Obsidian Wings

some historical notes

by Fiddler

 

In the first Boston Massacre, on March 5, 1770, British troops fired into a rioting crowd of civilians on King Street in Boston, without being ordered to do so; four people died immediately, one soon after, and six were injured.  The British governor asked John Adams, who was known for his views on independence from England but who was also an excellent lawyer, to defend the British soldiers in their trial, who had fired without orders from an officer.

The trial took place in open court, with the public admitted to view the proceedings.  As a result of Adams' arguments in their defense, six of the eight were acquitted of murder charges and two were convicted of manslaughter for firing directly into the crowd -- this, in spite of the tremendous amount of propaganda that was circulated in the press and in rumors beforehand.

The summary of this at Wikipedia is not too bad.  For a closer view of part of the proceedings, the miniseries John Adams devotes one of its six episodes to this.

So.  We now have a second Boston Massacre, the death of ordinary people at a public event, without the excuse of military presence or riot.  One of those accused of responsibility for the bombings has died; the other, 19-year-old Dzhokhar A. Tsarnaev, has been captured and is hospitalized; he has not been read his Miranda rights.  Here is the text of a free Miranda Rights card that can be printed to carry with you:

I wish to invoke my Miranda Rights to remain silent under the statutes and constitution of the United States of America. I do not want to talk or answer any questions to law enforcement. I do not want to participate in any lineup or show-up until I consult with an attorney and he is present. I do not consent to any search of my person, property or possession under my control or which I have an interest. I declare that I do not waive my legal rights and I insist on having my lawyer present.

Police are required to read Miranda rights to people who are arrested as a result of the Supreme Court case Miranda v. Arizona, decided in 1966.

Dzhokhar Tsarnaev was not given his Miranda warning because of a 'public safety exception', which is supposed to expire after 48 hours.  This exception comes from the Supreme Court case New York v. Quarles; in order for information learned under this exemption to be admissible in court, the suspect must not be "actually compelled by police conduct which overcame his will to resist" and it must be a situation "in which police officers ask questions reasonably prompted by a concern for the public safety," according to Carl A. Benoit's article, "The 'Public Safety' Exception to Miranda," in a FBI law enforcement bulletin dated February 2011.

However, the fact that Dzhokhar Tsarnaev was not given this right leads to the suspicion that his case might never see an open court -- might, instead, be judged under 'anti-terrorist' provisions, because of his not being a US citizen.  His older brother Tamerlan is dead, so nobody can ever know what Tamerlan intended when he dropped a backpack containing a homemade shrapnel bomb on the sidewalk during the race. The fact that Tamerlan did this appears beyond dispute, as one of the victims of the blast looked him full in the face just before he did it and was able to identify him for police later.   But Tamerlan is not Dzhokhar, who is now in custody.  Photographs put Dzhokhar at the scene, carrying a shoulder bag -- but I am unaware of any witnesses who can testify that he personally dropped that bag near them.

I can't help being reminded of the Beltway Snipers in 2002, when the adult John Allan Muhammad convinced teenaged Lee Boyd Malvo that it was all right to use ordinary human beings going about their daily lives as targets. I can't help wondering what sort of influence Tamerlan had over Dzhokhar, and why, and whether we will be allowed to learn any of it in an open courtroom.

Will Dzhokhar have a defender as able as John Adams to represent him in an open court?   Muhammad and Malvo faced open courtrooms; so did the Unabomber, and Timothy McVie, after the Oklahoma bombing.  Will Dzhokhar Tsarnaev?  

 

 

 

Flames out of the Side of My Head: Guantanamo and Torture Plea Agreements

--by Sebastian

Apparently the Administration is leveraging torture victims into plea bargained fact witnesses.  This article reveals some of the details (I know it is from February, but I somehow missed it.  And the fact that it hasn't been all over the news suggests that worrying about it hasn't gained much traction).

 

When a suburban Baltimore high school graduate steps out of the shadows of CIA detention this week to admit to serving the senior leadership of al Qaida, the Obama administration will be unveiling its latest strategy toward an endgame.

Majid Khan has agreed to be a government witness at future military commissions, sources say, in exchange for Wednesday’s guilty plea and the possibility of return to his native Pakistan in four years. It’s part of an evolving effort to quell criticism that confessions were extracted through torture by offering live testimony from willing captive witnesses.

“It’s like organized crime,” said retired Air Force Col. Morris Davis, a Bush-era Pentagon war crimes prosecutor. “Sometimes you pick the lesser of the two evils and bargain with who you can.”

Federal prosecutors describe Khan, who turns 32 Tuesday, as a one-time willing foot soldier for radical Islam. He allegedly recorded a martyr’s message and donned a fake bomb vest in 2003 in a test to see whether he was willing to kill then-Pakistani President Pervez Musharraf. He allegedly delivered $50,000 from Pakistan to Thailand, money used to fund an al Qaida affiliate’s August 2003 suicide attack on a Marriott hotel in Jakarta, Indonesia. Eleven people died, and more than 80 others were wounded.

The attack’s alleged architect, Riduan Bin Ismouddin, an Indonesian man known as Hambali, and two reputed Malaysian deputies were, like Khan, subjected to years of secret CIA interrogations — never charged but still at Guantánamo and, according to a Malaysian newspaper’s report, in the queue to face military trials.

...

Khan has always been a bit of an anomaly among the CIA’s so-called “ghost prisoners” who were subjected to “enhanced interrogation techniques.” His parents live in suburban Baltimore, where they moved the family in the ’90s and became legal residents. Khan graduated from Owings Mills High School in 1999 and went back to Pakistan after the 9/11 attacks over the objections of his parents, who hid his passport.

Pakistani security forces arrested him in 2003. FBI agents searched the family’s Baltimore house and trailed them for a time. The family heard no news of their son until September 2006 when President George W. Bush announced that “a terrorist named Majid Khan” was in custody and had confessed under interrogation to delivering “$50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al Qaeda’s Southeast Asian affiliate.”

A year later, defense attorneys filed a brief in federal court declaring him a torture victim of the CIA’s enhanced interrogation program. “Khan admitted anything his interrogators demanded of him,” his lawyers wrote, “regardless of the truth, in order to end his suffering.”

According to transcripts, Khan told a military board in April 2007 that he emerged from CIA custody so despairing of his isolation that he tried to kill himself by chewing through an artery in his arm.

So this is the person who is going to give useful factual testimony as part of his plea bargain?  This is the person whose testimony will be used to create the factual underpinnings for other convictions?  The practice of leveraging a plea bargain into flipping you for testimony against people 'higher up the chain' has serious reliability problems built in, even as currently practiced.  It seems like a great way to have the prosecution encourage perjury.  But linking it with torture makes it even more obvious: torturing someone so much that they want to kill themselves, and then offering to free them if they give the 'right' testimony is almost guaranteed to get false testimony. 

As John Quiggin wrote at Crooked Timber: "The idea that the state can torture someone, imprison them indefinitely, and then use their “voluntary” testimony (given in the hope of release) against another, then claim that this is an improvement on using confessions extracted by torture of the accused is more reminiscent of the legalisms of a totalitarian state than of anything that could be described as the rule of law."

 

You Have The Right To Freeze And Be Utterly Silent

by Gary Farber

The Fourth Amendment continues to be onion-peeled into nothingness.  KENTUCKY v. KING puts another nail in the coffin as police gain the right to kick in your door simply because they hear movement within your dwelling.

Obviously that's probable cause, because noise indicates a crime. 

Does that make sense to you?  It does to 8 out of 9 members of the Supreme Court.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined. GINSBURG, J., filed a dissenting opinion.

Here's the gist: 

[...] 

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. 

Right.  Let's get more detail.

Executive Decision

GUEST POST by McKinneyTexas, NOT by Gary Farber

First, thanks to Gary Farber for the kind invitation to guest post.  Initially, I'd begun a sort of semi-reflective, Kumbaya piece but then it occurred to me that my role was to introduce of bit of diversity here at ObWi, to provoke thought from the other side of the spectrum.  So, here it is: your dose of provocation:

One glaring fault of the Left-in-Power is its lack of respect for the constitutional process on that most fundamental question of committing the country to war. 

First, under Clinton and then under Obama, US troops were committed to combat operations overseas when no US vital interest was at stake and certainly no attack on US citizens or interests anywhere was imminent.  Neither commitment was subject to public debate, or more importantly, authorized by congress.

Compare this to the much reviled Bush II administration and its wars in Iraq and Afghanistan. 

Drones Don't Declutter, And Neither Do Expulsions

by Gary Farber

We can't "win" militarily in Afghanistan any more than we could in Vietnam. 

"AfPak" is still AfPak, no matter that it displeases Pakistan, no matter how the U.S. placates.

It's one war, and it can't be won militarily without invading Pakistan.  Anyone up for that? 

2 US servicemen mistakenly killed by drone attack in Afghanistan [UPDATE, 3:41 p.m., PST: erroneous link fixed; thanks, Ugh!].

[...] The Marines under fire were watching streaming video of the battlefield being fed to them by an armed Predator overhead. They saw a number of "hot spots," or infrared images, moving in their direction. Apparently believing that those "hot spots" were the enemy, they called in a Hellfire missile strike from the Predator.

Technology will triumph.

It worked in Vietnam! We're winning.

After all, unlike Vietnam, there are no safe havens across borders: Pakistan Tells U.S. It Must Sharply Cut C.I.A. Activities:

Pakistan has demanded that the United States steeply reduce the number of Central Intelligence Agency operatives and Special Operations forces working in Pakistan, and that it halt C.I.A. drone strikes aimed at militants in northwest Pakistan. The request was a sign of the near collapse of cooperation between the two testy allies.

Pakistani and American officials said in interviews that the demand that the United States scale back its presence was the immediate fallout from the arrest in Pakistan of Raymond A. Davis, a C.I.A. security officer who killed two men in January during what he said was an attempt to rob him.

In all, about 335 American personnel — C.I.A. officers and contractors and Special Operations forces — were being asked to leave the country, said a Pakistani official closely involved in the decision.

It was not clear how many C.I.A. personnel that would leave behind; the total number in Pakistan has not been disclosed. But the cuts demanded by the Pakistanis amounted to 25 to 40 percent of United States Special Operations forces in the country, the officials said. The number also included the removal of all the American contractors used by the C.I.A. in Pakistan.

This is what we call "big news."

It's also, when you read between the lines, leverage, and there will be a trade-off, and you'll have to read between the lines, at best, and look carefully at the right sources, to find information about it when it happens, should said information be findable -- but traces always surface on the internet:

Pottery Barn Libya, Part 1

by Gary Farber

What is to be done?

Colin Powell famously said of Iraq, quoting Tom Friedman (who got it wrong)

'You are going to be the proud owner of 25 million people,' he told the president. 'You will own all their hopes, aspirations, and problems. You'll own it all.' Privately, Powell and Deputy Secretary of State Richard Armitage called this the Pottery Barn rule: You break it, you own it.

Does anyone want to buy Libya, and own it for the next decade?

That's what's on order.

That, or negotiating a way out of this thing.

The Libyan rebels are a mess.  April 3rd:

[...] The rebel army’s nominal leader, Abdul Fattah Younes, a former interior minister and friend of Col. Muammar el-Qaddafi whom many rebel leaders distrusted, could offer little explanation for the recent military stumbles, two people with knowledge of the meetings said.

Making matters worse, the men could hardly stand one another. They included Khalifa Heftar, a former general who returned recently from exile in the United States and appointed himself as the rebel field commander, the movement’s leaders said, and Omar el-Hariri, a former political prisoner who occupied the largely ceremonial role of defense minister.

“They behaved like children,” said Fathi Baja, a political science professor who heads the rebel political committee. 

Little was accomplished in the meetings, the participants said. When they concluded late last week, Mr. Younes was still the head of the army and Mr. Hariri remained as the defense minister. Only Mr. Heftar, who reportedly refused to work with Mr. Younes, was forced out. On Sunday, though, in a sign that divisions persisted, Mr. Heftar’s son said his father was still an army leader. [....]

On March 29th,  Obama's press secretary, Jay Carney told the press gaggle on AF1 that, in essence, he didn't know who the hell these people are, but let's hope for the best:

[...] Q    One of NATO’s military leaders testified on the Hill today that there had been signs of al Qaeda seen amongst Libyan rebels.  How does that affect the White House thinking on engaging with them?

MR. CARNEY:  Well, what I would say is that, as you know, we spend a lot of time looking at the opposition and now meeting with opposition leaders.  And the folks who are in London, the people that -- and the leader that Secretary Clinton met in Paris, have made clear what their principles are and we believe that they’re meritorious -- their principles.  I think they had a statement today that had some very good language in it that we support. 

But that doesn’t mean, obviously, that everyone who opposes Moammar Qaddafi I Libya is someone whose ideals we can support.  But beyond that, I don't have any detail about individual members of the opposition.

Q    Does it concern you about how much you don't know about the opposition?

MR. CARNEY:  Well, what I would say is that we have met with opposition leaders and we're working with them, but as the President said, and as the opposition leaders who put out a statement today said, it’s up to them to decide who their leaders are going to be.

But we do know something of who they are right now, as Jason Packer explains:

If you let strangers know that you research Libya for a living, there seems to be only one question on their minds: "Who are the Libyan rebels?" I've been asked it at cocktail parties, on ski lifts, at academic seminars, and even by Western journalists in Benghazi who have developed the flattering habit of Skype-ing me at odd hours. Americans seem captivated by this question, perhaps because they have heard senior U.S. officials from Defense Secretary Robert Gates to Secretary of State Hillary Clinton to various Republican congressmen proclaim that they do not yet know enough about who the rebels are. I do not take such statements at face value. U.S. statesmen know quite well who the rebels are -- but pretend otherwise to obscure the fact that the United States has yet to formulate a comprehensive policy toward them.

The rebels consist of two distinct groups: the fighters and the political leadership.

Funny t-shirts Friday open thread

by liberal japonicus

I've got a packed schedule this weekend, so I thought I would get this up, though in my defense, it actually is Friday here. Content, or something that purports to be content, below:

Hello, Goodbye: You Say Goodbye, I Say Go To Hell, Glenn Beck

by Gary Farber

Glenn Beck is leaving Fox News, but not, I'm afraid, leaving us alone.

FOX NEWS AND MERCURY RADIO ARTS ANNOUNCE NEW AGREEMENT
(New York, NY)  Fox News and Mercury Radio Arts, Glenn Beck’s production company, are proud to announce that they will work together to develop and produce a variety of television projects for air on the Fox News Channel as well as content for other platforms including Fox News’ digital properties. Glenn intends to transition off of his daily program, the third highest rated in all of cable news, later this year.

Speculation is, of course, rampant.  

[...] Two of the options Mr. Beck has contemplated, according to people who have spoken about it with him, are a partial or wholesale takeover of a cable channel, or an expansion of his subscription video service on the Web.

Reports this week that Joel Cheatwood, a senior Fox News executive, would soon join Mr. Beck’s growing media company, Mercury Radio Arts, were the latest indication that Mr. Beck intended to leave Fox, a unit of the News Corporation, when his contract expired at the end of this year.

Notably, Mr. Beck’s company has been staffing up — making Web shows, some of which have little or nothing to do with Mr. Beck, and charging a monthly subscription for access to the shows. 

He's not going away. Frankly, this is part of the not-that-slow collapse of the whole "tv network" paradigm that the internet is forcing. "TV' isn't going away as fast as traditional publishing, which is going away much faster than the traditional music distribution business, but it's circling the drain rapidly with streaming and direct deals for iPads and tablets and phones and all sorts of streaming.

Below, the worst of Glenn Beck, but why he's not stupid about media.  Laugh and weep.

What to make of this?

by liberal japonicus

The Washington Post has an article on the immigration reform package in Utah, and it might be surprising to a lot of people here. Some key grafs below the fold

What Is Best In Academic Freedom, Cronon? Not To Crush Your Enemies

by Gary Farber

The current attempt by the radical "conservative" Republican Party of Wisconsin, which is so typical of the national and other state Republican Party leadership, has met a roadblock.

But a reminder of what the philosophy of the GOP is, here:

Wisconsin Republic Party Leader: Hao! Dai ye! We won again! This is good, but what is best in life?
Cronan: The open steppe, fleet horse, falcons at your wrist, and the wind in your hair.
Wisconsin Republic Party: Wrong! Conan! What is best in life?
Wisconsin Republic Party Leader: To crush your enemies, see them driven before you, and to hear the lamentation of their women.
Wisconsin Republic Party Leader: That is good! That is good.

We have video of this meeting:

 

And thus the saga of Conan meets Cronan.

What's the latest development?

The Chancellor of the University of Wisconsin, Biddy Martin, has issued a public statement: