Federal Judge: NDAA may violate 1st, 5th Amendments; Issues Injunction

A federal district judge...Katherine Forrest of the Southern District of New York, issued a preliminary injunction against enforcement of the highly controversial indefinite holding provisions of the National Defense Authorization Act ("NDAA"), enacted by Congress and signed into law by President Obama last December. This afternoon's ruling came as part of a lawsuit brought by seven dissident plaintiffs -- including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Brigitta Jonsdottir -- alleging that the NDAA violates "both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution."

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ's three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack "standing" to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ's first argument -- lack of standing -- the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):
In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

The court found that the plaintiffs have "shown an actual fear that their expressive and associational activities" could subject them to indefinite detention under the law, and "each of them has put forward uncontroverted evidence of concrete -- non-hypothetical --- ways in which the presence of the legislation has already impacted those expressive and associational activities" (as but one example, Hedges presented evidence that his "prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban" proves "he has a realistic fear that those activities will subject him to detention under § 1021). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that's because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.

Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, "plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment."

Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA's authorization to indefinitely detain not only Al Qaeda members, but also members of so-called "associated forces" and/or anyone who "substantially supports" such forces, and noted:
Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a "covered person." In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an "associated forces," and what it means to "substantially" or "directly" "support" such forces or, al-Qaeda or the Taliban. . . .

The Government was unable to define precisely what "direct" or "substantial" "support" means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

Perhaps most importantly, the court categorically rejected the central defense of this odious bill from the Obama administration and its defenders: namely, that it did nothing more than the 2001 AUMF already did and thus did not really expand the Government's power of indefinite detention. The court cited three reasons why the NDAA clearly expands the Government's detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, "by its terms, the AUMF is tied directly and only to those involved in the events of 9/11," whereas the NDAA "has a non-specific definition of 'covered person' that reaches beyond those involved in the 9/11 attacks by its very terms." Second, "the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021 of the NDAA; that's because the AUMF covered those "directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and 'associated forces'." Moreover, "the Government has not provided a concrete, cognizable set of organizations or individuals that constitute 'associated forces,' lending further indefiniteness to § 1021." Third, the AUMF is much more specific about how one is guilty of "supporting" the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama's signing statement -- expressing limits on how he intends to exercise the NDAA's detention powers --- solves any of these problems. That's because, said the court, the signing statement "does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute."

The court concluded by taking note of what is indeed the extraordinary nature of her ruling, but explained it this way:
This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.


I've been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government's ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade.

(Adapted from an original by Glenn Greenwald)

Dallas Fed: Banks turned "Malevolent;" Break up Chase, others

With JP Morgan-Chase bleeding $2 Billion in losses this week from risky ‘investments,’ it is scary to note that more than half of the banking deposits in the United States are now held in JP Morgan and just 4 other "Too-Big-To-Fail" banks: Bank of America, Citigroup, Wells Fargo and U.S. Bancorp.

In other words, the entire “too big to fail” fiasco is worse now than at the outset of the financial crisis of 2008.

And one of the nation’s most historically conservative financial institutions – the Dallas Federal Reserve Bank – has just released a report calling for the breakup of the nation’s largest banks – a position this Blog has held since the origin of the crisis.

A readable 20-page essay entitled “Choosing the Road to Prosperity - Why We Must End Too Big to Fail—Now" appears in the recently-released 2011 Annual Report of the Federal Reserve Bank of Dallas. Written by Harvey Rosenblum, the head of the Dallas Fed’s Research Department, the essay lays out the failure of the bailout approach, as well as toothlessness of the Dodd-Frank Act that was supposed to reign in the banks.

“You need not be a reader of Adam Smith to know the power of self-interest— the human desire for material gain. Capitalism couldn’t operate without it. Most of the time, competition and the rule of law provide market discipline that keeps self-interest in check…When competition declines, incentives often turn perverse, and self-interest can turn malevolent. That’s what happened in the years before the financial crisis.”

The essay concludes:

Banks have grown larger in recent years because of artificial advantages, particularly the widespread belief that government will rescue the creditors of the biggest financial institutions. Human weakness will cause occasional market disruptions. Big banks backed by government turn these manageable episodes into catastrophes. Greater stability in the financial sector begins when TBTF (“Too Big To Fail”) ends and the assumption of government rescue is driven from the marketplace.

A financial system composed of more banks, numerous enough to ensure competition in funding businesses and households but none of them big enough to put the overall economy in jeopardy, will give the United States a better chance of navigating through future financial potholes and precipices.”

And finally, in language plain and clear:

“The Dallas Fed has advocated the ultimate solution for TBTF—breaking up the nation’s biggest banks into smaller units.”

We Agree.

Montréal: Student, Labor and Citizen Protests Grow

It started three months ago as a student-initiated protest against university tuition hikes.

By American standards – in fact, even by Canadian standards – the tuition that Québec students pay is very low. But the protest is not about the actual tuition figure, as much as it is about the principle of what education means in Québec society. The province’s notoriously low tuitions were instituted during the “Quiet Revolution” of the 1960s as a means of ensuring greater accessibility, especially among the francophone population that had long lagged behind the rest of Canada. Borrowing from the pages of America’s “Occupy” movement and the “Arab Spring” halfway around the world, the protests have come to embrace a wide spectrum of causes….and is coming to be known as the "Printemps Érable,” the “Maple Spring.”

And it is a movement that was launched by students – and by all measures, its growing.

Last week, the government negotiated an agreement with student leaders in an effort to end the 13-week walkout that included at $250 increase in tuition. But across Québec, the students who have been asked to approve the agreement are rejecting it in overwhelming numbers. As the possibility of finishing this semester looks less likely each day, students are delivering a message to the governing Liberal Party that they are not going to settle for a poor deal.

“I am surprised to see the impact on the semester is not the major preoccupation of students,” said Léo Bureau-Blouin, President of the Fédération Étudiante Collégiale du Québec (The Québec College Student Federation) “I didn’t realize how far they were willing to go to solve this crisis. Students are ready to make real sacrifices.”

Observers blame Education Minister Line Beauchamp for extending the crisis by not responding more quickly to concerns that were raised about the agreement. Worse, students say that government officials bragged that they had won on the tuition issue, which outraged students who had negotiated in good faith.

As the protests grow, they take on more of the look of the Occupy Wall Street protests. Signs have appeared opposing oil sands drilling, supporting gender equality, opposing the privatization of public services, and opposing the government’s plan to extract resources in the northern Québec wilderness (“Plan Nord”).

And now, political parties and labor unions have joined the students. Concordia political science professor Bruce Hicks described it this way:

“There has been an element involved in the student strike all along that I think grew out of the Occupy movement….the student protest movement has tapped into outrage over the economy and society and government from more moderate individuals, creating a sort of hybrid between an anarchist movement, but also a socially progressive protest vote.” (Precisely the sometimes uneasy but purposeful alliance that has characterized the American movement).

Gabriel Nadeau-Dubois, the spokesperson for CLASSE, the largest and most militant of the three student federations orchestrating the strike, stated from the beginning that students’ fight was with Québec’s “greedy elite,” and that the strike would lead to a “much deeper, much more radical challenge of the direction Québec has been heading in recent years.”

Two major parties - the Parti Québécois and Québec Solidaire - have endorsed the student protests. Québec unions have donated C$60,000 to the student groups. The Ontario branches of the Canadian Union of Public Employees gave an additional $30,000.
“They can continue to count on our support in the future, we are against the tuition increase,” said Louis Roy, president of La Confédération des Syndicats Nationaux (CSN), one of the province’s largest unions.

Roy said his union, along with the Fédération des Travailleurs et Travailleuses du Québec (The Worker’s Federation of Québec) and the Centrale des Syndicats du Québec (CSQ), have been working with the students for more than 18 months. The unions and the student federations are part of a group called the Alliance Sociale, which was formed in the fall of 2009 to oppose the Liberal government’s budget.The unions have also provided sound systems for demonstrations and organizational support.

Roy applauded the student’s negotiating skills with the government.

“Their ability to communicate is very good. They are young, but they are not children. They don’t need to be held by the hand.”
They also know how to leverage Montréal’s transit system.

Just as Twitter, Facebook, and text messages have become communication catalysts, the Métro has become the student’s trump card for physical movement. Police complain that protesters are able to shift their actions from one part of the city to another more quickly than police motorcycles or squad cars can move through city streets.

The Police have responded by posting helmeted transit security agents at the Métro station entrances and exits, donning riot gear, brandishing nightstick, and holding police dogs. But tens of thousands of Montréalers who use the line for commuting have grown disgusted – not with the students, but with police lines deployed at each station.

Insp. Alain Larivière, head of the Montréal Police Dept.’s Métro division, claims that Police are merely protecting commuters from protesters.

“The métro may be open, but we can’t just let (passengers) go out while a demonstration’s been declared illegal, while there’s an intervention in progress by the officers or the cavalry…”

Larivière later admitted that all of the demonstrations that have taken place within the Métro have been peaceful. In fact, of the 190 demonstrations staged during the protests, not once has the subway system’s operations being disrupted by the students.


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France Elects Socialist Hollande, Echo "Occupy" Values

By a vote of 52% - 48%, François Hollande has become the first Socialist to win the Presidency of France since François Mitterand held the post from 1981-1995. More than 80% of the nation’s voters cast votes.

Jubilant Hollande supporters gathered at La Place de la Bastille in Paris (see picture), the iconic symbol of both conservative state oppression under the Monarchy, and its overthrow as it was stormed by citizens on July 14, 1789 during the French Revolution. It has become a traditional rallying site for French leftists.

Hollande’s victory follows a pattern unfolding throughout Europe:

All 17 nations in the Eurozone (those using the Euro as a common currency) are struggling to bring government debt under control and make good on existing debt (with Greece, Portugal, Italy, Ireland, and Spain feeling the crunch the hardest). In response, the largely centrist and conservative governments throughout Europe have been in slashing spending and curtailing government programs.

Citizen opposition to these measures has taken two forms: on the left there has been a call for more government stimulus spending and economic justice (echoing the Occupy Wall Street movement in the United States); on the right there has been a frightening rise in an anti-European, anti-immigrant nationalistic neo-fascism. While polar opposites in philosophy, both groups have found common ground in their desire to oust sitting governments. Just two weeks ago, the neo-fascists in the Netherlands under Geert Wilder forced the collapse of that government, which will hold new elections in just under four months.

France holds two rounds of voting; in the first round, which took place on April 22, incumbent center-right candidate Nicolas Sarkozy won 27% of the vote, carrying the northern and eastern sections of the country; Socialist François Hollande carried just under 29% of the vote, carrying the southwest part of the country and the Brittany peninsula; and Marine LePen, the far-right candidate, shocked observers by polling almost 18% of the vote. The remainder of the vote was scattered between seven other candidates, none of whom polled more than 11% of the vote. Under the French electoral system, if no candidate receives a majority of the vote, a runoff is held between the highest two candidates, which took place today.

And with today’s vote, France has spoken: they have elected a candidate who has promised a top tax rate of 75% on those earning more than one million euros annually, a renegotiation of Europe’s austerity measures, and the hiring of 60,000 additional teachers, providing a European version of the American “Occupy” movements’ message.


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Mitt's Nightmare: Ron Paul supporters take over State Conventions

Ignored by the mainstream media and cheated out of wins in the Republican primaries and caucuses, Ron Paul supporters are getting their revenge.

We reported in February that Romney supporters in Iowa announced Romney’s supposed win prematurely, and later had to admit that Santorum had won.

Then, a week later, we broke the story as to how Maine Republican leaders announced that Romney had won that state’s caucuses without waiting for Paul’s strongholds in Waldo and Washington County were counted.

Now, in both states, Paul supporters have taken control of the state parties. Even more embarrassing for Mitt, they have taken over his home state Massachusetts delegation as well.

At the Massachusetts’ state convention less than half of Romney’s 27 chosen delegates were formally elected to attend the national convention. Paul supporters won all of those slots instead. That means that while the state’s delegates are technically committed to vote for Romney, they also choose the state party chairman, vote their conscience on the official platform and procedural votes, and can support whoever they want for VP nominee.

In Maine yesterday, Brent Tweed, a York County state committee member and Paul supporter, defeated party-favorite (and one-time Gubernatorial candidate) Charles Cragin for the post of state party chairman by a vote of 1,118 – 1,114. Paul supporters also successfully elected Ron Morrell as the state party secretary.

Paul backers in Alaska were elected as party chairman and co-chairman. Paul supporters are now a majority in the Iowa GOP’s State Central Committee, and he’s set to claim a majority of the state’s delegates despite finishing third in the caucuses. They took over the Louisiana caucuses, carrying four out of six congressional districts with a tie in a fifth. That means 74 percent of the state’s convention delegates will be Paul backers. In Minnesota, Paul won 20 of 24 delegates allocated at congressional district conventions, and he’s expected to take more at the statewide convention. Paul supporters teamed up with backers of former Pennsylvania senator Rick Santorum in Colorado to get 13 delegates.

The candidate has also picked up small delegate gains in states where Romney won big — for example, five delegates in Pennsylvania and four in Rhode Island. And in the upcoming convention, it’s a good bet that Paul will capture that delegation as well.

Mitt may have done well getting the entrenched establishment pronounce their support,  securing donations from Wall Street buddies, and purchasing votes and media adulation....but he is having significant trouble with his ground game, and may find that the national convention in Tampa may be more of a headache than he expected.


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9 Rights Groups to Attorney General: "Protect Occupy Reporters"

Earlier today 9 different organizations suporting the First Amendment's Freedom of the Press delivered a letter to U.S. Attorney General Eric Holder demanding that his office investigate the jailing of more than 70 citizen-journalists during Occupy Wall Street Protests, and the intimidation of dozens of others. The groups termed police actions since the September 17 Occupy protests began a "suppression of speech as a national problem that deserves your full attention."

In August of 2011, the First Circuit Court of Appeals (covering Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico) ruled in Glik v. Cunniffe that citizens have a Constitutional right to film police in the course of their duties Full Text.

Glik was arrested for using his cell phone’s digital camera to film several police officers arresting a man on the Boston Common. The charges against him for violating a state wiretap statute and two other offenses were eventually dismissed. Glik sued the officers under 42 U.S.C. § 1983 claiming that his arrest for filming the officers violated his First and Fourth Amendment rights.

The court held that the officers were not entitled to immunity from prosecution. First, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty protected by the First Amendment. Glik was exercising clearly established First Amendment rights in filming the officers in the Boston Common, the oldest city park in the United States. Additionally, the officers arrested Glik without probable cause, in violation of the Fourth Amendment.

The full text of today's letter:

Dear Attorney General Eric Holder:

The First Amendment has come under assault on the streets of America. Since the Occupy Wall Street movement began, police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces. While individual cases may not fall under the Justice Department’s jurisdiction, the undersigned groups see this suppression of speech as a national problem that deserves your full attention.

The alarming number of arrests is an unfortunate and unwarranted byproduct of otherwise positive changes. A new type of activism is taking hold around the world and here in the U.S.: People with smartphones, cameras and Internet connections have been empowered with the means to report on public events. These developments have also created an urgent need for organizations such as ours to defend this new breed of activists and journalists and protect their right to record.

Freedom of speech, freedom of assembly and freedom of access to information are vital whether you’re a credentialed journalist, a protester or just a bystander with a camera. In the digital age, these freedoms mean that we all have the right to create and share information using all manner of devices and lawful means.

In this new environment, we must guard these rights and protect the networks that give so many the means to connect and voice their political beliefs. The First Amendment’s protections must extend to everyone. The right to record is an essential component of our rights at a time when so many of those witnessing public protests carry networked, camera-ready devices such as smartphones. Continuous access to the open Internet and social media — over both wired and wireless networks — is also essential.

We the undersigned call on authorities at the local, state and federal level to stop their assault on people attempting to document protests and other events unfolding in public spaces. We must protect everyone’s right to record.

Sincerely,

Access
American Civil Liberties Union
Electronic Frontier Foundation
Free Press
National Press Photographers Association
New America Foundation
Reporters Committee for Freedom of the Press
Reporters Without Borders
Witness



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On May 1 (International Labor Day): Time to Repeal Taft-Hartley

In a broadcast to the AFL-CIO merger meeting On December 5, 1955, President Dwight D. Eisenhower said,

“You of organized labor and those who have gone before you in the union movement have helped make a unique contribution to the general welfare of the Republic--the development of the American philosophy of labor. This philosophy, if adopted globally, could bring about a world, prosperous, at peace, sharing the fruits of the earth with justice to all men. It would raise to freedom and prosperity hundreds of millions of men and women--and their children--who toil in slavery behind the Curtain.
One principle of this philosophy is: the ultimate values of mankind are spiritual; these values include liberty, human dignity, opportunity and equal rights and justice.

Workers want recognition as human beings and as individuals-before everything else. They want a job that gives them a feeling of satisfaction and self-expression. Good wages, respectable working conditions, reasonable hours, protection of status and security; these constitute the necessary foundations on which you build to reach your higher aims. “

When Eisenhower gave this speech in the 1950s, more than one-third of all American workers were members of a union. Unions were largely credited with bringing about the 40-hour work week, the 8-hour day, the concept of a “weekend,” health coverage, pension reform, and safe working conditions. But today, union membership in the private sector has fallen to 7.2% While some of that is due to changes in industry structure in the US, the single biggest factor that has contributed to the elimination of union protections and bargaining powers is the Taft-Hartley Act.

Passed in 1947 over the veto of President Harry Truman, the Taft-Hartley Act (often known in labor circles as "the slave-labor bill") has been described by Ralph Nader as "one of the great blows to American democracy…that fundamentally infringed on workers' human rights" -- most importantly, their right to unionize.

The includes the following provisions:

- Authorizes states to enact so-called ‘right-to-work’ laws. These laws undermine the ability to build effective unions by creating a free-rider problem—workers can enjoy the benefits of union membership in a workplace without actually joining the union or paying union dues. Right-to-work laws increase employer leverage to resist unions and vastly decrease union membership, thus dramatically diminishing unions' bargaining power. 23 states are currently right-to-work states, with legislation threatening in New Hampshire and Wisconsin.

- Defines "employees" for purposes of the Act as excluding supervisors. This diminishes the pool of workers eligible to be unionized. The exclusion of supervisors from union organizing activity also means they can be used (and coerced) as management's "front line" in anti-organizing efforts; what's more, employers can fire supervisors who try to unionize.

- Defines "employees" for purposes of the Act as excluding independent contractors. It means that institutions such as colleges can hire staff, often using grant funds, as ‘independent contractors,’ thus excluding them from benefits such as health insurance and pension, and denying them union membership and contractual benefits.

- Requires that election hearings on ‘matters of dispute’ be held before a union recognition election, thus delaying the election; these delays enables management to ‘buy time,’ and has been shown to give management an advantage as over time workers feel coerced into avoiding organizing activities.

- Establishes the "right" of management to campaign against a union organizing drive, thereby eliminating the time-honored legal principle of employer neutrality.

- Prohibits secondary and sympathy boycotts—boycotts directed to encourage neutral employers to pressure a defiant employer with which the union has a dispute. Secondary boycotts had been one of organized labor's most potent tools for organizing, negotiating and dispute settlement prior to the passage of Taft-Hartley.

- Enables the federal government to move in and demand an 80-day cooling off period if it deems a strike to be detrimental to the national interest.

The Act sent a clear message to employers: It is OK to bust unions and deny workers their rights to collectively bargain. Today, union membership is at historic 60-year lows, employer violations of labor rights are routine, and illegal firings of union supporters in labor organizing drives are at epidemic levels.

The advent of unions created a balance in bargaining power between ‘producers’ of labor (workers) and purchasers of labor (employers), providing for fairer conditions overall. The attempted destruction of unions through Taft-Hartley and recent political moves against public employee unions represents a scary step backwards in American history.

It’s time for our Presidential candidates to be forced to take a position – and justify their position – on Taft-Hartley.


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Demand FDA Approve Rapid Over-the-Counter HIV Test

[Action Alert! We have ONE WEEK to submit comments to the FDA - instructions below]


According to the Center for Disease Control in Atlanta, (the "CDC"):

- 1.2 million people in the United States (U.S.) are living with HIV infection.

- One in five (20%) of those people – or about one-quarter million people are unaware of their infection. That’s the equivalent of the entire population of Jersey City, New Jersey; Orlando, Florida; or Buffalo New York living with an infectious disease and not knowing it.

- 50,000 new cases of HIV infection every year in the United States since the epidemic began.

- An estimated 17,774 people with AIDS died in 2009, and nearly 619,400 people with AIDS in the U.S. have died since the epidemic began.

The scientific and medical communities are united in their belief that one of the most effective ways to control the spread of HIV is through early detection (testing) and early treatment (Anti retroviral drugs that reduce the viral load to undetectable levels).
And so, the fact that a rapid-test to detect HIV has been available for over a decade, but is still illegal to sell over-the-counter in drug stores, is nothing short of criminal.

On November 3, 2005, (six and a half years ago) the Blood Products Advisory Committee of the FDA wrote:

Over the past four years, FDA has approved a number of rapid HIV tests of low complexity, which are simple to use, require no special storage conditions and provide a highly accurate test result within 20 minutes for the detection of antibodies to HIV. Two of these tests were found to be simple enough to perform that they received a CLIA waiver, expanding the availability of testing.

But here’s the kicker. The FDA continued:

Since 2002, all rapid HIV tests were approved as restricted devices, with sales and use restrictions in place. Sale is restricted to clinical laboratories …and [t]he test is approved for use only by an agent of a clinical laboratory...[The] FDA has discussed HIV home-use test kits and home-use collection kits over the past 10 years in various forums…In the course of these discussions, appropriate regulatory criteria were identified for home-use specimen collection kits for HIV testing, but not for home-use HIV test kits. With improved test kit technology (ease of use, freedom from biohazards, and excellent performance characteristics), we believe it may be feasible to identify regulatory criteria for home-use HIV test kit.


Yesterday, while walking through my local pharmacy, I saw at-home pregnancy tests; tests to detect cocaine, marijuana, and a list of other drugs in one’s system; and of course, the blood glucose tests that many diabetics use on a daily basis. But in spite of the available technology, no home tests for HIV…even though the FDA itself concluded in 2005:

“Benefits of HIV home-use test kits include anonymous testing potentially leading to more people knowing their HIV status, empowerment of consumers in healthcare decisions, earlier diagnosis of HIV infection and therefore earlier intervention.”

And yet, in the decade that has passed since the rapid tests were denied for private home use, 500,000 new HIV cases have occurred. Of those, 100,000 people do not even realize they are infected.

Why does this continue?

The FDA is concerned that “Risks of HIV home-use test kits include inappropriate use of the test or test result, including misinterpretation,” “obtaining a test result without live counseling,” and “and use by minors.”

Yeah? And so what? Aren’t those the possibilities with any of the above mentioned at-home tests sold in a drug store? Would we rather that minors who are uncomfortable in a clinic simply walk around with HIV and infect others as their own health deteriorates for unknown reasons? Are they suggesting that pregnancy is a condition that does not require a support system?

Thousands of individuals would use a test at home rather than go to a clinic. People in rural communities who are reluctant to show their faces in a clinic where everybody-knows-everybody; men or women who have cheated on a partner; young people still ill-at-ease with discussing their activities; those for whom English is not a first language and for whom clinical translations are not readily available; those who are high-profile members of their communities; and those who were raised with a fear or stigma of HIV and AIDs - would all be more likely to test at home than walk into a clinic.

The reasons for denying the public access to these tests are entirely unacceptable.

In a perverse reversal of roles, it is the HIV clinics themselves who have been partly responsible for the delay in releasing these tests to the public. The very clinics and “AIDS Service Organizations” or “ASOs” who exist to help HIV positive persons navigate complex legal and medical support systems have a vested interest in keeping these tests out of public hands. Annually these agencies report the number of people to whom they provided services to private donors, government agencies who fund them on a ‘per-person-served’ basis, and to United Way Charities, which requires a “Number Served” figure as part of their funding formula. Thus, some of those agencies that are most vocal about “supporting” the HIV community are actually the very agencies that have given life to the idea that the FDA should prohibit private, at-home testing because it wouldn't be accompanied by “live counseling.”

A recent survey of over 1,500 people by "Who's Positive" revealed the gap in support between persons living with HIV and those with a clinic-based livelihood or agency role. The survey found:

"The survey gathered responses from 1,569 participants, 74% of which said that they would support an OTC rapid, oral swab HIV test that could be purchased in a retail store, if approved by the FDA. Other key findings include:

66% of the respondents who identify as a HIV-positive consumer support an OTC HIV test
80% of those aged to 30 support an OTC HIV test"

But then went on to show lower support by those with a vested interest in maintaining clinic control"

"A majority or nearly 52% of those who identified as a paid member of an HIV/AIDS organization support an OTC HIV test
47% of those who identify as one who performs HIV testing support an HIV OTC test"

It is hypocritical, self-serving, and dangerous.

On the other hand, the public often views medical technology companies with a critical eye…but in this case, it has been just such a company – OraSure Technologies – which has been fighting for a decade to obtain FDA approval to market it’s 20-minute, at-home anonymous test kit.

And once again, the issue is scheduled to be discussed before the FDA Blood Products Advisory Committee. OraSure has applied – again - for the approval of its OraQuick(R) Rapid HIV-1/2 test for sale in the U.S. consumer or over-the-counter market at a meeting scheduled for May 15, 2012.

The Company will be presenting its findings from a study of 5,800 subjects who believed they were HIV negative. When enrolled in a test-phase using their at-home testing product across 20 sites nationwide, more than 100 of them tested HIV positive.

The FDA has issued the following public notice, permitting public comment in person or in writing. You know what to do:

On May 15, 2012, the FDA Blood Products Advisory Committee will meet from 8:30 a.m. to approximately 5:00 p.m. to discuss the evaluation of the safety and effectiveness of the OraQuick In-Home HIV Test.

The meeting will take place at the Hilton Washington DC/North, 620 Perry Pkwy., Gaithersburg, MD, Tel: 1-301-977-8900.
Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee.

Written submissions may be made on or before May 8, 2012 by submitting them to:

Bryan Emery or Rosanna Harvey
1401 Rockville Pike, HFM-71, Rockville, MD 20852
301-827-1277
FAX: 301-827-0294
or via e-mail: Bryan.Emery@fda.hhs.gov or email: Rosanna.Harvey@fda.hhs.gov

Oral presentations at the meeting from the public will be scheduled between approximately 1:30 p.m. and 3:15 p.m. Those individuals interested in making formal oral presentations should notify Bryan Emery or Rosanna Harvey on or before April 30, 2012, and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation.
Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, FDA may conduct a lottery to determine the speakers for the scheduled open public hearing session. Those making a request to speak will be notified regarding their request by May 1, 2012.
The notice and complete description of the May 15 and May 16 meetings (as well as the link to the webcast for the hearings) is available on the FDA Website

[pictures: thanks to Tom Donohue of "Who's Positive"]

Democrats Lynch & Obama Betray Progressives on Medical Marijuana

In 1969, the vaunted Gallup Polling organization asked Americans about their attitudes towards legalizing marijuana. At that time, a mere 12% of Americans favored it, while 84% were opposed.

Today, support for legalizing marijuana has surpassed the 50% mark, with more Americans in favor than opposed. When asked about marijuana for medical use, support jumps to over 70%.

The advocacy group National Organization for the Reform of Marijuana Laws claims that marijuana is the third-most-popular recreational drug in America, behind only alcohol and tobacco. Some states have decriminalized marijuana's use, and some have made it legal for medicinal use. A growing crowd of Law Enforcement officials, as well as former U.S. Surgeon General Jocelyn Elders, have called for legalization.

So why are Democrats like Governor John Lynch (NH) and President Barack Obama digging their heels in on an issue that has become a no-brainer for most Americans?

Yesterday, the Republican-dominated legislature of New Hampshire passed a sweeping measure legalizing medical marijuana. . It would allow patients with debilitating medical conditions or the patient's designated caretaker to cultivate and possess up to six ounces of marijuana, four mature plants and 12 seedlings at a registered location.

But as he did in 2009, Gov. John Lynch declared he will veto the bill once again.

The NH House clearly has the votes to override his veto: the measure passed by a lopsided 236-96. However, the margin in the Senate was only 13-11 last month, short of the 15 votes needed for override in that chamber. The prime Senate sponsor, Sen. Jim Forsythe, (R-Strafford), said he was not giving up.

“We’ve gone from having one Senate Republican in support of this issue a few years ago to now having at least eight Senate Republicans ... I believe three additional Senate votes are very possible, and it’s a goal we’ll be working very hard to achieve in the coming weeks,” Forsythe said in a statement.

If Lynch’s position is frustrating, President Obama’s can only be described as an infuriating betrayal.
When he was running in 2008, Obama said he supported the “basic concept of using medical marijuana for the same purposes and with the same controls as other drugs” and that he was “not going to be using Justice Department resources to try to circumvent state laws.” In fact, a Justice Department memo in March 2009 from Attorney General Eric Holder announced that federal government raids on medical marijuana distributors who were in compliance with state and local law would end.

And yet, precisely the opposite has occurred.

During 2011, federal forces from several agencies raided 26 dispensaries across 13 Montana cities where medical marijuana is legal under state law. Other dispensaries were raided in California, Washington, Michigan, and Colorado. All told, the federal government has raided more than 100 dispensaries. All of the old Bush administration anti-medical marijuana appointees in key administration positions have been retained.

“I’m very disappointed,” Rep. Barney Frank (D-Mass.), recently said. “They look more like the Bush administration than the Clinton administration...Obama now lags Pat Robertson in a sensible approach to marijuana.”
President Obama attempted to clarify his position on medical marijuana in an interview with Rolling Stone, telling publisher Jann Wenner that he can't "nullify congressional law."

"What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana. I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it's against federal law. I can't nullify congressional law," Obama said. "I can't ask the Justice Department to say, 'Ignore completely a federal law that's on the books.'

Of course, he can, and he has, quite recently:

The Executive Branch of government is a co-equal branch of government; in order to maintain the checks and balances that our system envisions, the Executive must exercise its own judgment. When Obama declared that the Executive branch would not defend legal actions against DOMA, (the Defense of Marriage Act passed by Congress) that is precisely what he did. He chose not to permit the Attorney General to act. When Harry Truman ordered the integration of the military in defiance of Congressional policy, that is exactly what he did as well.

His actions are in direct contradiction to his original campaign promises, and make no sense in the larger legal, moral or political environment.

If Obama loses progressive support on his left flank in his re-election bid, it is his own fault.

Blogger's Note: Before my father died of esophagal cancer, he expressed to me how he thought that Marijuana ought to be legalized - a strong turn of events for a man who was otherwise viewed as a conservative Republican. In his last days, medical cannabis was not available to him, so his pain was relieved by morphine, which put him into a state of near-sleep and confusion almost 24 hours a day. It was that experience that made Medical Marijuana an important issue for me.]

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Obama Accelerates War on Family Farms; Bank Accounts Seized

The US Food and Drug Administration can’t close down small farms fast enough, bursting on the scene with guns drawn as if selling the natural foods we’ve consumed for millennia deserves SWAT attention. The raids on organic farms selling raw milk have exploded under President Obama; In August, Rawesome foods of Venice California, was raided (for a a second time) by federal agents, and its owner, James Stewart, was arrested and held on $123,000 bail for the crime of selling milk to customers outside of the normal corporate factory-food chain. He was booked for conspiracy to commit a crime, and was not allowed to post a bond to bail himself out of jail.

Sharon Ann Palmer and Eugenie Victoria Bloch of Healthy Family Farms, LCC, were also arrested along with Stewart. Palmer was charged with producing milk without a license or permit since 2007 and selling as a vendor at community farmers markets.
Now, Obama has the Dept. of Justice going after small farmers under the guise of the post-911 “Bank Secrecy Act” which makes it a crime to deposit less than $10,000 if someone earns more than that.

“The level we deposited was what it was and it was about the same every week,” Randy Sowers told Frederick News. The Sowers own and run South Mountain Creamery in Middletown, Maryland.

Admittedly, when the Sowers earned over $10,000 in February, and learned they’d have to fill out paperwork at the bank to justify such large deposits, they simply rolled the deposits over to the next day to keep them below the none-of-your-fucking-business amount, rather than waste time on bureaucratic red tape aimed at flagging terrorism or other illegal activities.

Unfortunately, the Feds call this “Structuring,” which is the federal criminal offense of splitting up bank deposits so as to keep them under a threshold such as $10,000 above which banks have to report transactions to the government.

While being questioned, the Sowers were presented with a seizure order. In fact, the feds had already emptied their bank account of $70,000. The Dept. of Justice has since sued to keep $63,000 of the Sowers’ money, though they have been convicted of no crime.
Without funds, they will be unable to make purchases for the spring planting.
When a similar action was taken against Taylor’s Produce Stand last year, the feds seized $90,000, dropped the charges, and kept $45,000 of Taylor’s money.

Knowing that most farms operate on a razor-thin thin margin, such abuse of power wipes out a family’s income, and for a bonus, the feds enhance the monopoly power of Monsanto and corporate agribusiness. Nationally, the numbers of federal bank seizures and prosecutions are up 8.8 percent from last year, and up 57.1 percent from five years ago.

Of course, Bank of America, Goldman Sachs, and other criminal banksters are still in operation, despite committing millions of acts of fraud during mortgage games. But the DOJ prioritizes squashing family farmers since it’s easier to pick the low-hanging fruit than do battle with well-financed criminals who’ve illegally seized the homes of millions of US citizens.
Former Maryland assistant U.S. attorney Steven Levin told the Frederick News, “The emphasis is on basically seizing money, whether it is legally or illegally earned. It can lead to financial ruin for business owners, and there’s a potential for abuse here by the government.”

Earth Day: Five Heroes of the Environment

This is, perhaps, one of the most difficult posts I have ever written. Those who qualify as ‘environmental heroes’ span the centuries and the globe, and all have drawn on the writings and actions of those who came before them. In limiting this post to five individuals, I forced myself to concentrate on the United States and the last century, and thus eliminated many deserving folk. I concentrated on those people who most affected my own sense of ecological awareness. I even considered including my own grandmother – Edna Mae Hermansen Gould - in the top five, since she was the one individual most directly responsible for instilling a sense of environmentalism in me...and there is something profound about the passing down of environmental practices from one generation to the next. And so, here they are: a politician, an author, an activist, a farmer, and an economist:

1) President Theodore Roosevelt, 26th President of the United States of America (1901–1909), and seen as the nations first “conservation president.” Elected Governor of New York, Vice-President, and the President as a Republican, in 1912 he lead a breakaway of Progressives from the GOP and formed the “Bull Moose Party.”
As President, Roosevelt lobbied Congress hard for conservation and protection of American lands and resources. He signed the Antiquities Act of 1906 (An Act for the Preservation of American Antiquities), which gave the President authority by executive order to restrict the uses of public lands owned by the federal government. The Act resulted from concerns about protecting Native American ruins and artifacts on federal lands in the West. The Act permits immediate protection while Congress goes through the sometimes lengthy process of creating a National Park. Roosevelt first used the Act to protect the Devils Tower National Monument in Wyoming. Later, when Congress refused his pleas to create the Grand Canyon National Park, Roosevelt used the Act to provide immediate protection to the area until a more conservation-minded Congress could agree on National Park status for the area. The Act continues to be used today; On November 1, 2011, President Barack Obama used it to establish the Fort Monroe National Monument in Virginia.

In addition to creating 18 National Monuments under the Antiquities Act, Roosevelt signed into law the creation of five National Parks, the nations’ first 51 Bird Reserves, four Game Preserves, and 150 National Forests. Over 230,000,000 acres of American soil was placed into some form of protection by Roosevelt. No President before, or since, has so expanded the protection of America’s wild and fragile lands and habitats.

2) Rachel Carson, author of Silent Spring. First serialized in The New Yorker in June 1962, the entire book was later published later that year by Houghton Mifflin, and is widely credited with launching the modern environmental movement. The book documented the detrimental effects of pesticides on the environment, particularly on birds. Carson exposed the lies circulated by the chemical industry about pesticide safety, and criticized government officials for blindly accepting industry claims. Her book lead to a ban of the pesticide DDT in 1972.

Silent Spring is named as #5 on the Modern Library List of Best 20th-Century Nonfiction, and as one of the 25 greatest science books of all time by the editors of Discover Magazine.

3) Erin Brockovich-Ellis, an American law clerk and environmental activist who, despite the lack of a formal law school education, was instrumental in building a successful case against the Pacific Gas and Electric Company (PG&E) of California in 1993. The case alleged contamination of drinking water with hexavalent chromium, also known as chromium(VI), in the southern California town of Hinkley. At the center of the case was a facility called the Hinkley Compressor Station, part of a natural gas pipeline connecting to the San Francisco Bay Area and constructed in 1952. Between 1952 and 1966, PG&E used hexavalent chromium to fight corrosion in the cooling tower. The wastewater dissolved the hexavalent chromium from the cooling towers and was discharged to unlined ponds at the site. Some of the wastewater percolated into the groundwater, affecting an area near the plant approximately two miles long and nearly a mile wide. The case was settled in 1996 for $333 million, the largest settlement ever paid in a direct action lawsuit in US history. Brockovich is a classic “David-and-Goliath” story, that of a private citizen working tirelessly to bring a well-funded and politically-connected corporation to answer for environmental destruction.

4) Joel F. Salatin, a farmer, lecturer, and author whose books include Folks, This Ain't Normal, You Can Farm, and Salad Bar Beef.

Salatin's grandfather had been an avid gardener and beekeeper and a follower of J. I. Rodale, the author who pioneered Rodale Press and Prevention Magazine. Following in his grandfather’s footsteps, Salatin began his own business selling rabbits, eggs, butter and chickens from his family farm at the Staunton Curb Market while he was still in high school. Today, Salatin raises livestock using entirely holistic methods of animal husbandry, free of potentially harmful chemicals, on his Polyface Farm in Swoope, Virginia. His 550-acre farm is featured prominently in Michael Pollan's book The Omnivore's Dilemma (2006) and the documentary films, Food, Inc. and Fresh. Meat from the farm is sold by direct-marketing to consumers and restaurants, and is restricted to a four-hour radius, which Salatin calls his “foodshed.” "We want [prospective customers] to find farms in their areas and keep the money in their own community," says Salatin. "We think there is strength in decentralization and spreading out rather than in being concentrated and centralized.”

A self-described "Christian-libertarian-environmentalist-capitalist-lunatic-Farmer," Salatin has popularized the notion of both “chicken tractors” (portable coops) and grass-fed beef, and is highly critical the increasingly regulatory and heavy-handed approach taken by the federal government agencies towards small farming operations. He spends a hundred days a year lecturing at colleges and to environmental groups and is one of the nations’ strongest voices for local, “beyond organic,” sustainable food production networks.

5) Elinor Ostrom, an Economist who became the first and only woman to win the Nobel Prize in Economics in 2009. Ostrom’s contribution, contained in her work, “Governing the Commons,” relates specifically to models of managing natural resources such as ponds, watershed, forests, and rangelands.

The field of environmental economics is often dominated by two extreme: at one end is the notion that human beings will plunder ‘free’ resources, as evidenced by the destruction of fisheries, whales, and the near-extinction of buffalo on the American plains in the late 1880s. Known as the “Tragedy of the Commons” (the name of a seminal 1968 essay by Garrett Hardin), it is often thought to be redressed through strong, top-down government regulations or prohibitions. At the polar opposite extreme is a body of work influenced by Ronald Coase (himself a Nobel Prize winning economist), which emphasizes the benefits possible through the privatization of the ownership sensitive resources (whether by Non-Profit groups such as the Sierra Club, or by profit-seeking corporations).

Ostroms’ work emphasized a different model, a ‘third’ way that results in both environmental sustainability and economic efficiency in the management of what she calls “Common Pool Resources” (CPRs). By using hundreds of examples around the world, Ostrom showed that when groups of local residents are empowered with authority to make decisions about local resources – unhindered by top-down laws and “one-size-fits-all” national policies - healthier environmental systems result. Her work lays down principles for the decentralization of environmental regulations and empowerment of local communities.

Ostrom is on the faculty of both Indiana University and Arizona State University. She holds a Distinguished Professor at Indiana University and is the Arthur F. Bentley Professor of Political Science and Co-Director of the Workshop in Political Theory and Policy Analysis at Indiana University in Bloomington, as well as Research Professor and the Founding Director of the Center for the Study of Institutional Diversity at Arizona State University in Tempe. Ostrom also serves as a lead researcher for the Sustainable Agriculture and Natural Resource Management Collaborative Research Support Program (SANREM CRSP), managed by Virginia Tech and funded by USAID.

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USGS Links Hydraulic Fracking to Earthquakes

As someone who loves wilderness hiking and is an admitted map-freak, I have been a fan of the United States Geological Survey (USGS) since I was a kid. The USGS is a purely scientific agency with no regulatory authority that studies, geography, geology, and hydrology of the US, and publishes the well-known “topo maps” used by everyone from casual hikers to state and national planning offices.

One of the most significant areas of research in recent years for this agency has been the effect of Hydraulic Fracturing (or, more simply, “Fracking”). In spite of a “gag order” thrown up as an obstacle to the scientists' work in 2006 under President George W. Bush, the agency has finally weighed in on the public debate about fracking. A new USGS Abstract presented this week at a meeting of the Seismological Society of America concluded that since 2001, the average number of 3.0-or-greater earthquakes each year in the US has spiked significantly, resulting in a six-fold increase in 2011 over 20th century levels…and that these earthquakes are “almost certainly” man-made, the result of fracking.

Hydraulic Fracturing is the widening of fractures in underground layers of rock caused by the high-pressure injection of chemicals with water. This process is used to release petroleum, natural gas (including shale gas, tight gas and coal seam gas), or other substances for extraction by petrochemical companies. High-volume hydraulic fracturing can force as much as 2 to 3 million gallons of fluid per well. It is a growing method of energy extraction, as it is estimated by the International Energy Agency that the global use of natural gas will rise by more than 50% by 2035, and energy companies around the world scramble to locate gas in geological formations conducive to fracking.

Scientists first tied the disposal of resource-extraction wastewater with setting off earthquakes in Colorado more than 50 years ago. Wastewater injections from 1962 to 1966 at the Rocky Mountain Arsenal well near Denve were found to have triggered earthquakes, as the removal of huge volumes of oil, gas and water significantly changed underground pressures and stresses in the rock.

USGS scientists report that from 1970 until 2000, the middle of the country averaged 21 quakes In 2009 this jumped to 50, and then in 2011 it jumped again to 134 in 2011, occurring precisely in the locations where hundreds of fracking operations were taking place.

“In preliminary findings, our scientists cite a series of examples for which an uptick in seismic activity is observed in areas where the disposal of wastewater through deep-well injection increased significantly. These areas tend to be in the middle of the country – mostly in Colorado, Texas, Arkansas, Oklahoma and Ohio,” David Hayes, deputy secretary of the U.S. Department of Interior (which oversees the USGS), wrote that these quakes were big enough to be felt by a great number of people.

The characteristially guarded laguage reflects the fact that in December 2006, the Bush Administration announced a revision in rules for USGS publications, requiring that USGS leadership and communications staff be notified "of findings or data that may be especially newsworthy, have an impact on government policy, or contradict previous public understanding to ensure that proper officials are notified and that communication strategies are developed.”

In other words, scientists were told to submit their findings to political appointees who could sanitize and censor reports that might harm the energy industry. The release of the Abstract this week, then, is even more remarkable given those restrictions.
It was perhaps precipitated by an independent report issued by seismologists at Columbia University, who also concluded that a series of earthquakes that hit the Youngstown, Ohio area throughout 2011 (including a magnitude 4.0 quake on New Year's Eve)were linked to a hydraulic fracking disposal well. High-volume fracking has also been suspected in a string of earthquakes and massive fish and bird kills in Arkansas last year.

In addition to the problems associated with making severe changes to subsurface pressures, detractors have identified other environmental impacts of fracking, including contamination of ground water, and the migration of gases and hydraulic fracturing chemicals to the surface with their concurrent health effects. In 2010, “Gasland,” a film directed by Josh Fox, won the award for Best US Documentary Feature at the Sundance Film Festival in 2010.

A trailer from that documentary appears below, including a clip showing flammable gas coming out of a residential sink faucet:





Published USGS ABstract (with required sanitized language):

Are Seismicity Rate Changes in the Midcontinent Natural or Manmade?

ELLSWORTH, W. L., US Geological Survey, Menlo Park, CA, ; HICKMAN, S. H., US Geological Survey, Menlo Park, CA, ; LLEONS, A. L., US Geological Survey, Menlo Park, CA, ; MCGARR, A., US Geological Survey, Menlo Park, CA, ; MICHAEL, A. J., US Geological Survey, Menlo Park, CA, ; RUBINSTEIN, J. L., US Geological Survey, Menlo Park, CA,

A remarkable increase in the rate of M 3 and greater earthquakes is currently in progress in the US midcontinent. The average number of M >= 3 earthquakes/year increased starting in 2001, culminating in a six-fold increase over 20th century levels in 2011. Is this increase natural or manmade? To address this question, we take a regional approach to explore changes in the rate of earthquake occurrence in the midcontinent (defined here as 85° to 108° West, 25° to 50° North) using the USGS Preliminary Determination of Epicenters and National Seismic Hazard Map catalogs. These catalogs appear to be complete for M >= 3 since 1970. From 1970 through 2000, the rate of M >= 3 events averaged 21 +- 7.6/year in the entire region. This rate increased to 29 +- 3.5 from 2001 through 2008. In 2009, 2010 and 2011, 50, 87 and 134 events occurred, respectively. The modest increase that began in 2001 is due to increased seismicity in the coal bed methane field of the Raton Basin along the Colorado-New Mexico border west of Trinidad, CO. The acceleration in activity that began in 2009 appears to involve a combination of source regions of oil and gas production, including the Guy, Arkansas region, and in central and southern Oklahoma. Horton, et al. (2012) provided strong evidence linking the Guy, AR activity to deep waste water injection wells. In Oklahoma, the rate of M >= 3 events abruptly increased in 2009 from 1.2/year in the previous half-century to over 25/year. This rate increase is exclusive of the November 2011 M 5.6 earthquake and its aftershocks. A naturally-occurring rate change of this magnitude is unprecedented outside of volcanic settings or in the absence of a main shock, of which there were neither in this region. While the seismicity rate changes described here are almost certainly manmade, it remains to be determined how they are related to either changes in extraction methodologies or the rate of oil and gas production.

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Austin, TX Police at Wrong Address, Fatally Shoot Owner's Dog

(Guest post submitted by Candace Michele)

"I am usually not one to get into the politics of people’s opinions of law enforcement. I know there are good and bad people in every walk of life, but I always try to give the benefit of the doubt to those that are in a position to “protect and serve”. But yesterday, a harsh reality was “served” when I received a phone call from a very near and dear person to me. The words I heard coming through my phone were nothing I would have expected in a million years—a very distraught voice saying, “The cops just shot and killed Cisco! They killed my best friend!” In shock, I asked what had happened. At the time, I only got a very brief description, as Michael Paxton was in shock and traumatized over the horrific loss of his dog. I immediately drove to his place (which is about 30 minutes away). When I arrived, I found him clutching Cisco’s body, crying and trying to understand what had just transpired.

Apparently, unbeknown to Mike, there was a domestic disturbance between a male and a female in his neighborhood, and the Austin Police Dept was called in. Unfortunately (seems like such an understatement), Mike found out quickly about the call when he walked into his driveway from his back yard where he and Cisco, his Australian Cattle Dog (Blue Healer), had been playing frisbee. Police officer T. Griffin, Badge #6778, was standing behind Mike’s vehicle, in his driveway. Before Mike even realized Officer Griffin was there, the officer had pulled his gun on Mike, yelling at him to freeze and put his hands up. In a panic, Mike stated to the officer that he lives there, and asked what and why this was happening.

Hearing the commotion, Cisco came from the back yard and into the driveway, barking at the officer, as any dog would do. Mike’s hands in the air, a gun pointed at him, he was afraid for his life, and therefore could not move or attempt to quiet or restrain Cisco. He told the officer that Cisco would not bite him, to please not shoot his dog. Almost immediately, a bullet was put into Cisco’s chest, killing him instantly. Mike still leaned against his truck, unable to move, was not allowed to even hold his best friend as he took the last breath of his abruptly-shortened life.

As was realized after this horrific event had transpired, THE COP WAS AT THE WRONG ADDRESS!!! An innocent man was traumatized by not only having a gun pulled on him by someone that is supposed to be there “to protect and to serve”, but his best friend of seven-and-a-half years was wrongly shot and killed. FOR WHAT?! Because Officer Griffin did not confirm where he was supposed to be before these events transpired!

Nothing will likely happen to Officer Griffin for any of this, as his supervisor arrived after everything took place, and she defended his actions. Mike was given the officers’ information, as well as a phone number to call, if desired. No apologies, no sympathy. Nothing. The officer even told Mike that Cisco should have been on a leash! IN HIS OWN YARD?! ARE YOU SERIOUS?!

We ended up taking Cisco’s body to be buried at a friend’s house, out in the country. Four of us spent two hours digging and breaking through limestone-filled ground, to make a hole large enough to lay to rest this man’s best friend and companion.

There are so many things wrong with this situation, that I just can’t even express it in words. My heart aches for you Mike. I know how much you love Cisco, and how much Cisco loved you. Although I am not sure what justice can or will be served in this case, your story will not go unheard. Along with many of your friends, in an effort to gain some sort of justice for you and Cisco, I am tagging all of our local news media here to get the word out.

This type of excessive force has GOT to be stopped. There needs to be consequences for behaviors such as this. There needs to be a system of “checks and balances” used, to be certain this type of thing doesn’t happen anymore—none of this would have occurred, had the officer just VERIFIED THE CORRECT ADDRESS before pulling a gun on Mike and his dog. I urge anyone and everyone that reads this, to please share this story, and let it be known that these happenings aren’t just things we read about going on in some “other city”, but right here, seriously affecting people we know and love.

If you want further information, please feel free to contact Mike Paxton directly. [He is HERE on Facebook] He is looking for any help he can get in seeking justice for his dog’s unwarranted killing."

[Blogger's note: There is a Facebook Page named Justice for Cisco. But in addition, express your outrage to the Austin Police Department at 512-974-5030]

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New York City Hostels: The Best and Worst Budget Accommodations

By my count, I have visited New York City on overnight trips perhaps 30 times in the last 5 years...and lately, it’s been one a month. I don’t have my own place in the Big Apple, so that means I need to rent accommodations. And I have to admit, with all of the entertainment, nightlife, shows, restaurants, and events taking place in NYC, the *last* thing I want to do is blow hundreds of dollars on a room and a bed that I’m only going to use for a few hours each night – especially when a hundred dollars will buy me a show ticket or several great meals.

In all this time, I have learned that the most cost-effective way to stay right in Manhattan is to locate a good student hostel. Hostels are budget accommodations without many frills, and you share bathrooms with others on your floor. But they allow you to spend your money enjoying New York, rather than funding pricey real estate.

But I have also learned that some hostels are absolutely perfect for the budget traveler – and some are absolute horror stories. There are a number of websites that offer information about budget accommodations n New York, and even some that permit comments by visitors. Unfortunately, many of those comments are left by people who have only visited a location once, or who were unfamiliar with the concept of hostelling to begin with. Based on multiple trips to each of these hostels, I offer you my opinion of the absolute *best* - and *worst* - that New York City has to offer in accommodations.

The BEST – The Chelsea Highline Hotel (Link) at 184 11th Avenue, on the corner of West 23rd Street in the Chelsea neighborhood. Owned by Jazz Hostels, which has multiple locations, this has become my number one choice anytime I am staying in New York City. It is located across from Hudson River Park,

and is only three blocks from the C-E Subway (the “Blue”) line that runs, generally, along 8th Avenue with stops at Times Square/Port Authority, Penn Station, Central Park West, Washington Square Park, downtown Brooklyn and the World Trade Center. In essence, you can get *anywhere* in New York City with this as your base of operations. The neighborhood itself is a mix of nice residential brownstones, apartments, and an explosion of Art Galleries. Crossing overhead on West 23rd street is High Line Park, an elevated train platform that has been transformed into a walkway along Manhattan’s west side with gardens and benches. At the entrance to the High Line is the Half King Restaurant, a pleasant tavern with outdoor sidewalk seating (and a rear Garden Patio) owned by “Perfect Storm” author Sebastian Younger. Interested in a budget meal? Two blocks from the hostel, on the corner of West 23rd Street and 9th Avenue, are two diners, the Chelsea Square (my favorite) and the Moonstruck…and around the corner is Famous Ray’s Pizza, an absolute *must* for people who like their pizza slices delicious and BIG.

The Hostel itself appears to be just another undifferentiated grey-ish white apartment building from outside. But inside, one realizes one has found the best hostel in New York. The front desk staff are always attentive and as diverse as New York City itself. They are always pleasant and helpful. The small lobby has free wireless access if you bring your laptop, and in the mornings the hostel provides bagels and coffee gratis. (OK, I have to admit, the bagels were not classic NY bagels, and there was no cream cheese, and they offered powdered creamer instead of milk, so I didn’t really partake – but it is an amenity that most hostels do not offer at all.)

The rooms are located on the second, third, and fourth floors; I have been in nine of them on all three floors (picture at the top of this post).

The rooms are the largest I have ever experienced in a NYC hostel. The paint is fresh and neutral-colored. Each room has a sink/vanity/mirror, and new furniture that includes beds, night stands, rugs, a stool or chair, and some paintings. And amazingly, they all match, as if someone actually put some thought into making the guests’ stay pleasant. Double rooms (for couples) feature single, low platform beds or twin beds; “Family” rooms feature one queen bed and a bunk bed. The so-called “Family Rooms” are as roomy as a hostel gets; I have brought student groups to this hostel and four people can actually live in one room without tripping over each other. Doors close soundly and lock securely with no ‘gaps’ that characterize other hostels, and the rooms are pretty much soundproof. I have never been awakened by noise from other rooms.

The bathrooms are small “one-seaters,” located three to a floor. They are bright, clean, and newly-tiled, with efficient shelves to hold soap or shampoo, and hot water that actually works.

And unique to the Chelsea Highline: there is actually housekeeping service! Yes, someone comes in and makes your bed and empties your trash.

What would you pay for a night in NYC like this? If you like to be pampered at a hotel, a couple will easily spend between $200 and $400/night. The Chelsea Highline? Try $100 per night for a private double, or as little as $135 for a family room that sleeps four. And since the charges are based on the room, not the number of people, that means 4 friends can share a Family Room for about $35/night (plus NYC room taxes.)

As I said, I have *never* had a bad experience at the Chelsea (and I promise, the fact that my two favorite NYC nightspots – the Rawhide and the Eagle – are both within an easy 5 minute walking distance had nothing to do with my positive review. But of course, it doesn’t hurt either!)

The WORST – The Bowery’s Whitehouse Hotel, at 340 Bowery, between East 2nd (also called “Bond Street”) and East 3rd Street (also known as “Great Jones Street”). I will not even give you their web address: I do not want to be responsible for ever sending anyone to this house of horrors.

I will say this: if you are looking for the excitement, nightlife, and bohemian atmosphere of the East Village, the location of this hostel is unbeatable. The website makes it look like a pleasant stay, with subway access, on the funky east side. I beg of you – do not be deceived. It is beyond comprehension that the City of New York – which comes down hard on hostels – allows this place to exist.

I have stayed here on multiple occasions for a few reasons: first, the location really is fantastic; I can never believe that it could actually be so horrible every time, so I try it again; and, most often, I have stayed here because every other hostel in NYC was booked full. I will never do that again.

The Whitehouse is designed more like a homeless shelter than a hostel.

You may not take your key when you leave the hostel – it must be handed back in to the staff at the front desk. The staff may or may not be there when you return, or may be arguing with someone on the phone, and you may have to wait to get into your “room.”

I wrote “room” in quotes, because in actuality, there are no rooms. They have simply erected ‘partitions’ to divide each floor into units, slapping lime green and other cast-off paint colors on them. The partitions do not reach the ceiling: your ‘ceiling’ is a lattice work (with spaces large enough for you to stick your head – or entire body – through). That means that there is no quiet at all, because there is no ceiling blocking noise form the next unit. On multiple occasions we were awake for hours because we could hear every conversation taking place on the floor – even when people whispered.

The units are literally only large enough to fit a bed: you open your door, and there is about 10 square feet of floor space, and a bed fit into the unit and surrounded by partition walls on three sides. There are no sinks, no electric outlets (although there were exposed and capped wires dangling in the last unit I stayed in). The doors do not close completely flush: there are cracks and holes through which any passer-by can peer in.

Like the rooming units, the shower doors are broken and gaping. The first time I turned on a shower, the handle was improperly fitted against the broken tiling and I sliced open my knuckles. Long hair was wound around the shower curtain holders, and the water drained away from the drain flooding the floor and making it slimy.

The pipes are in need of serious repair. Hot water in the shower is a luxury; but as it courses through the building’s heating system, it bangs so loudly that the floor literally vibrates throughout the building. On my last night there, one toilet on the floor above us clogged and overflowed continuously; it completely drenched one neighboring unit, as the toilet water splashed on several more of us.

There is no wifi, breakfast, or amenities. Instead, the Whitehouse actually scams guests to hold on to funds. All guests are required to not only pay, but to put additional charges (an extra night) on their credit card as a “hold” against damages (how in the WORLD they would ever know how a room was damaged is beyond me, given their poor condition). When I checked out, I was told that the “hold” would take 10 days to clear, which is total nonsense. The desk clerk rolled her eyes at me when I objected, and insisted that this is their bank’s procedure and they couldn't change it. That, of course, is absolutely bogus. I launched into a speech about how I had paid several hundred dollars and was unable to sleep at all for two nights in a row and that the City Consumer Affairs Office was going to hear about this scam of my debit card. The ten-day hold (which was supposedly their ‘bank’s procedure”) on my debt card was suddenly lifted by the next day.

The Bowery’s Whitehouse entices unsuspecting travelers with nice pictures, a good website, a fantastic location, and available ‘rooms’ (for good reason!) – and then traps people in units with no room, no amenities, no ability to engage in peaceful sleep, and additional charges that normally stay on your card for 10 days.

If you’re thinking of staying here – don’t. Run. Far. Quickly.


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Massachusetts Colleges Push Back Against Service Dogs, Violate ADA

During last year’s Christmas season, we took a shopping trip to Fifth Avenue in New York City. Somewhere on the upper floors of the high-quality Bergdorf Goodman store, I rounded a corner and came “face to face” with a beautiful Portuguese Water Dog. Being a dog lover, I know I broke out in a smile from ear to ear as I dropped to my knees and greeted him.

This incident marks a growing trend I have noticed whereby dogs are being accepted more and more readily into the normal, daily human environment, and it is a trend I strongly support and enjoy. In the past, there was an assumption of “No Dogs Allowed!” in many business places, often justified by scientifically unsupportable fears about hygiene. And yet, when I walked into Home Depot and then a supermarket few years ago with a rejected baby lamb wrapped in a towel, no one uttered a negative word (after all, little lambs are cute…) A growing number of nursing homes and hospitals have recognized the therapeutic nature of animals, and have permitted access to pets by residents.

Much of the credit for this growing acceptance goes to the federal Americans with Disabilities Act, which was enacted in an effort to remove obstacles and improve access to services, offices, and business places that the non-disabled take for granted. Under the law, places of public accommodation – including office buildings, college campuses, supermarkets, apartment buildings, and just about any place that opens its doors to the public to conduct business – must have modified practices and procedures to permit the use of service animals by disabled people.

A year ago, the definition of “service animal” was revised in ADA regulations specifically to “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” Years ago, many people equated a service dog only with a “Seeing Eye Dog” for the blind, but the definitions of “disability“ – and thus the roles that service dogs perform – have greatly expanded. Service dogs” include dogs trained to provide support for a wide variety of disabilities, including sensory, psychiatric, intellectual, mental and physical disabilities. These dogs ‘sense’ and alert their owners of seizure onsets, open doors, pull wheelchairs, pick up and carry items, and prevent loss of emotional control. Unfortunately, one of the most confusing areas of the law is that the ADA does not protect an animal whose primary role is to provide “emotional support, well-being, comfort or companionship,” or those animals normally classified as ‘therapy dogs.’ The difference is blurry: therapy dogs are also often trained to perform tasks that parallel “service dogs,” which are covered by the law.

A business owner who questions whether or not a dog is a service animal or “just” a pet is permitted under the ADA to ask only two questions:

“ Is the animal required because of a disability?”

and

“What work or task has the animal been trained to perform?”

If it is obvious to a casual observer what the animal is trained to do, even these two questions should not be asked. They are intimidating intrusions into the life of a disabled person who is seeking to gain access, and overcome obstacles, and they should not be made to defend or fight for their rights in each business.

In addition, businesses are prohibited from asking certain questions. They may not inquire about the nature or extent of the person’s disability. And they may not require proof of the service animal’s documentation, certification or training.

Nonetheless, a growing number of college campuses – particularly in Massachusetts – are doing just that. Similar to the Milton Hershey School’s (Pennsylvania) claim that they can refuse admittance to an HIV positive student (who is protected by the ADA) because ‘schools are different,’ a number of community colleges in Massachusetts have begun to cobble together ‘service dog policies’ that go far beyond what the law permits: they request that visitors “register” their animals with numerous offices; they request proof of certification and training; they request written confirmation of the animals vaccinations – none of which can be required by any place of public accommodation under the ADA.

In at least one college, a draft version of a policy which had been proposed by the administration actually required that the disabled answer inquiries posed not only by faculty and staff, but by fellow students as well: a full-scale invasion of privacy of the disabled using a service animal. This is precsiely the intimidation that the ADA was meant to curtail.

In addition, in spite of the constant use of rhetoric proclaiming that public colleges ‘provide access to higher education,’ these policies attempt to comply with only the absolute minimal ADA requirements by refusing to cover even trained, certified therapy dogs in their access policies.

These colleges - who so often see themselves as bastions of progressive thought - would do better to join the growing societal consensus that dogs in a ‘human’ environment provide more benefits than danger, and that the movement towards increasing access to public facilities for all people requires a less reactionary approach.