included in the purge because of my left wing blogging, the clerk picked up the phone to speak with the Alachua County Supervisor of Elections office to seek an answer for us. While she was still on the phone seeking information, another voter who came in after us also found that he was not listed on the voter roll.

It turns out that we have been switched to another polling place that is only a few blocks away from where we have voted for the past eight years. In order to drive from our house to our new polling place, we must drive past the old one. The election workers insisted that voters who were moved from one precinct to another were informed, but neither my wife nor I could recall seeing any such notification.

We dutifully went to the new polling place and voted. When I got back from lunch, I went through the spots in our house where mail might have accumulated and found the “notification” that had been sent. From the photo above, it is very easy to see how these notifications (there was one for each of the three registered voters in our household) had been set aside for holding since on first glance it looks only like a standard form for ordering an absentee ballot. Our travel plans did not call for us to be away today, so these forms had been set aside in case our plans changed.

Opening my mailer today, I found that the “Voter Information Card” referenced on the outside of the mailer was actually a new version of what I call my voter registration card. Nowhere on this mailer, either on the outside or inside, does it mention for voters to look carefully to determine whether their precincts have changed. My wife and I inexplicably have been moved from precinct 18 to precinct 58 and the only way to know that is to look at the small entry on the Voter Information Card.

Because I have a car and I don’t work on a time clock, I was able to work my way through this mix-up with only a few minutes lost and minor aggravation. Well, I also did stop to fill out a satisfaction survey to let the Supervisor of Elections know that I felt they handled this transition very poorly. It also helped that I did this during the low-turnout primary rather than November’s general election.

How many people will be disenfranchised in Florida this November because their precincts have changed? How will people who rely on bus transportation to their polling places deal with such a change? Will they have time to go to a new site if they are working on Election Day? The early voting period was shortened from two weeks to eight days this year in another move by Florida Republicans to make it harder for working people to vote and is another factor in today’s expected low turnout.

Oh, and just in case you clicked on the link to the Alachua County Supervisor of Elections, their link for “Information on Polling Place Changes” is not about people moving from one precinct to another. It is about changes to the voting sites themselves.

Update: Oh my. Look what I missed in the local paper while I was on vacation last week. The article bears the headline “Redrawn precincts could create confusion, groups say” and reads in part:

Leaders of the local NAACP and other organizations said Wednesday that new voting precincts could lead to confusion on election day and urged residents to learn their new polling place or to cast ballots early.

That’s right, IT IS ON MOFO’S. Grudge match between the Jim White Hats and the Bmaz Black Hats. Since before the college baseball season started, we were pimping and poking each other about which conference and whose team was better. And here we are, with the finals of the College World Series set to start tomorrow, and it is indeed going to be SEC v. PAC.

Just not the teams we had in mind. Turns out ASU had a little criminal issue and was banned from postseason play this year (not sure they would have made it anyway, but might well have) and the Florida Gators had some unfortunate luck and got bounced out of the CWS in a preliminary round. Bah humbug for both of us! I am still kind of representin though, as the Arizona Wildcats (hey, I did do some graduate work there) are already in the CWS finals, and tonights last play in game between Arkansas and two time defending champs South Carolina will determine the Cats opponent. Pac versus SEC no matter what. I think the Cocks are too battle tested and will likely make it through to the finals, then GAME ON. Go Cats!

In other sporting news, a team from somewhere, with some player who STIFFED his home state and original team to embarrass himself n a Tony Montana like Caligula decision show, just won the NBA title. Boo. Hiss.

Also this weekend is the Grand Prix of Europe from Valencia Spain, round 8 of this year’s circus. There have been seven races so far this year, and seven different winners for five different constructors. I have never seen anything like it. Sebastian Vettel was fast in Practice in Valencia:

Red Bull’s Sebastian Vettel looks poised to extend his dominance of Formula One’s European Grand Prix after setting the fastest time through two practice sessions on Friday.

The two-time defending world champion, who has won the race for the past two seasons after starting from pole, clocked the day’s best lap in the second session of one minute, 39.334 seconds on the 5.4-kilometre (3.3-mile) Valencia Street Circuit that weaves its way through the America’s Cup Harbor.

The overcast sky that had kept the track cool in the morning session cleared up by the afternoon, with the sun raising track temperatures to 40 degrees Celsius (104 F). Even higher temperatures are forecast for the weekend.
…..
Force India driver Nico Hulkenberg’s best effort left him just 0.131 seconds adrift of Vettel, followed by Kamui Kobayashi of Sauber at 0.261 seconds back.

Mercedes’ Michael Schumacher overcame more mechanical problems that have plagued him all season to record the fourth fastest time, just 0.267 seconds behind Vettel.

I may add in some more on F1 later, we shall see. But I am a little tight on time, so I have to fly here. I have been downtown most of the day with friend of the blog Shahid Buttar, head of the Bill of Rights Defense Committee. This is a great group of folks, and they are doing really good work on a LOT of the same issues we do here at Emptywheel, and they have a real knack for taking the effort into state and local communities in conjunction with other and partner groups.

Shahid is in town for this panel and workshop at the annual Unitarian Universalist convention. Have met many amazing people there the last couple of days, and yesterday had lunch with longtime Emptywheel and FDL member, RevDeb. Yes, she is awesome.

So, that is it, for now anyway. Have some fun and let loose with all yer tall tales and wild yarns etc.

Hamid Karzai lashed out yesterday against the continued use of NATO air strikes in civilian areas. He angrily referred to police actions in the US and France, noting that even when the most dangerous suspects are being sought, houses where they are holed up are never bombed. Remarkably, the New York Times provided background that helps to understand Karzai’s rage, explaining that the sham agreements on night raids and prison management recently enacted only “nominally” put Afghanistan in charge.

Here’s a basic description of the new “restrictions” on air strikes as it appears in the Washington Post:

Allen issued new orders this week restricting the use of airstrikes on civilian dwellings in response to the Logar deaths and continued criticism by Karzai. U.S. military officials said commanders will be instructed to use other means to get Taliban fighters out of homes and buildings rather than calling in airstrikes. Civilian homes have been damaged by airstrikes 32 times so far this year, according to U.S. military statistics.

Ah, but as in all the NATO agreements driven by the Obama administration, the devil is in the details. As the New York Times reported on the US response to Karzai’s outburst:

Hours later, the allied commander in Afghanistan, Gen. John R. Allen, reiterated significant changes to rules concerning the use of airstrikes announced earlier this week, issuing a statement in which he said he had given the order that “no aerial munitions be delivered against civilian dwellings.” But he added the caveat that the strikes would be permitted as an absolute last resort in self-defense “if no other options are available.”

As in all other agreements from Obama and NATO, the caveat allows a full work-around of the main point of the agreement. Here is how the article describes the night raid and prison management agreements in the context of the air raid “restrictions”:

But authority over both night raids and detention is nominally in the hands of Afghans now, since memorandums of understanding were signed this spring. And, while Americans still call many of the shots on both, the clock is running on how long that will go on: the NATO combat mission in Afghanistan is set to end in 2014, and by the end of this year, there will be 23,000 fewer American troops here.

So Afghanistan is in charge of night raids. But not really. And Afghanistan is in charge of prisons. But not really. And NATO will not bomb civilian areas. But not really. Is it any wonder that Karzai is ranting? Returning to the Washington Post article:

Karzai said he had an argument with Gen. John Allen, the top U.S. commander in Afghanistan, over the weekend about the issue, following a deadly airstrike that killed civilians in Logar province. “I said, ‘Do you do this in the United States?’ There is police action every day in the United States in various localities. They don’t call an airplane to bomb the place.”

The Times carries more of this outburst, where Karzai expanded it to include more of NATO:

“There was a police action in France, in Toulouse, when they were going to neutralize the terrorist,” Mr. Karzai said, referring to a French siege in March at an apartment where a man had holed up after killing seven people. “They were engaged in a fight with the person who was in a house, for about 36 hours or so, but they didn’t call the French Air Force to bomb the house.”

Mr. Karzai added: “Airstrikes are not used in civilian areas. If they don’t want to do it in their own country, why do they do it in Afghanistan?”

Don’t worry, Hamid, NATO and the US have promised they will only bomb civilians as a “last resort”. Don’t you trust them?

Since I’m a non-travelling Wheel this weekend (and since I’m batshit crazy about college baseball) I get the honor of writing the weekend sports trash talk. Lots of sports are on tap this weekend, as the NBA chooses its Eastern Conference sacrificial team to face the ascendant Oklahoma City Thunder who appear to have a rising dynasty. There’s the Belmont Stakes, now sadly deprived of the chance for a Triple Crown winner. And, the reason I’m not in Providence, there are the NCAA Baseball Super Regionals, which are already underway as I write.

Here’s another local Gainesville musician to kick things off. He’s a bit better known than last week’s group, but he somehow seems to be keeping the zombie theme alive into its second week. Note that from the video, this is clearly not happening in Gainesville, so Petty’s “I’m tired of this town” doesn’t apply to his hometown.

[youtube]http://www.youtube.com/watch?v=aowSGxim_O8[/youtube]

Before the sports trash gets started, I have to engage in a bit of trash on journalism and blogging. I’ve been hammering a lot on the “Daily Drone” issue in Pakistan, making the argument that many US drone strike have been as much about political retaliation as about hitting terrorists, even coming up with the headline “The Beatings Drone Strikes Will Continue Until Morale Improves” Today the Los Angeles Times finally caught up:

Expressing both public and private frustration with Pakistan, the Obama administration has unleashed the CIA to resume an aggressive campaign of drone strikes in Pakistani territory over the last few weeks, approving strikes that might have been vetoed in the past for fear of angering Islamabad.

/snip/

“They are trying to send a message: ‘If you don’t come around, we will continue with our plan, the way we want to do it,’ ” said Javed Ashraf Qazi, a retired Pakistani intelligence chief and former senator. It’s “superpower arrogance being shown to a smaller state…. But this will only increase the feeling among Pakistanis that the Americans are bent on having their way through force and not negotiation.”

And if that’s not enough, it turns out that yesterday Jonathan Turley even mostly ripped off my headline. He attributed it to Panetta while I put it in Brennan’s mouth and he left out the strike face beatings.

I won’t hold my breath waiting for the Times or Turley to pay me for doing their work for them.

Anyway, on to the sports. As I predicted last week, Alabama came through and gave the SEC their first National Championship in softball. Congratulations to them for a very well-played series and to Oklahoma for battling very hard and keeping the final outcome in doubt well into the night of the third and decisive game in the championship series.

Tomorrow was supposed to be the exciting conclusion to the unlikely Triple Crown run by I’ll Have Another, but he was unexpectedly scratched this afternoon due to a swollen tendon. I’ve seen lots of stuff flying on Twitter and elsewhere on the net about the checkered history of his trainer and the fact that the owner is a payday loan baron, so maybe we dodged a lot of nasty muckraking had the horse won. It does occur to me that by scratching and not running in the Belmont, the owner will likely reap much larger stud fees than if he had run and lost. Of course, the fees would have gone to unprecedented levels with a win, but the scratch does seem to preserve a huge chunk of income.

In the NBA, I warned last week about the geriatric Celtics. When they came up with a win in game 5 in Miami, I was with the rest of the geniuses who said the Heat were done, but last night’s takeover by James was impressive, even if I don’t enjoy watching him do well. I expect a Heat win in game 7 tomorrow. The Thunder looked incredibly impressive with their wins in game 5 in San Antonio and then game 6 at home. I think this team has been built for long term success and we are seeing the rise of a dynasty that will be as good as Miami’s big three thought they were going to be.

Both the SEC and Pac 12 have four teams in baseball’s Sweet 16. Even though the pundits loved the ACC going into the tournament, only two teams advanced, with Miami providing a huge blemish on the conference record by being the first number one seed to go two and out in several years.

The Gators had their wonderful no-hitter by Jonathan Crawford against Bethune-Cookman to open their regional and then added two more wins to go unblemished in a home regional  for the fourth straight year. Their Super Regional opponent is North Carolina State, and I’m happy to be facing them instead of Vanderbilt. This series doesn’t start until Saturday afternoon. The series will feature two of the three finalists for the Golden Spikes Award, the college baseball MVP, in Florida’s Mike Zunino (catcher) and NC State’s Carlos Rodon (pitcher). Rodon is a freshman while Zunino was the third overall pick (Seattle) in this week’s MLB draft.

Only one of the top eight national seeds didn’t advance, as North Carolina added another blemish for the ACC by failing in their home regional as a national seed. The Florida State – Stanford Super Regional should be very entertaining. This year’s Cinderella team, Stony Brook (by advancing as a number 4 seed, they were the equivalent of a 13 or lower seed making the basketball Sweet 16), is off to a great start in the first Super Regional game at LSU. Stony Brook took an early 2-0 lead. LSU picked up an unearned run in the 7th and then hit a solo home run in the ninth to tie it. Both teams then scored solo runs in the tenth and eleventh, with LSU’s tying home run in the tenth coming with two outs and two strikes. As of this writing, the game is in a rain delay tied 4-4 getting ready for the top of the twelfth inning.

Perhaps because I’m a big SEC home-boy, I expect all four SEC teams to advance to Omaha and to be joined by Oregon and UCLA from the Pac 12. Arizona may have a bit of an advantage in their Super Regional as they now host since St. John’s was a number 3 seed and advanced out of North Carolina’s regional. I really can’t call the Florida State – Stanford series but expect to enjoy watching it.

Game on, and throw it down in comments.

John Brennan must feel that Pakistan’s morale has only improved marginally, because what was an average of almost one drone strike a day has now fallen to about a half drone strike a day. Three successive days of strikes (with a total death toll of 27) have brought to eight the number of strikes in the two weeks since last-minute negotiations on the reopening of supply routes through Pakistan broke down and Brennan decided to rain terror down on Pakistan once again.

Today’s attack killed 15 in Mir Ali in North Waziristan. In the AFP story carried in Dawn, we have no less than two officials confirming that those killed were “militants” even though their nationalities aren’t known:

“Fifteen militants were killed in a dawn strike on a compound. The bodies of those killed were unable to be identified,” a security official in Miramshah told AFP.

He said there were reports that some foreigners had been killed but these were unable to be confirmed.

A security official in Peshawar confirmed the attack and said 15 militants were killed.

“We have received reports that 15 militants have been killed in a drone strike but at this moment we don’t know about their nationalities,” the official said.

“We are also unclear about the number of the militants who were present in the compound at the time of attack.” The latest attack came amid an uptick in drone strikes.

Coverage of this strike in the Express Tribune is quite interesting. It has near the beginning the usual quote of a local official asserting those killed were militants, but includes an admission that “locals” were among those killed:

A security official said that the compound was targeted in the Esokhel area of Mir Ali and that locals along with foreign militants were killed. “I don’t know how many foreign militants were killed but we are sure that foreigners were among the dead,” said an official of the security force.

But then we get to a tribesman being quoted, and what he has to say is revealing:

According to a tribesman who was an eyewitness, the compound was razed to the ground after the attack. “I didn’t go near the house, as I avoid going near places where drone strikes take place,” he added.

Why would local tribesmen “avoid going near places where drone strikes take place”? Why that’s because the US intentionally targets first responders at drone strikes:

But research by the Bureau has found that since Obama took office three years ago, between 282 and 535 civilians have been credibly reported as killed including more than 60 children.  A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts.

Who else targets first responders? Well, there are terrorists in Iraq who do that:

Meanwhile, two Iraqis were killed and six injured in two back-to-back explosions in the city of Khalidya, some 200 kilometres west of Baghdad, said police.

The first explosion occurred near a house, killing one woman and injuring two children, security sources told the German Press Agency dpa.

Another explosive went off when a police unit arrived on the scene, leaving one policemen dead and four injured, they added.

Bombs aimed at first responders was also a signature move for Eric Rudolph. Here’s then Attorney General Janet Reno announcing charges against Rudolph:

Six months later, another homemade bomb exploded outside Sandy Springs Professional Building, in north Atlanta. As emergency personnel arrived on the scene, a second bomb went off. More people were wounded, including some Federal agents.

FBI Director Louis Freeh further characterized Rudolph’s targeting of first responders at the same press conference:

The gravity of these offenses is reflected, first of all, in the indiscriminate nature of his targets, innocent civilians in almost every case, and also a planned and deliberate attack against law enforcement officers, rescuers, first-aid individuals, who came to the scenes both in Sandy Springs and the Other Side bombings.

In the eyes of local tribesmen in Pakistan, then, US tactics are no different from those of terrorists in Iraq or Eric Rudolph. First responders are likely targets, so those who would try to rescue wounded from buildings hit by drone attacks are themselves at great danger for also being attacked by another missile.

Interestingly, the Express Tribune article followed up the tribesman’s direct quote by saying that he said those who did respond for rescue work after this particular strike were militants:

He added that soon after the attack, local militants surrounded the area and started rescue work by pulling out the bodies from the debris and shifted them to an undisclosed location.

Those are very strange words to put into the tribesman’s mouth, since he had just said he didn’t go near where the missile hit. He is also described as an eyewitness, so it is difficult to know what he means by “near”. It would seem to me, though, that staying far enough away after the first strike to be safe from a follow-on strike would make it difficult to know who it was who did respond to begin rescue work.

At any rate, there still is no agreement allowing NATO supply trucks to pass through Pakistan again and Brennan is still sending in regular drone strikes in an attempt to beat Pakistan into submission.

Update: I hadn’t seen Glenn Greenwald’s post today or the Guardian article on which it was based when I wrote this post, but it appears that Sunday’s strike was aimed at mourners gathered in response to Saturday’s strike. Maybe mourners are like first responders…

Both Marcy, here,  and b, over at Moon of Alabama, have roundly criticized the cartoon released on Sunday by AP’s George Jahn purporting to depict a chamber at Iran’s Parchin site where various groups accuse Iran of carrying out work aimed at an explosive trigger device for a nuclear weapon. David Albright, working through his Institute for Science and International Security, has been near the forefront in most of these accusations, with one of his accusations coming out in December of 2009 (pdf). As described in his 2009 piece, Albright accuses Iran of attempting to replicate A.Q. Khan’s uranium deuteride (UD3) initiator for a bomb, which “works by the high explosives compressing the nuclear core and the initiator, producing a spurt of neutrons as a result of fusion in D-D reactions. The neutrons flood the core of weapon-grade uranium and initiate the chain reaction.”

Prior to the release of the cartoon, Albright had claimed on May 8 that he had detected activity aimed at “cleansing” the Parchin site.  I debunked that claim the next day, by pointing out that all traces of radioactivity cannot be washed away and that Albright’s claims would mean that the waste water carrying the radioactivity was allowed to drain freely onto the grounds surrounding the building, where the radioactivity could be found without much effort. Albright repeats those claims in Jahn’s article accompanying the cartoon, and he brings in another expert to support his claims that residue from testing a trigger device could be scrubbed:

A cleanup “could involve grinding down the surfaces inside the building, collecting the dust and then washing the area thoroughly,” said David Albright, whose Institute for Science and International Security in Washington looks for signs of nuclear proliferation. “This could be followed with new building materials and paint.

“It could also involve removing any dirt around the building thought to contain contaminants,” Albright said in a statement emailed to selected recipients. “These types of activities could be effective in defeating environmental sampling.”

Fitzpatrick, the other nuclear nonproliferation expert, also said a cleanup could be effective.

“In the past, the IAEA has been able to catch out Iran by going to a building that Iran tried to clean and they still found traces of uranium,” he said. “And Iran learned from that and they learned that ‘boy you have to scrub everything really clean; get down into the drains and grind away any possible residue.”

Earlier in the article, Fitzpatrick (who is  Mark Fitzpatrick, director of the Non-Proliferation and Disarmament Program of the International Institute for Strategic Studies) mentions that Iran is specifically accused of using uranium in the explosives research. Also, the article claims that the equipment associated with the chamber includes “a neutron detection system outside the explosion chamber to measure neutron emissions”.

Albright and Fitzpatrick completely overlook a very important basic aspect of the nuclear physics involved here. If they really are going to claim that uranium is being used and that bursts of neutrons capable of initiating a nuclear reaction are the goal of the experiments, then the neutrons originating from the uranium and from the neutron bursts would result in neutron activation of the steel container itself. Neutron activation occurs when the nucleus of an atom absorbs a neutron, forming a new, radioactive, form of the original atom.

The most common neutron activation product in steel is production of cobalt-60 from the naturally occuring cobalt-59 in the steel. Cobalt-60 has a half-life of over five years and is very easily detected due to the high energy beta and gamma radiation released by it and its decay products. It is critically important to note that this neutron activation occurring within the steel of the container would not be just on the inside surface of the chamber. The collisions of neutrons with cobalt-59 nuclei in the steel would occur throughout the full thickness of the steel, because at the scale of a neutron, the metal atoms comprising the steel are mostly empty space. Thus, the neutrons pass through the steel, only occasionally colliding with a metal nucleus. If the collision is with a cobalt-59 nucleus, then cobalt-60 can be formed as the nucleus absorbs a neutron. (See this helpful tutorial from Florida State University showing the classic 1911 Rutherford, Geiger and Marsden experiment where alpha particles are shot through a gold foil. The concept for neutrons going through steel is essentially the same.)

Neutron activation of steel resulting in cobalt-60 was used in efforts to reconstruct the radiation doses at various locations around the atomic bombs dropped on Japan (pdf). Furthermore, neutron activation of steel in nuclear reactor facilities is a major consideration in the decommissioning of these facilities (pdf).

With those thoughts in mind, we now have tools with which to evaluate subsequent developments surrounding the chamber at Parchin. The claims from Albright and Fitzpatrick appear to be aimed at setting the stage for accusations that Iran carried out trigger research at the facility, even using uranium, but subsequently removed all radioactive traces of that work. Such an accusation could be made after IAEA gaining access to the site but failing to find traces of radioactivity. However, the neutron activation information above would make such an accusation highly dubious, as it would be impossible to remove all traces of neutron activation of the steel from which the chamber is constructed.

On the other hand, should Iran remove the chamber, then that would be suggestive that they were unable to remove neutron activation evidence and thus unable to hide evidence of trigger research. Further, analysis of the metal itself, if access to the chamber is granted, would be very informative about Iran’s intentions when the chamber was constructed.

The AP cartoon article claims the chamber was constructed in the early 2000’s by Azar AB Industries. It is doubtful that this Iranian company has experience working with steel intended for nuclear uses. The cobalt concentration in the steel used for this chamber should be compared to the cobalt concentration in other steel materials produced by Azar AB Industries, because steel intended for use in nuclear activities is intentionally engineered to be low in cobalt content:

Due to the ability of cobalt to absorb neutrons, severe restrictions are placed on its concentration in steels destined for atomic energy applications. Levels of 0.01 and 0.005% Co maximum and lower are commonly listed by the N.R.C.

If the chamber was constructed of steel that is artificially low in cobalt content, then that would suggest that Iran intended the chamber to be used in trigger device development. On the other hand, if no evidence of neutron activation is found upon analysis of the chamber and if it is found to be comprised of steel no different in cobalt content from other steel produced by Azar AB Industries, that would be very strong evidence that the chamber had always been intended for nanodiamond work and no trigger work involving uranium was carried out.

Update: It seems relevant to note how far neutrons can penetrate in steel. The illustration above for the Rutherford experiment is for a very thin foil of gold. Penetration of neutrons into steel depends on the speed at which the neutrons are travelling. The ability of radiation to penetrate into an object is measured as the half-value layer, which is the thickness of the material that is needed to stop half of the radiation that is incident on it. For neutrons, we have this for passage through steel or iron:

10-100 keV neutrons = 0.36 cm

100-500 keV neutrons = 2.73 cm

1 MeV neutrons = 3.45 cm

The neutrons emitted in uranium decay are in the 250-560 keV range, so up to one fourth of neutrons emitted by uranium would travel as far as 5 cm, or two inches, into the steel of the chamber walls. I have not seen an estimate of the chamber wall thickness, but this rough calculation should suffice to demonstrate that virtually the entire thickness of the chamber walls would be subject to neutron activation.

Before the massive earthquake and tsunami in Japan on March 11, 2011, about a third of the country’s electricity was supplied by the 54 nuclear power plants scattered throughout the country. In the intervening time, those nuclear reactors not directly damaged on March 11 have been shutting down for inspections and public opposition is preventing their re-start. The final plant remaining online, the number 3 reactor at the Tomari plant in Hokkaido, will be powered down late Saturday night into Sunday morning.

The Washington Post describes the political process by which the plants have been shut down:

The break from nuclear power is less a matter of policy than political paralysis. Japan’s central government has recommitted to nuclear power in the wake of last year’s triple meltdown at Fukushima Daiichi, but those authorities haven’t yet convinced host communities and provincial governors that nuclear power is necessary — or that a tarnished and yet-unreformed regulatory agency is up to the job of ensuring safety.

Because Japan depends on local consensus for its nuclear decisions, those maintenance checkups — mandated every 13 months — have turned into indefinite shutdowns, and resource-poor Japan has scrambled to import costlier fossil fuels to fill the energy void.

Before the Fukushima accident, Japan operated 54 commercial reactors, which accounted for about one-third of the country’s energy supply. But in the last year, 17 of those reactors were either damaged by the March 11 earthquake and tsunami or shut down because of government request. Thirty-six others were shuttered after inspections and have not been restarted.

The New York Times has more on the political standoff:

The showdown between local and national leaders has played out in recent weeks at a plant in Ohi, near Osaka, which the government of Prime Minister Yoshihiko Noda has set up as a crucial test case of Japan’s nuclear future. Two reactors at the idled plant were the first to pass simulated stress tests meant to show that most reactors, unlike those at the Fukushima plant devastated in last year’s earthquake and tsunami, could withstand similar disasters. The administration trusted that Ohi’s reactors would be back in operation by now, or at least would receive local approval to start up soon.

Instead, the central government has found itself battling an improbable adversary: Osaka’s mayor, Toru Hashimoto, the young, plain-speaking son of a yakuza gangster who has ridden Japan’s loss of faith in government to become, seemingly overnight, the country’s best liked politician, according to recent polls.

He has won widespread public support by giving voice to deep-seated public suspicions that the Tokyo government is rushing to promote the interests of the powerful nuclear industry at the expense of public safety — a situation that many Japanese now blame for leaving the Fukushima Daiichi plant so vulnerable in the first place.

Reuters explains that if Japan makes it through the upcoming summer without major power outages while the nuclear plants remain offline, it may well be the end of the nuclear power era in Japan:

The shutdown leaves Japan without nuclear power for the first time since 1970 and has put electricity producers on the defensive. Public opposition to nuclear power could become more deeply entrenched if non-nuclear generation proves enough to meet Japan’s needs in the peak-demand summer months.

“Can it be the end of nuclear power? It could be,” said Andrew DeWit, a professor at Rikkyo University in Tokyo who studies energy policy. “That’s one reason why people are fighting it to the death.”

Japan managed to get through the summer last year without any blackouts by imposing curbs on use in the immediate aftermath of the earthquake and tsunami. Factories operated at night and during weekends to avoid putting too much stress on the country’s power grids. A similar success this year would weaken the argument of proponents of nuclear power.

“They don’t have the polls on their side,” said DeWit. “Once they go through the summer without reactors, how will they fire them up? They know that, so they will try their darndest but I don’t see how.”

The Guardian points out both the economic and potential environmental costs of the plants remaining offline:

Over the past 14 months, dozens of nuclear reactors not directly affected by the tsunami have gone offline to undergo regular maintenance and safety checks, while utilities have turned to coal, oil and gas-fired power plants to keep industry and households supplied with electricity – imports that contribute to Japan’s first trade deficit for more than 30 years last year.

Japan, already the world’s biggest importer of liquefied natural gas, bought record amounts of LNG last year to replace nuclear. The international energy agency estimates the closure of all nuclear plants will increase Japanese demand for oil to 4.5m barrels a day, at an additional cost of about US$100m a day.

/snip/

Critics of the nuclear shutdown have also highlighted the impact more fossil fuel power generation will have on Japan’s climate change commitments. Even big investors in renewables, such as the Softbank chief executive Masayoshi Son, concede it will take time for them to have any real impact on the country’s energy mix.

They will be buoyed by a new environment ministry panel’s assertion that Japan can still reduce its greenhouse gas emissions by 25% by 2030 from 1990 levels without nuclear, through energy saving and the quicker adoption of renewables, which it hopes will account for between 25% and 35% of total power generation by 2030.

Will Japan be able to avoid large blackouts when summer demand reaches it peak? If so, look for the nuclear advocates to fail in their attempts to bring the power plants back online. However, if power generation falls so far short of demand that citizens are left without air conditioning and businesses have to cut back on production of goods (and presumably lay off workers) nuclear power advocates feel they will have a stronger argument to make for bringing the nuclear plants back online. Surely, none of the players involved would game the system to get the outcome they want. After all, the US showed, with Enron, that electricity markets are pure free markets incapable of being manipulated.

I don’t know how much excess capacity the system in Japan had before the earthquake, but my understanding of the electricity grid in the US is that it operates very close to the edge, so loss of a third of generating capacity in a year would be expected to be catastrophic. Unless the Japanese situation is dramatically different from the one here, that would mean that massive outages in Japan this summer likely would be due to actual shortfalls in capacity. Nevertheless, I want the warning about gaming the system to be out for consideration if outages hit.

Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.