What the War on Terror Owes to the War on Crime

Long before the War on Terror, there was the War on Crime. And as much as 9/11 was a watershed event, many aspects of the nation’s response to the terrorist attacks find longstanding precedent in the American criminal justice system.

In his article “Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible,” Georgetown Law professor and former public defender James Forman Jr. argues against the widely accepted notion that “the war on terror represents a sharp break from the past, with American values and ideals ‘betrayed,’ American law ‘remade.’” Forman continues: “While I share much of the criticism of how we have waged the war on terror, I suspect it is both too simple and ultimately too comforting to assert that the Bush administration alone remade our justice system and betrayed our values.” Instead, he believes, “our approach to the war on terror is an extension–sometimes a grotesque one–of what we do in the name of the war on crime”:

By pursuing certain policies and using particular rhetoric domestically, I suggest, we have rendered thinkable what would otherwise have been unthinkable. Moreover, as the world’s largest jailer, we are increasingly desensitized to the harsh treatment of criminals. We have come to accept such excesses as casualties of war—whether on crime, drugs, or terror. Indeed, more than that, we no longer see what we do as special, different, or harsh. Certain practices have become what David Garland calls “the taken-for-granted features of contemporary crime policy.” In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration’s approach to the war on terror went largely unchecked and unchanged. (H/T Prison Law Blog)

Berkeley professor Jonathan Simons, in his 2007 book Governing Through Crime: How the War on Crime Transformed American Democracy, also looks for the roots of these “excesses,” and locates them decades prior to the terrorist attacks. ”Fear of sudden and terrible violence was a major feature of American life long before September 11, 2001. The collapsing towers were only the latest–and most lethal–of a series of spectacular scenes of violence that have unfolded at the centers of our large cities since President Kennedy was shot to death in Dallas with a mail-order rifle in 1963.” In the subsequent decades, Simon writes, “American have built a new civil and political order, values like freedom and equality have been revised in way that would have been shocking…in the late 1960s, and new forms of power institutionalized and embraced–all in the name of repressing seemingly endless waves of violent crime.” Simon continues:

The terror attacks of 9/11 have created a kind of amnesia wherein a quarter-century of fearing crime and securing social spaces has been suddenly recognized, but misidentified as a response to an astounding act of terrorism, rather than a generation-long pattern of political and social change. Just as we now see the war on terrorism as requiring a fundamental recasting of American governance, the war on crime has already wrought such a transformation–one which may now be relegitimized as a “tough” response to terrorism.

Many historians trace the birth of the War in Crime to the mid-1960s–specifically, to Barry Goldwater’s 1964 presidential campaign, with and his rhetoric of “crime in the streets” and the need for “law and order.”  Since that time, politicians have increasingly exploited the fear of violent crime and its perpetrators to institute ever more draconian laws and policies. The War on Crime was soon joined by its partner the War on Drugs, which was launched by Richard Nixon and gained traction during the Reagan Administration. One crime bill after another was passed with broad bipartisan support, and more and more federal and state monies were poured into expanding law enforcement and building and maintaining prisons. Between 1970 and 2005, the U.S. prison population grew by 700 percent.

Even as crime rates declined sharply in the 1990s, a Democratic president, Bill Clinton, championed two of the harshest pieces of criminal justice legislation ever passed: The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), passed after the Oklahoma City bombing with broad bipartisan support, undermined habeas the corpus rights of U.S. prisoners long before the Bush Administration sought to withhold them from “enemy combatants.” AEDPA placed severe limitations on prisoners’ ability to challenge death sentences–or life sentences, or any unjust convictions–in federal courts, even when they had new evidence of their innocence. The Prison Litigation Reform Act (PLRA) also passed in 1996, was intended “to deter inmates from bringing frivolous lawsuits,” said the New York Times in a 2009 editorial. “What the law has done instead is insulate prisons from a large number of very worthy lawsuits, and allow abusive and cruel mistreatment of inmates to go unpunished” long before the advent of Guantanamo Bay, Abu Ghraib, Bagram, and the black sites spawned by the War on Terror.

Anne-Marie Cusac, who spent the decade prior to 9/11 reporting on prison abuses on American soil, wrote in The Progressive after the Abu Ghraib scandal broke, “Reporters and commentators keep asking, how could this happen? My question is, why are we surprised when many of these same practices are occurring at home?” Cusac continues:

In February 1999, the Sacramento Sheriff’s Department settled a class-action lawsuit alleging numerous acts of torture, including mock executions, where guards strapped inmates into a restraint chair, covered their faces with masks, and told the inmates they were about to be electrocuted.

When I read a report in The Guardian of London of May 14 that it had “learned of ordinary soldiers who . . . were taught to perform mock executions,” I couldn’t help but remember the jail.

Then there’s the training video used at the Brazoria County Detention Center in Texas. In addition to footage of beatings and stun gun use, the videotape included scenes of guards encouraging dogs to bite inmates.

The jail system in Maricopa County is well known for its practice of requiring inmates to wear pink underwear, and it is notorious for using stun guns and restraint chairs. In 1996, jail staff placed Scott Norberg in a restraint chair, shocked him twenty-one times with stun guns, and gagged him until he turned blue, according to news reports. Norberg died. His family filed a wrongful lawsuit against the jails and subsequently received an $8 million settlement, one of the largest in Arizona history. However, the settlement included no admission of wrongdoing on the part of the jail.

The Red Cross also says that inmates at the Abu Ghraib jail suffer “prolonged exposure while hooded to the sun over several hours, including during the hottest time of the day when temperatures could reach 50 degrees Celsius (122 degrees Fahrenheit) or higher.” Many of the Maricopa County Jail system inmates live outdoors in tent cities, even on days that reach 120 degrees in the shade. During last year’s heat wave, the Associated Press reported that temperatures inside the jail tents reached 138 degrees.

Cusac goes on to document other abuses familiar to U.S. prisoners as well as foreign detainees, including stress positions, torturous restraints, rape by guards, and long-term solitary confinement. It is no accident that Army Specialist Charles Graner, convicted as the ringleader in the Abu Ghraib prison abuse scandal (and recently released from a military jail at Fort Leavenworth) honed his sadistic skills at Pennsylvania’s state prisons, where guards admitted to beating prisoners and were accused of placing a razor blade in one inmate’s food.

It is no accident, either, that laws passed in the name of terrorism–both the AEDPA and the USA-PATRIOT Act–have been used to trample on the rights of the accused and prosecute ordinary American lawbreakers, including drug offenders and undocumented immigrants, far more than to round up actual terrorists. If the War on Crime fed the War on Terror, the War on Terror has also expanded and relegitimized the War on Crime. All this has happened with the approval of both political parties, virtually guaranteeing that the legacy of 9/11 will be an endless war at home, as well as abroad.

Green Is the New Red: The Crackdown on Environmental Activists

One morning back in 2002, Will Potter, a young newspaper reporter on the metro desk at the Chicago Tribune, heard three heavy knocks on his apartment door. When he opened it, two FBI agents flashed their badges. They told Potter he could either come outside and talk with them, or they would visit him at work.

Downstairs in the alley, the agents brought up a demonstration that Potter and his girlfriend, Kamber Sherrod, had participated in a month earlier. They had joined in an animal rights leafleting campaign in the high-class suburb of Lake Forest, dropping flyers on the doorsteps of houses around the home of an executive in an insurance company that covered an animal testing laboratory. Both were arrested, along with numerous others, and charged by the local police with misdemeanor disorderly conduct. The charges weren’t serious, but the agents warned Potter of other possible consequences if he didn’t cooperate with them.

“He told me I could help them by providing more information about the other defendants and other animal rights groups,” Potter told me in an interview in Washington. “I had two days to decide.” Potter has described in writing what happened next: “He gave me a scrap of paper with his phone number, written on it underneath his name, Chris. ‘If we don’t hear from you by the first trial date,’ he said, ‘I’ll put you on the domestic terrorist list.’”

Potter was stunned. “I felt as if I was staring blankly ahead,” he said, “but my eyes must have shown fear. ‘Now I have your attention, huh?,’” Chris said. The agent went on to tell him, “’after 9/11, we have a lot more authority now to get things done and get down to business. We can make your life very difficult for you. You work at newspapers? I can make it so you never work at a newspaper again.’”

Potter left, and threw away the FBI’s number. The charges against him and the other demonstrators were dropped—but for years afterwards, small incidents recalled the FBI’s threats. When Kamber Sherrod went to the DMV in another state to renew her drivers’ license, “I was detained by several police officers as I was trying to leave the building, because, according to them, my name was ‘flagged’ in the system,” she told me. Before they finally let her go, they asked, “What happened in Chicago,?” and “I overheard one cop mention a ‘t-list.’” When J. Johnson’s car broke down years later in Arkansas and a cop idly ran his license plates, “flashing letters burst forth in bold: ‘member of terrorist organization, animal rights extremists, approach with caution.” And Kim Berardi, also arrested along with Potter, was blocked from boarding a flight at the Seattle airport, handcuffed, and questioned by “two SEATAC security officers, two FBI agents, two Homeland Security operatives, and two officers from the federal Joint Terrorism Task Force.”

For Will Potter, the FBI’s visit marked the beginning of what would become a career as an independent journalist, tracking the government’s prosecutions—and persecutions—of environmental and animal rights activists, which one FBI deputy director, at the height of the war on terror in 2004, identified as “our highest domestic terrorism investigation priority.” Because of this campaign’s similarities to the anti-communist witch hunts of the 1940s and 1950s, Potter dubbed his blog on the subject, launched five years ago, “Green Is the New Red.”

Potter’s book, published last month and also titled Green Is the New Red, documents the scare tactics used by the government, often in concert with large corporations, against even patently non-violent activist groups, which they dub “animal rights extremists and eco-terrorists.” Prime targets were the Animal Liberation Front (ALF), Earth Liberation Front (ELF) and especially Stop Huntingdon Animal Cruelty (SHAC). Far from targeting only their clandestine operations (which focused on corporate property damage), the FBI “argued that terrorism laws must be radically expanded to include the above-ground campaigns of groups like SHAC,” Potter writes. In November 2006, George W. Bush signed into law the Animal Enterprise Terrorism Act.

Activists prosecuted under AETA have in several cases ended up in the “Communications Management Units” at two federal prisons. Created secretly during the Bush administration, these “experimental” units were supposedly designed to hold high-risk inmates, including terrorists, whose crimes warrant heightened monitoring of their external and internal communications. But the reality, as a current lawsuit by the Center for Constitutional Rights asserts, is that many prisoners end up in the CMUs “for their constitutionally protected religious beliefs, unpopular political views, or in retaliation for challenging poor treatment or other rights violations in the federal prison system.”

 Even attempting to communicate with those in a Communications Management Unit can subject a person to surveillance and harassment, as Potter learned early this year when he received some documents from Public Intelligence, a Wikileaks-style organization. The documents included what appeared to be a running report to law enforcement officials around the nation from the federal Bureau of Prison’s Counter-Terrorism Unit, which monitors correspondence in and out of CMU’s. (Sample reports appear here and here).

On his blog, Potter wrote about the reports’ contents.  Acknowledging that even “mundane” prisoner letters could include “coded threats,” Potter argues “that’s not what’s going on with the reports on environmentalists labeled ‘eco-terrorists.’” In these documents, “government officials make clear they are much more concerned about bad PR.” In one instance, “The Counter-Terrorism Unit notes an August 7, 2009 email received by Daniel McGowan, an Earth Liberation Front prisoner, regarding a possible vigil to raise awareness” about the CMUs. McGowan is part of the Center for Constitutional Rights’ lawsuit against the prison units. The report also describes an email to McGowan from CCR attorney Matthew Strugar, discussing efforts to raise awareness about the CMUs and challenge them. And here, Potter discovered his own name. According to the report:

Strugar described attending the animal rights conference in Los Angeles two weeks prior, in which an individual identified as Will spoke about inmate McGowan and his co-defendants’ cases, as well as the Communications Management Units (CMU). Will is believed to be Will Potter, an independent journalist based in Washington, DC…

In his email, Strugar wrote to McGowan: “Will was on four panels, I think, and talked a bit about you and your co-defendants’ cases and the situation with the CMUs. He’s a good advocate on that issue. There is still a lot of organizing and discussion about the Green Scare generally, which is good, and I talked a bit about green scare speech repression and the like. It was interesting.”

Potter writes that “It’s unsettling to see my name in documents produced by the Counter-Terrorism Unit. What’s even more disturbing, though, is the thought of scarce government resources being wasted on such reports…Lectures, public websites and First Amendment activity by journalists and attorneys should not be the purview of the Counter-Terrorism Unit. And even if you think that it should be, and even if you think I am some kind of potential terrorist, this “intelligence briefing” is absolutely useless. Any intern could have created the same report using Google.”

When I phoned the Bureau of Prisons media relations office to ask about this report, a spokeswoman said I would have to request the documents under the Freedom of Information Act.  “I know what you mean,” she said, “but I can’t comment on it.”

“Geezer in the Hole”: The Reality of Aging Behind Bars

Over the past few years there has been a growing interest in the increasing numbers of older prisoners. At times this interest has been accompanied by some piddling gestures to alleviate their miserable situation–for example, theoretically granting them leave to die “in the free world,” or perhaps showing sympathy for granny having to climb up three tiers of bunks to get a night’s sleep, or gramps asking for a cane (denied because it is a possible weapon) so he can get to the toilet without crawling.

Nonetheless, the dominant view from the corrections industry and most of the public is that these people did the crimes and now they have to do the time–even if the time reflects absurdly the long sentences instituted in the 1980s and 90s, and creates a new cohort of septuagenarian prisoners. In fact, most of the new interest in aging inmates actually has to do with money. According to a recent AP article:

The ACLU estimates that it costs about $72,000 to house an elderly inmate for a year, compared to $24,000 for a younger prisoner.The federal Bureau of Justice Statistics reported that the number of men and women in state and federal prisons age 55 and older grew 76 percent between 1999 and 2008, the latest year available, from 43,300 to 76,400. The growth of the entire prison population grew only 18 percent in that period.

“We’re reaping the fruits of bad public policy like Three Strikes laws and other mandatory minimum sentencing laws,” said David C. Fathi, director of the ACLU National Prison Project in Washington, D.C. “One in 11 prisoners is serving a life sentence.”

With prison costs escalating and states overwhelmed with deficits, letting granny and gramps out of the clink suddenly doesn’t sound so bad to some state officials. Old prisoners are expensive, and if we must take care of them, then why should local and state government’s foot the bill. Better to let the federal government pay instead, through Medicare and Medicaid. The leading predictor of criminal behavior is age (young), so there’s little risk involved in letting the geezers go; all that’s keeping most of them behind bars in the nation’s insatiable taste for punishment.

With all this in mind, I am reprinting an article that just appeared on Solitary Watch, another blog where I am editor along with Jean Casella. It is the story of Robert Platshorn, leader of  the “Black Tuna Gang” of marijuana smugglers in the late 1970s, an experience described in his book The Black Tuna Diaries. In 1980, he received what was then an unprecedented sentence of 64 years in federal prison. 

When Platshorn was released on parole in 2008 at the age of 65, he was the longest-serving non-violent marijuana offender in America. But as he wrote in a blog post for High Times earlier this year, that distinction ”won’t be mine for long. Many sentenced after me will soon be able to claim my title. They are serving LIFE WITHOUT PAROLE and will never get to spend another minute as a free man.” When Platshorn was convicted, he writes, “no one received a life sentence for marijuana. That changed in the early 80′s as Reagan stepped up this insane failure of a drug war.” According to Platshorn, several other non-violent marijuana offenders, including  Billy Deckle, are now in their sixties and seventies, and will likely never be released.

Here is what they have to look forward to: Surviving day to day in an environment so dangerous that a slip of the tongue often ends in death. Since the elimination of parole, federal prisons are populated mainly by young, uneducated, aggressive inmates serving absurdly long sentences. They have little hope and nothing to lose. Violence has become endemic in a system that has little or no reward for good behavior. Prison gangs find older non-violent inmates easy prey.

Inadequate medical care. It costs the taxpayers billions to provide even minimal health care for older inmates. Yet these are the people least likely to commit a crime after release. An older marijuana offender serving a long sentence is likely to die in prison for lack of medical care…

An extremely unhealthy diet. It becomes an obsession, trying find enough decent food to maintain good health. Even under the best of circumstances, it’s no longer possible. When I entered prison in 1979, the budget to feed an inmate for three meals a day was $2.62. When I left prison in 2008 it had shrunk to $2.25…This has to pay, not only for food, it has to cover repairs and replacements for kitchen equipment, civilian salaries, and eating utensils…You don’t have to be an economist to figure out, that since Bush decimated the prison food budget, the cost of inmate medical care has skyrocketed. Especially for older inmates, many of whom require a special or restricted diet…Now, the Bureau [of Prisons] will say that they provide special diets for those who require them. And it’s true. Sort of! Those diet trays usually contain so little edible food that the starving sick geezer ends up eating a piece of deep fried breaded sewer trout or a hunk of fried breaded mystery meat, just to stave off the terrible never ending hunger pangs. The results, a sick geezer who now needs expensive medications and has little or no chance of surviving a long sentence. Most of those geezers would pose no threat to society if released. It’s even worse when the geezer is serving forever for marijuana, a harmless substance, and an effective medication that is now legal in many states. How would you feel if that old pot smuggler was your Uncle Billy?

Geezer in the hole! “The Hole”! Segregation!…The Federal Bureau of Prisons thinks it sounds better if they call it the SHU (Special Housing Unit). Take my word for it, it ain’t special in any way you’d like to experience. During my almost 30 years in 11 different federal prisons, about 3 ½ years were spent in segregation. They got it right in the old movies, “the hole”. Now you might ask, why would a nice non-violent old dude wind up in the hole? Lots of reason! Someone “drops a note” saying the old dude’s life is in danger. Result many months in the hole. He gets in a fight. Doesn’t matter if it’s self-defense. Into the hole! Uncle Billy gets caught coming out of the chow hall with an apple or a cookie in his pocket. The hole! The old pot smuggler has been forced to work in the prison factory because he owes a fine. A tool disappears from his work area. Everyone who works in that area is tossed in the hole. And so on and so on. Now what happens is: he has to eat whatever shows up on the meager tray that comes through the slot, or starve. Mostly he eats all the starchy crap because he’s been flat on his back all day and night, and he’s bored to death. Meals are the only break he looks forward to. Each time he leaves his cell his hands are cuffed behind his back. This is especially painful for an older inmate. He has to be cuffed while he crouches backwards with his hands pushed out through the lower food slot. This usually means Uncle Billy will forgo his three weekly showers and exercise periods. It’s no big deal when your young and supple, but for a geezer it’s a different story. The only way I can express it is, if you are over fifty, spend 90 days in the hole and you come out two years older. Fatter, slower, more depressed, and less likely to recover physically or mentally.

Its time for all the Uncle Billys to go home…

9/11: One Family’s Brave Effort to Expose Airline Culpability

An article in Saturday’s  New York Times describes how all the families suffering losses on 9/11 have now taken settlements, receiving some $7 billion from the government and $500 million in private suits–all the families, that is, save one.

The one holdout is the family of Mark Bavis, a passenger on United Airlines Flight 175, the second plane to strike the World Trade Center. Ever since the family filed suit in 2002, it has spurned efforts to negotiate, despite settlement attempts and a court mediation session.

They recognize that they could have obtained a quicker resolution by settling; they say the case is not about money. They say they want to prove in a public courtroom what they and their lawyers believe was a case of gross negligence by United and other defendants that allowed the hijackers to board Flight 175 and the attacks to occur.

The Bavis family is seeking damages directly from the airlines. Their suit represents the last real possibility for an independent inquiry into the culpability of these private carriers–not to mention the “regulators” at the Federal Aviation Administration, who appeared intent on serving the airlines rather than the public. It’s a long shot perhaps, but the Bavis suit might achieve some of what the expensive, timid, and inconclusive 9/11 Commission Report could not. 

As the Times article points out, they have identified several areas in which the airlines’ negligence contributed to the events of 9/11 (emphasis added):

Donald A. Migliori, a lawyer with Motley Rice, the firm that represents the Bavises and was involved in more than 50 other cases, said the firm’s investigation had focused on failures at airport security checkpoints, flawed cockpit doors, inadequate training and how the industry ignored confidential government warnings about terrorist threats.“The security breaches that day,” he said, “were absolutely known to these defendants before 9/11, and should have been addressed before this could happen.”

My 2005 book, The 5 Unanswered Questions About 9/11, also explores these same areas, and sets out in detail the chain of evidence that demonstrates airline and government negligence leading up to the attacks. A few excerpts, citing factual records, follow. Readers can judge for themselves whether the airlines and government are culpable.

Failures at Airport Security Checkpoints

[In the 1990s], following the Pan Am 103 bombing, the FAA had been directed by Congress to create a “Red Team” to test airport security. A Red Team consists of a handful of people, often drawn from military special operations, to pose as terrorists and attempt to break through airport security–in effect, to stage unannounced mock terrorist attacks, and report on the airlines’ performance in thwarting these attacks…

An October 1998 report by one airline, which was passed around the company offices in the United States, describes a meeting held the previous month with the FAA to discuss security at the San Francisco airport. Among other things, the report noted that the FAA’s Red Team “worked around different areas in SFO airport. They managed to break through different security screenings repeatedly in many different areas. Of 450 times when they were working their way past different security points to get to secure areas they were caught only 4 times.” SFO was one of the airports that had been targeted in the 1993 tests, and cited for a 60 percent failure rate. Five years later, the failure rate was 99.11 percent.

The report stated that the Red Team “managed to get by passenger Xray screening repeatedly (7 times) having on them a gun sealed under their belt-buckle. Also, having an automatic Mac machine gun under their jacket on their back.” The team also easily entered the airlines’ private lounges and put bombs in the passengers’ carry-on luggage, which was not examined before they boarded the plane. Gaining entrance to the ramp area, they entered Skychef catering trucks, and with ease placed whatever they wanted to in the food trolleys. No one questioned them. “Most of the times the catering truck driver was either asleep or reading a book or just looking at the sky or waving a friendly hello,” according to the San Fransisco report. The intruders showed false IDs and then easily drove a van onto the ramp area, although the vehicle had no official plates or security seals. They boarded aircraft at will, and “could easily have placed a bomb on board.”

All of this activity was videotaped by the Naval Surface Warfare Center at Port Hueneme, California, with the idea of using it as a training film for airport security personnel. But when the FAA saw how bad things were, they deep-sixed the video…

According to Andrew Thomas [in his book Aviation Insecurity], “For years, Logan was known throughout the industry as one of the least secure airports in the nation.” In April 2001, Deborah Sherman of Boston’s Fox News station undertook her own investigation of air security at Logan airport, with the help of former Red Team member Steve Elson. Airing on May 6, 2001, her report showed serious security flaws, including knives smuggled through security and unguarded access to secure areas–making Logan clearly vulnerable to terrorist attack.

The report had been instigated by Brian Sullivan, an FAA New England security agent who had retired earlier in the year and was seeking to blow the whistle on what he had observed on the job. On May 7, the day after the program aired, Sullivan sent a tape, along with a detailed and eloquent letter, to Senator John Kerry: “This report once again demonstrated what every FAA line agent already knows, the airport passenger screening system simply doesn’t work as intended. The FAA would like [rather] continue to promulgate a façade of security, than to honestly assess the system. Management knows how ineffective the current system is, but continues to tell Congress that our airport screening is an effective deterrent.”

Flawed Cockpit Doors

There was ample  evidence of how easily cockpits could be breached. As Andrew Thomas reports in Aviation Insecurity, in the two years prior to September 11, 2001, passengers managed to enter the cockpits of commercial airplanes thirty times. In one 2000 case, a passenger aboard a Southwest Airlines flight was suffocated to death—apparently by other passengers—after he made repeated attempts to take over the cockpit. In another case the same year, a deranged passenger entered the cockpit of a British Airways 747, bit the captain’s ear, grabbed the controls, shut off the autopilot, and sent the plane into a 10,000-foot dive before the co-pilot managed to regain control. Lack of cockpit security would, of course, become key to the terrorists’ success in the 9/11 attacks.

Inadequate Training

In 1996, President Clinton appointed a White House Commission on Aviation Safety and Security, headed by Vice President Al Gore, to examine security within the industry–and especially security against possible terrorist attacks…A preliminary report, released in September 1996, elicited a flurry of unhappy responses from airline lobbyists. Gore quickly capitulated to the airline industry, writing a sheepish letter to Carol Hallet, president of the Air Transport Association, the industry trade group: “I want to make it very clear that it is not the intent of this administration or of the Commission to create a hardship for the air transportation industry,” and suggesting that government and industry could work “in full partnership.” According to a study conducted by the Center for Responsive Politics, during the final weeks of the 1996 election campaign, with Clinton pitted against Bob Dole, the airlines poured $585,000 into the Democratic party coffers.

The Gore Commission did make some 50 recommendations, but many of the most vital proposals were gutted or simply ignored. The Commission recommended criminal background checks for airport security personnel, along with a changed work system that would reward performance, rather than just low costs, for both individual security staff and the security companies used by the airlines. The airlines scoffed that these measures would be too expensive, and the FAA (then under the leadership of Linda Daschle [who later became an airline industry lobbyist]) never pursued them.

One Commission member, Victoria Cummock, widow of a Pan Am 103 victim, wrote to Gore, “I register my dissent with the final report. . . . Sadly, the overall emphasis of the recommendations reflects a clear commitment to the enhancement of aviation at the expense of the Commission’s mandate of enhancing aviation safety and security. I can not sign a report that blatantly allows the American flying public to be regularly placed at unnecessary risk.” Cummock was quoted by CNN as saying, “I don’t know how we could really get a fair commission based on the degree of collusion that I see between the [airline] industry, the FAA, the DOT (Department of Transportation), and Al Gore.”

Industry Ignored Government Warnings About Terrorist Threats

In the six months prior to 9/11, FAA senior officials received 52 intelligence briefings regarding threats from Al Qaeda. “Among the 105 summaries issued between April 1, 2001 and September 10, 2001, almost half mentioned Bin Ladin, Al Qaeda, or both, mostly in regard to overseas threats,” the report said. In addition, the National Security Council’s Counterterrorism Security Group invited the FAA to a “meeting in early July 2001 at the White House to discuss with domestic agency officials heightened security concerns.”

The FAA also sent out informational circulars to warn airports and air carriers about security issues. Seven circulars were sent before 9/11–one on the threat posed by surface to air missiles, five on threats overseas, and one on July 31 mentioning hijacking. Yet while Jane Garvey said “she was aware of the heightened threat during the summer of 2001,” several other top agency officials, as well as senior airline official and veteran pilots, said they were not aware.

On Bastille Day, No Mercy for Prisoners from Sarkozy or Obama

Charles Thévenin, "La prise de la Bastille," 1793. Musée Carnavalet, Paris.

 The following Bastille Day Post appeared this morning on Sara Mayeux’s Prison Law Blog:  

On this day 221 years ago, revolutionaries stormed a prison and, as they say in History 101, the modern world began…  

Traditionally, the French president would grant a mass pardon every July 14, but President Sarkozy has discontinued the practice. In that respect, he is not dissimilar from his American counterpart. Although historically most U.S. presidents have used their executive clemency powers within 100 days of their inauguration, Obama recently reached his 536th day in office without granting a single pardon or commutation — surpassing John Adams and catapulting into third place on the list of presidents who have waited the longest. Nos. 1 and 2 are George W. Bush and Bill Clinton.  

Sarkozy’s motivations are a mystery to me (as they apparently are to many French people). But why has Obama been so reluctant to issue pardons–or even commutations to a few of the thousands of prisoners serving absurdly long sentences, as a result of national trends of the past 30 years? Is he simply following the lead of other recent presidents? Or, as the first African American president–and one who is constantly facing (absurd) charges of radicalism and reverse racism–is he afraid of appearing soft on crime?  

If the latter is true, it’s not excusable, but it is understandable. Conservative media figures are already bent upon depicting Eric Holder’s Justice Department as having a pro-black bias; the phony “scandal” involving the Department of Justice’s decision not to prosecute the New Black Panther Party has lately been called a “21st-Century Willie Horton” ploy.  And this is only the latest and stickiest of countless accusations of favoritism toward African Americans. Last month, Iowa Congressman Steve King said that he “knew of no instance where Obama’s racial favoritism wasn’t a factor in his decision making.” The right-wing National Legal and Policy Center even managed to find “racial favoritism” in the financial regulation bill passed by the House earlier this month. This kind of race-baiting would be sure to kick in big time if Obama pardoned or commuted the sentence of someone who happened to be black.  

Nonetheless, for the thousands of people who may be undeservedly languishing in America’s prisons, it will be small comfort to know that the president is once again allowing his actions to be shaped by a right-wing agenda.

How to Become Your Own One-Member Death Panel

If you’ve read my new Mother Jones article on the health care rationing controversy, “Meet the Real Death Panels,” you know that I have strong feelings about end-of-life choice. In the article, I write:

I am a big fan of what’s sometimes called the “right to die” or “death with dignity” movement. I support everything from advance directives to assisted suicide. You could say I believe in one form of health care rationing: the kind you choose for yourself. I can’t stand the idea of anyone—whether it’s the government or some hospital administrator or doctor or Nurse Jackie—telling me that I must have some treatment I don’t want, any more than I want them telling me that I can’t have a treatment I do want. My final wish is to be my own one-member death panel.

Anyone concerned with having some power over the circumstances of their own death will find a helpful article along with source materials in the May/June issue of the Women’s Health Activist Newsletter, put out by the Women’s Health Network.

To begin with, physicians and other medical professionals don’t get to call the shots. They can be good educators, advisers, even facilitators, but they do not make decisions. More to the point, you don’t want to get in any situation where they subtly get to make the decision because of the way they pose alternatives or put the questions. The Network advises patients to go over these different documents, starting with Advance Directives, discuss them with close friends and family as well as medical professionals. They can be changed any time so you are not locked into any specific path.

The Women’s Health Network sets out three basic documents, and tells a little about each, and then provides contact information.

Advance Directives: This legal document allows you to indicate whether, and under what circumstances, you want certain medical interventions, such as cardiopulmonary resuscitation (CPR), intubation (using a machine to breathe for you), feeding tubes, etc. You can also designate a “health care agent,” who can make decisions if you can’t. This person must follow your directives even if their own choice would be different and/or if others disagree. The health care agent can be a relative or a friend–not necessarily your physician. You can download a free copy of your state’s most current Advance Directive at www.caringinfo.org

Five Wishes: Sometimes called the “living will with a heart”, was developed by an associate of  Mother Teresa,who wanted to give patients and families information–“a way to express directives about medical interventions, and the care they want (or don’t want) as they are dying,” such things as what to do with the body after death and whether to have or not have a memorial service . Five Wishes is available in 25 languages from www.agingwithdignity.org or 1-888-594-7437.

Physician Orders for Life Sustaining Treatment (POLST) is described in detail at http://www.ohsu.edu/polst. Here is a summary from the Women’s Health Network:

  This relatively new document is designed to give people more control over their end-of-life care and, importantly, to create a legal directive that travels with the person through moves between residential and medical settings. POLST is primarily for those whose health is frail and have a fairly high risk of dying sometime over the next year.  Once the patient completes the POLST and it is signed by both physician and the patient, it becomes part of the person’s medical record. It has been designed to avoid the need to sort out medical directives in an emergency situation with little or no information. (For example, someone may become critically ill at home or in a nursing home, and is unable to give their directives. 911 is called and the patient is ambulanced to a hospital where, in absence of an Advance Directive, Five Wishes or a similar document, all interventions and tests are done immediately. It’s really sad when, hours or days later, directives are located that may mandate the opposite of the care that was given.) Once POLST is completed and signed by both patient and physician, other physicians and health care providers must legally follow its instructions.  The goal is to prevent unwanted or ineffective treatments, decrease patient and family suffering, and ensure the patient’s directives are honored.

Supreme Court on Pfizer’s Pharmaceutical Colonialism

Victims and families protest outside the courthouse in Kano, Nigeria, in 2008. Photo: AFP.

While the media was chewing over the Supreme Court’s gun decision earlier in the week, another significant action passed with little comment. That was the court’s refusal to throw out a case brought under the Alien Tort Statute on behalf of Nigerians whose children died or suffered terrible damage in a Pfizer drug experiment.

The case is of considerable importance, because so many drug companies have conducted tests of new medicine’s abroad in poor countries, using the residents as lab rats in what some have dubbed “pharmaceutical colonialism.” The BBC reports:

The US Supreme Court on Tuesday declined to take up a case examining whether drug giant Pfizer could be sued in an American court for allegedly conducting nonconsensual drug tests on 200 Nigerian children in 1996. The action allows the case to move toward a trial. Eleven of the children died, and many others were left blind, deaf, paralyzed, or brain-damaged, according to court documents.

At issue in the Supreme Court appeal was whether the surviving children and relatives of the children were entitled to file a lawsuit in New York seeking to hold Pfizer responsible. Usually, such a suit would be filed in Nigeria. Lawyers for the children complained that Nigerian judges are corrupt and that the US court system holds the only promise of justice.

The suit was filed under the Alien Tort Statute (ATS), which empowers federal judges to hear civil lawsuits filed by non-US citizens for violations of the “law of nations.” Lawyers for Pfizer denied that the Nigeria experiments were conducted without the consent and knowledge of the children and their guardians. In addition, the lawyers argued that the children’s case should be thrown out of court because the alleged drug experiments are not the precise type of international law violation covered under the ATS. What made the high court appeal potentially significant is that the Supreme Court has declared that foreign plaintiffs may rely on the ATS to file lawsuits, but only in a few limited circumstances. The high court has not yet identified precisely which few cases may be brought and which may not.

For those interested in reading more on this grim subject, this long piece that appeared in Der Spiegel back in 2007 provides details on the Pfizer case. Sonia Shah’s 2006 book The Body Hunters uncovers other unethical drug trials throughout the developing world. And if you’re looking for some timely summer reading, John Le Carre’s 2001 book The Constant Gardener reimagines the story as a thriller, with Big Pharma cast as one of the leading villains of the post-Cold War world–which, of course, they are.

Congress’s Oil Industry “Reforms” = Election-Year Greenwashing

This morning’s Washington Post reports on efforts in Congress to strengthen regulation of oil companies. 

Two key Senate committees approved legislation Wednesday that would change the way the federal government regulates offshore oil drilling and penalizes companies for oil spills…Both measures passed on bipartisan voice votes. One approved by the Energy and Natural Resources Committee would raise the civil and criminal penalties for a spill, require more safety equipment redundancies, boost the number of federal safety inspectors and demand additional precautions for deep-water drilling. The other, passed by the Environment and Public Works Committee, would remove oil companies’ $75 million liability limit and retroactively remove the liability cap for BP and the Deepwater Horizon explosion.

The Post says that these measures “demonstrat[e] lawmakers’ eagerness to respond to the disaster in the Gulf of Mexico.” They might more accurately say that the measures demonstrate lawmakers eagerness to look like they are responding to the disaster. In the real world, the proposed measures will serve mostly as election-year greenwashing, with little genuine impact.

Just about everyone at this point knows that liability awards will be determined not in the hallowed halls of Congress, but by knock-down, drag-out court fights. More safety precautions can gradually be rolled back or ignored, just as the current safety regulations were in the years leading up to the BP spill.  And none of this goes to the basic dilemma of whether drilling at these depths should be allowed at all, when the dangers are so great and the stakes so high. Members of Congress can see the heat the White House has gotten for daring (in an uncharacteristic move) to impose even a partial moratorium on deepwater drilling: a federal judge declared the move illegal, while right-wingers attacked it as something just short of a Communistic plot to destroy the nation’s economy. As long as Congress tinkers around the edges of the issue, they can avoid the explosive core. As a character in a famous Italian political novel once said, “If we want everything to stay the same, everything must change.”

Let’s talk about the overriding fact that no one, apparently, sees fit to mention: The great bulk of our domestic oil lies in public domain territory along the outer-continental shelf of the United States. Since it is already owned by the public, and is supposed to be held in trust for our well-being, the threat of “nationalizing” oil is nothing more than a strawman. Oil is already nationalized in the United States–it is owned by the nation, and by the people. But we have basically turned over this huge asset  to the energy industry, especially the oil and gas companies. We have done this through a huge system of undervalued, underregulated leases that give companies a free hand to exploit the wealth of the public domain. And we have placed the disposition and oversight of this valuable resource in the hands of the federal Interior Department, with its long history of connivance with the extractive industries.

In sum, the citizens of the United States have given over the greatest natural resource wealth of our nation to private business interests–who naturally run it for their own profit, rather than for the public good. In return, we have demanded virtually nothing. And the little we have demanded–the most basic of safety precautions, the most modest of demands for fair pricing–have been ignored and derided by companies that regularly top the Global 500 list for profitability.

Keep in mind that these are not the mythological “Main Street” American business interests, the scrappy entrepreneurial spirits so beloved by conservatives and libertarians alike. These are not hundreds and thousands of little companies duking it out in the free market. They’re a few big multinational companies, whose hold on the world’s energy resources dates back a hundred years or more. They operate in secret through cartels to determine how these resources are parceled out, priced, and used.

One of many obstacles to any real change in this system is the absence of transparency and reliable information. For example, the oil companies, not the government, have been tasked with mapping oil and gas reserves on the public domain. This stands in the way of any real public scrutiny, and any impartial scientific judgement on how to administer the public trust. It also serves to obscure from view the massive ripoff that constitutes the leasing system. Historically, disagreements over this system—over whether reserves are over- or under-estimated, details of environmental impacts, disputes over fair costs–all have come down to information.

In the last energy crisis in the 1970s, I wrote a book called New Energy together with Bettina Conner, a colleague at the Institute for Policy Studies. At that time, there was a move in Congress to make knowledge of oil  reserves transparent. My book includes an excerpt from the Joint Economic Committee of the Congress in its investigation of the energy crisis in 1974. That report said: 

The lack of accurate,well-analyzed data regarding energy sources and uses has placed the United States government in a ludicrous position.When those officials directly charged with administering energy policy are unable to determine accurately the extent of the present fuel shortage or to estimate reliably its potential impact on the economy.  Nor can they determine fuel production costs with anything approaching the degree of accuracy necessary to administer the price control program.The government knows almost nothing about the extent of the vast mineral fuel resources contained in public lands.  Tax policy formulation is hampered by the lack of analysis of existing special tax provisos for mineral fuel extraction  and consequent ignorance of their impact.

William Simon, Nixon’s administrator  of the Federal Energy Office, acknowledged the situation before the joint economic committee in January 1974 when he declared, “Let me say right at the outset that there has never been in existence an adequate energy data  system…Today and in the years ahead we need better data on everything from reserves to refinery operations to inventories…Data we can check, verify, and cross check.’’

Despite all the study and debate, the Congress never did anything to remedy the situation. The late Wisconsin Democratic senator Gaylord Nelson introduced legislation to create independent public libraries of basic information. Under his bill, failure to make public such details would make officials liable to prison sentences and fines. The legislation was bottled up in committee and died a silent death at the hands of powerful energy interests in Congress.

Then there was a move to establish a Federal Energy Corporation to conduct research on alternative energy and new uses of fossil fuels. This Federal Energy Corporation would have been empowered to gather and decipher data on oil and gas holdings, and even produce a limited amount of oil and gas itself, for our strategic reserve. The government would control no more than 20 percent of total oil from public territories offered for leasing, and would be a supplier of last resort. In effect,it would act as a yardstick against which to measure the private petroleum industry. It would be a hedge against the unrestrained power of this industry, which periodically gouges the American public at the pump, even though the public owns the very oil and gas it is buying from these companies. Needless to say, that initiative, too, died a sudden death.

In the 1970s these measures may have failed; today they would never even be proposed. Set against the national debate that took place four decades ago, the current discussion in Congress and the proposed remedies, the passive stance of Obama and his administration, are extraordinary. It seems like our members of Congress don’t know recent American history–or, when it comes to the older members, even remember it. But they seem to know, by instinct, well that adage from the Italian novel: “If we want everything to stay the same, everything must change.”

Drugsters in Academia: How Big Pharma “Educates” American Doctors

 The pharmaceutical industry has wormed its way into the hearts and minds of the medical professions in any number of ways—wining and dining doctors, sending them off to vacation in splendid spas, and even buying their names to put on industry-written articles promoting different drugs.

One little known facet of this drugster-doctor relationship is Big Pharma’s role in continuing medical education (CME) programs, which are important in keeping medical professionals informed and up to date on the fast developing profession. Of the $2 billion-odd spent on these programs every year, nearly half comes from the drug business, which not-so-subtly uses the education programs to push new drugs.

Last week a conference at Georgetown University called “Prescription for Conflict” pulled together experts from academia, government, and industry to discuss the question: Should industry fund continuing medical education? The main instigator here is a former colleague of mine named Adriane Fugh- Berman, a doctor and teacher at Georgetown University Medical School. Fugh-Berman long ago became the nemesis of Big Pharma with a stream of articles and talks questioning the different aspects of liaison between the drugsters and the medical profession. I worked with her helping to set up PharmedOut.org, a website that seeks to educate the public on these liaisons, in part through exposes, both written and on video.

The conference at Georgetown included few critics as candid as Fugh-Berman. Those gathered included polite academics with hedged criticism of industry funding, and regulators like Joshua Sharfstein, principal deputy commissioner at the FDA,  and Julie Taitsman, chief medical officer the Department of Health and Human Services, who presented a list of  the different laws protecting the public. By the time they finished, I was so frustrated with government bureaucrats that I was about ready to join the Tea Party (except that they, of course, would want to do even less to control the greedmeisters at Big Pharma).

One blunt critique came from Paul Thacker, an investigator for Senate Republican Charles Grassley, who has been the most visible Congressional muckraker on the doctor-drug company love-in. Thacker bluntly told the docs to get off their supercilious “who me?’’ attitude and come to grips with the scarcely believable conflicts of interest existing between the medical profession and the drug industry–conflicts that more often than not have been to the detriment of their patients.

The industry, as always, insists it isn’t doing anything bad–far from it. Big Pharma, its representatives would have you believe, is really performing a public service, trying to educate docs so they can do a better job. This conference, however, offered a different point of view, in the statement of an anonymous “pharmaceutical executive,’’ who admitted industry involvement in “CME has the potential for inappropriate promotional messaging and influence.’’ 

The anonymous exec went on to state:  “Typically,companies make CME investment decisions at annual budget meetings.  The Sales and Marketing divisions dominate deliberations.and distribution of CME cash.’’ In deciding what institutions are to get money, he continued, “large volume, influential institutions are not likely to be rejected…Friendly institutions, as defined by access and volume, are more likely to receive grants than those that favor another company’s products. Grants may also be made in support of programs including particular KOLs [key opiniong leaders] whose opinions resonate with the promotional plan…Similarly, those known for positions antithetical to the company’s promotional plan are less likely to be supported.’’

In conclusion, the exec said, “CME contributions are commercial decisions,’’ and, finally, “CME is not compatible with commercial intervention.’’ Too bad it takes a drug company whistleblower to make this statement of the obvious, rather than the medical organizations and government regulatory agencies who are supposed to be looking out for us.

The Woodfox Judgement

Thanks to right-wing courts, the draconian sentencing guidelines passed by state and federal legislatures–and, believe it or not, the actions of Bill Clinton–the numbers of older prisoners in American prisons and jails is growing. More and more men and women have been given such long sentences that they will die in prison, and it’s become virtually impossible for most of them to mount appeals.

As one extreme case in point, yesterday the federal 5th Circuit Court of Appeals handed down a decision against Albert Woodfox, a member of the Angola 3. Woodfox, who is now 63 years old, has been at Angola since he was 34, and in solitary confinement for 38 years. Last night on Solitary Watch, Jean Casella and I posted this:

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitentiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for nearly four decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.  

Woodfox was given a life sentence–and thrown into permanent lockdown–for the 1972 murder of an Angola prison guard. He has been appealing his case for years, arguing that he was convicted in a patently unfair trial based on tainted evidence. In 2008, a federal district court judge agreed, and overturned his conviction. But the Fifth Circuit came down on the side of the state of Louisiana, ruling that Woodfox’s conviction stands.

It’s hard to believe this powerful federal court once was once a great defender of civil rights:

The Fifth Circuit Court of Appeals once had a reputation as one of the finest appellate courts in the land. In the 1960s, a small group of Fifth Circuit judges—mostly Southern-bred moderate Republicans—was known for advancing civil rights and especially school desegregation.  But today the Fifth Circuit, which covers Louisiana, Texas, and Mississippi, is seen as among the most ideologically conservative of the federal appeals courts. It is notable for its overburdened docket and for its hostility to appeals from defendants in capital cases, including claims based on faulty prosecution and suppressed evidence. The court has even been reprimanded by the U.S. Supreme Court, itself is no friend to death row inmates: In June 2004, Justice Sandra Day O’Connor wrote that the Fifth Circuit was “paying lip service to principles” of appellate law in handing down death penalty rulings.  

The Court’s rightward descent is set against a background of the unyielding Supreme Court–an institution that has clearly become an enemy of the people. But contrary to what liberals like to think, these problems did not begin with the Bush Administration. In doing their dirty work, the courts can cite legislation passed under Bill Clinton.    

I can well remember the first hint of what we could expect under President Clinton in the area of criminal justice. During the 1992 Democratic primary in New Hampshire, Hillary Clinton, in an  answer to a question  at a town meeting, suggested habeas corpus had been stretched beyond its bounds. Her husband proceeded to rectify this situation, with dire results for the rights of prisoners and the accused:

The decision in Woodfox’s case shows the crippling effect on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombing. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.  

As the Fifth Circuit noted in its ruling, “The AEDPA requires that federal courts ’defer to a state court’s adjudication of a claim’” unless the state court decision ran “‘contrary to…clearly established Federal law, as determined by the Supreme Court,’” or was ”‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” And as the judges pointed out, ”An unreasonable application of federal law is different from an incorrect or erroneous application of the law.” 

In other words, the state courts could be wrong, they just couldn’t be so far out as to be undeniably “unreasonable.” And in the end, the Fifth Circuit judges agreed with the State’s argument that in the case at hand, ”the district court failed to apply the AEDPA’s heightened deferential standard of review to Woodfox’s ineffective assistance claims.” Woodfox’s conviction may have been wrong, but it was not, in the eyes of the Fifth Circuit, “unreasonable”–so there will be no new trial for him. This is how justice works in post-AEDPA America.