Monday, July 20, 2009

We Don't Need No Stinkin' Dogs!

I lost a motion to suppress once because the judge believed the police officer who claimed to have smelled marijuana coming from my client's car as it passed perpendicular to him as he was stopped at a stoplight. Since the officer found a roach in the ashtray, but no other marijuana, the judge believed the officer, and the arrest, which ended up resulting in a DUI stop, was upheld to my disbelief.

Now the press believes officers like this without any question about the outrageousness of this claim. As a local TV station reported today:

"Two Omaha Police Officers can credit their noses for one of the latest marijuana busts. While in their cruiser they smelled the odor of marijuana from the car they were following.

According to the report the officers were following a green 1999 Dodge Dakota pickup north on 52nd Street on Wednesday, July 8th, when the officers noticed the odor of marijuana.

Believing the marijuana smell was coming from the pickup ahead of them they slowed the cruiser, and the odor disappeared. Officers pulled the pickup over at 52nd and Northwest Radial Highway and told the two occupants in the vehicle why they were stopped.

The officer say the passenger admitted to smoking a "roach" recently, and told them it was still in the ashtray.

The passenger was taken out of the pickup and searched. Officer say they found .13 ounces of marijuana in a baggie in her front left pocket.

Nekeesha Lewis, 24 was cited for possession of marijuana and released."

Reasonable search?

Saturday, July 11, 2009

Are we "going to be going after him for that?"

Compare these two New York Times articles, both describing prominent Neocon Paul Wolfowicz: First, in 2002, an article described Karl Rove calling Mr. Wolfowicz and asking him to speak at the White House regarding the Bush Administration's stances on the Middle East. Describing as a "soft-spoken" person whose "world views... were forged by family history" after the "rest of his father's family perished in the Holocaust," it quotes him as saying:

''That sense of what happened in Europe in World War II has shaped a lot of my views,'' he said. ''It's a very bad thing when people exterminate other people, and people persecute minorities. It doesn't mean you can prevent every such incident in the world, but it's also a mistake to dismiss that sort of concern as merely humanitarian and not related to real interests.''

Admirable, right? But still, whose views wouldn't be shaped by such a traumatic family history? It reminded me of my 15-year old daughter, who picked up Schindler's List last night at the video store, stopped in halfway through, unable to bear the dramatized horrors as she was unable to fathom the real horror that was represented on the screen.

But today's New York Times quotes Wolfowicz, secondhandedly, taking a different stance toward similar war crimes. James Risen's article, headlined "U.S. Inaction Seen After Taliban P.O.W.’s Died," claims:

After a mass killing of hundreds, perhaps thousands, of Taliban prisoners of war by the forces of an American-backed warlord during the 2001 invasion of Afghanistan, Bush administration officials repeatedly discouraged efforts to investigate the episode, according to government officials and human rights organizations.

The article goes on to describe how "in 2002, Physicians for Human Rights asked Defense Department officials to open an investigation and provide security for its forensics team to conduct a more thorough examination of the gravesite" but were "met with blanket denials from the Pentagon."

The next year, according to a "former defense official, who would speak only on condition of anonymity:

"... prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.

“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime,” the official said. “And Wolfowitz said we are not going to be going after him for that.

Wolfowicz' response? You'll recognize the line, repeatedly repeated by many Bush Administration players:

In an interview, Mr. Wolfowitz said he did not recall the conversation. However, Pentagon documents obtained by Physicians for Human Rights through a Freedom of Information Act request confirm that the issue was debated by Mr. Wolfowitz and other officials.

If we've learned anything from the Bush years, it's that the word of an official "who wishes to remain anonymous" shouldn't be enough to establish the truth about anything. Still, if true (the FOIA docs should shed light on this) how do we reconcile these two statements?

Juxtapose Wolfowicz' statement that "what happened in Europe in World War II has shaped a lot of my views" with his alleged statement that "we are not going to be going after him for that." When you read in the same article that the "that" Wolfowicz was allegedly claiming "we weren't going to be going after him for" referred to "killings" that...:

...occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.

Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers. The bodies were said to have been buried in a mass grave in Dasht-i-Leili, a stretch of desert just outside Shibarghan.

A recently declassified 2002 State Department intelligence report states that one source, whose identity is redacted, concluded that about 1,500 Taliban prisoners died. Estimates from other witnesses or human rights groups range from several hundred to several thousand.

How do you decide that "we're not going to be going after him" for stuffing prisoners into closed metal shipping containers when thousands were killed and buried in mass graves when your "views" were shaped by "what happened in Europe in World War II?"

Thursday, July 9, 2009

"The Consequences Might Have Been Worse"

NPR banned the word "torture" to describe things, like waterboarding, that were done to detainees by government employees or contractors. Instead, they're described, in language that mirrors governmental euphemisms, "harsh interrogation techiques." Here's how NPR Ombudsman Alicia Shepard described NPR's reasoning:

I recognize that it's frustrating for some listeners to have NPR not use the word torture to describe certain practices that seem barbaric. But the role of a news organization is not to choose sides in this or any debate. People have different definitions of torture and different feelings about what constitutes torture. NPR's job is to give listeners all perspectives, and present the news as detailed as possible and put it in context...To me, it makes more sense to describe the techniques and skip the characterization. For example, reporters could say that the U.S. military poured water down a detainee's mouth and nostrils for 40 seconds.

When Glenn Greenwald called her on this twisted logic, he pointed out that NPR had no such policy against calling other countries' techniques "torture." For example, in a July 3, 2009 story about the plight of a Gambian journalist, an NPR story stated:

Musa Saidykhan had been a reporter in his home country of Gambia for more than a decade when he was arrested and later tortured by government officials.

NPR's Alicia Shepard refuses Greenwald's request for an interview, but later appeared before him on a Seattle NPR station on Tuesday. In explaining NPR's policy against using the word torture to describe U.S. government actions and its willingness to use it to describe Gambia's, Shepard commented:

In that case, these were strictly tactics to torture him, to punish him, versus in the United States, and the way that it's used, these are tactics used to get information. The Gambian journalist was in jail for his beliefs.

In other words, when Jack Bauer does it, its not torture. His beliefs, being pure, make it so. But the techniques the dark-skinned guy performed on Jack's friend that drove Jack into the rage? That's different. That's torture.

And those detainees in Gitmo who are held without charge or trial indefinitely? We can't call what our government does to them torture because that's not the role of a journalist. And those detainees are different than the Gambian who "was in jail for his beliefs."

As Greenwald pointed out, not only is her belief that American officials' motives were pure highly questionable, but the willingness to characterize torture as dependent on the motive of the would-be torturer is deeply troubling. (Somehow I don't think the judge or jury will buy my argument that while my client performed the actions that constituted the crime, his pure thoughts along the way mean that the law doesn't apply to him!)

As sickening as Shepard's logic is, however, it's also familiar. It's troubling to hear her boldly claim that the motive of the actor determines whether the action is noble or detestable, technique or torture, but it's the same argument the government puts forth in carrying out the death penalty, isn't it? In other words, the state's position that a killing by a citizen can, in some cases, be so terrible that the state needs to kill this person is similar to Shepard's belief that the motive and not conduct determines whether an action is heroic or villainous.

I saw a shirt once that asked, "How can it be o.k. to kill someone to show that killing someone is wrong?" I know my answer to it, but also don't think the death penalty is going away anytime soon. As depressing as that is, my bigger fear is that another question, a new one, will be asked.

Imagine a police report that stated, Shepard-like, that "the tazer was not at anytime deployed to torture him, nor to punish him, but simply to get information." It sounds strange now, but it's getting closer to sounding completely normal. Don't believe me? Consider this story regarding a local police chief's use of a tazer on a 14-year old girl:

A 14-year-old Tucumcari girl is recovering at an Albuquerque hospital after being shot in the head with a Taser dart by Tucucmari Police Chief Roger Hatcher...
The girl was hit in the head Thursday by one of two darts fired simultaneously as she was fleeing, Hatcher said...
Hatcher said be believed he had no other option.

“There’s a lot of issues,” Hatcher said. “She committed a delinquent act. She was running from police across traffic without looking.”
Hatcher said he chased her, ordered her to stop and “then did what I had to do.”

After a CAT scan, a hospital resident told her the dart was “in her brain a little bit, but not much,” Akin said.

She was in pediatric intensive care following the surgery, Akin said. “She seems OK, but she she’s in a lot of pain. Her head is hurting her real bad.”

Police were trying help Akin because she and her daughter had been fighting, Akin said.

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.
Akin also said her daughter has epilepsy...
Akin said she and her daughter were arguing over a cell phone...

Hatcher said he got out of his vehicle, called to her and she ran in front of his patrol car across Monroe Street without looking for traffic.

Both were in a dead run when the Taser was fired, Hatcher said.

Hatcher said if he’d been able to grab her and put her on the ground, he would have done it instead of firing the Taser. “There was a lawful reason to do that,” said Hatcher. “I didn’t have another choice and had to get her stopped.” Akin and her daughter were new in town, Hatcher said, and he did not know where she would go. Hatcher said if he had not stopped her the consequences might have been worse.

If a police chief can justify tazering a 14-year old epilepsy victim because she fought with her mom and refused his command to stop by claiming she didn't look both ways while running into the street, claiming, Shepard-like, that while applying electric shocks to people in custody is only wrong if used to punish or not when it's used to supposedly keep her safe, the use of the tazer for "getting information" is not far off.

In an example of shifting attitudes toward tazering, consider what the mother of the 14 year old girl said shortly after hearing that the electrical prongs penetrated her daughter's brain:

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.

Fortunately one of the officers reviewing these events is interested in investigating whether charges should be filed:

Hatcher said he plans to refer the case to the Juvenile Probation Office Monday for possible charges.

The tines, they are a changing I guess.

Wednesday, July 8, 2009

"Post Acquittal Detention"

Yesterday, the General Counsel of the Department of Defense, Jeh Johnson, testified before the Senate. As Spencer Ackerman described the scene:

Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

Martinez looked surprised. “So the prosecution is moot?” he asked.

“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel “determines this person is a security threat” and “for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone” under “law of war authority” as granted by the September 2001 Authorization to Use Military Force, Johnson said.

Think about that for a second, and how it might apply to someone like Salim Hamdan. After he was convicted by a military jury, Hamdan's attorneys argued for a sentence of less than five years. The government, however, asked the jury to sentence Hamdan to between 30 years to life. The jury agreed with the defense and sentenced Hamdan to serve 66 months, after he had already served 60. The Pentagon, after asserting that it had the ability to continue to detain Hamdan beyond the end of his sentence, transferred him to Yemen where he served the remainder of his sentence before being released last January.

Then, shortly after Salim Hamdan was released, Barack Obama, elected on a platform of "change," was sworn in as President. But what has changed? Glenn Greenwald accurately describes the Obama Administration's newly-announced "post acquittal detention" policy as "an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties." He goes on, accurately in my view, to describe the Obama administration's stance as even worse than Bush's:

In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.

In short, that's not change we can believe in, that's even worse than more of the same.

Tuesday, July 7, 2009

Being In the Moment, On the River

Last weekend, during a visit to my mother’s house, I faced a familiar problem: I wanted to make time to do what I wanted to do but could also find about ten other things I should be doing. I was about a half mile from the Platte River, a river I spent a lot of time on as a kid, and had noticed the previous day that the water was running high for this late in the summer, high enough to float a kayak. I’d brought mine along on this trip, hoping to sneak in a seven mile jaunt down the river “if I could find the time.”

If I wrote my own verse to Julie Andrews’ “These are a few of my favorite things,” canoeing or kayaking down a river would find some room upfront. But, sitting there thinking of all the relatives I needed to visit and the work that needed to be done, I suddenly realized that while kayaking on a river was constantly on my mind as something I’d love to do for fun, I hadn’t found the time in years. Sure there were some trips to the lake once in awhile, but, at least for me, there’s nothing better than getting away from all people and all roads for a little while, perhaps coming around a bend and looking a whitetail buck, still in velvet, standing on the river bank.

But, I thought, I don’t have any way to get to the river, a half mile away or no definite way to get back when I get to the bridge seven miles downstream. Then, perhaps remembering the scene from Easy Rider where Peter Fonda throws his watch down in the parking lot, I grabbed my kayak, my cell phone a bottle of water and a paddle and started walking. What I thought was going to be a half mile walk became much easier as I realized I could drop the boat and paddle across a lake rather than following the road to the river bridge. I wasn’t sure how close the river channel came to the far edge of the lake, but I was on the water, off on a long overdue adventure at last.

As I drug the kayak out of the lake, wondering how long I’d have to portage again, I saw the river channel, flowing strong, about fifty feet from the lake. Just a few minutes before I hit the river, I’d been standing in the yard of my mother’s house, thinking the river was too far, the time too short, and the water probably too low. Sure I had to trespass a little bit, but, looking back, no one seemed to notice, or at least be chasing me. So I kicked off the bank the way you might if you were launching a canoe, and almost got wet, realizing that even when you’re having fun and undertaking an adventure, you still have to obey the laws of gravity.

A few minutes later, I came around a bend and saw that small whitetail buck I mentioned earlier, and was amazed at how brown his coat was, being more used to seeing them when it faded a little, in the winter. I later saw many Great Blue Herons, the only ducks and geese left being the decoys caught in logjams. Around one bend I surprised a doe who was in the middle of the river, likely crossing but perhaps just cooling off, who ran off as if I’d caught her naked, taking a bath, which I guess was true.

The storm that looked inevitable passed harmlessly, the wind nicely cooling me off along the way. By one cabin a “Chessie” must have smelled me as he barked before I got close and sounded as if he might come leaping off the bank as he protected his home from that strange green shape that carried a silent guy in a blue hat holding a white paddle, a pair of binoculars around his neck.

As I passed under an old railroad bridge that had been converted into a bike trail and walking path, strangely deserted on the Fourth of July, I playfully grabbed the rope hanging down into the water. Being more used to canoeing than kayaking, I almost learned how easy they are to tip when you foolishly grab a stationary object while facing across the current, but miraculously righted myself, probably more from the four-letter words that involuntary came bursting out of my mouth than from the paddling I did with my arms. Somehow I still got pretty wet and added a half inch of water to the bottom of the boat, thankful though that I still had my gear and was more dry than wet with just a mile or so to go.

When I reached the bridge and pulled my cell phone out of the ziplock bag, I called home and convinced my brother to pick me up. It had only been about two and a half hours since I’d charged off without a clue or a plan, but it worked out. I felt like a new person, however, when I pulled up at home.

I found the time to do what I wanted to do, for the first time in years, and it didn’t cost a thing. I’m sorry I didn’t do it sooner and vowed to do it more often.

I also want to get back to blogging. Sorry I’ve been gone so long. I may kayak first, but I’ll write about it later.