The Human Race & Other Sports

Poverty's Penalty

. . . .[W]ith liberty and justice for all.
The Pledge of Allegiance

Opinions from Federal Circuit Courts of Appeal are of interest to a variety of people. Lawyers read them in order to learn what the law is with respect to issues that have been ruled on by the Courts in the Circuits in which they live. The poor, who live within the jurisdiction of the Ninth Circuit Court of Appeals, read them to learn how their constitutional rights differ from those of the well off. They were reminded of this in August by the same court that had tutored them three years earlier in the case of Rochio Sanchez v. County of San Diego

Sanchez was decided by the 9th Circuit Court of Appeals in April 2007 and the U.S. Supreme Court announced in November of that year that it would not review the court’s decision. The case stands for the proposition that it is OK to search people’s homes without a warrant. Before my readers rush to add strong locks to all their doors I must reassure them. The case has no applicability to my readers. Their homes are protected by the Fourth Amendment to the U.S. Constitution that bans unreasonable searches and seizures. The people in California whose homes are not protected by the Fourth Amendment are those on welfare.

In 1997, the San Diego District Attorney came up with “Project 100%.” Under the program those wanting to participate in the county welfare program must consent to unannounced visits from members of the Public Affairs Fraud Division who walk through the house looking in drawers, medicine cabinets, etc. to make sure no crimes are being committed. The practical consequences are that welfare recipients are forced to trade the protection afforded by the Fourth Amendment for welfare benefits. That is not, of course, how the judge who wrote for the majority sees it. It is how Judge Harry Pregerson, writing for the dissenters, sees it. He said: “This case is nothing less than an attack on the poor. San Diego’s program strips these individuals of their rights of privacy. . . . This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving subsides.”

The poor have now learned of yet another way in which the protection given many by the Fourth Amendment does not benefit them. It has to do with curtilage. That is the area around the home and includes such things as porches, driveways, front walks, etc. For 4th Amendment purposes curtilage was treated the same as the inside of the house. A warrant was needed to search the curtilage. The case of U.S. v. Pineda-Moreno in which a final decision was made in August changed that.

Pineda-Moreno addressed the question of whether the police can come onto a driveway at night without a warrant and attach a tracking device to the resident’s car. The answer given by the 9th Circuit court is that it’s OK. Judge Kozinski, one of the dissenters in the earlier case wrote a dissent this time around.

He began saying: “ Having previously decimated the protections the Fourth Amendment accords to the home itself. . . . Our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage . . . . 1984 may have come a bit later than predicted, but it’s here at last.” He observed that the majority justified its holding by saying that delivery people, children, etc. could use the driveway and sidewalk to get to the front door and, therefore, the resident had no expectation of privacy there. He observed that people with gated houses, electric fences, etc. were unaffected by the ruling since the general public cannot get near their curtilage. Addressing the insensitivity of the majority to the plight of the poor he said: “There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist. No truly poor people are appointed as federal judges. . . . The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. . . . [T]he constitution doesn’t prefer the rich over the poor. . . . The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism. . . . Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.” Sadly, given the proclivities of today’s Supreme Court, he’s probably right.

The Prince and the Punishment

Gratitude is a fruit of great cultivation;
You do not find it among gross people.— Samuel Johnson, Journal of a Tour to the Hebrides

It’s hard to understand why he’s mad. The settlement sounded like such a good deal for him and his company. And furthermore, he’s trying to sell the company and the settlement will probably help that, and to make things even better, he now lives happily in Abu Dhabi where it is harder to sue him. (He moved hurriedly in August. It had nothing to do with the lawsuits he was defending. He needed to get there quickly so his children could enroll in school. School started on August 15.) Here’s why Eric Prince’s petulance is hard to fathom.

On August 21, 2010 it was announced that Xe, formerly known as Blackwater Worldwide, the company founded by Eric Prince in 1997, had settled State Department allegations of hundreds of export and other violations b y agreeing to pay fines of $42 million. According to the New York Times, the illegal activities for which it was fined included “illegal weapons exports to Afghanistan, making unauthorized proposals to train troops in south Sudan and providing sniper training for Taiwanese police officers.” Xe signed a $120 million contract with the State Department to provide security services at new U.S. Consulates in Harat and Mazr-e-Sharif in mid-June of 2010. If the settlement and the contract are netted out, Xe will net $78 million on the two deals.

Although the fines seem like a lot of money to those not involved in such things, in fact they are a small price to pay. Here’s what Xe got in exchange for paying the fines: the company is now able to once again bid on and get contracts with the government, something it would have been barred from doing had it pled guilty to criminal conduct. (Since 2001 it’s been paid hundreds of millions by the U.S. Government for activities it conducted in Afghanistan and Iraq. It can now look forward to many hundreds more.) Here’s something else it got for paying the fines: it won’t be subject to any criminal charges on account of those transactions. Not that all its criminal type legal troubles are over. According to reports there is still an ongoing federal probe to see whether the company bribed Iraqi officials; five executives have been indicted on weapons and obstruction of justice charges; and two former employees face federal murder charges in connection with the death of two Afghan civilians. Whether those charges would impact its ability to get government contracts is unclear. What is also unclear is whether the investigation of Xe requested by Senator Carl Levin in February from the attorney general might yet result in criminal charges that could impact its ability to get government contracts. (In February Senator Levin, Chairman of the Senate Armed Services Committee, asked Attorney General Eric Holder to investigate whether Xe had made false or misleading statements in bidding for an Army contract in Afghanistan.) What is clear is that for the present, Xe is once again able to bid on government contracts and stands to make millions of more if its bids are accepted.

Mr. Prince no longer lives in the United States. According to court documents filed in a case brought by former Xe employees against Mr. Prince accusing him of defrauding the government, Mr. Prince has moved to Abu Dhabi. In addition to enrolling his children in good schools, he reportedly hopes to continue the very profitable line of work in which he has been engaged, in Africa and the Middle East. According to colleagues there’s another reason he moved. They told the New York Times, Mr. Prince is bitter about the “legal scrutiny and negative publicity his company had received.” It’s hard to imagine why he thought his company, facing the kinds of charges described above and having settled the charges described above, would be surprised at the absence of favorable publicity. The offenses for which it’s been fined as well as those still being investigated, rarely earn their perpetrator applause.

Mr. Prince’s colleague who spoke to the NYT also said that Mr. Prince needed “a break from America.” Mr. Prince is an heir to a “Michigan auto parts fortune.” Michigan is in America. His family made its fortune in America and that fortune enabled Mr. Prince to make millions more. I am confident his “break from America” will not have any adverse affect on his fortunes and I am sure he does not want it to be perceived as a lack of appreciation for all America has done for him. He probably just moved because Abu Dhabi has really good schools. It’s too bad he didn’t stay in the town in which he lived and worked and help to improve the schools there.

Juvenile Justice Military Style

O neglectful nature, wherefore art thou thus partial, becoming to some of thy children a tender and benignant mother, to others a most cruel and ruthless stepmother?
— Leonardo da Vinci, The Notebooks

It’s a valuable lesson we’re being taught by the administration. We are learning that 15-year olds may be treated as adults when they misbehave if those pretending to be adults believe that is appropriate punishment for the children. We are learning that 15-year olds may be punished as adults even though they are not old enough to drive, drink, vote, or do any of the other fun things that adults get to do. And that’s not all we, and Omar Khadr, are learning.

We are learning that even if you are at war with someone and are on the battlefield, if you kill someone you have been taught to believe is your enemy and get caught, you may be charged with murder and other crimes. That is going to come as a surprise to lots of people in the military who thought it was OK to shoot and kill the person you believe to be your enemy when you are on the battlefield. Indeed, it is even OK to kill your friends so long as you don’t do it on purpose. Omar Khadr is teaching us about 15-year olds. Pat Tillman’s death has taught us about the lack of consequences of killing your friends.

Omar was born in 1986 and is a Canadian citizen. As a youngster he spent time in both countries with his family and in 1996 the family moved to Jalalabad, Afghanistan where Omar had home schooling. His father and his father’s friends did not like the United States and did not like the fact that the United States had invaded Afghanistan, a dislike that was imparted to the young Omar. Since he was only 15–years old, he was very much influenced by what the adults with whom he associated believed.

On July 27, 2002, a group of American soldiers was sent to search a house that intelligence suggested was being used as a bomb-making site by a wheelchair bound old man. When those occupying the house were informed that the soldiers wanted to search the house, instead of inviting the soldiers in, its occupants began shooting at the soldiers and throwing hand grenades. Although accounts are inconsistent, it is clear that an engagement between opposing forces took place during the course of which the 15-year old Omar, who was in the house, allegedly threw a hand grenade that killed Christopher Speer. Omar himself was severely wounded. The encounter was brief. Between the time it started and the time it ended, Omar remained 15. If he had been in school he would have been entering the 10th grade. He did not enter the 10th grade. He was captured and allegedly tortured in order to force him to confess to being a an “unlawful enemy combatant.” He was 15. He did not know that if you are in combat and kill the enemy you could be considered a murderer. Being 15 there was a lot he didn’t know. He may have even thought it was OK to kill people with whom many of your family and friends were at war who were shooting at you.

According to Human Rights First, The International Covenant on Civil and Political Rights and international juvenile justice standards require “prompt determination of juvenile cases and discourage detainment of juveniles at all except as a last resort.” Omar was 15 years old when captured. Human Rights First says Omar was not permitted to see an attorney for two years and was not charged with any offense for three years. He has been in Guantanamo for 8 years, sometimes in solitary confinement and at other times kept with adult prisoners in violation of rules that say minors must be kept separate from adult detainees.

In 2002 the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict that requires the rehabilitation of former child soldiers and requires that those children be provided “all appropriate assistance for their physical and psychological recovery and their social reintegration.”

Omar’s trial before a military commission has now begun. Omar is being tried for murder, attempted murder, conspiracy, providing material support for terrorism and spying on U.S. forces in Afghanistan. He was 15-years old when he did all those things. Had he not been home schooled he would have just completed the 9th grade.

No one has explained to Omar why when NATO forces kill civilians no one is charged with murder. He would wonder when, under the rules of war, it is OK to kill the person you believe to be your enemy who is trying to kill you, and when it is not. He might wonder why, when Pat Tillman was killed by his colleagues, no one was held responsible, much less charged with murder. Being only 15 he would probably not have understood the explanation. Neither do I. Christopher Brauchli can be e-mailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

The Computer-Man's Best Friend

For where’s the state beneath the firmament
That doth excel the bees for government.
— Guillaume de Salluste, Divine Weeks and Works [1578]

It’s a comfort to the older generation, that neither twitters nor texts and computes only with difficulty, to be reminded that the federal government has no greater success with the technology than they. We were reminded of it again when the Washington Post reported that Arlington National Cemetery was having trouble keeping track of who was buried where or whether folks were buried at all and, thanks to the poor record keeping, at least four funeral urns had been dug up and thrown away. Although there were many reasons for the problems at the cemetery, part of the blame lay with inadequate computer technology on which cemetery officials had spent more than $5 million for computer upgrades that did not upgrade the cemetery’s record keeping ability. That brought to mind other computer misadventures in the federal government which offer comfort to those who, like the government, find themselves bested by the computer at every turn.

Back in 1997 we learned that the IRS had spent more than $4 billion on what was described as a modern computer system. Arthur Goss, then an assistant Commissioner of Internal Revenue was disappointed in the results and said the system did not work in what he called “the real world.” (As I observed when writing about that some years ago, the notion that there is something called the “real world” and some place else where the IRS lives found ready acceptance among readers.) Mr. Goss went on to say that even though the system would have to be scrapped, the IRS was nonetheless “wholly dependent on them” to collect the $1.4 trillion the government needed to function. In 2000 Charles Rossotti issued what was called “Progress Report IRS Business Systems Modernization Program, the front page of which was a picture of 36 people laughing and smiling. (The people on the front cover were , presumably IRS employees enthused at how the new system would enhance tax collection since it is unlikely that a randomly selected group of taxpayers would have seemed so happy at the prospect of improved tax collection. In his introduction to the report, Charles Rossotti, the Commissioner of the IRS said that in the following year the project would deliver “real business results” and the program would “continue to mature as we gain experience.” It was to be a slow maturation. In January 2010 the Government Accountability Office said a part of the program that had by then cost $400 million and was supposed to be completed by 2012 would not be fully completed until somewhere between 2018 and 2028. The IRS is not alone in its problems. The FBI, too, has computer problems.

In 2004 it was disclosed since 9/11 the FBI had spent $170 million to improve its system to enable agents to obtain “instant access to FBI databases allowing speedier investigations and better integration of information. . . . “ The system did not live up to expectations and the FBI spent another $2 million to hire an expert to see whether the system could be salvaged. In 2006 the FBI awarded Lockheed Martin the Sentinel information technology contract. According to recent reports, the system has improved the FBI’s e-mail and data base searching but is not running as hoped in other areas. Cost overruns of almost $30 million have been incurred and the project that was to be completed in September of this year is now destined to be completed in 2011. The Secret Service has problems as well.

According to an ABC News report earlier this year, a classified review of that agency’s computers disclosed that the agency’s computers were “fully operational” only 60 percent of the time. Its databases are outdated. According to Joseph Liebermann, chairman of the Senate Homeland Security and Government Affairs Committee, 60 percent operational capability is worse than “industry and government standards that are around 98 percent generally.” Senator Liebermann said the computer mainframe dates back to the 1980s, a period that probably precedes the time even the most unsophisticated of my readers purchased their most recent computers. It will reportedly cost $187 million to fully update the system. To date the Department of Homeland Security has allocated $33 million and requested an additional $69 million in the most recent budget request. At that rate within a year or two the agency will have a completely up to date system at its disposal. In the meantime it probably spends a lot of time hoping that nothing bad happens.

As I said at the outset, we can all take comfort in the fact that it seems to be as hard for the federal government to keep current in the world of technology as it does the rest of us. It is, however, more of a surprise than a reassurance.

Republicans and Political Madness

Under every stone lurks a politician.
— Aristophanes, Thesmophoriazusae

Sarah Palin, who symbolizes the folly of the 2010 political scene, is not without competition from other inhabitants of the loony bin. (Her latest contribution is to etymology. Commenting on the Muslim mosque the construction of which near the World Trade Center site has created controversy, she said New Yorkers should “refudiate it.” When criticized for her English usage she said on twitter: “English is a living language. Shakespeare liked to coin new words too.”

The American Constitution Party, which has a special place in the loony bin, has come into the news because of a quixotic series of events that took place in the Colorado Republican primary contest among aspirants to the office of governor of the state of Colorado. The two Republican candidates come with self-constructed infirmities. One, Scott McInnis, is a self-acknowledged plagiarist, who was paid $300,000 for his stolen work. His competitor is Dan Maes who sees in the bicycle-sharing program in Denver a “strategy to rein in American cities under a United Nations treaty.” The program, said Mr. Maes, “is bigger than it looks like on the surface, and it could threaten our personal freedoms.”

Former Republican, Tom Tancredo, decided to rescue the state from these two men and entered the gubernatorial race under the banner of the American Constitution Party, bringing prominence to a party whose platform includes abolishing the Food and Drug Administration, the Internal Revenue Service , the Departments of Education and Energy and the Federal Election Commission. Notwithstanding its palpable wackiness, the Constitution Party doesn’t hold a candle to the Republican Party of Iowa.

Iowa is the state that has the distinction, every four years, of selecting the next person to be the president of the United States. Mindful of its importance, the Republican Party of that state takes great pains to carefully articulate its beliefs so as to be worthy of the place in the electoral process it enjoys. In its most recent state convention it adopted a platform that consisted of 387 planks and principles.

The second statement of principles that begins the document sets the tone by solemnly declaring that “America is Good.” Some things in America, however, are not good. Paragraph 2.09 says that “we are opposed to protecting mountain lions, cougars, wolves, elk, moose, and black bear or similar dangerous animals.” Paragraph 2.08 deals with semantics in a way that is probably mysterious to a non-Iowan. It says that “We support the definition of manure as a natural fertilizer.” It is not clear who is attacking the definition.

The most important section of the platform is 7.19 . That section calls for the “reintroduction and ratification of the original 13th Amendment, not the 13th Amendment in today’s Constitution.” There is considerable difference in the two versions and an excellent article by Jerry Adler in Newsweek contains a comprehensive description of the earlier version. The 13th Amendment now in the Constitution abolishes slavery and involuntary servitude (except as criminal punishment) and gives Congress the power to enact appropriate legislation. The drafters of Iowa’s Republican party favor what they believe to be an earlier version that has nothing to do with slavery. It was introduced in 1810 by Sen. Philip Reed of Maryland and provided: “If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.” (This is not the same as stripping citizenship from children of illegal immigrants by getting rid of the 14th amendment to the U.S. Constitution a possibility such luminaries as Senators McCain, Graham and others suggest should be considered by Congress.)

Iowans believe that this Amendment was adopted and should be in the Constitution in place of the one that is now there. Slavery being gone, there is no real reason to have an amendment abolishing it nor would its abolition reverse emancipation. According to Mr. Adler, he asked the state Republican Communications Director, Danielle Plogman, whether Iowans wanted to reverse emancipation and she assured him that was not the purpose. It’s a safe bet none of those voting for the restoration of the old 13th (that Mr. Adler’s column suggests was never the real 13th Amendment) realized that they would be abolishing the abolition of slavery amendment in favor of protecting the country from citizens receiving honors from “any emperor, king, prince or foreign power.”

The loonies are on a rampage. Only time will tell whether the voters have the strength to withstand their onslaught.