[youtube]http://www.youtube.com/watch?v=iidC31wuEpE[/youtube]

As reported late yesterday by the New York Times, the US is finally acknowledging that it faces a diminished role in Pakistan. However, restoring even a diminished level of relations with Pakistan after the November 26 airstrike that killed 24 Pakistani troops is complicated by the fact that “civilian and military leaders are clashing over purported coup plots”. At the same time, the US continues its efforts at negotiating with the Taliban on a peace agreement for Afghanistan once the US leaves, and has even arranged for the Taliban to open an office in Qatar. These diplomatic moves are all focused on the scheduled 2014 withdrawal of combat troops from Afghanistan, but standing between now and then are the scheduled Pakistan elections in 2013.  Former cricket star Imran Khan appears to be gaining a huge political following and so it seems likely that whether it is the long-rumored military coup or an electoral loss, the Zardari government appears to have lame duck status while participating in these critical discussions.

The Times describes the reduced US role with Pakistan:

With the United States facing the reality that its broad security partnership with Pakistan is over, American officials are seeking to salvage a more limited counterterrorism alliance that they acknowledge will complicate their ability to launch attacks against extremists and move supplies into Afghanistan.

The United States will be forced to restrict drone strikes, limit the number of its spies and soldiers on the ground and spend more to transport supplies through Pakistan to allied troops in Afghanistan, American and Pakistani officials said. United States aid to Pakistan will also be reduced sharply, they said.

It appears that the reduced number of “spies and soldiers” is down to about 100 from a high of 400. It is also very interesting to note that there have been no drone strikes in Pakistan since November 16, a full ten days before the November 26 border post attack. Today marks the one month mark for the blocking of supply lines through Pakistan in response to the border post attack.

While trying to sort out whether the Zardari government is stable enough to negotiate with over US involvement, the US is continuing its frequently ill-fated attempts to negotiate with the Taliban.  The newest development is the agreement for the Taliban to open an office in Qatar. It appears that Afghanistan is going along with that proposal, even though they would have preferred for the office to be in Turkey or Saudi Arabia. I’m assuming these are State Department negotiations and that an office outside Pakistan is needed because the US military would carry out a drone strike against any organized office facility for the Taliban inside Pakistan.

As if the difficulty of determining whether the military will remove Zardari’s government isn’t enough, it appears that should Zardari stay in office until the 2013 elections, his PPP party will face very stiff opposition from former cricket star Imran Khan’s PTI party. Khan staged a rally over the weekend in Karachi that drew a huge crowd that overflowed a site that holds 250,000 people.

Khan’s platform is aimed against government corruption, at improving the fate of the poor and railing about a failing economy. His plan is to achieve an Islamic welfare state:

In his speech to the assembled crowd, Khan said that his vision was for Pakistan to be an “Islamic welfare state”, where citizens would be entitled to free and equal access to education, healthcare and justice.

Under Pakistan’s current of government, citizens are entitled to these services for free, but Khan alleged that the system was not reaching those who needed the most state assistance.

This attitude within the PTI carries a strong message condemning the rich-poor divide. A recent recruit into PTI, Javed Hashmi, who joined from PML-N, expressed it this way at the rally:

“People began looting the country. People were divided into different classes. There was a Pakistan for the rich and the poor. The poor have no personal security while the rich roam around with 1,000 police officers.”

Speaking at the rally, former PPP Foreign Minister Shah Mehmood Querishi addressed the PTI’s position regarding the US:

Mr Qureshi said Pakistan did not harbour any aggressive designs against any country and sought friendship with India and the US, but could not opt for slavery. “If the nation wants to have an independent, sovereign, prosperous, credible and strong Pakistan, it must elect a party whose leadership could offer their heads rather than surrender.”

He said the message of this massive rally was clear to the world that no one could bargain over the nuclear program.

The US would be well-advised to keep the PTI’s views in mind when developing the new, reduced relationship with Pakistan, lest it risk having the entire agreement thrown out just months before the US is scheduled to leave Afghanistan.

It’s that quiet part of Christmas morning where just McCaffrey the MilleniaLab and I are up. I’m drinking coffee preparing myself to take McC out into the “Al Gore is fat” springlike day, and tie up last minute loose ends for the day ahead. And, in spite of all the personal and political stresses, I’m remembering how many gifts my lives includes.

This community is near the top of that list.

Thanks for all your voices, which make this place a warm, dynamic place. And thanks for all the other support you give emptywheel, in various ways.

Have a Merry Christmas today (or, if you don’t celebrate Christmas, enjoy having the streets empty and quiet for the first day in weeks!).

And whatever you believe, let’s all just keep working on the Peace on Earth part!

I somehow stumbled into an article for The Nation by Rainey Reitman entitled Access Blocked to Bradley Manning’s Hearing. To make a long story short, in a Twitter exchange today with Ms. Reitman and Kevin Gosztola of Firedoglake (who has done yeoman’s work covering the Manning hearing), I questioned some of the statements and inferences made in Ms. Reitman’s report. She challenged me to write on the subject, so here I am.

First, Ms. Reitman glibly offered to let me use her work as “foundation” to work off of. Quite frankly, not only was my point not originally to particularly go further; my point, in fact, was that her foundation was deeply and materially flawed.

Reitman starts off with this statement:

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.

While the “WikiLeaks saga” is indeed centered on transparency and accountability for many of us, that simply is not the case in regard to the US Military prosecution of Pvt. Bradley Manning. The second you make that statement about the UCMJ criminal prosecution of Manning, you have stepped off the tracks of reality and credibility in court reportage and analysis. The scope of Manning’s Article 32 hearing was/is were the crimes detailed in the charging document committed and is there reason to believe Manning committed them. Additionally, in an Article 32 hearing, distinct from a civilian preliminary hearing, there is limited opportunity for personal mitigating information to be adduced in order to argue for the Investigating Officer to recommend non-judicial punishment as opposed to court martial trial. That is it. There is no concern or consideration of “transparency and accountability”, within the ambit suggested by Ms. Reitman, in the least.

Calling the Manning Article 32 hearing “one of the most important court cases in our lifetime” is far beyond hyperbole. First off, it is, for all the breathless hype, a relatively straight forward probable cause determination legally and, to the particular military court jurisdiction it is proceeding under, it is nothing more than that. The burden of proof is light, and the issues narrow and confined to that which is described above. The grand hopes, dreams and principles of the Manning and WikiLeaks acolytes simply do not fit into this equation no matter how much they may want them to. Frankly, it would be a great thing to get those issues aired in this country; but this military UCMJ proceeding is not, and will not be, the forum where that happens.

Moving on, Reitman raises the specter of “the death penalty” for Manning. While the death penalty remains a technical possibility under one of the charges, the prosecution has repeatedly stated it will not be sought and, after all the statements on the record in that regard, there is simply no reason to embellish otherwise. Reitman next states:

This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light.

No, it most certainly will not. In fact, the Manning criminal military prosecution has nothing whatsoever to do with “whistleblowers”. Despite the loose and wild eyed use of the term “whistleblower” in popular culture, not to mention by supporters of Bradley Manning, the concept and protection simply do not legally apply to Manning, nor to most any of the situations it is commonly invoked in regards to. Despite all the glittering generality with which the term is bandied about, a whistleblower defense does not particularly exist at common law; but, rather, is a statutory justification defense which must be affirmatively pled. In the scope of military jurisdiction, the sole availability of the defense is set out in The Military Whistleblower Protection Act, codified in 10 USC 1034, which provides, inter alia:

(a) Restricting Communications With Members of Congress and Inspector General Prohibited.—
(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.
(2) Paragraph (1) does not apply to a communication that is unlawful.
(b) Prohibition of Retaliatory Personnel Actions.—
(1) No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing—
(A) a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted; or
(B) a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to—
(i) a Member of Congress;
(ii) an Inspector General (as defined in subsection (i)) or any other Inspector General appointed under the Inspector General Act of 1978;
(iii) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
(iv) any person or organization in the chain of command; or
(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

Bradley Manning, as admirable as we may find his purported acts, did not release to and/or through a member of Congress, Inspector General, nor any other permitted/authorized person in his chain of command or otherwise. Not even close. Bandying about the term “whistleblower” in terms of Bradley Manning’s UCMJ prosecution is simply disingenuous. A whistleblower defense has neither been affirmatively pled by Manning’s defense, nor is it even remotely available.

Next, there is a complaint by Ms. Reitman that there is “No Transcript Available”. Yeah, welcome to the world of military law; this is not unusual. In fact, the answer of maybe in “three to four months” she got from some authority at Ft. Meade is actually responsive and impressive considering she was neither a party nor counsel of record. This is simply not unique to Manning, nor particularly nefarious in the least; it is the way it is in this jurisdiction. Same goes for “Computers and Recording Devices Banned”, which she also complained of.

Buck up sister, and understand whose sandbox you are playing in. You are subject to the rules, procedures and whims of the court in any given jurisdiction; and that is the way it has long been in courts martial proceedings under the UCMJ. To be honest, it is often not much, if any, better in many Article III Federal courts. Transcripts are the property of the court and court reporter unless and until filed on the docket; you can get one, but you pay a steep price for that pleasure. Further, although it has gotten much better since Marcy Wheeler and Jane Hamsher opened up the can of liveblogging worms via the Scooter Libby trial, it is still hit and miss as to whether federal court houses and rooms across the country permit computers and “recording devices” at all.

Ms. Reitman also complains that limited portions of Mr. Manning’s Article 32 proceeding were conducted in a closed court, with the public and press excluded. It is hard to discern whether she simply does not understand court process in relation to classified and protected information, or if it simply offends her rose colored view of how things would be in an utopian world. The fact, however, is that the federal government takes classified information seriously in court proceedings, and always have. And courts do too; in fact, the one place you never hear about leaks coming from are federal and military courts. That is the single best argument for limiting the use of the “state secrets privilege” in federal civil courts and the CIPA process in federal criminal courts.

In fact, without the CIPA process, it would be nearly impossible to prosecute breaches in government security and classified information that truly are legitimate and in the interest of national security; otherwise, every defendant would escape via a graymail defense. Yes, legitimate instances of appropriate posecutions do indeed exist. And, yes, the CIPA process is indeed embedded into UCMJ law via Military Rule of Evidence 505. Notably, the full panoply of Rule 505 CIPA like procedures do not vest until the trial process, after the case is referred from an Article 32 hearing; however, the direct provision for the closed proceedings utilized in Pvt. Manning’s Article 32 are so promulgated in Rule 505 (C)(3):

Article 32 proceedings, like courts-martial, are open to the public. This means that Article 32 investigations may only be closed in accordance with the procedures discussed in the next chapter. Under M.R.E. 505, the assertion of the classified information privilege may not occur at the Article 32 stage of the court-martial proceeding. Instead, under M.R.E. 505(d)(5), the convening authority may chose to withhold disclosure of the information, if disclosure would cause identifiable damage to the national security. Where the information is withheld, the investigating officer does not hold a hearing under M.R.E. 505(i) to determine the classified information’s relevance and necessity to an element of an offense. Those provisions all apply post- referral, in front of the military judge. If the convening authority provided classified information to the defense in discovery, it is entirely possible that classified information will be introduced during the Article 32 proceeding, by one of the parties or through witness testimony, without substantive discussion of their contents. This is most commonly referred to as the “silent witness” rule. Alternatively, the parties may decide to introduce the evidence in a closed session. When that happens, the IO will need to conduct a closure hearing under R.C.M. 806(b)(2), as discussed in Chapter Ten.

Well, Ms. Reitman, that is exactly what was done by the Convening Authority and Investigating Officer in Pvt. Manning’s article 32 process. Whether you approve or not is irrelevant; that is the well established and statutory procedure. It is what is mandated Ms. Reitman, not some nefarious conspiracy by Big Brother to deny you.

The rest of Ms. Reitman’s gripes are ticky tack, as opposed to substantive, although I would like to address briefly her beef regarding the security procedures at Ft. Meade. This simply borders on the absurd. Ft. Meade is not just a United States Army military installation, but is the headquarters of United States Cyber Command, the National Security Agency, and the Defense Courier Service. Yes, they have strict security for access and traverse of any portion of the installation. It is unclear why Ms. Reitman finds this notable, much less shocking.

One last thing that is more of a pet peeve of mine than direct point of Ms. Reitman’s, although she prominently mentions him. Daniel Ellsberg. Both Ellsberg himself, and the legion of Bradley Manning supporters, have compared Manning to Ellsberg. Mr. Ellsberg is a mythic figure to the anti-war and progressive left, and while it is easy to see how many would have that admiration for his freeing of the Pentagon Papers, in many ways it is a false paradigm to compare him with Manning. While I think they are fairly distinguishable in detail, I will leave that for another day. What they ought to keep in mind is that Daniel Ellsberg was guilty of the criminal charges filed against him and, but for the fortuitous intervention of inexplicably egregious prosecutorial misconduct causing dismissal, Ellsberg would have been convicted in 1973 and would quite likely just recently have gotten out of federal prison. Ellsberg himself admits as much. Manning supporters would do well to keep this in mind for perspective.

There is an abundance of misinformation and hyperbole regarding Pvt. Bradley Manning and WikiLeaks coursing through the internet ether already, it does neither the public, nor Mr. Manning’s enthusiastic supporters, any favor or service for Ms. Reitman to add yet more.

[Okay, for the most sacred honor and ritual, yes the meet and greet of Halas’ Bears and Lambeau’s Packers on the hallowed Tundra, I have cavalierly re-upped Trash Talk to the top of the totem pole pecking order until the conclusion of the sacred event]

Hey there Wheelies and Wheelettes, it’s Christmas Eve Day!! And that can mean only one thing; yep, Emptywheel’s Christmas Eve Mega Football Trash Talk!

Since the NFL decided to move all but one of its Christmas Day normal Sunday slate of games up a day to give most in the league Christmas off and with their families, we have a full schedule of games today. And, unless The Most Transparent President In The History Of The Universe decides to autopen the NDAA and spring the big kahuna of signing statements today, there is not a heck of a lot else going on. So, to the Game Cave Batman!

The biggest game of the weekend, by just a slight margin, is the battle of the New Yorks which, of course, takes place in New Jersey. Marcy and her family are already in a passionate discussion over whether this means Bad Eli Manning and Mistake Mark Sanchez share the same locker and pass notes to each other. This is a huge game though; the winner likely goes to the playoff, and the loser likely stays home. And it really is for bragging rights in New York City. It is a grudge match, and it does count. Big time; one of these teams is going to be eaten alive in the tabloids. I think it comes down to Eli versus Revis Island and Bart Scott and the Jet bruisers. If the Jets get hard pressure on Eli, Jets win; if not they don’t. No clue who comes out of this alive.

The other game nearly as big is Eagles and Cowboys. Iggles are starting to get healthy and gel, even if it is almost surely too late. They are technically still in the playoff hunt though, have pride on their mind and hate the Cowboys. So, another NFC East grudge match. DeMarco Murray is done for the year, and Felix Jones will play, but is hurting. Other than Jones, Dallas has Sammy Morris. If they do not generate a solid running game, Philly is gonna win this. Even though the game is in at Jerry’s House in Big D, I think the Iggles win it.

ATTENTION! Update: Oh my. My ears were hot, burning if you will, whilst I was away at brunch. I think I have discovered why! It doth seem I neglected to cover the big Kitties versus Bolts clash in Motown. I have thus shat upon both Marcy AND Randiego. Not good. so, here we go: Uh, the Bolts are visiting Matthew Stafford, Megatron and Suh, Suh, Suhshie at Ford Field. This is indeed a top shelf game; the Kitties have a ton of young, if somewhat undisciplined, talent trying to keep the ship righted and sailing for the playoffs after last week’s win over the Rayduhs. They need a win in their last two games to get there, but have to go to Lambeau next week. The Bolts are, improbably, making yet another save Norval’s ass surge in December. With the TeDonks getting circled up in Boofalo, the Chargers would be in the thick of the hunt in the AFC West with a win. A lot on the line, and two exciting offenses. That makes for a great game. Ryan Matthews is on a roll for the Chargers, but the Lions are down to a wounded Kevin Smith at running back. That is the difference. Kitties gonna have to win on the Tundra methinks.

It will not be on national TeeVee, but the Niners-Squawks game may turn out to be very good. Seattle has really come on hard down the stretch, and shockingly Tavaris Jackson is playing at a very high level lately. San Fran defense probably too tough, but this may approach a toss up since it is in the Emerald City. And, of course, we have another week of Tebowmania. This week, Baby Jesus and the Donkos visit the suddenly hapless Bills. Don’t think the wagons can get circled enough to stop the Tebow train, but Brian Dawkins is likely out, and he is the real glue for the Denver defense. That makes it a real ballgame; a toss-up if you will.

The other two first class matchups are on Sunday Night and Monday Night Football respectively. First up for SNF on NBC is the most famous rivalry in football history, yep it’s the Bears and Packers on the Frozen Tundra at Lambeau. Really, what more could a football fan want for Christmas than Bears/Packers on a winter night, with steam coming out of the facemasks like dragons, from the Shrine in titletown? If you look up football in the dictionary, that is what they got. I would say Da Bears might make this an upset if they had Cutler and Matt Forte, but they do not and I doubt the Cheese is going to sleep two weeks in a row. Not to say the Pack does not have issue though, their two most critical O-linemen are out, as is Greg Jennings. Still, hard to see GB losing this.

Lastly, the MNF game has some post Christmas firepower on tap for us. Dirty Birds at Saints in Nawlins. Matt Ryan and the Falcons need one more win to lock up a wildcard spot; the Saints are playing for a possible first round bye. And Drew Breeeeeees is closing in on Marino’s yardage record and Brady’s TD record for a season. That and home field will prove too much for the Falcons.

Let the games and Christmas cheer begin!

From Me, Marcy and Jim White, Merry Christmas to one an all, and thanks to one and all for your support and participation here at the Emptywheel blog. You are the best gifts of all.

The CIA announced in September it was going to review a narrow aspect of the way CIA officers set up NYPD’s domestic spying agency in the wake of 9/11. As I pointed out then, the investigation was scoped to ignore key parts of the NYPD’s program.

The NYPD program is, by all appearances, a massive ethnic profiling operation that hasn’t been all that effectiveat finding potential terrorists. DOJ ought to be conducting this investigation as a potential civil rights violation.

But instead, CIA will conduct the investigation, meaning the chances the public will know the result are slimmer even than if DOJ conducted it.

[snip]

So is CIA particularly worried? Both James Clapper and the CIA flack appear to be narrowly parsing the potential problem: whether or not there are CIA officers on the streets of NY, whether they are investigating domestically as opposed to overseas (remember, the NYPD is sticking its nose into overseas investigations, too).

And, surprise surprise! CIA’s Inspector General just announced that it found no problem in its narrowly scoped investigation.

The agency’s inspector general concluded that no laws were broken and there was “no evidence that any part of the agency’s support to the NYPD constituted ‘domestic spying’,” CIA spokesman Preston Golson said.

[snip]

David Buckley, the CIA’s inspector general, completed his review in late October. It’s not clear if his report opens the door for other municipal police departments nationwide to work closely with the CIA in the war on terror.

Let the ineffective, wasteful domestic spying continue then, I guess!

The Administration has, as expected, buried its signing statement for the Defense Authorization in a holiday Friday document dump.

Correction: As DDay corrects me, this is not yet the NDAA signing statement, which is still coming.

I’m actually fascinated by the way they’ve suggested that they consider some of the detainee provisions to violate separation of powers. They couch their objections in language explicitly referring to the restrictions on transferring Gitmo detainees. They then say there are other “similar” provisions to which they also object. But they don’t name those provisions!

I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.

In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal. [my emphasis]

Now, in its veto threat capitulation, the Administration emphasized the uncertainty the bill (now law) presents for counterterrorism professionals.

While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength.

[snip]

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

And frankly, I think the Administration is absolutely right to be concerned about the way these provisions–particularly, the presumptive military detention for some alleged terrorists–will screw up FBI’s efforts to investigate and capture terrorists.

But rather than explicitly focusing on this problem in the signing statement in the same way they did in the veto threat withdrawal, they simply invoke provisions similar to the Gitmo transfer restrictions, without naming them.

Not only is this a missed opportunity to make a strong defense of our civilian counterterrorism efforts–which have been far more successful than military commissions. But it leaves open the possibility that the Administration’s biggest objection isn’t about presumptive military detention but other limits on executive power.

It is par for the course for the Administration to keep secret which provisions it intends to “apply in a manner that avoids constitutional conflicts” even while celebrating its own “transparency.”

[youtube]http://www.youtube.com/watch?v=FK4nh5I0jpE[/youtube]

So soon on the heels of this week’s disclosure that seventeen percent of US drone pilots show signs of clinical distress and the debacle of the RQ-170 Sentinel drone being recovered and put on display by Iran, today’s latest announcement on drones reads like a piece from The Onion or Andy Borowitz.  In what appears to be all seriousness, the US is looking into the possibility of single drone operators controlling as many as four drones at one time:

Western militaries are experimenting with having future drone pilots command up to four aircraft at once, adding new potential challenges even as a top-secret U.S. drone’s crash in Iran exposed the risks of flying unmanned aircraft thousands of miles away.

And why would such a foolish move be necessary?  Why, it all comes down to insatiable demand for drone use and a military that wants to cut back on costs:

To save money and make unmanned aerial vehicles (UAVs) less reliant on massive ground support crews, weapons manufacturers are working with military officials to develop more autonomous control systems and improve networking among planes.

At the moment, it can take hundreds of support staff on the ground to run a single drone for 24 hours, adding cost and complications at a time when budget-cutters are looking for billions of dollars of program cuts.

But new high-tech networking systems and ground stations in development would let a single pilot fly four drones, possibly even from different manufacturers, dramatically reducing the ground staff now needed for each plane.

Early work on such systems has been going on for some time, but heavy demand for more drones and mounting budget pressures are now bringing them closer to operational use.

If the US does institute such a foolish practice, let’s just hope none of the stressed out operators decide to channel their inner Charlie Callas.

I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:

Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”

Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.

Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.

Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.

There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.

As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered program, as that lies at the heart of why the individuals face the prospect of criminal process in the first place.

So, in sum, the offer of pre-trial diversion is but an extra option offered people that are facing the criminal justice system. It did not have to be offered, that it is should be considered positive not negative if the individuals are going to be facing the criminal system anyway. Whether or not one feels these individuals should be charged in the first place is a different discussion; since they do face the system, having an extra option should be cheered not jeered.

Lastly, a word about the “Free Speech” rights that are at issue here. The long and short of it is free speech has never been completely free nor absolute. Living in the west, and being still a little bit of a night person, I have seen a lot of the television reports and internet live stream coverage of the raids on various OWS camps including, notably, the infamous ones in Oakland and Los Angeles. I constantly saw protesters screaming about their First Amendment rights being trampled on. I have also seen a lot of very bright people I know repeating this mantra on Twitter, in discussion forums and in published articles. At least as to the actions that have been about the OWS tent encampments on public property, they have been wrong.

I support the intent and message OWS set out to propel into the public consciousness completely and with every fiber of my being. There is no more critical message right now than the burgeoning income inequality, financial suffering and human loss being caused by the rapacious elements in the global financial sector epitomized by Wall Street. That said, the simple fact of the matter is that there are, and long have been, time place and manner restrictions on free speech and that is what is at play here.

So, let’s look for a moment about what the real state of the law is regarding the tent encampments that OWS keeps screaming are protected by the First Amendment, because the simple truth is they most certainly are not if there are appropriate local laws and/or regulations prohibiting overnight sleeping and camping, as there have been in most all of these cases. These are called “time, place and manner restrictions” (TPM), and they are long engrained into the very heart of American First Amendment law.

The complete history of TPM restrictions is to long too go into in a blog post, but perhaps the key case for modern general TPM law is Cox v. New Hampshire, 312 U.S. 561 (1941) where the court stated:

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. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.
….
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.(citations omitted)

Time, place and manner restrictions thus having been ratified by the Supreme Court into modern law in Cox, the issue then becomes how this applies to the issue of tents in the OWS encampment paradigm. Well, it turns out the Supreme Court has an app for that too. SCOTUS, in the directly on point case of Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984), addressed the free speech issues surrounding tent encampments on public property:

We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present purposes, but do not decide, that such is the case, cf. United States v. O’Brien, 391 U.S. 367, 376 (1968), but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.
….
Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. United States v. O’Brien, supra.

Petitioners submit, as they did in the Court of Appeals, that the regulation forbidding sleeping is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct. We agree with that assessment.
….
The requirement that the regulation be content-neutral is clearly satisfied. The courts below accepted that view, and it is not disputed here that the prohibition on camping, and on sleeping specifically, is content-neutral, and is not being applied because of disagreement with the message presented

There is a lot of discussion in Clark that is spot on point with the OWS situation. Suffice it to say, it has proven to be decisive in nearly every state and federal court challenge brought by OWS, and so long as there is some statutory or regulatory basis for camping and/or sleeping prohibition at a given locale, it will continue to so be decisive against the tent encampments of OWS. And, as demonstrated by, among others, Federal Judge Cameron Currie in South Carolina yesterday, this logic will stand even for regulations and laws passed after the encampments started, so long as the proscriptions are content neutral.

In conclusion, the OWS protesters, well meaning as they may be, are flat wrong when they scream that their First Amendment rights are being trampled upon when cities and governments no longer tolerate the long term residence on public property. Similarly, there is nothing wrong whatsoever about a jurisdiction offering an appropriate pre-trial diversion program to folks that have been arrested in these dismantling raids.

Well, you might not know it, but there is a HUGE bowl game tonight! Yes, it is the Grandaddy The All Except All The Others, the Maaco Las Vegas Bowl. From, of all places, Las Vegas! And in this fascinating game, my team, the Arizona State Sun Devils have the pleasure of getting their asses whipped up one side and down the other, by my team, the Boise State Broncos.

We have talked about both of these teams enough this year that there is nothing shocking to report for tonight’s game. Boise is 11-1, with only a one point last second loss to a very good TCU team blemishing their record. Kellen Moore and crew are well coached by Chris Peterson and their defense is bigger and faster than given credit for. The Devils also have a very good quarterback, Brock Osweiller and a couple of excellent receivers. Their running game and middle and deep defense are all very spotty and suspect though. They had good personnel in those areas, but were decimated by injuries in practice before the season started. ASU has a problem with speed, and Boise has got that in spades. The only hope is that the Devils pull one out of their rear for coach Dennis Erickson in his final game. I would not bet a plug nickel on that though. Game starts at 8 pm EST and is on ESPN.

Also tonight is the NFL Network Thursday offering, this week with Houston at the Indianapolis NotQuitePeytons. The Colts are coming off their first win of the year, and actually played a solid game last week. But the Texans have been holding their own and growing with rookie TJ Yeats taking over at QB for the injured Matts Schaub and Leinart. If Indy can play tough defense, they might have a chance at home. But I doubt it, Houston’s running game, led by Arian foster, is too much.

We will likely scare up some new Trash for Saturday’s NFL extravaganza, but for now hoop it up here!

[youtube]http://www.youtube.com/watch?v=jRbYKKM5cAE[/youtube]

In January of 2008, at a time very similar to now (just under a year out from Presidential elections and with anti-Iran propaganda at a fever pitch in the US media), the Bush administration embarrassed itself mightily in its response to an encounter in the Persian Gulf. As US warships were being approached by five small Iranian craft, a voice came over the airwaves stating “I am coming to you”. A bit later it added “You will explode after a few minutes”. The US quickly claimed this was a threat from the Iranian vessels, but after cooler heads prevailed (and after Iran supplied additional video and audio from the encounter), it was realized that the voice did not match those of the Iranians in the encounter and that the behavior matched that of the legendary radio prankster, the Filipino Monkey.

We learn today from Fars News that Iran plans very large naval wargame exercises on Saturday, in both the Sea of Oman and the Indian Ocean:

Iranian Navy Commander Rear Admiral Habibollah Sayyari said at a press conference on Thursday that the naval maneuvers dubbed Velayat 90 will start on Saturday and will cover an area stretching from the east of the Strait of Hormuz in the Persian Gulf to the Gulf of Aden.

According to Sayyari, this is the first time that Iran’s Navy carries out naval drills in such a vast area.

He added the exercises will manifest Iran’s military prowess and defense capabilities in the international waters, convey a message of peace and friendship to regional countries, and test the newest military equipment among other objectives of the drills.

It would have been nice if we had seen all of the objectives in the drills rather than a partial list, but it is quite interesting to see the list of weapons systems and equipment that will be involved:

Rear Admiral Sayyari said that the newest missile systems and torpedoes will be employed in the maneuvers, adding that the most recent tactics used in subsurface battles will also be demonstrated in the maneuvers.

He also said that Iranian destroyers, missile-launching vessels, logistic vessels, drones and coastal missiles will also be tested.

With all those torpedoes, missiles and drones running around, what could possibly go wrong? Given the level of posturing by both the US and Iran lately over nuclear technology, assassination plots, spies and drones, these naval wargames seem particularly ripe for generating the type of “misunderstanding” that can quickly escalate to outright hostilities. Throw in the wildcard of spurious, but well-timed, radio provocation, and the Filipino Monkey could move from comedy to tragedy in the blink of an eye.