June 9, 2023 / by 


“With A Neck Like a Jockey’s Bollocks” Trash Talk

Yeah, about the title. No, I am not quite sure what it means. Maybe Marcy and other sundry mystery guests will be along to explain the damn thing.

What I can confirm is that it is unequivocally the single most awesome grouping of words I have seen in a very long time. So I am rolling with it baybee!

And, you know, leave it to the Irish, in this case Michael Higgins, who was not then, but is now, the President of Ireland. And, also, who is, by my marker, a man of and among men. I would quote Mr. Higgins more, but it would not do him justice. Watch the video.

Honestly, sincerely, really unequivocally, whatever the fuck, just listen to Michael Higgins eviscerate the American ethos. It is brutal and real.

Oh, before we go any further, I have a new chapeau. I will, and you can, thank the one and only, ever lovely, Phred for this wondrous occurrence.

Y’all have known I had an affinity for CHEESE since I was a child in elementary school. It was easy then, as there was no NFL team within hundreds of miles, and the one that was there was the Rams, and it was not all that compelling. No, the team of my youth and dreams was Lombardi’s Packers. Fuck Dallas, Green Bay was, and is, the people’s, and America’s, team. Always has been. As the only team actually of the people, it must so be. Don’t pitch that crap about teams that are corporately owned, or owned by narcissistic dicks like Jerry Jones.

Knowing my affinity for the once, always, and future real team of America – the ONLY publicly owned and locally controlled, NFL team, the Green Bay Packers, our friend Phred has blessedly provided me with an official CheeseHead. It arrived a couple of days ago, and is the most awesome thing I have been given in a LONG time.

So, I raise my Ronnie Raygun like head to the Great Cheese In The Sky.

Back to Michael Higgins, necks and bollocks. Watch the video. Higgins correctly identifies the wankers in life, I love it and ratify his identification. Precisely.

Now, on to the sporting side of life. Well, normally, Marcy or I post up Trash Talk whenever we are so inclined. Sometimes, however, itinerant Roving Reporters, like Mademoiselle Rosalind, get all uppity in our grill and force us to Trash.

Oh my. The ignominy of it all.

So, without further adieu, we shall lead off with sailing. Yes, I know, this is all a bit discomfiting for the normal Trash Talk aficionados. Whatta ya gonna do Mofo? We support our own Roving Reporters here at EW. And, by the way, Rosalind ain’t no idle Roving Reporter either. Nope. Rosalind Sails the Seven Seas. Or at least those off of Oxnard the Pacific shore. Close enough for rock and roll. Rosalind wants to jaw about the America’s Cup process. Yes, yes, I was doubting at first too; but after watching her link, it is pretty awesome.

Okay, now that we have covered “Greatest Athletes of Sailing”, let us move with all due haste to NASCAR.

Hahahahhahahaha, just kidding. I’m not going to lead, even secondarily, with media shills that go round in lefthanded circles as a profession. Won’t do it. Can’t do it. Not gonna do it. But, since the Formula One Circus is on it’s mid-season month long hiatus, there is no more Fast Trash worthy of discussion.

That means, as far as active professional sports, My Bloody Valentine in Beantown, Massachusetts is about the biggest story going. And a pretty ugly story it is. You would have thought that for all the money John Henry et al. spent, they could have bought some better Lackeys. But nooooooooo. Y’all got yer teams; bring it with your talk.

It is hard to bring myself to talk about pre-season NFL. In my world, the Cards are in mid-season suckology form (seriously, no Kurt Warner, no fucking go), Peyton may not be the Peyton of old, but watch out, the Donkos are coming. But, mostly in my world, there is CHEESE. Tell us what is up in your NFL world. Unless it is the Steelers (just kidding; am trying to draw out the elusive Scribe).

Okay, that leaves the Lance Armstrong mess. I came very close to ripping hard on Lance Armstrong last night when the news of the abandonment of his defense was announced.

I made argument to Dave Zirin of the Nation and TJ Quinn of ESPN that there was no way to believe Armstrong if, unlike Roger Clemens, Armstrong was not even willing to play out the string of his potential remedies (in the legal domain, this is termed “exhausting one’s remedies”) supporting his innocence.

I am glad, largely thanks to Zirin, I did not angrily post that last night or this morning; I have reconsidered, a bit, after longer contemplation. Not by a lot, but by enough to discuss. I STILL think if you truly believe in your innocence, and/or have the balls and money to do so, you never stop saying so and defending on that line. That way, it is pack fair and square, and nobody can say you weren’t there to fight.

Don’t kid yourself, there is a qualitative difference between Roger Clemens and Barry Bonds, and Lance Armstrong. Not only were there no competent, legally admissible, positive tests for the former two (as there were none for Armstrong); there were, more importantly, and unlike with Armstrong, never, at any time, any teammates who inculpated them (and, no, sorry, Andy Pettitte did NOT do so for Clemens).

Armstrong may not have had positive lab tests, but there were a boatload of former teammates and cycling adjuncts that were ready to testify against him and that is pretty harsh as an evidentiary picture with a jury looming. What does it mean without a trial and cross-examination? I don’t know for sure, and neither do you or anybody else, because the one person who squelched that knowledge was…….Lance Armstrong. And, yeah, that does mean something to anybody that is not an apologist.

The above having been said, it is hard to argue with Armstrong’s posit that further contesting was a waste of time. The appearance is quite right that Travis Tygart and USADA had it out for Lance Armstrong and that the cause was lost, and the fix in, form the start.

The thing that sticks in my craw is, and I understand more than a little about litigation of parallel prosecution matters (remember, the Armstrong case WAS ginned up by the same ethically questionable Federal investigator, Jeff Novitzky, as plied the Bonds and Clemens cases). Anything with Jeff Novitzky involved should invite a LOT of questions, always. Jeff Novitzky is the worst kind of crusading federal menace, the out of control power mad special agent.

You have to wonder if there is not a good reason there were no meaningful convictions resulting from the Bonds, Clemens and Armstrong cases which were the linchpins of Novitzky’s persecution. A persecution which originated with the overblown BALCO cases. There is left, in the wake, a legacy of leveraged persecution and failed prosecution; the common thread of which is Jeff Novitzky. There may be something to be drawn there.

But that is what we have now. When Jeff Novitzky and the DOJ cannot get a head on a criminal stick like Roger Clemens or Lance Armstrong, they show their pettiness, in this case Novitzsky, by moving to prosecution against Armstrong by authorities without such due process niceties as actual proof beyond a reasonable doubt. The USADA, was a perfect vehicle to gut shoot and eviscerate Armstrong. Make no mistake, if Novitzky could have done that to Bonds and Clemens, he would have. It is not right.

All of the above having been stated, upon information and/or belief, it is still depressing, and instructive, that Armstrong chose to not exhaust his remedies and play out the legal string. And, again as someone who has seen the devastating and wrong results that can occur from ultra-aggressive parallel prosecutions, such as we have just seen from Novitzky, DOJ and USADA, there can be a point to where it is no longer viable to fight in the face of the onslaught.

I see no reason that Lance Armstrong is wrong in that assessment here; however, his legal team had already worked up the defense. There would NOT have been all that much more legal expense necessary to expend to play out the string.

There was, however, a LOT of embarrassment in the form of ten or more former teammates and/or doctors formally testifying against him. That would have been even more devastating to Lance Armstrong, Inc. And that is why Lance pulled the escape hatch lever when and where he did. You cannot blame him, but you sure as hell cannot exculpate him, it is an effective legal admission.

By doing as he did, Lance Armstrong has insured that he will remain a duality in the sporting conscience – both the persecuted innocent and the epitome of cowardly guilty – both at the same time. Curiously, I kind of bite off on both as being valid. Neither may be individually right; neither will likely ever be proven wrong. So be it, and let the record so, conflictingly, reflect. The one thing you will never take away from Armstrong is what he has done to fight cancer. That sticks, and this may have been the best path for Armstrong to continue his work. If so, then it was a fair call for him to make.

Well folks, that is Trash for today. I am sure there is more (hey, if ya got some Little League world Series shit, bring it). Maybe you are in to polo, water polo or, ugh, soccer; whatever, if you want to yammer, this is your forum.

Rip This Fucking Joint!! (Oh, hey, is Bobby Keys one badass blowing bitch on the sax or what??)

Memo To The Clueless Nepotistically Self Unaware Flexible Bag Of Mostly Water Known As Luke Russert

Russert Nantucket Estate

………………..Russert Nantucket Estate……………….

Has there ever been a more self unaware little ball of unworthy entitled Beltway nepotism than Luke Russert? I ask that as an honest question, because it is quite possible the answer is no. The story of Luke, son of Tim, is mostly public record.

Let’s take a look at the latest from L’il Luke, humbly entitled:

Luke Russert: Like Me, Paul Ryan Is Driven By Personal Loss

Well, golly, you just know it is going to be an intellectual and cognitively aware barnburner piece from that, no?

Of course it is, because that is the searing literary talent of the one and only Luke Russert; progeny of the Wonder of Whiteboard, Tim Russert. Let us inspect Luke’s Hemmingwayesque prose:

I peppered the congressman with questions about the health care law and budget priorities for an interview a colleague would use on Nightly News. When we were done, we exchanged pleasantries and he got up to leave. After about 15 seconds, he came back in the room and asked me, “How old was your dad when he passed from heart disease?” I told him, “58.” He said, “Mine was 55. My grandfather and great-grandfather both died from heart issues in their 50s, too.” He then asked me if I was into fitness and inquired about my workout regimen. He told me to run more and that I needed to work up a sweat at least five days a week. We both joked about how preventative fish oil supplements had a bad aftertaste.

Oh, what personal pathos these two poor sons have seen. Luke, son of Tim, product of St. Alban’s Academy in Washington DC, was left with a mother who worked for Vanity Fair, an estate and mansion on Nantucket Island fit for a king and a sinecure at NBC.

Bootstraps baby, bootstraps.

And L’il Luke’s brother in hardscrabble upbringing, Paul Ryan? This common man of the people was born the son of a respected lawyer in a Wisconsin town known as Janesville and:

Mr. Ryan, the youngest of Paul M. and Betty Ryan’s four children, was born in 1970 and grew up in Janesville’s historic Courthouse Hill neighborhood…

Like Luke Russert’s traumatic childhood, Paul Ryan suffered such various hardships as being voted Prom King and “Biggest Brown-Noser” in high school.

Oh, the pain they must have suffered, the poor dears.

The smooth stylings of Luke Russert’s searing reportage continue:

Much has been written about Ryan’s notorious P90X workouts and physical discipline. At one point he was a personal trainer in Washington to help pay the bills. Aside from the obvious health benefits, from many personal conversations I’ve had with him since that day in Baltimore, I believe Ryan keeps himself so physically fit in order to downplay the anxious feeling all children of heart disease victims have — the dreadful thought you could be next.

I can attest that this feeling spurs you to accomplish as much as possible because the idea that you’re on earth for a limited time is imprinted in your mind daily. Ryan was elected to the House at 28, was Chairman of the House Budget Committee at 40 and now is his party’s presumptive nominee for vice president at age 42. He’s already accomplished in 42 years what most politicians would hope to do in a lifetime.

Yes, what bloody hell these two tortured souls must have faced. Previous to reading the poignant words of Luke Russert about the woe and tribulations he and Paul Ryan (who has effectively never been out of government employ) commonly faced in life, I used to occasionally think maybe my life could have been better somehow. If, you know, only….

I used to think there was a lot of suffering in the world. At least until I read Luke Russert and Paul Ryan’s common brotherhood of upbringing hurt. But, relatively, in light of all the real suffering Russert and Ryan went through to be where they are today, I was one of the luckiest guys on the face of the earth.

For all the downtrodden out there, just be glad you have not suffered the “personal loss” of Luke Russert and Paul Ryan. We can all learn something from these bottom to the top, self reliant, American success stories of will and perseverance.

Well, or better, we can call out these two smarmy, self serving, holier than thou, nepotistic fucking pricks for what they really are. One represents the death spiral of American journalism, and the other the grim reaper for the morals and social safety net our fathers, mothers, grandfathers and grandmothers fought, died and worked so hard to insure. Yeah, those really are the stakes.

So, you might think Tiny Tim, er Luke’s, tale of two forlorn, down on their luck, dandy pimpernels is over. Oh, no, there is a moving coda from Boy Wonder Russert:

So while Ryan is no doubt inspired by his faith, family, party and desire to shape the country in the ways he sees as best for the future, it should not be lost where much of his drive comes from — personal loss.

Personal loss. Yes. Of course. Like Russert and Ryan have some lock on fucking personal loss.

Please. Just get the fuck out, you simpering weenie naif. We all suffer personal loss, it is not yours to carry as a mantle of significance. We all have lost, or will lose, mothers, fathers, sisters, brothers and friends. What grandiose hubris you project with your sniveling, self serving tripe on behalf of yourself and Paul Ryan.

Get over yourself you candy ass punk; neither you, Ryan, me, not likely many, if any, of those actually able to read this article, are suffering the worst life has to offer. We are all fortunate sons and daughters, and you should just shut the fuck up.

If only the foregoing palpably, cloying, asinine bullshit were but the worst of the situation. But, sadly, it is not. No, the deeper problem is that this is the gilded hollow future of journalism. At a time when print media, beat writers and old school journalism is dying like the plague has set in, this, L’il Luke Russert, is the harbinger of what’s to come. How can you tell? Well, because the “senior talent” NBC ensconced in the hallowed throne of L’il Luke’s father is the hollow and shallow dipstick known as Dancin Dave Gregory.

The suck up, Beltway Stockholmed Gregory is enough to make you puke, but he is par for the course for television networks that care more about scamming and plundering their viewers than playing to their common intelligence. NBC bastardized and cocked up the the London2012 Olympics big time; but that was just annoyance in sporting entertainment. It may have been craven, but it does not hold a candle to the intellectual and informational fraud they pull on their viewers via their news and political reportage every hour of every day.

L’il Luke Russert, and his suck up wet kiss to his soul mate in personal loss Paul Ryan, is but a symptom of the disease. It is a race to the bottom of the barrel, and with wet behind the ears, nepotistically installed, inbred Shetland ponies like Luke Russert, NBC and NBCNews.com are leading the field.

[Flexible Ugly Bag of Mostly Water]

Hockenheim, Highway Stars & Aurora

It is time for the Formula 1 Grosser Preis Santander Von Deutschland 2012. There is that.

Then there is the fact Jon Lord has died. If you do not know Jon Lord, he was a founding member of, and keyboard player for, Deep Purple. One of the more underrated keyboard players, and bands, of all time (by my book anyway). RIP

And, indescribably, twelve more souls died in Aurora, with scores more injured gravely. I would love to say something pithy, profound and appropriate. However, I have no clue what that would be.

A lot of other stuff has also transpired demanding extreme talking of the trash. The video embedded to the upper right is custom made by my daughter, Jenna, and I, from CGI runs of the Hockenheimring set to the sounds of the timeless Deep Purple classic Highway Star. All for this F1 Trash and wake for the Lord thread. Okay, mostly her work, but she swears even I can be taught the necessary skills. We’ll see about that. With no further adieu…..

Let’s roll.

We are in the summer doldrums. No football. No basketball. Do they even play hockey in the States? I forget. I understand there is some kind of athletic contest coming up across teh pond. In a move that may well INCREASE the safety of one and all, in Olympic Village and the world over, actual stiff British upper lip troops will be filling in for corrupt, fraudulent and incompetent G4 Mercenary Contractors.

Other than that, there is the start of the second half of the baseball season and……Formula One! This week is the German Grand Prix at Hockenheim.

Uh, BREAKING NEWS: My TeeVee just told me:

“For years people have been working to perfect the margarita. At last, the wait is over. Introducing Bud Light Lime Margaritas. The ready to drink margarita. With the refreshing twist of Bud Light Lime.”

While I had heard of Bud Light Lime before, from Uncle Stanley McChrystal, this is something NEW and, apparently, wonderful. Or, you know, not.

At any rate, qualifying is about to go off at the German Grand Prix. Hockenheimring is a relatively flat, and traditionally very fast circuit. The video really gives a good feel for it. Although shorter than originally laid out to be, it is still nearly three miles long and presents numerous opportunities for overtaking.

At practice, the rain spoiled the fun, and especially so for the German favorite, Michael Schumacher. The Mercedes team may be further plagued by a five place penalty on the grid due to a gearbox change in Nico Rosberg’s equipment. Things were brighter, however, for McLaren, who saw Jenson Button be fast with Lewis Hamilton close behind.

The skies do not look to clear for Saturday’s qualifying, but the rain may hold off. [Quick addendum: watching Q3 now and the track is soaking wet. Both Alonso and Schumacher are radioing that it needs to be stopped, but the stewards do not appear so inclined. The ability of these drivers to keep their cars on the track in these conditions is simply stunning] Race day will be a crapshoot though. Updates after qualifying will be in comments below.

Which brings us to Aurora. I was still up early Friday morning when the first word of the tragedy started coming in. I thought about posting something, but was so numb there was just nothing to say. Not sure much has changed in that regard. The root facts are on the usual relentless babble stream of cable news etc. and I have not even checked in in a bit to see the latest. The one take that really stuck out to me was by David Sirota, who lives literally right by the scene in suburban Denver:

Confronting that question, of course, is mind-bending and painful — in the age of “War on Terror” agitprop that purposely defines terrorism in one specific, narrow and politically convenient way, it’s akin to the cognitive difficulty of pondering the size of the universe … or, perhaps, death itself. It takes us out of our comfort zone and forces us to consider the causes of all kinds of extremism and violence — not just the foreign Islamic kind that we so flippantly write off as alien. Indeed, at a time when so many bloodlusting Americans cheer on our government proudly assassinating the imams who allegedly inspire Muslim terrorism, a shooting like this (if, indeed, it had nothing to do with Islamic extremism) begs us to wonder why we don’t feel similarly bellicose or enraged at the inspirations fueling so many other forms of terrorism — whatever those inspirations may be.

These contradictions and omissions, of course, are why such a question will almost certainly be ignored in the now-practiced kabuki theater of horror porn — the kind where vote-seeking politicians issue meaningless platitudes, ratings-stalking reporters breathlessly recount the gory details and attention-starved pundits preen in front of cameras to prognosticate about the electoral implications of mass murder in a presidential swing state. Carefully avoiding the T-word, it is a conspiracy of distraction and reduction, playing to our reflexive desire for soothing diversions and simple answers. The conspirators expect that when the cameras eventually pan away from the cataclysm, we will slip back into hyper-sleep for another few weeks, until the next massacre hits, and then the cycle will begin anew.

Yep. About right.

There may not be much front line sports on this weekend, but there is certainly a lot to talk about. What have you all been up to? What is on your mind? Let’s talk.

Judge Cebull’s Smart Response To His Incredibly Stupid Act

I was going to delve deeper into the Cebull insult of Obama case after Friday’s events, but I now have something else I need to get to, so this is a shorter take. As you will recall, the intertoobz blew up at the end of last week, starting late Wednesday, with the story of Judge Richard Cebull, Chief Judge of Montana’s US District Court, and his email distributed slur on Barack Obama. The incident was first reported by a local paper, the Great Falls Tribune, but quickly hit the national wires.

I am not going to reprint the email, but it is fairly disgusting and very inappropriate (you can see it in the original form here). Numerous outraged individuals and organizations immediately called for Cebull’s resignation. David Dayen has a rundown on some of the loudest, as well as of Cebull’s “explanation/apology”, which has not been accepted to well by those calling for Cebull’s head. And, while Cebull’s statement is indeed less than exculpating, it is pretty much all he could say under the circumstances. Unlike Rush Limbaugh, at least Cebull had the guts to own up to the full weight of his act, even if concurrently inferring “heck I thought it was private”.

You can quibble about whether the “joke” was directly racist, or only indirectly racist in overtone, and I can see both sides of that argument; however, there is no denying that it was in unconscionably bad taste and completely inappropriate for a federal judge to be trafficking in. That’s a given. I am, at this point, far more interested in Cebull’s response which, all things considered, I find pretty crafty.

Cebull immediately admitted his full involvement, did so publicly to the press, and took the affirmative step of immediately filing his own formal judicial complaint – against himself – over the matter, and asked for an inquiry by the judicial council of the 9th Circuit. He also immediately issued a formal written apology to President Obama:

Dear Mr. President:

I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself.

I can assure you that such action on my part will never happen again. I have requested that the Judicial Council of the Ninth Circuit review this matter.

Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology.

Richard F. Cebull

It is brief and to the point and, frankly, there is not much more he can do to erase the stain he left. Which is where it gets interesting. As you can see by clicking on the link to Cebull’s self initiated complaint (there are others that will be later joined, but his was immediately self filed, that will count large), it is submitted to the Chief Judge of the Ninth Circuit, Alex Kozinski. Not only do judges in a circuit tend to stand up for one another, Kozinski himself has had a fairly analogous issue in his past. Kozinski also self reported and apologized, had an independent judicial council evaluate it, and was cleared for further uninterrupted duty. This was key language in the Kozinski finding:

The Judge explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error. The offending material has been removed and will be destroyed. The Judge’s 35 acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly “remed[y] the problems raised by the complaint.” Rule 11(d)(2). Accordingly, this proceeding is properly concluded. We find that “all of the purposes of the judicial misconduct provisions are fully served” by this result.

That is exactly the path and result Cebull is playing for, and he has a guide as good as gold to lead him down that path. Here is the kicker, Alex Kozinski is the gatekeeper for this determination as to Cebull!

Here are the rules regarding judicial misconduct as adopted by the 9th Circuit. As you can discern from Rule 5:

When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed. A chief judge who finds probable cause to believe that misconduct has occurred or that a disability exists may seek an informal resolution that he or she finds satisfactory. If no informal resolution is achieved or is feasible, the chief judge may identify a complaint and, by written order stating the reasons, begin the review provided in Rule 11. If the evidence of misconduct is clear and convincing and no informal resolution is achieved or is feasible, the chief judge must identify a complaint.

So, under Rule 5, if Kozinski, as the Chief Judge, “identifies” a complaint, it then is considered within the ambit of Rule 11. And what is in Rule 11? Well, Rule 11(a)(2) specifically provides that the chief judge may, at that point, consider the matter:

concluded on the ground that voluntary corrective action has been taken

It is very possible that is exactly what occurs, and is clearly what Judge Cebull is playing for. But, even if Kozinski refers the matter to a “special committee” pursuant to Rule 11 (a)(4), this resolution is still very available. It is also very likely. Cebull gets bonus brownie points for filing the initial complaint against himself, immediately issues a full written mea culpa to Obama and, at the same time takes full responsibility and announces all of it to the press and public.

It is hard to see how Kozinski and the 9th do not find a little sympathy under those facts, and Cebull is betting on it. It is a good bet. And a smart play. I have no brief whatsoever for Judge Richard Cebull, none, but, nevertheless, this is the likely conclusion coming.

The False Report of Banned Books In Tucson: The Tempest in the Arizona Teapot

Last Friday afternoon, author Jeff Biggers published an article at Salon entitled Who’s Afraid of “The Tempest”? The cognitive lede, and framing for the article as a whole, is contained in the first sentence:

As part of the state-mandated termination of its ethnic studies program, the Tucson Unified School District released an initial list of books to be banned from its schools today.

Biggers goes on to report and discuss on a litany of books and textbooks – even Shakespeare’s The Tempest – that were removed from Tucson Unified School District (TUSD) classrooms:

Other banned books include “Pedagogy of the Oppressed” by famed Brazilian educator Paolo Freire and “Occupied America: A History of Chicanos” by Rodolfo Acuña, two books often singled out by Arizona state superintendent of public instruction John Huppenthal, who campaigned in 2010 on the promise to “stop la raza(sic).

It is a rather stunning, and alarming, report fashioned by Mr. Biggers and, little wonder, it swept like fire across the progressive internet, and social media like Twitter and Facebook over the King Holiday weekend. Biggers’ Salon article served as the basis for reportage of the banning of books, including Shakespeare’s The Tempest, in a plethora of media sources from such internet venues as AlterNet, to mainstream media like The Tucson Citizen, New York Daily News, and The Wall Street Journal.

There is only one problem with this story. It is categorically and materially false. No books have been banned in Tucson by the TUSD, much less Shakespeare’s classic, The Tempest.

Sensing that Biggers’ story did not sound correct, nor comport with my understanding of the law in this subject area here in Arizona, I was able to make contact with officials at TUSD over the Martin Luther King extended holiday weekend and spoke with an official on Monday, even though the school system was officially closed. It is an understatement to say they were dismayed and concerned; it is “disingenuous to say ‘banned’” said Cara Rene, Communications Director for the TUSD.

Indeed, upon returning to their offices Tuesday, the TUSD put out, through Ms. Rene, an official News Release stating:

Tucson Unified School District has not banned any books as has been widely and incorrectly reported.

Seven books that were used as supporting materials for curriculum in Mexcian American Studies classes have been moved to the district storage facility because the classes have been suspended as per the ruling by Arizona Superintendent for Public Instruction John Huppenthal. Superintendent Huppenthal upheld an Office of Adminstriation Hearings’ ruling that the classes were in violation of state law ARS 15-112.

The books are:
Critical Race Theory by Richard Delgado
500 Years of Chicano History in Pictures edited by Elizabeth Martinez
Message to AZTLAN by Rodolfo Corky Gonzales
Chicano! The History of the Mexican Civil Rights Movement by Arturo Rosales
Occupied America: A History of Chicanos by Rodolfo Acuna
Pedagogy of the Oppressed by Paulo Freire
Rethinking Columbus: The Next 500 Years by Bill Bigelow

NONE of the above books have been banned by TUSD. Each book has been boxed and stored as part of the process of suspending the classes. The books listed above were cited in the ruling that found the classes out of compliance with state law.

Every one of the books listed above is still available to students through several school libraries. Many of the schools where Mexican American Studies classes were taught have the books available in their libraries. Also, all students throughout the district may reserve the books through the library system.

Other books have also been falsely reported as being banned by TUSD. It has been incorrectly reported that William Shakespeare’s “The Tempest” is not allowed for instruction. Teachers may continue to use materials in their classrooms as appropriate for the course curriculum. “The Tempest” and other books approved for curriculum are still viable options for instructors.

Oh, my, that is fundamentally and materially different than what Mr. Biggers both stated, and inferred, isn’t it? It was excessive and inflammatory hyperbole, and that is not a good thing as it paints the TUSD, and the Arizona school and educational system in a false, and prejudicially negative, light. I know many teachers and administrators in the Phoenix area, and they were outraged. “Banning of books” is an extremely negative concept both emotionally and legally; it is an extremely serious allegation, and not one to be made lightly or inaccurately.

There are a LOT of very good people in the State of Arizona, and the bad that is going on here (and there IS plenty of bad too) should be painted large and loud for what it is, but not in brush strokes so big and hyperbolic as to give a false picture of the story and state. I dislike the existence and effect of HB 2281, the law that has created this controversy over ethnic studies, every bit as much as Mr. Biggers honestly seems to; but do not want that to be used as a whipping post to make Arizona an ogre in ways it truly does not deserve. And that was the effect of his January 13, 2012 article in Salon.

You would probably think this particular story, and my report on it, ends here for now. It does not and, for once, that is a very positive thing. Over the King Holiday weekend, in addition to contacting the TUSD, I also contacted Salon regarding my concerns. They were, under the circumstances, both cordial and professional. Early this afternoon a notice of correction was placed at the bottom of the original story, and a new report by Jeff Biggers, far more accurately portraying the facts on the ground in Tucson, was published by Salon. Salon, and its editors, are to be commended and applauded for their willingness to listen and act responsibly.

Which brings us to the bigger picture. Demagoguery and hyperbole are something that all of us do who write on emotional hot button issues; which are about the only kind of issues we do here at Emptywheel. I have noticed the same phenomenon in the progressive blogosphere and media acutely prevalent on torture, Bradley Manning, Occupy Wall Street and, just recently, the NDAA. Emotion and illustration are good; facts and truth are better.

Fuck You To Jamie Dimon & His Plaintive Wail For The 1%

Pardon me for the Taibbi like insolence, but this is just fucking amazing. While most Americans are struggling to stay alive, employed, and their families fed and in their homes, much less celebrate a decent Christmas, the 1% Masters Of The Universe have gotten together for a group bitchfest of elitist assholes:

Jamie Dimon, the highest-paid chief executive officer among the heads of the six biggest U.S. banks, turned a question at an investors’ conference in New York this month into an occasion to defend wealth.

“Acting like everyone who’s been successful is bad and because you’re rich you’re bad, I don’t understand it,” the JPMorgan Chase & Co. (JPM) CEO told an audience member who asked about hostility toward bankers. “Sometimes there’s a bad apple, yet we denigrate the whole.”

Dimon, 55, whose 2010 compensation was $23 million, joined billionaires including hedge-fund manager John Paulson and Home Depot Inc. (HD) co-founder Bernard Marcus in using speeches, open letters and television appearances to defend themselves and the richest 1 percent of the population targeted by Occupy Wall Street demonstrators.

Uh, fuck you Jamie Dimon and to the plaintive wail of the skimming, raping moneychangers.

Oh, and in case you had any question on what side of the 1%/99% divide Barack Obama and his Administration are on, yet another answer was given today with the announcement of their proposed selection for the critical “independent” seat on the Federal Deposit Insurance Corporation (FDIC):

The Obama administration is considering nominating Jeremiah Norton, an executive director for JPMorgan Chase’s investment bank, to sit on the FDIC’s board of directors.

Who is Jeremiah Norton? Well, as this quote states, he executive director of the investment banking shop and one of Obama’s buddy, Jamie Dimon’s, right hand men. Oh, and before that, Norton was former Goldman Sachs honcho Henry Paulson’s right hand man in the Bush Treasury Department and assisted Paulson in getting Goldman Sachs a backdoor bailout through AIG.

And, remember, if Barack Obama has to replace Turbo Tax Timmeh Geithner, Jamie Dimon is near the top of the list of replacements thought to be on the White House’s list.

So, while OWS is out protesting and the majority of citizens are falling deeper in despair and many losing their homes and hopes, and Barack Obama duplicitously coos about feeling the pain of the 99%, this is what is going on where the rubber meets the actual road.

PS: Digby has pounded Dimon on this as well if you want more searing criticism.

A Rancid Foreclosure Fraud Settlement Trial Balloon, Herbert Obamavilles, What Digby Said & The Import of the Occupy Movement

I do not usually just post simply to repeat what another somewhat similarly situated blogger has said. But late this afternoon/early this evening, I was struck by two things almost simultaneously. Right as I read Gretchen Morgenson’s latest article in the NYT on the latest and most refined parameters of the foreclosure fraud settlement, I also saw a post by Digby. The intersection of the two was crushing, but probably oh so true.

First, the latest Foreclosure Fraud Settlement trial balloon being floated by the “State Attorney Generals”. There have been several such trial balloons floated on this before; all sunk like lead weights. This is absolutely a similar sack of shit; from Morgenson at the NYT:

Cutting to the chase: if you thought this was the deal that would hold banks accountable for filing phony documents in courts, foreclosing without showing they had the legal right to do so and generally running roughshod over anyone who opposed them, you are likely to be disappointed.

This may not qualify as a shock. Accountability has been mostly A.W.O.L. in the aftermath of the 2008 financial crisis. A handful of state attorneys general became so troubled by the direction this deal was taking that they dropped out of the talks. Officials from Delaware, New York, Massachusetts and Nevada feared that the settlement would preclude further investigations, and would wind up being a gift to the banks.

It looks as if they were right to worry. As things stand, the settlement, said to total about $25 billion, would cost banks very little in actual cash — $3.5 billion to $5 billion. A dozen or so financial companies would contribute that money.

The rest — an estimated $20 billion — would consist of credits to banks that agree to reduce a predetermined dollar amount of principal owed on mortgages that they own or service for private investors. How many credits would accrue to a bank is unclear, but the amount would be based on a formula agreed to by the negotiators. A bank that writes down a second lien, for example, would receive a different amount from one that writes down a first lien.

Sure, $5 billion in cash isn’t nada. But government officials have held out this deal as the penalty for years of what they saw as unlawful foreclosure practices. A few billion spread among a dozen or so institutions wouldn’t seem a heavy burden, especially when considering the harm that was done.

The banks contend that they have seen no evidence that they evicted homeowners who were paying their mortgages. Then again, state and federal officials conducted few, if any, in-depth investigations before sitting down to cut a deal.

Shaun Donovan, secretary of Housing and Urban Development, said the settlement, which is still being worked out, would hold banks accountable. “We continue to make progress toward the key goals of the settlement, which are to establish strong protections for homeowners in the way their loans are serviced across every type of loan and to ensure real relief for homeowners, including the most substantial principal writedown that has occurred throughout this crisis.”

Read the full piece, there is much more there.

Yes, this is certainly just a trial balloon, and just the latest one at that. But it is infuriating, because it is the same old sell out crap repackaged and trying to be shoved down the public’s throat yet again. And who wants to sell this shit sandwich the most? Barack Obama and his band of Masters of the Universe, that’s who. It is also, of course, the fervent desire of Wall Street and their bought and paid for pols like Chuck Schumer.

Which is exactly why elected state Attorney General politicians (Hi Tom Miller), who are also generally on the political make, are so focused on getting a craven deal done, no matter how badly it screws the public and economy. If anybody has ever had any doubt as to why California AG Kamala Harris has been so slow, and so weak, in the matter this is exactly why. Harris is a political climber, and her fortunes and fame ride with the 1% and the politicians like Obama and Schumer that they control like circus monkeys.

Which brings me back to what Digby said. Digby, playing a notably tin-eared editorial by the Los Angeles Times off of a scathing comment on the American elite by Frank Rich, said:

That the LA Times is clutching its pearls over fig trees and grass while nearly 3,000 people have been arrested at Occupations all over the country world says just about everything you need to know about disconnect between elites and everybody else.

Yeah, that about sums it up. Do go read the full description of the “Hoovervilles” and what they really comprised, because it is far too close to home with the current time and place we occupy. By the same token, it is hard for many in the comfortably ensconsed traditional middle class to see just how heinous the situation is, and how necessary the “Occupy” movement may really be.

Trust me. I know, I am one of the uncomfortable. My natural predilections are within the system and rules. That, however, is no longer perhaps enough. Many of you reading this post may not be on Twitter, and thus may not have seen it; but I have in the last couple of days straightened out more than one pundit on the, and sometimes unfortunately so, real protection reach of the 1st Amendment. It is far less a prophylactic protection than most, and certainly the vocal proponents of the Occupy Movement, think.

Without belaboring the minutiae, the clear law of the land for over 70 years, ever since the Supreme Court handed down its decision in Cox v. New Hampshire, is:

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.
If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.

There is a long line of cases that ultimately extend the ability of cities and municipalities right to reasonably regulate time and place of free speech expression, so long as said regulation is content neutral, to public parks and all other sorts of publicly controlled spaces.

But those are “the rules”. When the politicians and corporate masters no longer are willing to play by the rules, how much longer can the “99%” afford to honor them? When the so called leaders will not abide by the norms and constricts of law, why should the average man still be held to the same?

Again, I fully admit just how much I struggle with saying the above. I really do; it is uncomfortable and discomfiting. I could go on, but my own thoughts pale in comparison with those similarly situated who have experienced first hand what the import and truth of the Occupy movement is.

I ask, indeed implore, you read this long, but telling, account from The Awl by Lili Loofbourow entitled “The Livestream Ended: How I Got Off My Computer And Onto The Street At Occupy Oakland”. There is literally too much to excerpt, and it would take away from the critically important slow progression the writer lays out for you, the reader.

So, while “the rules” may militate otherwise, and while “our Constitutional rights” go nowhere near as far as the psyched up Occupiers cry, there is something raw and necessary about the “Occupy” movement. It is necessary because the rules and “adults in the room” have sold their souls, and our lives, down the river of greed.

If not “the 99%”, then who? If not now, then when? It is time.

The Ugly Truth On What Was Really “Left At The Altar”

Graphic by @TWolf10

I was away during the dueling banjos press conferences of Barack Obama and John Boehner this afternoon. Apparently it was quite the show. Despite stating repeatedly how he was “left at the altar” by his Orange Glo golfing chum Boehner, President Obama seemed to get surprisingly effusive praise from pundits on the left for his speech.

Indicative of the praise is this tweet from Keith Olbermann:

You know my criticisms of this POTUS. In this news conference he has been absolutely effing kickass, and properly pissed off.

David Corn of Mother Jones tweeted:

O was as passionate and as close to angry as he gets. #debtageddon

And Corn is now on Lawrence O’Donnell’s show on MSNBC, where Lawrence the “Eleventy Dimensional Chess Scold” himself just said of Obama’s presser:

“It was a brilliantly effective appearance for his reelection.”

And there is the problem isn’t it? Obama really was, and is, worried more about his reelection than he is the welfare of the country and the entirety of its citizens who are not members of his cherished moneyed elite and financial sector magnates.

The details seemed to ebb and flow over the last few days, but this from Bloomberg sums up the basics of what Obama was willing to pull the trigger on:

Two congressional officials said the White House told Democratic leaders it was pursuing a deal to cut spending, including on Social Security and Medicare, and a tax overhaul that could raise $1 trillion. That provoked an angry reaction yesterday from Senate Democrats, who said they feared they might be asked to swallow steep reductions in programs and trims to entitlement benefits with no assurance of higher tax revenue.

Right. What Obama was caterwauling about being “left at the altar” was his willingness, nee burning desire, to make huge cuts in spending and social safety net programs, in return for the possibility of a tax reform later.

And, make no mistake, Mr. Obama is absolutely desperate to make that deal in order to get the debt ceiling issue off the table until sometime after his reelection campaign. His “Grand Bargain” is shit for the economy, shit for almost all Americans safety net now and in the future; it is only good for the howling idiots in the Tea Party sphere and, of course, the reelection campaign of Barack Obama.

So THAT is what was “left at the altar”, and why Barack Obama was suddenly so apoplectically passionate about it. And, yes, it must be stated Boehner, Cantor and the Tea GOP are even more craven and lame than Obama here, but that is pretty weak tea to hang your hat on if you are a sentient being. And that, folks, was the way it was on the day the debt ceiling fell to the floor.

But, fear not trepidatious Americans, Mr. Obama is going to try to save your future and his “grand bargain” again tomorrow! Gee, what dedication.

UPDATE: Paul Krugman understands the ugly truth here, having issued an article today entitled “What Obama Was Willing To Give Away”. Exactly.

[The wonderful and appropos graphic is by the one and only @TWolf10]

DOJ: Calling Out Government Lies Would Endanger National Security

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Glomar exception to FOIA. And they do not even have the honesty to admit that is what they are doing, probably because an actual Glomar discussion would make them look like idiots. For those unfamiliar with Glomar, here is a description from the recent case of Wilner v. NSA:

The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records—pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA’s Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; (4) the government’s affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

And, see, that is what is wrong with this craven charade by the DOJ – the information is about as publicly disclosed and known as could be imaginable under the circumstances. Not to mention that many of the activities the Gitmo Habeas counsel like Remes want to discuss freely are activities that are precisely those that “violate the Constitution or are otherwise illegal”.

The other thing of note, especially to readers of this blog, was the somewhat desperate attempt to distinguish the judgment of Judge Vaughn Walker in al-Haramain v. Bush (see page 7 here) by referring to that part of al-Haramain that discussed not-public classified information instead of the critical part of the opinion that was based on information well within the public sphere, such as the WikiLeaks material now is.

No matter how you look at this attempt to suppress and ignore the WikiLeaks material, it is bizarre and somewhat comical. The WikiLeaks Gitmo Detainee files genie is out of the bottle; it would behoove the US government to join the battle and arguments on the merits and facts instead of trying to cram the genie back in and play hide the bottle.

[Editor’s Note: This post was started by Marcy, but finished by bmaz; so we are both responsible, whether good or bad!]

DOJ Sits On Its Thumbs A Year After Macondo’s Mouth Of Hell Roared

It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.

Jason Anderson, Aaron Dale Burkeen, Donald Clark, Stephen Curtis, Roy Wyatt Kemp, Karl Kleppinger, Gordon Jones, Blair Manuel, Dewey Revette, Shane Roshto, Adam Weise

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.


But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.


…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?


Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the American populous. That is clearly who they are, and quite apparently who we have become.

So, what could have been the process? Well, that is pretty easily delineated. In fact, I set it out definitively on May 28th of last year. Please refer to the link to the post for a complete list of the factors, nee elements of the crimes, that were already present a year ago. It is startling to realize what was already known then; especially when compounded with what is known now. The only difference today is that we can definitively add the United States government, and the administration of Barack Obama, to the queue of “Criminals in the Gulf“.

Last May I wrote:

As a direct and proximate result of the above described reckless, wanton, willful, and grossly negligent conduct, eleven men are dead and the biggest environmental disaster in history has been unleashed on the fragile and critical Gulf of Mexico, threatening the lives and livelihoods of untold numbers of American families. Some of the toxic death foisted upon the environment cannot even be seen because it lurks in deep giant underwater plumes miles wide by miles long.

The applicable criminal provisions of the Clean Water Act are set out in 33 USC 1319….The Federal criminal provisions for negligent and reckless homicide (statutorily known as manslaughter) are contained in 18 USC 1112….


It is hard, if not impossible, to find any way that the conduct of both BP and its key decision making officials responsible for the Deepwater Horizon catastrophe, and corresponding mass loss of life, do not fit within the ambit of the above crimes. Why has the Obama Administration and its DOJ not acted? Why is there not a dedicated criminal investigation open and securing critical evidence?

As best as can be ascertained, the only real DOJ Main assets sent to the Gulf scene are Tony West and Ignacia Moreno, the talking heads for the Civil Division and Environmental Divisions respectively, a tasking that screams of a total coddle the petroleum industry and manage the fallout move, not a get tough criminal consideration.

The DOJ could also be using the Texas Refinery Fire probation case that BP is still under the court’s jurisdiction for from their 2007 felony conviction as an easy investigatory and prosecutorial tool; but the DOJ will not even address the thought, much less act on it.


The Obama Administration and its DOJ owes the citizens a better effort than they have mustered to date. It is funny they are out trying to prosecute Guantanamo defense attorneys for doing their jobs and are still hell bent to persecute inconsequential marijuana crimes, but have no burning desire to go hard after BP, the biggest environmental criminal in history. How can that be?

In addition to the above manslaughter and general CWA crimes clearly present, 33 USC 1319 contains the criminal provision of the Clean Water Act. Specifically, 33 USC 1319(c)(1)(A) and 1319(c)(2)(A), through their reference to multiple other provisions, but most notably 33 USC 1312, make the toxic contamination of navigable waterways and wetlands a crime.

So, what has transpired in the way of criminal prosecution now that we have reached the one year anniversary of Macondo, the Mouth of Hell, rearing its head and opening its maw?

Not a thing. The US government and the Administration/DOJ of Barack Obama is just stringing it out and propping up the status quo and corporate interests such as BP. Seriously, I have been in the criminal law business for two and a half decades, and you literally almost have to fight to not be prosecuting BP for the criminally negligent, if not recklessly indifferent, deaths of the eleven lost souls on Deepwater Horizon.

Like with torture and the financial meltdown, the criminal activity is so obvious you have to consciously want to “look forward” and want to not prosecute in order to not do so. And that is, apparently, just exactly the case with the Obama Administration and the Holder Department of Justice to date. For the better part of a year, DOJ pitched the bogus meme there was a team working diligently on the BP Oil Spill. But that “task force” was led by Tony West and Ignacia Moreno, a couple of talking head tailored suits out of DOJ Main. Knowledgable former EPA criminal investigators pointed out early on, it seemed just for show and, sure enough, very little appears to have resulted from all those months of the DOJ Deepwater Horizon investigation. In fact, the only notable thing which appears to be resulting from the so called “criminal investigation” is that it is being used to shield and hide the real ecological destruction to the Gulf occasioned by the oil spill, such as the inexplicable and tragic dolphin deaths.

Now, to be fair, the Obama Administration, at the end of March, made another one of its patented government by press release moves by announcing they are “considering” filing manslaughter charges against BP managers. Included in the new PR push was the first official mention of using the somewhat archaic “Seaman’s Manslaughter” law, which is embodied in 18 USC 1115. In a nutshell, the Seamen’s Manslaughter statute allows the government to hold seafarers, owners of vessels, and the corporate management that controls vessels, criminally accountable for maritime accidents that result in the death of a person (Here is a pretty good paper on the statute).

Is there any reason to give the claimed new “push” by DOJ any credibility? The answer depends. Also in late March, the DOJ made a mostly ignored change in leadership on their supposed Gulf Oil Spill investigation. The investigation, the only known active part of which was done by the EPA Environmental Crimes Unit and the US Attorney’s Office in Eastern District of Louisiana, was suddenly yanked and a new “task force” formed to be specially supervised by a chap by the name of John Buretta, who is touted as a veteran criminal prosecutor. That sounds all well and good until you take a good look at what Buretta’s experience really is.

The first thing a closer inspection yields is that Buretta, while indeed having some solid prosecutorial experience, has it almost exclusively in racketeering cases in the Eastern District of New York; he made his bones on mob racketeering investigations. It is hard to see how that lends the experience, knowledge base or skill set for complex environmental crimes. People experienced with complex environmental crimes will tell you (and have told me) environmental crimes is a specialized area, and that a rackets prosecutor from Brooklyn is a severe fish out of water for the Gulf Oil Spill case.

Understandably, the decision to move Buretta in and remove Howard Stewart, the Senior Environmental Crimes Attorney, has generated a high level of frustration in the Environmental section. Behind the scenes, the EPA Criminal Investigative Division (CID) staff believe it is a huge blow because it signals the environmental crimes won’t be dealt with seriously. Furthermore, the EPA criminal investigators have claimed from the start they were being micromanaged by senior political appointees in Washington and not allowed to conduct thorough investigations, just as feared would be the case by the former EPA Criminal Dvision agents when the investigation started. The significance of this marginalization of the environmental unit to the environmental crimes will become clear below.

The other thing that jumps out is the way the Obama Administration has turned their PR play on the matter – it smacks of the same patently dishonest and craven play they ran to slough off any meaningful prosecution of torture and destruction of the critical torture tapes by high level CIA officers, almost certainly working in concert with senior Bush Administration officials. The Buretta announcement appears to have been rolled out by Carrie Johnson, formerly of the Washington Post and now at NPR, and historically a trusted useful tool for the DOJ when they want to want to launder bullshit to the press.

You might remember Johnson from the almost identical type of reporting she did for the DOJ when they were pulling the wool over the public’s eyes regarding the whitewash of the torture tape investigation. When this blog and a few others were making big noise on how the DOJ was cravenly running out the clock on the torture tape destruction prosecutions, the DOJ again turned to Johnson to soft sell the fact they, and their “special prosecutor”, John Durham (who had no torture nor national security experience, but was, yes, another DOJ mob specialist), had intentionally run out the clock on the prosecutions.

Johnson, of course, came through for DOJ with the requisite con job that it was all necessary and there still might be accountability, which was a total joke. And now here is Johnson again carrying the water for the DOJ attempt to shoehorn Buretta, yet another loyal AUSA with nothing but mob experience, but no usable experience in the field to which he is being specially assigned.

So, what does all this mean for the concept of meaningful and appropriate accountability for BP and the other criminal malefactors in the Gulf Oil Spill? The smart money is on the “nothing good” square. While the DOJ now, all of a sudden, is interested in “streamlining” the case, in actuality it likely is the path being set up for a package deal to resolve everything nice and neat so both BP and the Obama Administration can “look forward”. There are subtle tells as to where the Administration is going. The first tell is the newfound emphasis on “Seamen’s manslaughter”, in that, although it is a felony homicide provision, it only requires a showing of regular negligence, as opposed to gross negligence or recklessness under the traditional criminal homicide provisions.

And this is where the sidelining of the environmental crimes team comes into play. By only dealing in terms of regular negligence, as opposed to gross negligence, on the environmental crimes, the administration can minimize the financial penalties assessed to BP. Under the Clean Water Act, the two factors which determine the size of the financial penalty are the total amount of barrels spilled and whether the spill was the result of ordinary negligence, in which case the strict liability damages are assessed at $1,100 per barrel spilled; or “gross negligence” in which case the fine is as high as $4,300 per barrel spilled.

On the largest oil spill in history, having to pay the severely higher damages under gross negligence would be a serious blow to BP. But BP’s own disclosures reveal they are quite certain that will not occur, and there is every indication the Obama Administration intends to see it does not impose such a “hardship” on its favorite partner for military fuel purposes. Not to mention that Barack Obama is again in full campaign fundraising mode and BP is one of his biggest corporate sponsors.

The bottom line is it is a safe bet John Buretta, the rackets specialist, has been assigned to wrap up a nice tidy little package involving simple negligence across the board. It minimizes the spill penalties to BP and will allow criminal charges, if there are any individuals charged at all, to be restricted to a couple of sacrificial lambs who were calling the shots on the Deepwater Horizon rig. If I were Robert Kaluza and Donald Vidrine, the BP company men in charge of Deepwater Horizon when it blew, I would be more than a little worried about the direction this is going, because they are the obvious lambs being prepared for slaughter.

But BP itself, on the other hand, looks set up to be escorted through the process by the Administration and DOJ mostly unscathed. That is what the government does for its valued corporate partners. In fact, far from being penalized and/or debarred from federal contracting as it should be, as Jason Leopold reported Wednesday, BP is being given sweetheart no-bid contracts by the Administration.

Maybe a rackets prosecutor is the right guy after all, because this is quite a racket being run between the US government and BP. A year after Macondo the Mouth of Hell roared, and it is business as usual. Who could have predicted?

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

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Originally Posted @ https://www.emptywheel.net/galactic-stupidity/page/3/