BREAKING: Senate Schedules Hearing to Reverse NDAA, invites Gitmo Attorney to Testify

The U. S . Senate Judiciary Committee has posted notice that it will hold a hearing on the “Due Process Guarantee Act: Banning Indefinite Detention of Americans,” a bill sponsored by California Senator Dianne Feinstein. The bill aims to reverse certain provisions of the recently passed National Defense Authorization Act of 2012 (“NDAA”) permitting the indefinite detention of American citizens without charge or trial. This provision of the NDAA has created a social media firestorm, and support for Feinstein’s bill is bi-partisan...but one never knows when the Republican minority in the Senate will pull a filibuster.

In what can only be viewed as a positive sign that the Committee is sympathetic to Feinstein’s bill, Committee Chair Sen. Patrick Leahy (D-VT) has issued a direct invitation to renowned civil liberties attorney Stewart “Buz” Eisenberg to offer testimony on the bill.

Under Section 1021 of the NDAA, the President is authorized to permit the military to detain any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," and anyone who commits a "belligerent act" against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities.” The law further authorizes trial by military tribunal or transfer of the detainee to "any other foreign country, or any other foreign entity.”

Before NDAA was passed, Americans took to social media, opposing this wholesale destruction of almost all of the provisions of the U.S. Bill of Rights addressing criminal procedure, particularly the 6th Amendment, which states,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The provisions were included in a bill that was primarily meant to fund the military, so some legislators voted for the bill while expressing misgivings about the indefinite detention provision. In response, the Due Process Guarantee Act of 2011 was introduced as S.2003 in the Senate on December 15, 2011, and referred to the Judiciary Committee. (It has since also been introduced in the House where it is known as H.R. 3702, where it has already garnered 50 co-sponsors.) The bill specifically prohibits the indefinite detention of American citizens as permitted under NDAA.

The Committee has scheduled its first hearing for Wednesday, February 29 at 10:00 am in Room 226 of the Dirksen Senate Office Building. As is typical of Committee hearings, various experts have been invited to testify at the hearing; the invitation of Attorney Stewart “Buz” Eisenberg suggests that the Committee is willing to listen to the horrors of indefinite detention. Eisenberg is Of Counsel to Weinberg & Garber, P.C. of Northampton, MA, serves as President of the International Justice Network, and is a Professor of Civil Liberties at Greenfield Community College. Since 2004 he has provided direct representation to four detainees at Guantánamo Bay.

A March 22, 2008 article in the Daily Hampshire Gazette entitled “Mission: Guantanamo Justice ('Hell's Lobby')” by Kristen Palpini describes Eisenberg’s work with the people indefinitely detained in Guantanamo:

“ ‘There is torture at Guantanamo Bay’, said Eisenberg.

He claims to have seen the results - a crippled hand, men walking with permanent limps, others with physical disfigurements and mental scars.

‘There is little access to doctors for detainees,’ said Eisenberg.

One of his clients has a skin disease. Eisenberg suspects it is pellagra, a disease often associated with a lack of niacin or protein in a person's diet. The man's skin flakes off into small piles on the desk as Eisenberg talks with him.

There is no human contact for detainees beyond orders from soldiers, said Eisenberg. Detainees are kept in isolated cells almost 24 hours a day. Captives' cells are staggered so men are not within speaking distance of someone who would understand their language.

There is no rest at Guantanamo, said Eisenberg. The buzzing bulbs that light detainee cells and prison halls are never turned off.

This is hell's waiting room, as Eisenberg sees it, and he wants it shut down for good.

'The best way to close Guantanamo is to open Guantanamo,' said Eisenberg, who often speaks at colleges and forums about his Guantanamo Bay experience. 'Americans don't want this done in their name.'”

A year later, while still representing these clients, Eisenberg wrote an article for the Spring 2009 edition of the Northeastern Law Journal, Vol. 1, No. 1, entitled “Guantanamo Bay: Redefining Cruel and Unusual”

He writes,

“Representing Guantánamo detainee Mohammed Abd Al Al Qadir (Guantánamo Internee Security Number 284) has been an experience unlike any other of my legal career. While serving as counsel for Mr. Al Qadir (also known as Tarari Mohammed), …I encountered numerous obstacles unique to Guantánamo cases. Convoluted administrative procedures, allegedly implemented to protect national security, made representation difficult for lawyer and client alike.

In 2004, the U.S. Department of Defense issued procedures to assess the need to continue detaining enemy combatant detainees. Three years later, Tarari Mohammed was cleared for release or transfer. Nevertheless, he was still detained in Guantánamo Bay’s Camp 6 as of our March 20, 2008 visit. …[W]e saw our client shackled to the floor, as always, and immediately noticed he was wearing a white respirator on his face. The respirator was of the sort a contractor wears when working with toxic materials.”

Eisenberg continues to write about how Tarari had met with a representative of the International Committee of the Red Cross three weeks earlier, who brought a letter from his sister.

“The letter was the first and only communication our client received from any member of his family in over six years of detention. In the letter, Tarari’s sister informed him of their mother’s death…[she] had been distraught over her son’s detainment…At the conclusion of their meeting, the [Red Cross] representative told Tarari that his family had not received any letters from him. Tarari explained he had written and sent many letters during his detainment. The military never forwarded the letters.”

Cut off from his family and the outside world, Guantanamo guards accused him of spitting (a charge denied by Tarari), and then made him change from his white clothing (signaling a compliant prisoner) to an orange suit (signaling non-compliance) and forced him to wear the respirator as punishment for the supposed act of spitting.

Such is the nature of 7 years in detention, without charge, without trial, without access to the outside world.

This is the fate that could await any American citizen, at the hands of its own government, under the provisions of NDAA. And this is why the Due Process Guarantee Act is so critical to pass.

Call the Judiciary Committee Members. Insist that they pass DPGA.

Patrick Leahy (D-VT) [Chairman] 202-224-4242
Herb Kohl (D-WI) 202-224-5653
Dianne Feinstein (D-CA) 202-224-3841
Charles E. (Chuck) Schumer (D-NY) 202-224-6542
Dick Durbin (D-IL) 202-224-2152
Sheldon Whitehouse (D-RI)202-224-2921
Amy Klobuchar (D-MN) 202-224-3244
Al Franken (D-MN) 202-224-5641
Christopher Coons (D-DE) 202-224-5042
Richard Blumenthal (D-CT) 202-224-2823
Chuck Grassley (R-IA) 202-224-3744
Orrin G. Hatch (R-UT) 202-224-5251
Jon Kyl (R-AZ) 202-224-4521
Jeff Sessions (R-AL) 202-224-4124
Lindsey Graham (R-SC) 202-224-5972
John Cornyn (R-TX) 202-224-2934
Mike Lee (R-UT) 202-224-5444


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Federal Judge: DOMA is Unconstitutional; Congress acting "like an Ostrich"

In a brilliantly-crafted decision, Federal District Court Judge Jeffrey S. White of the Northern District of California has found DOMA Unconstitutional. His decision, while echoing and supporting a similar ruling by Massachusetts District Court Judge Joseph Tauro, goes even further than the July 2010 Massachusetts decision did.

The decision specificially declares that laws that discriminate on the basis of sexual orientation must be reviewed with the same scrutiny as laws that discriminate on the basis of race; trashed every arguement that Congress put forth in the passage of DOMA (including stating that "Congress cannot, like an ostrich, merely bury its head in the sand"); denied the right of Congress to impose its own version of 'morality' or "religion" on the issue; and compared DOMA to efforts to prevent interracial marriage.

And for icing on the cake, Judge White closed the decision by quoting U. S. Supreme Court Justice Anthony Kennedy, seen by most Court-watchers as the moderate, key swing vote when this issue eventually gets to the Supreme Court.

The 43-page decision has been reduced to its barest elements below and is worth a read.


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
KAREN GOLINSKI, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN BERRY, Director
of the United States Office of Personnel Management, in his official capacity, Defendants.

BACKGROUND

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit.

Ms. Golinski has been partners with Amy Cunninghis for over twenty years...On August 21, 2008, they were legally married under the laws of the State of California. Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women.

Defense of Marriage Act.

This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski...Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.

In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite sex who is a husband or a wife.”

The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” ...Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Congress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare.

Equal Protection Analysis and Standard of Review.

The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) . This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011). It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.

In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. Laws that do not burden a protected class or infringe on a constitutionally
protected fundamental right are subject to rational basis review. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest.

[Bloggers legal note: The above is a critical Legal issue. If a law is passed that discriminates against a group considered a 'suspect class' such as race, the government must prove that the discriminatory law is "substantially related" to an "important government objective." If it discrimninates against other groups, it only has to prove that there is a rational basis for the law, and that it "furthers a legitimate government interest."]

Level of Scrutiny

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples.

Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasisuspect class entitled to heightened scrutiny, the Court must look at various factors. The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
power of the subject class.

The Question of Level of Scrutiny is Still Open.

The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect). …No federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.

1. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination…

2. Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society…

3. The Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

4. Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny.

[Blogger's legal note: in other words, sexual orientation must be seen similar to race or national origin. Heightened review of the law applies, and the government must prove that the discrimination is "substanbtially related to an important government objective."]

Application of Heightened Scrutiny to Justifications Proffered for DOMA.

Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.”

[Blogger's Legal Note: Congress elucidated four reasons for the passage of DOMA, as described below]

1. The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing…Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does nothing to encourage or discourage opposite-sex couples from having children within marriage. Accordingly, the Court finds that the first proffered reason for the passage of DOMA does not provide a justification that is substantially related to an important governmental objective.

2. The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage…[T]he ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA…Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. Accordingly, the Court does not find that the second proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

3. The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny…The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The
obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Accordingly, the Court does not find that the third proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

4. The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc[ally.] In addition, the preservation of government resources cannot, as a matter of
law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 U.S. at 227, 229…Accordingly, the Court does not find that the fourth proffered reason for the passage ofDOMA provides a justification that is substantially related to an important governmental objective.

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

[Parallel with Anti-Miscegenation Laws]

Proponents similarly argued that the long-standing tradition of the separation of the races provided justification for prohibiting interracial marriage. The lower court in Loving v. Virginia found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will,
flaunted a long history of tradition and, at its core, endangered the institution of marriage. However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee.

…[T]his Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law. Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring)


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Maine Republicans: Where's Waldo?!

[Important update at end of post]

Last week, the Maine Republican Party reported that Mitt Romney had defeated Ron Paul in the state’s caucuses by a scant 194 votes. The mainstream media dutifully reported this ‘fact,’ and went on to other issues. Political Bloggers, however, would not let the issue rest, as the announcement was made before 17% of the precincts in Maine had voted. The state party openly admitted that the votes from Washington County had not been included in the final count, as the precincts in that county had not yet cast votes: they were postponed until this weekend due to the forecast of a major snowstorm. The decision to exclude Washington County raised eyebrows, as that county is home to the University of Maine at Machias, and is expected to return a strong vote for Ron Paul.

But now it appears that other precincts throughout the state – including those that actually voted on the February 11 Caucus date – were also not included. In particular, Waldo County – the mid-coast county where this blogger’s family owned a camp for four generations – was almost entirely left out from the total vote counts.

The city of Belfast, a working-class city of 6,600 people at the head of the Penobscot Bay, and next-door Searsport, a similar port of 2,600, turned in “0 votes” according to the final tabulation just released by the state Republican Party, even though both places held caucuses on the 11th. In all, 20 of the 26 Towns in Waldo County were omitted from the announced vote totals. Suspicion of a stolen election is growing, as some of the Waldo County towns with known returns delivered significant margins to Ron Paul: Paul defeated Romney by 16-3 in Montville, and 9-1 in Palermo.

And the “clerical oversight” wasn’t limited to Waldo County: in neighboring Kennebec County, the city of Waterville – a city of 15,000 residents with a poverty rate twice that of the state and not likely fertile ground for Mitt Romney – were not included in the state party’s official returns.

The Bangor Daily News, one of Maine's two statewide newspapers, reported yesterday that “Pressure is mounting on the Maine Republican Party to reconsider its weekend declaration that Mitt Romney won the state’s caucuses…”

Indeed.

In the meantime, in spite of all of their fancy screens and bells and whistles and election analysts - - -where have the major networks been on this story?

UPDATE:The Mainstream media continue to ignore it, but the Blogosphere has apparently forced Maine GOP Chairman Charlie's Webster's hand: GOP HQs emailed all party leaders today (Thursday, Feb 16) with this message: “County Chairman & Town Chairman [sic], We are reconfirming the totals from the Presidential Preference Straw poll. Can you please EMAIL ME the totals from your towns. For County Chairman [sic] if you are emailing the total for your entire county can you please list the towns that are included.” Read more at Politico

In addition, the Waldo County Republican Committee took a vote of no confidence and called for the censure of party chairman Charlie Webster.

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Mitt Romney steals Iowa in January, Maine in February

On the night of January 3, Iowa state Republican officials – partisans of the ‘establishment’ Republican Party - announced that Mitt Romney had won the Iowa caucuses by a mere 8 votes. But a win is a win, and the establishment officials who organized the capital area (Des Moines and West Des Moines) for Romney were relieved, especially since Romney was losing counties he won all over the state the last time he ran.

But then, a few weeks later, a new vote total was announced: On Jan. 20, some uncounted votes were “discovered,” and Rick Santorum was declared the winner by 34 votes. Panicked that the establishment favorite would be seen as a loser, Iowa GOP Chair Matt Strawn said no winner could be certified because the votes of eight additional precincts were “missing.” (Strawn resigned as party head Jan. 31).

Romney would go on to win New Hampshire and Florida, but face embarrassing defeats in South Carolina, Colorado,, Minnesota, and Missouri. The last thing Romney needed was yet another defeat in Maine.

And so, Maine State Republican Chairman Charlie Webster announced an hour ago that Mitt Romney won the Maine caucuses with 2,190 votes, and that Ron Paul came in second with 1,996 (39% - 36%). The difference between the two candidates – a mere 194 votes – offers a much-needed, but still razor-thin win by Romney.

But wait....are the caucuses over?

The media have simply parroted Webster’s announcement that Romney has won by 194 votes. But the reality is that 17% of the precincts in Maine have not yet voted - and Webster is insisting he will invalidate them.

Those precincts include voters from the University of Maine at Machias, in the heart of Washington County. Ron Paul has, so far, won the plurality of votes cast among college students in every state in which a primary or caucus has been held.

Maine's caucuses do not all happen at the same time, as each Town decides how to conduct their own caucuses. In Maine, caucuses began as early as February 4 and continued throughout the week. But the results announced this past hour only account for just 83 percent of all of the precincts in the state. Caucuses in Washington County, which were originally scheduled today, were postponed until next weekend because a major snowstorm hit today.

The official weather forecast:

Moderate to heavy snow and strong winds will create very hazardous traveling conditions. Frequent blowing and drifting snow will cause near whiteout conditions at times.

Schools and other meeting facilities were closed.

Is it possible, in a County of almost 33,000 residents and a university campus, that Romney's “victory” margin of only 194 votes might disappear?

Webster doesn’t want to take any chances. In an effort to preserve a Romney victory at all costs, Webster declared that any caucus results that come in after tonight would not, under any circumstances, be counted.

A century and a half ago, there was a common political cliche that said, “As Maine goes, so goes the nation!.” This was not necessarily because Maine was a bellweather state, but because Maine voters would cast their votes in September, rather than on the usual national November Election Day. Yankee pragmatism suggested that the threat of severe winter weather in November should naturally mean that Mainers be given the chance to cast their votes earlier in the season, when they weren’t likely to be battling two feet of snow and freezing rain.

And so, in another pragmatic decision that was supported by a century-old, long-honored Maine tradition, Washington County officials delayed the caucuses because of severe February winter weather. But Webster won't count them.

Apparently, Webster is more interested in disenfranchising voters and securing a Romney win at all costs...making Maine the second state stolen by Mitt Romney in the Republican race for the nomination.


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City of Keene, NH seeks "Bearcat" Military Tank; America's Police continue to Militarize

The United States appears to be rushing head-long into a full-fledged Police State. Tasers. Pepper Spray. NDAA. Drones. And now, military tanks as “police” vehicles.

On June 6, 2011, in Oakland Park, Florida, James Doe, who was 31 years old and only 130 pounds, was tasered by police while he was handcuffed and locked in the back of a cruiser. He fell limp, and was pronounced dead upon his arrival at Florida Medical Center. James was just one of 40 deaths that occur every year as a result of the unnecessary or excessive use of Taser equipment by law enforcement officials.

Backtracking: In Chicago, a team of research scientists and doctors at the Cook County hospital trauma center stunned 6 pigs with two 40-second Taser discharges. All six animals exhibited heart rhythm problems. Two subsequently died of cardiac arrest. A San Francisco cardiologist and electrophysiologist, Dr. Zian Tseng, determined that a healthy individual could die from a Taser discharge, depending on electrode placement on the chest and pulse timing. Taser International then contacted him, asking him to reconsider his statements to the media on the subject, and then offered him “funding” to further his research. CBC News Story.

But Taser International is hardly the only private firm that profits by militarizing local police forces.

This Blog has been particularly critical of the increasing use of Pepper-Spray by Police forces. Excessive and indiscriminate use of the chemical has been used with increased frequency across the nation, particualarly at Occupy Protests; several photos and videos that caught pepper spray incidents in New York and at U. California–Davis went viral and heightened public attention and condemnation of the practice.

(see U C Davis Pepper Spray and NYPD Pepper Spray )

Police reactions in both cases initially consisted of lies and cover ups which couldn’t stand up to the evidence in the videos, and the officers in both of those cases were disciplined. Unfortunately, even as I write this, the state of Florida is now investigating the case of Nick Christie, a 62-year old mentally ill man who was bound, restrained and tied to a chair in a Flordia jail and coated with pepper spray in 2009. He died two days later.

Pepper spray was approved in the US for police use in spite of objections by US military scientists in 1991, and is now in use in 2,000 local jurisdictions. Subsequent to that approval, it was discovered that Thomas W. Ward, the head of the FBI's Less-Than-Lethal Weapons Program who approved pepper spray’s use on civilians, received payments from Luckey Police Products, a pepper spray manufacturer, while authoring the FBI study that led to its use. Ward received $57,500 in increments of $5,000 a month paid through his wife. He was sentenced to two months in prison.

In the meantime, various courts have declared its use to be cruel and excessive, and twelve citizens die each year from pepper-spray induced asthma attacks or asphyxiation.

News of the increased militarization and forcefulness on the part of American officers “of the peace” are accelerating with frightening speed. Congress recently passed the NDAA bill, permitting the military to detain US citizens without trial or charge indefinitely; the Obama administration has admitted to the expanded use of spy drones over the United States; and after the Super Bowl this past weekend, state and local police arrived in riot gear and on horseback at the University of Massachusetts–Amherst campus, “in anticipation” of student crowds. When the police decided the crowd on the public, state-owned property was "too big,” they moved in and dispersed students who, up to that moment, had broken no law and caused no damage.

And so, in this atmosphere of the growing American Police State, the city Council of Keene, New Hampshire has attempted to purchase a military tank, without public input, for the purposes of “rescue missions."

The City of Keene recently announced that its would use a grant of $285,933 from the Department of Homeland Security to purchase a "Bearcat" vehicle from LENCO, a company that prides itself on developing and selling vehicles for military and SWAT-team use. Of 15 City Councilors, only one – Terry M. Clark – opposed the purchase.

After the Council vote, citizen response was swift. A petition in opposition to acquiring the Bearcat was delivered to the City Council, signed by 144 residents. The opposition has crossed political lines, uniting conservatives, liberals, and libertarians. Initially, the City Council decided that they would simply “accept” the petition without discussing the issue again. Council Member Terry Clark then formally requested that the issue be returned to the City’s Finance Committee for a public hearing; the Council agreed, and this Thursday, Feb 9 at 5:30 pm the first public hearing on the issue will be held.

In the meantime, LENCO is attempting to backtrack. The Bearcat purchase is being ‘recast’ as an effort to purchase a “rescue” vehicle that will help Keene citizens in need. The LENCO website, however, approaches this issue quite differently. On its Website advertising six varieties of Bearcats (its domain name is, tellingly, “SwatTrucks.com”), LENCO describes the vehicles as having the following attributes:

“Primary APC used by SWAT & SRT, Military Police, and Security Forces”

“Designed for Military personnel. Military-style turret can be configured for .50 caliber Dillon Mini-Guns and CROWS.”

“All Military Spec Steel construction. Currently used by SWAT and Special Op Teams at high security facilities.”

“V-Hull Blast Shield protects against grenades and IED attacks”

None of these sounds like the attributes of a “rescue” vehicle. In fact, LENCO had a video advertisement on YouTube that promoted its product: it showed military and SWAT teams exiting the vehicle, firing military weapons, drilling holes through house walls, and spraying toxic gases.

In the heat of the controversy, LENCO pulled the video ad off of YouTube.

But thanks to our friends at CopBlock, the video is included here. You watch, and you decide, whether this is a “rescue” vehicle or another military toy to facilitate the police state’s intimidation and control over the citizenry:





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9th Circuit Overturns Prop 8. Ruling, History, and Next Steps

The 9th Circuit Federal Appellate Court has just ruled in a 2-1 decision that Proposition 8, the California initiative that ended Marriage Equality in California, is Unconstitutional under the 14th Amendment of the US Constitution, which guarentees citizens the equal protection of the law. The three-Judge panel consisted of Stephen Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

From today's ruling:

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

In making this ruling, the Court (which has federal jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, and the territories of Guam and the Northern Mariana Islands) made two other rulings: it held that the lower federal district court Judge, Judge Vaughn Walker, who initially found Prop 8 Unconstitutional, did not have to disqualify himself from the case simply because he himself is gay; and it affirmed the right of a conservative citizen's group to defend Prop 8 in Court. This ruling represents the first time that an Appellate federal Court has held that discrimination against gays and lesbians seeking to marry violates the US Constitution, and accelerates the likelihood that the entire US Supreme Court will hear the issue in the next term.

This Blog has followed the Prop 8 case closely because of its national significance. Here is a "plain language" timeline of the events leading up today's ruling:

May 15, 2008: The California Supreme Court rules 4-3 in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384
that Marriage is a fundamental right, and California's statutes prohibiting same-sex marriage were therefore Unconstitutional under the State Constitution. Same-sex Marriages began in California shortly theafter.

Nov 4, 2008: California citizens, through a popular referendum vote of 52%-48%, adopted a Constitutional Amendment to prohibit same-sex marriage. The ballot question was known as Proposition 8 ("Prop 8" for short).

May 26, 2009:Supporters of same-sex marriage bring suit in State Court, challenging the process by which Prop 8 was adopted. The State Court rules, 6-1, that the process was valid, and Prop 8 was a valid amendment to the State Constitution.
(see Blog post )

Aug 4, 2010 – In a move initially seen as controversial by some gay rights activists, supporters of same sex Marriage then chose to sue in Federal District Court, claiming that Prop 8 violated the Federal Constitution. Federal District Court Judge Walker agreed, and overturned Prop 8. (See details at
Blog Post Walker's order declaring Prop 8 Unconstitutional was then stayed ("put on hold") pending appeal to a higher level (the 9th ircuit Appellate Court).

Nov 17, 2011 – Governor Schwarzneggar refused to appeal the ruling on behalf of "The State," enraging conservative activists who sought standing to challenge Walker's ruling on appeal. The Federal Appellate Court was asked to overturn Walker's ruling by conservatives, but that court first had to decide whether the conservatives even had "standing" (or "the right") to sue in the first place, since the Governor and Attorney General of California would normally be the parties involved in defending the law. The Federal Court chose to ask the California State Court whether a citizens group had the right to sue under State law. The state court ruled that indeed, the conservative citizen group had the right to sue, (see Blog Post .)

With that as background, the 9th Circuit Appellate Court had to decide the following questions before it:

(1) Did the conservative citizen's group also have the right to sue in federal court?
(2) Did Walker have to disqualify himself?
(3) Was Walker's ruling overturning Prop 8 correct as a matter of Law.

The Last point is particularly important. In legal cases, *only* the Trial Court (the lowest court) hears and determines issues of *fact.* That means that evidence concerning the effect of discrimination on gays, the history and purposes of marriages, and psychological and medical facts surrounding homosexuality was all entered into the record and decided in Walker's Courtrom. It can not be questioned on appeal. It has been widely acknowledged by people on all sides that the conservatives arguements were extremely poor and not well supported by evidence; several of their witnesses even backed out of testifying at the last minute.

This is critically important for the next steps.

Chances are, this ruling today will be stayed ("put on hold") pending another appeal by conservatives to one of two bodies:

They can appeal to the FULL 9th Circuit. The current decision was issued by a panel of three justices from the 9th circuit, which is standard procedure. The conservatives can request that a "full bench" hear the case(called a hearing "en banc"), which would involve 11 of the 9th circuit's 28 justices.

Or, they could appeal directly to the U.S. Supreme Court. Many observers are skeptical that the US Supreme Court would take the case however, because the 9th Citcuit wrote their decision very narrowly: they decided that the California law, in light of the process followed in California, violated the US Constitution; they did not rule that prohibitions against same-sex marriage "in general" violated the U S Constitution.

According to Shannon Minter, legal counsel for the National Center for Lesbian Rights:

"Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case. The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances. Unless the Supreme Court breaks with its own tradition and intervenes in the case, it's possible that wedding bells will be ringing in California again before the end of the year."

In any event, the issue of same-sex marriage as a federal Constitutional right is not yet established...but it is one step closer.

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Why a Gay Man Gets Excited About Super Bowl XLVI

It’s the stuff that Disney feel-good movies are made of: my single memory of playing football in junior high school was accidentally catching a ball that somehow landed right in my hands - - and then running in the wrong direction.

I have a similar memory from basketball. I would always allow myself to be blocked, so that there would never be a chance that I would actually catch a pass. But one time it somehow happened (I think the opposing team just gave up on bothering to cover me). I caught the ball. In my panic, rather than pass it or dribble it, I ran with it. Ooops.

There was the wrestling demo in grade school, where the gym coach flipped me around and my neck cracked as it bent backwards and I ended up seeing stars for 30 minutes. And the little league game where the pop-up fly landed not in my glove, but hit my voice box square-on, causing me to black out.

Now, I shouldn’t make it sound like I’m a TOTAL dork...I can play volleyball pretty well, I’ve finished (poorly) in a few 10k foot races, I used to ski fairly well, I can bowl and shoot, and I found some major mojo in the gym once I saw the results in my arms and chest from a lot of hard work while weight training.

Still, it is a little odd that the kid who used to find any excuse in the world to escape gym class; who openly identifies with the gay community; and who only learned at the age of 51 how to throw a football with a spin (thanks to his teenage son) – can actually get excited about the Superbowl.

And that excitement is not just limited to the Superbowl - as an adult, I have enjoyed the World Cup in a gritty pub in Holyhead, Wales; followed the NY Mets during the US Baseball season; and remain fascinated by rugby and the culture surrounding it. Somewhere I decided that my relative incompetance and ignorance in sports skills did not have to last forever. But for the most part, I am still a very ‘late bloomer’ compared to my male counterparts when it comes to sports, so it stretched me to my limits six years ago when I created a college-level course in Sports Economics. When it comes to discussing the media revenue streams to the NFL or the salary structure of pitchers in MLB, I can hold my own – but when my students start throwing around names and statistics and player numbers, I get that butterflies-in-the-stomach feeling I got when that football somehow landed in my hands in junior high.

Reading through the threads on Facebook today, many of my gay friends are making funny comments about the Superbowl, and being kind of campy about it…looking forward to Madonna’s half-time show, wondering how well the uniforms will fit, preparing to make Cosmos, and musing about how good-looking the ‘goalies’ will be. All in fun, all acknowledging in a sideways kind of ways that they, too, like me, were the “outsiders” as kids who never “got into” sports, and for whom sports was a dreaded opportunity for humiliation.

But aside from the tongue-in-cheek and campy threads, there are many more that are basic “hurray-for-our-side” or “Who are YOU supporting today?” threads. And therein lies, I think, one of the reasons for the pervasive hold that professional sports has on our society.

In teaching that Sports Economics course, the very first topic we seek to answer is a deceptively simple question:

What is the product that professional sports is selling?

Students who take the course are often sports-a-holics; with the exception of one or two females per class, they are exclusively male; and they are often the kinds of jocks with whom I had *nothing* in common in junior high or high school. As they grapple with this question, they often wrestle with the idea that Professional Sports is ‘selling’ leadership, teamwork, safe expressions of warrior-hood and male aggression, unrealized dreams, superstar brands, and entertainment; and to be honest, there are elements of all of these things at work in sports.

But the conclusion they always reach is that Professional Sports teams are selling something much more elusive in today’s society: Identity.

Both of my grandfathers worked their entire lives in a single company. My dad worked in several capacities for the same government unit his entire life, and my mom worked for one company for the majority of her adult life.

On the other hand, between the ages of 24 and 52, I have worked at nine different jobs.

My mom and dad got married and bought a house that was 3 blocks from where my mom was raised, and one mile from where my dad was raised. When they retired, they moved to smaller condominiums and apartments within two miles from there (They originally moved to Florida for a short time, but realized they wanted to be "home" and they came back to NY). My mom still lives in the same community in which she was raised. My father’s distant relatives remain in the NYC, all within an hour of where his ancestors stepped off the boat 370 years ago.

On the other hand, though I was born and raised in NY, I left there at the age of 30: I have since lived for 8 years in Massachusetts (in three different houses) , and 14 years in New Hampshire (in six different places). Statistically, I’m typical of most Americans: according to the 2010 census, the average American moves 12 times in a lifetime (which explains why I am about ready to ‘retire’ and settle down a bit!)

In this fast-paced century, where people have Facebook ‘friends’ they have never met on the other side of the world, where they move every 8 years, and where they change jobs 10 times before the age of 42 – “where is home?” What is “home?” With a growing integration of ethnicities into the American salad bowl, a growing number of US citizens simply call themselves “Americans” on the US Census rather than holding to older European nationalities (I did this myself on the 2010 Census: it was easier than choosing more than 10 ethnicities).

And so, with global communications and fast-paced mobility, Professional Sports Teams offer a sense of ‘belonging,’ of identifying with a particular location regardless of one’s ‘temporary’ or ‘transient’ station in life. Today’s Facebook threads are full of people emphatically supporting the NY Giants or the New England Patriots – and the strongest fans are precisely those who see one of these teams as their “home team.” Their identity is, in some way, wrapped up in these non-military warriors representing the “homeland.” Native New Yorkers living in California will root for the Giants; native Bostonians in Texas will be cheering for Tom Brady.

And for that reason, this gay man who couldn't throw a football until last year is preparing the guacamole dip, reading the online sports news, spicing the shrimp soup, picking up some more beer, watching his boyfriend wire up the surround sound system, and getting out the ingredients for some kick-ass Hero sandwiches.

And routing passionately for Eli Manning and the New York Giants.

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Washington State Senate Approves Marriage Equality; Governor Promises to Sign

By a vote of 28-21, the Washington State Senate has just approved SB 6239, moving that state just a few days away from being the eighth American jurisdiction to establish Marriage Equality for same-sex couples. A companion bill in the State House, HB 2516, is widely expected to pass by a comfortable margin, and Governor Chris Gregoire has already announced that she will sign the bill if it gets to her desk. With California’s Marriage Equality law suspended while courts rule on the legality of “Proposition 8,” Washington would become the only western state at the current time to grant full equality to same-sex couples.

The issue was scheduled to be voted on at 6:00 pm Pacific Time, but due to seventeen amendments that were offered and breaks for party caucuses, the final vote did not take place until almost 8:00 pm. Most of the amendments were written to safeguard religious institutions and organizations, not unlike the clauses that were added in the New Hampshire and New York Marriage Equality debates, but were actually redundant as they reiterated protections already codified in state or federal constitutional law. One of the amendments included protections for faith-based social service agencies, which would exempt religious adoption agencies from litigation for refusing to place children with gay families. Proponents agreed to 13 of the 17 amendments, including the exemption for adoption agencies, and these were adopted unanimously with little fuss on the floor.

A few amendments did spark controversy, however. Amendment 15 sought to exempt public officials from performing same-sex marriages if they harbored personal religious objections. It was rejected on a voice vote.

Amendment 14 would have exempted businesses from providing services for gay ceremonies; in an early test of the eventual fate of the bill, Amendment 14 was defeated on a roll-call vote of 22 yeas and 27 nays.

Of all the amendments offered, Amendment 10 was the critical test. Amendment 10, the so-called "Referendum Amendment," sought to subject the eventual decision to a public vote. A call to "let the people vote" is a tactic that opponents of Marriage Equality have used as a rallying call in numerous states, including Maine (where voters repealed an Equalty law) and New Hampshire, where Marriage Equality remains intact. The effort to require a public vote failed by a vote of 23 to 26, foreshadowing the final vote.

Just before the vote was taken, Democratic Senator Kevin Ranker (40th District, San Juan Islands) delivered an emotional speech on the floor about his own father's coming out process and the impact of shame and discrimination on families, ending his statement saying, "today I am proud to stand on the right side of history, to fully support marriage equality and mostly, proud of my father."

While the Senate split largely along party lines, four Republicans, including Cheryl Pflug of Maple Valley and Steve Litzow of Mercer Island crossed the aisle and supported the measure, while three Democrats bolted opposed the bill.

Washington has wrangled non-stop over this issue for almost 15 years, and the vote tonight represents a seismic shift in opinion over those years.

In 1998, state legislators voted to ban same-sex marriage altogether, endorsing a state-wide version of the so-called federal DOMA (Defense of Marriage Act) statute. But in 2006, legislators also adopted Washington’s first civil rights statute for gays, followed one year later with a mechanism that allowed for the registration of Domestic Partnerships. Soon thereafter, lawmakers adopted a civil unions statute that awarded same-sex couples the same rights as opposite-sex couples, except for the title of “marriage.” Conservative groups gathered enough signatures to bring this measure up for a popular vote on November 3, 2009, known as Referendum 71 (or “R-71” for short). But in a stunning turnaround of popular opinion, voters in Washington approved the measure by a vote of 53% - 47%.

The current effort to enact full Marriage Equality came down to the wire, as supporters came into the vote seemingly one vote shy of the necessary of the 25 Senate votes needed. Last week, Sen. Jim Kastama of Puyallup announced he would support the measure in the Senate, bringing the number of Senators in favor of the measure to 24, where support appeared to stall, and 6 Senators remained undecided. Reminiscent of the battle in New York State, intense lobbying ensued, with formal support being offered by Nike, Starbucks, and Microsoft, three of the state’s most visible employers. In October, a University of Washington poll found that 43 percent of Washington residents supported the measure. While still less than a majority, this was a significantly higher percentage than the 30% who supported such a measure in a poll taken in 2007. During the debate on the amendments, news services reported that Seanator Brian Hatfield announced that he would provide the 26th vote in favor of the Bill.

Assuming the bill is passed in the House and signed by the Governor, as expected, the law would take effect in June unless opponents find a mechanism to forestall its implementation in court or through petition and referendum.

Court Nomination of Bruce Harris Should be Opposed

[MAY 25 UPDATE HERE]
In spite of the fact that the latest census reveals that 41% of the residents of New Jersey are minorities, the New Jersey Supreme Court remains an embarrassingly monolithic 100% white. In an effort to show sensitivity to issues of diversity, Governor Chris Christie recently nominated two new court members – Phillip H. Kwon, a Korean immigrant, and Bruce Harris, an openly gay black man. The nomination of Harris was initially greeted with excitement in civil rights circles, especially since Harris is both openly gay and partnered.

Unfortunately, Harris’ appointment is conditional upon his recusing himself from any same-sex marriage issues. Governor Chris Christie is on record as opposing same-sex marriage. Christie insists that Harris voluntarily offered to recuse himself, supposedly because three years ago he wrote to several state senators asking for their support of a same-sex marriage bill.

Whether this is Harris’ unsolicited offer or Christie’s requirement is immaterial: it is a dangerous (and illogical) precedent that enables the Executive and Legislative branches to stick its collective noses into the outcomes of judicial cases where it doesn’t belong.

Every Court nominee arrives at the bench with a history of advocacy, either through the legislative process, or through written judicial opinions. This is nothing new. What is new is the pre-emptive strike against specific judges from hearing certain issues.

When President Obama nominated the Hon. Sonia Sotomayor to the United States Supreme Court, there was a brief storm of opinion when she commented, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, who was ultimately confirmed to the Court, was not suggesting that Latina women were somehow smarter than white men; rather, she was expressing a well-settled understanding that diversity is important in the legal system. Those who have struggled to answer a police officer’s question because they do not speak the language; a woman who has feared for her life in spite of a restraining order issued against her abusive boyfriend; an immigrant afraid to report a crime because of their residency status; and a gay man who is denied justice after being beat on the street by someone who then claims the ‘gay panic defense' - understand life and the American legal processes in ways that are different than those who do not have to deal with such issues. That is why diversity is important, especially in the Judiciary.

To be certain, Judges should recuse themselves from some issues. Title 28 of the United States Judicial Code set standards for judicial recusal, naming four specific occasions. A federal Judge must recuse himself:

1) "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
(This would not apply to Harris, since there is no particular case with identified parties at hand)

2) when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome;
(This would also not apply to Harris, since there is no specific case at hand)

3) when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding. (This would not apply to Harris, since there is no particular case with any identified financial interests at hand)

4) in any proceeding in which his impartiality might reasonably be questioned.

This is the only criteria where, on its surface, Harris might be accused. A logical analysis, however, as well as history, shows this to be utter nonsense.

Having an opinion on a legislative issue (what “should be”) does not inply that impartiality on a judicial issue (how the law “is” to be applied) is compromised.

First of all, being gay does not disqualify Harris from ruling on marriage issues. If it did, his being a black man would also disqualify him from racial discrimination cases. Furthermore, if being gay disqualifies him from cases involving same-sex marriage, then being heterosexual or married would also disqualify most other judges, since the opponents of gay marriage claim that same-sex marriage harms traditional marriage. This would disqualify both gays and judges in traditional marriages, thereby creating the unacceptable situation of only allowing single judges to rule in such cases.

Second, Harris’ advocacy on behalf of gay marriage can not possibly be deemed to render him impartial in a legal case. As stated above, advocacy for legislative issues does not imply impartiality in Judicial cases. As proof of this, I offer none other than Reagan-appointed Supreme Court Justice Sandra Day O’Connor.

As a State Senator in Arizona, O’Connor not only advocated, but acually cast a procedural vote in favor of a bill to repeal the state's criminal-abortion statute. Later, she voted against a measure to prohibit abortions in Arizona state hospitals. In spite of this, no one ever suggested that O’Connor needed to recuse herself from abortion cases before the Court, and she was confirmed by a vote of 99-0.

Later, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which upheld some restrictions on second trimester abortions, O’Connor not only participated, but wrote a concurring opinion in which she explicitly opposed overturning the landmark Roe v. Wade abortion decision. In 1990, she was the critical swing vote in Hodgson v. Minnesota, 497 U.S. 417 (1990), which looked at whether a state may require notification of both parents before a minor can obtain an abortion. Again, O’Connor not only participated, but provided the swing vote with the liberals in ruling 5-4 that a state could not do this, and then also provided the critical swing vote with the court conservatives in ruling 5-4 that such a law would be valid if there was a judicial by-pass in place of notifying both parents.

Never in the course or aftermath of these decisions was it ever suggested that Sandra Day O’Connor should have recused herself due to having a position on abortion issues as a state legislator.

The notion, then, that Harris should recuse himself from same-sex marriage cases simply because he favored same-sex marriage legislation in New Jersey is not only unprecedented, it is dangerous: it eviscerates the entire purpose of appointing a representative, diverse court, and calls into question a judge’s integrity before he or she has even had the chance to hear a case.

The caveat that Harris recuse himself is an unacceptable condition of his approval. If this is Christie’s doing, shame on Christie; if it is Harris’ offer, then shame on him.

Either way, this nomination deserves to be defeated as a rejection of the politics of control over judicial rulings.


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Capital Gains Should be Taxed at Full Value: A Response to Dan Mitchell

Once a subject left to financiers and members of congress, the Capital Gains Tax has seen a much broader discussion this week. The combination of growing income disparity, Mitt Romney’s release of his income taxes two days ago, and President Obama’s call for more “tax fairness” in his State of the Union address last night has voters considering the societal implications of capital gains tax treatment as never before.

In brief, the Capital Gains Tax is a tax on income gained through the sale of capital assets, ie, income made by investing in a company, or by buying assets such as stocks and bonds at a low price and then selling them at a higher price. This type of income is taxed at a far lower rate than income earned through drawing a paycheck. Currently, if someone earns $100,000 from working at a job, that person falls into the 28% marginal tax bracket. However, if that person makes $100,000 by buying and selling stocks, they only pay a 15% on those earnings. The result has been that those who labor get taxed at one level, while those who sit back and “invest” by placing buy and sell orders with their online broker (and who produce *nothing* for the society) get taxed at far lower levels. This is the main reason why Mitt Romney, who made 20 million dollars last year, paid barely 15% of his total income in taxes, while average Americans making as little as 35,000 end up in the 25% marginal income tax bracket.

As Americans take a hard look at ending this preferential tax practice all together, corporate financiers have begun to circle the wagons to protect one of their most lucrative sources of income. On May 3, 2010, a video narrated by Dan Mitchell was uploaded onto YouTube titled, “Six Reasons Why the Capital Gains Tax Should be Abolished.” Mitchell is a former advisor to the Senate Finance Committee and currently a senior fellow at the Cato Institute, a libertarian think-tank. The video has been uploaded and embedded in right-wing and pro-corporate sites all over the web, including the National Review Online, Freedom & Prosperity.org, Kudlow’s Money & Politics Blog, Townhall.com, For Freedom’s Sake, the Lincoln vs. Cadillac website, and others. The original video can be found here.

In the video, Mitchell lists six reasons why the Capital Gains Tax should be abolished altogether.

This Economist takes the opposite position, and suggests that most capital gains should be taxed at the same rate as earned income. In support of our position, we will list refute Mitchell’s main proposition, which underlies all 6 of his arguments:

“The Capital Gains Tax results in less investment.”

This is the primary argument made by those who oppose the capital gains tax. They argue, with some validity, that the growth and expansion of business relies on investment; if potential investors are taxed for a successful investment, they will be more likely to place their capital somewhere where both risk and taxes are less, including in other nations.

I agree with part of this argument. The error, however, is his assumption that most capital gains actually come from ‘investment’ that assists an actual struggling or embryonic business. The vast majority of capital gains do NOT come from investing in a business; most capital gains come simply from stockholders buying and holding stock from other stockholders.

When someone with capital to invest purchases stock directly from a company issuing the stock, or uses its resources as “venture capital” in a private transaction to help grow a new company, there is direct investment. But when someone simply buys and sells equities on the stock market, not one penny is flowing to the business; rather, it is simply cash trading hands between shareholders. Such a purchase provides ZERO additional dollars to the business. Such “investors” generally do not participate in the corporations decision-making, governance, hiring, or expansion decisions. They use their wealth to purchase stock in an online transaction, follow it for a year, and ignore everything except how their ‘investment’ – which was purchased from another such ‘investor,’ not from the company – is doing. When the time is right, they access their account and hit the sell button…and make instant cash.

They produce nothing. They hire no one. They create nothing. They provide no expansion possibilities for businesses. And they are given preferential tax treatment for this.

The following table provides some indication of the number of these kinds of transactions for 10 random companies from different industry sectors (based on company quarterly filings and Yahoo! Finance compilations). The first figure represents the number of shares of stock issued by the company, over their lifetime, for which they received a payment, or investment, once. The second figure represents the number of shares traded between traders in ONE year, for which for the company received nothing, but which still qualifies as an ‘investment’ for capital gains purposes.

(Click to Embiggen):

In each case, the number of shares traded between traders in a single year far outweighs the amount of investment recorded by the company over that company’s lifetime.

The “problem” of a capital gains tax limiting investment can be fixed very easily: eliminate the ability of sales and purchases between traders to qualify as “capital gains,” while continuing it for actual direct investment. Such a change would incentivize direct investment in a company, make online gambling less lucrative, increase necessary tax revenues, and begin to end the system whereby honest laborers subsidize stock gambling.

Mitchell goes on to make the argument that the capital gains tax makes the United States less competitive in world markets. He argues that numerous nations have no capital gains tax whatsoever, and suggests that American companies and US investors would be likely to relocate or invest elsewhere because of this. Further investigation reveals that his video contains serious errors in this area. For instance, he lists the following nations:

Belgium, the Czech Republic, Mexico, and Portugal – He is simply wrong. Capital Gains are taxed at the Ordinary Tax Rate in Belgium and the Czech Republic. (There is in exception in the Czech Republic when between a parent company and a subsidiary). Mexico capital gains are taxed at 35%; Portugal taxes capital gains at 20%.

Hong Kong – while it is true that Hong Kong does not charge a capital gains tax, they *do* tax corporate executives on the full value of any stocks or stock options they receive as part of their compensation – at full value.

The Netherlands – He is correct in that the Dutch do not impose a capital gains tax based on the actual profit made on the sale of a capital asset; they actually do something far more onerous. They impose an Annual Wealth Tax on all assets, assuming that all assets will increase by 4% in value every year, whether they do or do not, and whether the asset is sold or not. It is, in effect, a presumed annual capital gains tax.

Switzerland – Corporations pay capital gains at the same rate as ordinary income; there are no capital gains taxes for individuals, *if* they are Swiss citizens, rendering Mitchell’s concern that US investors would flee to Switzerland moot.

Tax treatment that values gambling over the creation of goods and services, and that values “wealth making wealth” rather than compensating labor, is indeed class warfare…it is a declaration of war against laborers by the “investor class.” It is time to stop treating gambling as if it was investing, and to recover the wealth that has been steadily accumulating in the hands of the 1% because of our unequal treatment of income, as the following graph so vividly shows:

Hypocrite Newt Gingrich Calls for English-Only Nation, Runs Spanish Ads

At his fiery theatrical performance in the South Carolina debates, Newt Gingrich drew applause from the socially conservative crowd when he called for English to be the official language of the United States government. Such an act would require the repeal of the Voting Rights Act, which requires foreign-language ballots in voting jurisdictions where minority languages predominate. Gingrich also opposes the use of foreign languages in naturalization proceedings, and has called for allowing employers to require their workers to speak English only. He defends these positions by stating that English is the language of commerce, and that young Hispanics would have a better chance of obtaining a job if they spoke English.

But that hasn't stopped Mr. "English-Only" from spending thousands of dollars on Spanish-language advertisements or hiring spanish-language radio voice-overs for those ads.

Preparing for the Florida Primary, Newt is overtly courting the Cuban ex-patriot media market in Miami by running the following Spanish-language ad (Click link at end of post to hear the radio ad), which I translate (roughly) as follows:

"Barack Obama's lack of experience has resulted in the failure of our economy. He promised us more money. We have less. He promised us more employment. We have no employment. He promised to save our houses. We continue to lose our homes. We should not make the same mistake. This Jan. 31, vote for Newt Gingrich, the unique candidate with experience, leadership and an economic plan to heal our country that we love so much."

Then Newt chimes in:

"I'm Newt Gingrich, and I approve this message."

The Republicans have been tripping over themselves dividing the American populace, and seeking conservative votes at the expense of the poor, those receiving food stamp assistance, immigrants, and gays. Gingrich called Obama the "Foodstamp President," proposed janitorial work for poor young students, referred to Spanish as the language "of the ghetto," and opined that the poor have no work ethic. To cheers, he called for an English-only nation and has made fun of Mitt Romney's ability to speak French. But Newt forgets that Spanish was spoken in this country before English was - in fact, it was first spoken on this continent in St. Augustine, in the current Primary state of Florida (which is Spanish for "floral land"), in 1565 - more than four decades before English-speaking colonists arrived at Jamestown.

I'd like to give Newt credit for attempting to reach out to Spanish-speaking Americans with this ad; but his record of using minorities as throw-away talking points to win the affection of red-meat conservatives, and his brazen hypocrisy at calling for an English-only nation at one debate while simultaneously running spanish-speaking ads in anoter state, only further cements his place in history as an unethical liar.

CLICK ON THIS LINK TO HEAR THE AD:

Spanish Radio Ad

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Rupert Murdoch's Hypocrisy on SOPA/PIPA

Over the last week, internet activists and bloggers have inundated Congress with pleas to defeat the proposed SOPA/PIPA bills. These two pieces of legislation were purportedly drafted in an effort to stop web-based piracy of materials deemed copyrighted, trademarked, or patented; but the versions that emerged are overreaching controls that threaten to censor, blacklist, financially strangle and shut down sites that host user-uploaded materials, such as YouTube, Facebook, Blogger, Reddit, and Wikipedia. In the face of public outcry, many bill sponsors (as well as President Obama) withdrew their support, and it is unlikely that these bills, in their current form, will pass.

The bills continue to be supported by major music companies and corporate news outlets. The corporate news media are losing the battle to deliver time-sensitive and breaking news as bloggers, who have become an army of citizen journalists and photographers, have filled the gap left by sloppy and cavalier corporate reporting. The videos of pepper-spraying incidents at Occupy Wall Street protests became international symbols of the growing power of bloggers over the slow-responding corporate news media.

So it is not surprising that corporate news media mogul Rupert Murdoch had a near meltdown at seeing the SOPA/PIPA bills unravel this week. He took to Twitter and complained bitterly about Google (which hosts the popular Blogger.com site), accusing the them of being the “piracy leader,” of “plain stealing,” and of “hypocrisy” and “influence-buying” on Capitol Hill. Taken in a vaccuum, one might be led to think that Murdoch's fit of pique is an altruisitc defense of the ownership rights of various pictures, stories, and other copyrighted material.

Except for the fact that ‘across the Pond,’ Murdoch’s media empire is crumbling under the financial weight of being caught stealing privately owned information for its own profit.

In Britain, Murdoch has just agreed to pay damages to the first 37 victims of an organized and pervasive scheme his paper employed to hack private phone and e-mail messages. The initial settlements include $200,000 to actor Jude Law, $61,000 to Welsh Rugby player Gavin Henson, and $50,000 to Member of Parliament Denis MacShane. The total bill for the first 18 victims whose settlement details were disclosed amounts to more than $1 million, and police report that there are approximately 800 additional victims. Murdoch’s News Group also agreed to pay the victim’s legal fees, which came to as much as $300,000 per victim in this first round.

Lawyers for the victims stated that senior managers at Murdoch’s paper, “The News of the World,” not only knew about the hacking and theft, but also destroyed evidence and lied about it as part of a cover-up. Murdoch’s media empire has admitted that the hacking and theft of communications was pervasive, with hundreds of potential victims still left to deal with.

So it is a bit hard to believe that Murdoch has any real interest in the integrity of privately owned property. Rather, Murdoch’s only interest in SOPA/PIPA can only be attributed to an arrogant, unethical, and hypocritical effort to stifle competition and expand his own empire at all costs.


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Jan 18 Blackout in Protest of SOPA/PIPA

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On MLK Jr. Day: Republicans Seek to Suppress Voters

What’s a Republican to do?

As the South Carolina Primary approaches, Republican Presidential candidates are falling over themselves trying to prove that they are the most viciously anti-gay candidate. Mitt Romney, Rick Perry, Rick Santorum, and Newt Gingrich have all signed the NOM Pledge to end Marriage Equality in any state that chooses it.

And yet, Gallup Polls report that “…a majority of Americans (53%) believe same-sex marriage should be recognized by the law as valid, with the same rights as traditional marriages.”

In August, at the Iowa State Fair Mitt Romney openly argued that “Corporations are People.” And yet, Hart Research Associates found that 87% of Democrats, 82% of Independents, and even 68% of Republicans support a constitutional amendment to eliminate “corporate personhood.’

The New York Times has found that the majority of Americans – including Republicans and those earning over $100,000 annually – support slashing Executive pay at companies receiving bailouts. Meanwhile, Republicans continue to mumble on about supporting free enterprise and opposing limits on pay.

At every campaign stop, the GOP candidates have promised to repeal “Obamacare;” and yet, the provision of that act that guarantees that individuals with preexisting conditions can be covered by insurance is supported by 63% of the American public, who agreed that insurers “absolutely must” cover such people in a recent Wall Street Journal poll.

With the Republican Party so completely out of touch with Americans on issues of health care, the economy, growing wealth disparity, corporatism, and social issues – how can they expect to win the 2012 Presidential election?

By suppressing voter participation.

Since the GOP can not win the majority of votes based on issues, they have turned to making it difficult – or impossible – for the most ‘contrary’ demographic groups to vote at all: racial minorities, the poor, the elderly, and college students. Since the Rev. Dr. Martin Luther King Jr. devoted his life seeking the right to vote for all people, it seems appropriate on the holiday on which he is honored to expose these Republican efforts across the states.

Denise Lieberman, senior attorney with the civil rights organization, Advancement Project," stated:

“Heading into 2012, we are seeing the largest assault on the right to vote since the post-Reconstruction Era. This is an unprecedented attack on voting that could affect more than 5 million voters in 2012; in states that represent nearly two-thirds of the electoral votes needed to win the presidency. Twenty new laws and executive orders in 14 states stand to turn back the clock and make it harder to vote. In 2012, two-thirds of the states introduced legislation that could impede voters and more is on the horizon for 2012.”

The GOP Plan:

1) Require Government Issued Voter ID Cards with Photos

New in 2012, a non-expired, state-issued photo ID is needed in Alabama, Kansas, Rhode Island, South Carolina, Mississippi, Tennessee, Texas and Wisconsin. In Texas, 34 counties lack the required “Department of Public Safety Offices” to issues the required IDs. Four of those counties have Hispanic populations greater than 75 percent.

Additional legislation has been filed in North Carolina, Nebraska, New Jersey, Maine, Minnesota and Missouri. It is particularly hypocritical in New Hampshire, where Republicans fought against the federal “Real ID” photo/drivers license program, but voted to implement the same obstacle to suppress votes, a bill that was vetoed by the Governor. In defiance, election officials in the Town of New Boston, NH, posted a huge “Photo ID required” sign at the entrance to the polls last year, in spite of the fact that no such requirement exists.

Those who do not drive are the least likely to have such an ID: minorities, lower-income people, seniors who no longer drive, those with revoked licenses, and students (College ID cards are not valid). NYU Law School has estimated that up to 11% of all otherwise eligible voters – 21 million Americans - do not have the requisite ID.

In order to get an official ID, the poor have disproportionate hurdles to overcome: In addition to fees, individuals are asked to provide birth certificates, passports, or other documents. While many Americans have these, those who have been thrown out of their homes, women or young people who fled after having been involved in abusive situations, those who have lost their homes to foreclosure and have documents in storage units, those who have lost documents in fires in substandard housing, those living in nursing homes, and those lacking personal autos to run to government offices to obtain the documents – are far unlikely to be able to assemble the required documents in a timely fashion. In addition, Arizona, Alabama, Kansas and Tennessee now require proof of citizenship, a tactic meant to intimidate Hispanic and other naturalized citizens.

2) Restrict New Voter Registration Drives

Florida and Texas now have enacted strict time periods for these drives, and impose stiff fines for honest errors. Similar legislation is now pending in Michigan.

For those states that permit same-day registration, the GOP tactic is to turn back the clock. In recent years, the trend has been for states to make voting easier, not harder. Since most election boards are operated by local citizens, these citizens are able to provide a 'check’ on unlikely but potential fraudulent votes. But this year, that trend is being reversed: Ohio and Maine (a state with a long history of same-day registration) eliminated same-day registration. The same legislation is pending in North Carolina.

3) Ban Felons From Voting

If you are convicted of a felony in Kentucky and Virginia, you lose your right to vote for life. In Florida and Iowa the Republican Governors have tried to emulate this by issuing Executive Orders eliminating the rights of former felons to regain their right to vote. 48 states (all except Maine and Vermont) prohibit felons from voting while in prison. This sets up a dangerous process: all a state must do is find someone guilty of a felony, and they lose a major avenue to challenge the very laws and policies under which they convicted.

In the United States, 5.3 million people are unable to vote due to a felony conviction. At least one-quarter of these convictions were for non-violent drug offenses, crimes for which black men are twelve times more likely to be convicted and jailed with a felony record than their white counterparts. There are more black men in prison today than there were black men enslaved in 1850 (source). The War on Drugs has been the single most effective tool at disenfranchising black voters.

4) Ban College Students from Voting

In 1979, the US Supreme Court ruled in The United States vs. Symm that college students may vote in the communities where they attend school. That decision states, "there is no requirement that a student, in order to establish that he is a resident of the place where he wishes to vote, establish that he intends to remain there permanently or for any particular period of time."

In the "swing state' of New Hampshire, College students often represent 15% or more of the vote in college Towns such as Keene (Keene State College), Hanover (Dartmouth), and Durham (UNH). Bill O’Brien, the Republican speaker of the New Hampshire State House, told a Tea Party group earlier this year that students are “foolish” and tend to “vote their feelings, voting as a liberal, because that’s what kids do.” In the statehouse, he shepherded new laws to prohibit students from voting from their college addresses, in direct violation of the Symm decision. In Wisconsin the state declared College-issued photos invalid, forcing college students wishing to vote to scramble to apply for new drivers licenses (requiring them to then re-register their autos, and obtain new inspections) – all at great expense – to vote.

In Selma, Alabama, in 1965, the Rev. Dr. Martin Luther King told marchers,

"Voting is the foundation stone for political action…The basic elements so vital to Negro advancement can only be achieved by seeking redress from government at local, state and Federal levels. To do this, the vote is essential."

Yes, the vote is essential... and Republican efforts to disenfranchise voters is antithetical to the America I was raised to believe in.


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Dutch Queen Beatrix Stands Firm Against Right-wing Hate

The Netherlands is known around the globe as one of the most tolerant societies on earth. When British rule came to New York City in the 17th Century, they found free blacks, an established doctrine of religious tolerance, and 28 different languages being spoken in the formerly Dutch colony. Today, The Netherland’s Queen Beatrix continues to be a voice for tolerance, peace, mutual respect and diversity in a world rife with ethnic clashes.

Unfortunately, there will always be those who hate – even in Holland.
The Queen has come under fire – and has fired back – by some on the far right for respectfully wearing a veil over her trademark hat as she entered mosques on a good-will tour of Arab nations this week. It is not the first time the far-rightists have criticized the Queen, who, in the Netherlands, is a traditional symbol of unity in this physically small but populous nation called home by almost 17 million people.

On Christmas Day 2011, Queen Beatrix delivered her annual Christmas address, in which she called for responsible stewardship of the world’s resources and encouraged the nation’s youth:

"selfishness and extravagance blind people to the damage that is done to our natural surroundings and undermine community spirit... we have lost sight of the fact that the Earth's resources are finite and of behavior that is acceptable in a civilized society…[we must] “weigh the quality of the future when making decisions about today. …Everywhere, people are coming up with new ideas and ways to live in more sustainable, aware life. This is a source of hope in the future and for the future as it is young people who are behind these new ideas."

As Christmas messages often (and appropriately) look to the hope of the future, her address was applauded by most of the political spectrum: statements issued by spokesmen from the Christian Democrats, the Labor Party, and the GreenLeft all spoke positively of the message.

But not Geert Wilders, the leader of the far-rightist “Freedom” Party, who tweeted, “Good heavens, is her majesty a secret member of the GreenLeft party?” Wilders has criticized the Dutch Monarchy before, calling the Queen’s calls for tolerance “multi-culti nonsense.”

The rise of Wilders’ Freedom Party is a troubling development in this historically liberal nation, although the party appears to have much in common with extremist elements in the Republican Party in the United States. Wilder is known for his obsessively anti-Muslim political crusades, and his party has drawn enough support to now be the third-largest political party in the Dutch Parliament. In the 2010 elections, the party won over 15% of the vote, nearly tripling its 2006 showing, and winning 24 out of 150 seats in the House of Representatives.

Embracing an Ethnic Nationalism, the Party’s Platform calls for:

Recording the ethnicity of all Dutch citizens;
Restricting immigrant labor from Slavic European nations and Islamic countries;
Gutting anti-climate change programs (An amazing position, given that 27% of the Netherlands is reclaimed from the sea, and below sea-level, protected by a system of dikes and pumps that would be endangered by global warming and a rise in sea-level).
Abolishing the Senate;
Closing all Islamic schools;
Banning all Dual Citizenship;
Forbidding the exercise of Islamic practices that differentiate between men and women (ironically, many Christian groups engage in such practices);
Forbidding Governmental communication in any language other than Dutch or Frisian (virtually all Dutch are multilingual);
Constitutional protection of the dominance of the Judeo-Christian culture of the Netherlands; and
A prohibition of the opening of any new mosques.

The Party’s Islamophobia is particularly ironic, considering that a large number of the nation’s Muslim population comes from Indonesia, a nation that the Netherlands dominated through trade and colonization from the 1600s through World War II. Others came from Morocco: On December 24, 1610, the Netherlands and Morocco signed a free-trade treaty which was the first-ever official treaty between a European country and a non-Christian nation. Still, only 5% of the Netherland's population is Muslim.

This past week, Queen Beatrix lead a delegation of business and trade unions leaders on official state visits to the United Arab Emirates and Oman. They visited numerous sites, including the Sohar Industrial Port and Maritime College in Oman, and in both nations, the Queen visited mosques. On Thursday's visit to the Sultan Qaboos Grand Mosque in Muscat, Oman, the queen wore a veil over her hat as she was lead into the Mosque by Princess Maxima, who was also veiled.

Personally, I am an Episcopalian … but I have readily placed a yarmulke on my head when entering a Jewish Synagogue. It is an act of simple respect. But the Queen’s act of respect drew immediate criticism from none other than Geert Wilder, who termed it a “sad spectacle that legitimises the oppression of women".

In a highly unusual step for a European monarch, the Queen curtly responded, terming Wilders’ comments “utter nonsense.”

According to the Dutch News,

“…The queen’s uncharacteristic outburst could be taken as …an impatient swat at a mosquito that has been hovering around her head for some time. Wilders…has been critical of several of the queens’ new years’ speeches…”

But while many are quietly applauding the Queen for swatting at the mosquito, the public comments are a bit more reserved, as the few remaining modern European Monarchs rarely wade too deeply into political affairs. One paper, the Volkskraant, applauded the Queen on one hand, but added, “However, it is to be hoped that she does not develop a taste for speaking her mind publicly. Her position depends on her not getting involved with politics.”

Geert Wilders is a dangerous figure who is a clever and hateful master of political manipulation. At the same time he was criticizing the Queen, he called upon the nation to apologize for its ‘inactivity’ on behalf of Jews during World War II. By seeking to combine his criticism of Queen Beatrix with an oddly-timed defense of Jews, Wilders is not showing a new-found liberality; rather, he is employing a divide-and-conquer strategy to divide the normally liberal Dutch.

Hopefully for the Dutch - and for a world who looks to the Dutch as a model of civility and tolerance - Wilders will not succeed. Queen Beatrix, not Wilders, is the symbol of Dutch civility.

Dank u, Koningin Beatrix!


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