TBR News December 23, 2012

Dec 23 2012

The Voice of the White House


          Washington, D.C. December 23, 2012: “The New Year will soon be upon us, bringing many changes to all of us. Firstly, the US has (privately) changed its hitherto firm support of anything Israel does. It is now recognized that Netanyahu’s frenzy to get America to attack both Tehran and to carpet bomb southern Lebanon (because of Hezbollah’s immense store of long-range rockets) is totally counter-productive and could easily result in increased terrorist activity directed at the American homeland. This possibility is one of the reasons that all the top intelligence agencies are now abandoning their offices in Washington and moving downstate to Charlottesville. When Bibi learned that he could get nowhere with Obama, he made the error of threatening him politically (this was before the November elections) and telling him, very bluntly, that if Obama did not do as he was told, he would lose the Jewish vote. Even if Bibi could convince the Jewish community to vote for Romney, Obama still would have won by a significant margin. What would Bibi’s next move be? To prohibit his Mossad from shipping huge amounts of illegal drugs into this country? And poor Rupert Murdoch, once a powerful man, is having his power systematically stripped away, leaving a nasty, snarling old man behind. His empire is falling apart and it will be interesting to see who the new owner of the ‘Wall Street Journal’ will be.”


Banks and Persons


December 22, 2012 

by Christopher Brauchli

Common Dreams

My object all-sublime,
I shall achieve in time-
To let the punishment fit the crime.
— Gilbert and Sullivan, The Mikado

It was just an unfortunate coincidence that the reports were almost juxtaposed-the reports of the punishment given Stephanie George and that given HSBC and UBS. Stephanie, of course, was not the first.

William James Rummel has been imprisoned since the late 1970s and will be there for the rest of his life. That is because he was convicted of three crimes. He used a credit card to obtain $80 worth of goods and services, a crime for which he served 3 years in jail. When he got out he passed a forged check in the amount of $23.86 which bought him 4 years in jail. He ended his career as an air conditioning repairman, charging a customer $120.75 for a repair with which the customer was not satisfied. He refused to return the money and was convicted of obtaining money under false pretenses. Since that was his third conviction he was sentenced to life in prison. In reviewing his sentence the U.S. Supreme Court said his life sentence did not constitute cruel and unusual punishment. Commenting on the Court’s finding Justice Rehnquist said: “We all of course, would like to think that we are ‘moving down the road toward human decency. . . .’ Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies.” Some legal cartographers could probably have helped the Justice out.

On December 12, 2012 the New York Times described the plight of Stephanie George. Her boyfriend stashed a lockbox with a half-kilogram of cocaine in her attic and when the police found it she was charged with its possession even though she claimed not to have known of its presence in her house. The judge said he thought the sentence unreasonable but he was compelled by governing statutes to sentence Ms. George to life in prison. In contemplating their fates Ms. George and Mr. Rummel (and many others) may well wonder how things could have come out differently for them. The answer is, they should have been banks. Banks don’t go to jail even though they are persons and even when their offenses involve billions of dollars.

On the same day that Ms. George’s plight was described, HSBC agreed to pay $1.92 billion for worse things than failing to properly repair an air conditioning unit or store a bit of coke. According to the Senate Subcommittee on Investigations in a report issued in July 2012, the bank “exposed the U.S. financial system to a wide array of money laundering, drug trafficking, and terrorist financing risks due to poor anti-money laundering controls.” The banks’ conduct enabled Mexican drug cartels to launder tainted money through the American financial system, and the bank worked closely with Saudi Arabian banks linked to terrorists.

The bank is a person for purpose of making political contributions to assorted candidates but it is not a person for purposes of being charged with criminal wrongdoing or going to jail. A criminal indictment of either the bank person or a human person, we are told, might place the institution at risk of collapse. Critics can take comfort in knowing that the bank did not get off scot-free. In addition to paying $1.92 billion to settle the charges against it, it will enter into a deferred prosecution agreement that suggests if it or a human person doesn’t mend its ways criminal charges might yet be brought. Lanny Breuer, the head of the Justice Department’s criminal division said that: “HSBC is being held accountable for stunning failures of oversight-and worse-that led the bank to permit narcotics traffickers and others to launder hundreds of millions of dollars through HSBC subsidiaries, and to facilitate hundreds of millions more in transactions with sanctioned countries.” Having described its actions he nonetheless defended the punishment saying it was a “just, very real and very powerful result.” He’s right. $1.92 billion is a lot of money and it means that instead of HSBC having a 2011 profit of $22 billion it will only have a profit of about $20 billion.

December 19 we learned that UBS had settled with U.S. and British regulators for having manipulated LIBOR rates. (LIBOR is the interest rate banks charge each other for inter-bank loans. Depending on what time period one is examining the bank was either reporting artificially high rates or artificially low rates in order to deceive regulators and/or make money.) According to the Wall Street Journal, its review of a federal report suggests Fannie Mae and Freddie Mac may have lost more than $3 billion as a result of the manipulation of LIBOR. UBS is not facing criminal charges since they might endanger its stability. Its Japanese branch “has agreed to enter a plea to one count of wire fraud relating to the manipulation of certain benchmark interest rates, including Yen Libor.” The bank is not going to jail for the same reason HSBC is not going to jail. Federal Regulators said if criminal charges were brought the bank’s stability would be threatened.

Mr. Rummel and Ms. George greatly regret the fact that they were not banks. Their incarceration has greatly affected their stability.


Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review.


Why the US media ignored Murdoch’s brazen bid to hijack the presidency

Did the Washington Post and others underplay the story through fear of the News Corp chairman, or simply tin-eared judgment?


December 20, 2012

by Carl Bernstein

The Guardian

            So now we have it: what appears to be hard, irrefutable evidence of Rupert Murdoch‘s ultimate and most audacious attempt – thwarted, thankfully, by circumstance – to hijack America’s democratic institutions on a scale equal to his success in kidnapping and corrupting the essential democratic institutions of Great Britain through money, influence and wholesale abuse of the privileges of a free press.

In the American instance, Murdoch’s goal seems to have been nothing less than using his media empire – notably Fox News – to stealthily recruit, bankroll and support the presidential candidacy of General David Petraeus in the 2012 election.

Thus in the spring of 2011 – less than 10 weeks before Murdoch’s centrality to the hacking and politician-buying scandal enveloping his British newspapers was definitively revealed – Fox News’ inventor and president, Roger Ailes, dispatched an emissary to Afghanistan to urge Petraeus to turn down President Obama’s expected offer to become CIA director and, instead, run for the Republican nomination for president, with promises of being bankrolled by Murdoch. Ailes himself would resign as president of Fox News and run the campaign, according to the conversation between Petraeus and the emissary, K T McFarland, a Fox News on-air defense “analyst” and former spear carrier for national security principals in three Republican administrations.

All this was revealed in a tape recording of Petraeus’s meeting with McFarland obtained by Bob Woodward, whose account of their discussion, accompanied online by audio of the tape, was published in the Washington Post – distressingly, in its style section, and not on page one, where it belonged – and, under the style logo, online on December 3.

Indeed, almost as dismaying as Ailes’ and Murdoch’s disdain for an independent and truly free and honest press, and as remarkable as the obsequious eagerness of their messenger to convey their extraordinary presidential draft and promise of on-air Fox support to Petraeus, has been the ho-hum response to the story by the American press and the country’s political establishment, whether out of fear of Murdoch, Ailes and Fox – or, perhaps, lack of surprise at Murdoch’s, Ailes’ and Fox’s contempt for decent journalistic values or a transparent electoral process.

The tone of the media’s reaction was set from the beginning by the Post’s own tin-eared treatment of this huge story: relegating it, like any other juicy tidbit of inside-the-beltway media gossip, to the section of the newspaper and its website that focuses on entertainment, gossip, cultural and personality-driven news, instead of the front page.

“Bob had a great scoop, a buzzy media story that made it perfect for Style. It didn’t have the broader import that would justify A1,” Liz Spayd, the Post’s managing editor, told Politico when asked why the story appeared in the style section.

Buzzy media story? Lacking the “broader import” of a front-page story? One cannot imagine such a failure of news judgment among any of Spayd’s modern predecessors as managing editors of the Post, especially in the clear light of the next day and with a tape recording – of the highest audio quality – in hand.

“Tell [Ailes] if I ever ran,” Petraeus announces on the crystal-clear digital recording and then laughs, “but I won’t … but if I ever ran, I’d take him up on his offer. … He said he would quit Fox … and bankroll it.”

McFarland clarified the terms: “The big boss is bankrolling it. Roger’s going to run it. And the rest of us are going to be your in-house” – thereby confirming what Fox New critics have consistently maintained about the network’s faux-news agenda and its built-in ideological bias.

And here let us posit the following: were an emissary of the president of NBC News, or of the editor of the New York Times or the Washington Post ever caught on tape promising what Ailes and Murdoch had apparently suggested and offered here, the hue and cry, especially from Fox News and Republican/Tea Party America, from the Congress to the US Chamber of Commerce to the Heritage Foundation, would be deafening and not be subdued until there was a congressional investigation, and the resignations were in hand of the editor and publisher of the network or newspaper. Or until there had been plausible and convincing evidence that the most important elements of the story were false. And, of course, the story would continue day after day on page one and remain near the top of the evening news for weeks, until every ounce of (justifiable) piety about freedom of the press and unfettered presidential elections had been exhausted.

The tape of Petraeus and McFarland’s conversation is an amazing document, a testament to the willingness of Murdoch and the wily genius he hired to create Fox News to run roughshod over the American civic and political landscape without regard to even the traditional niceties or pretenses of journalistic independence and honesty. Like the revelations of the hacking scandal, which established beyond any doubt Murdoch’s ability to capture and corrupt the three essential elements of the British civic compact – the press, politicians and police – the Ailes/Petraeus tape makes clear that Murdoch’s goals in America have always been just as ambitious, insidious and nefarious.

The digital recording, and the dead-serious conspiratorial conversation it captures so chillingly in tone and substance (“I’m only reporting this back to Roger. And that’s our deal,” McFarland assured Petraeus as she unfolded the offer) utterly refutes Ailes’ disingenuous dismissal of what he and Murdoch were actually attempting: the buying of the presidency.

“It was more of a joke, a wiseass way I have,” Ailes would later claim while nonetheless confirming its meaning. “I thought the Republican field [in the primaries] needed to be shaken up and Petraeus might be a good candidate.”

The recording deserves to be heard by any open-minded person trying to fathom its meaning to the fullest.

Murdoch and Ailes have erected an incredibly influential media empire that has unrivaled power in British and American culture: rather than judiciously exercising that power or improving reportorial and journalistic standards with their huge resources, they have, more often than not, recklessly pursued an agenda of sensationalism, manufactured controversy, ideological messianism, and political influence-buying while masquerading as exemplars of a free and responsible press. The tape is powerful evidence of their methodology and reach.

The Murdoch story – his corruption of essential democratic institutions on both sides of the Atlantic – is one of the most important and far-reaching political/cultural stories of the past 30 years, an ongoing tale without equal. Like Richard Nixon and his tapes, much attention has been focused on the necessity of finding the smoking gun to confirm what other evidence had already established beyond a doubt: that the elemental instruments of democracy, ie the presidency in Nixon’s case, and the privileges of free press in Murdoch’s, were grievously misused and abused for their own ends by those entrusted to use great power for the common good.

In Nixon’s case, the system worked. His actions were investigated by Congress, the judicial system held that even the president of the United States was not above the law, and he was forced to resign or face certain impeachment and conviction. American and British democracy has not been so fortunate with Murdoch, whose power and corruption went unchecked for a third of a century.

The most important thing we journalists do is make judgments about what is news. Perhaps no story has eluded us on a daily basis (for lack of trying) for so many years as the story of Murdoch’s destructive march across our democratic landscape. Only the Guardian vigorously pursued the leads of the hacking story and methodically stuck with it for months and years, never ignoring the underlying context of how Rupert Murdoch conducted his take-no-prisoners business and journalism without regard for the most elemental standards of fairness, accuracy or balance, or even lawful conduct.

When the Guardian’s hacking coverage reached critical mass last year, I quoted a former top Murdoch deputy as follows: “This scandal and all its implications could not have happened anywhere else. Only in Murdoch’s orbit. The hacking at News of the World was done on an industrial scale. More than anyone, Murdoch invented and established this culture in the newsroom, where you do whatever it takes to get the story, take no prisoners, destroy the competition, and the end will justify the means.”

The tape that Bob Woodward obtained, and which the Washington Post ran in the style section, should be the denouement of the Murdoch story on both sides of the Atlantic, making clear that no institution, not even the presidency of the United States, was beyond the object of his subversion. If Murdoch had bankrolled a successful Petraeus presidential campaign and – as his emissary McFarland promised – “the rest of us [at Fox] are going to be your in-house” – Murdoch arguably might have sewn up the institutions of American democracy even more securely than his British tailoring.

Happily, Petraeus was not hungering for the presidency at the moment of the messenger’s arrival: the general was contented at the idea of being CIA director, which Ailes was urging him to forgo.

“We’re all set,” said the emissary, referring to Ailes, Murdoch and Fox. “It’s never going to happen,” Petraeus said. “You know it’s never going to happen. It really isn’t. … My wife would divorce me.”


Murdoch, Petraeus and the US Media Matrix


December 21, 2012

by Jonathan Cook

Common Dreams


Carl Bernstein, of All the President’s Men fame, has a revealing commentary in the Guardian today, though revealing not entirely in a way he appears to understand. Bernstein highlights a story first disclosed earlier this month in the Washington Post by his former journalistic partner Bob Woodward that media mogul Rupert Murdoch tried to “buy the US presidency”.

A taped conversation shows that in early 2011 Murdoch sent Roger Ailes, the boss of his most important US media outlet, Fox News, to Afghanistan to persuade Gen David Petraeus, former commander of US forces, to run against Barack Obama as the Republican candidate in the 2012 presidential election. Murdoch promised to bankroll Petraeus’ campaign and commit Fox News to provide the general with wall-to-wall support.

Murdoch’s efforts to put his own man in the White House failed because Petraeus decided he did not want to run for office. “Tell [Ailes] if I ever ran,” Petraeus says in the recording, “but I won’t … but if I ever ran, I’d take him up on his offer.”

Bernstein is rightly appalled not just by this full-frontal attack on democracy but also by the fact that the Washington Post failed to splash with their world exclusive. Instead they buried it inside the paper’s lifestyle section, presenting it as what the section editor called “a buzzy media story that … didn’t have the broader import” that would justify a better showing in the paper.

In line with the Washington Post, most other major US news outlets either ignored the story or downplayed its significance.

We can probably assume that Bernstein wrote his piece at the bidding of Woodward, as a covert way for him to express his outrage at his newspaper’s wholesale failure to use the story to generate a much-deserved political scandal. The pair presumably expected the story to prompt congressional hearings into Murdoch’s misuse of power, parallel to investigations in the UK that have revealed Murdoch’s control of politicians and the police there.

As Bernstein observes: “The Murdoch story – his corruption of essential democratic institutions on both sides of the Atlantic – is one of the most important and far-reaching political/cultural stories of the past 30 years, an ongoing tale without equal.”

What Bernstein cannot understand is why his media masters don’t see things the way he does. He reserves his greatest dismay for “the ho-hum response to the story by the American press and the country’s political establishment, whether out of fear of Murdoch, Ailes and Fox – or, perhaps, lack of surprise at Murdoch’s, Ailes’ and Fox’s contempt for decent journalistic values or a transparent electoral process.”

But in truth neither of Bernstein’s explanations for this failure is convincing.

A far more likely reason for the US media’s aversion to the story is that it poses a danger to the Matrix-like wall of static interference generated by precisely the same media that successfully conceals the all-too-cosy relationship between the corporations (that own the media) and the country’s politicians.

The Petraeus story is disturbing to the media precisely because it tears away the façade of US democratic politics, an image carefully honed to persuade the American electorate that it chooses its presidents and ultimately decides the direction of the country’s political future.

Instead, the story reveals the charade of that electoral game, one in which powerful corporate elites manipulate the system through money and the media they own to restrict voters’ choice to two almost-identical candidates. Those candidates hold the same views on 80 per cent of the issues. Even where their policies differ, most of the differences are quickly ironed out behind the scenes by the power elites through the pressure they exert on the White House via lobby groups, the media and Wall Street.

The significance of Woodward’s story is not that it proves Rupert Murdoch is danger to democracy but rather that it reveals the absolute domination of the US political system by the global corporations that control what we hear and see. Those corporations include, of course, the owners of the Washington Post.

The saddest irony is that the journalists who work within the corporate media are incapable of seeing outside the parameters set for them by their media masters. And that includes even the most accomplished practitioners of the trade: Woodward and Bernstein.



News Corporation says publishing arm lost $2.1bn


December 21, 2012

BBC News

News Corporation says its publishing wing incurred a $2.1bn (£1.3bn) loss in the last financial year.

Revenues fell 5%, partly as a result of the closure of the News of the World, which it stopped publishing after the phone-hacking scandal broke in the UK.

The company detailed the losses as it formally applied to US regulators the Securities and Exchange Commission to split its business into two.

News Corp plans to separate publishing from its film and TV business.

The publishing arm, which News Corp said had made a profit of $678m the year before, will be called New News Corp. It will include book publisher Harper Collins, the Times and the Sun newspapers in the UK, the Wall Street Journal, the New York Post and the Australian.

The more lucrative TV and film business will be the parent company and will be called Fox Group.

It will include the US news channel Fox News and the 20th Century Fox film studio.

‘Adverse trends’

The loss made by the publishing arm included a $2.6bn impairment charge, after writedowns of $1.3bn for goodwill and $1.3bn for other intangible assets, primarily newspaper mastheads and distribution networks.

These impairment charges were largely the result of “adverse trends affecting several businesses”, including a weakening economic environment in Australia and lower predicted revenues from certain businesses.

The charges also reflected the expected sale of certain assets at a value below their carrying value, News Corp said.

The company first announced its plan to split in June, after pressure from shareholders who were concerned about the damage done to the publishing business by the events at the News of the World.

Robert Thomson, who is currently the managing editor of the Wall Street Journal and previously edited the Times, will be head of the new publishing company.

He will receive an annual salary of $2m, and a performance-based annual bonus with a target of $2m.

Rupert Murdoch will carry on as chairman and chief executive of the parent company, for which his compensation totalled $30m in the last year.

His pay will increase “modestly” as he takes on the role of executive chairman of the publishing company.

Julian Assange: Wikileaks to release ‘million more files in 2013’


December 20, 2012

BBC News

             Wikileaks founder Julian Assange said his work “will not be cowed,” as he promised the whistle-blowing site would release a million more documents.

In a speech from a balcony at the Ecuadorean embassy in London, he said the files to be published in 2013 would affect “every country in this world”.

It is six months since he sought asylum to avoid extradition to Sweden over sexual assault claims, which he denies.

He fears being sent to the US and being punished for leaking diplomatic files.

A crowd of some 80 supporters gathered outside the building, in Knightsbridge, to listen to the 41-year-old Australian – whose website published a mass of leaked cables embarrassing a number of countries.

In his statement, Mr Assange said the US Pentagon had recently described the existence of Wikileaks as an “ongoing crime”.

Addressing supporters – some of whom carried candles – the Australian said: “While that remains the case and while my government will not defend the journalism and publishing of Wikileaks, I must remain here.

“However, the door is open, and the door has always been open, for anyone who wishes to use standard procedures to speak to me or guarantee my safe passage.”

He also said 2012 had been a “huge year” for the organisation.

During the speech, Mr Assange saluted journalists who reported arrests around the world, adding: “It is from the revelation of the truth that all else follows… our civilisation is only as strong as its ideas are true.”

Round-the-clock guard

Mr Assange delivered a message from a balcony in August, calling for an end to the diplomatic impasse that began when Ecuador’s government granted him political asylum.

Sweden wants to question him over allegations that he sexually assaulted two female ex-Wikileaks supporters while he was in Stockholm to give a lecture in 2010.

Mr Assange entered the embassy after the UK’s Supreme Court dismissed his bid to reopen his appeal against extradition. It had given him a two-week grace period before extradition proceedings could start.

Mr Assange has been warned he will be arrested when he leaves the embassy for breaking the terms of his bail conditions, and officers from the Metropolitan Police continue to mount a round-the-clock guard on the building.

A statement from the Ecuadorian ambassador said: “At a time of year when people come closer together, Ecuador reaffirms the solidarity that our country gave six months ago to a person who was being persecuted for thinking and expressing themselves freely.

“Julian has become a guest in this house that we all have learned to appreciate.”

Calling for reflection, he went on: “Often it is necessary, as we have done in our beloved country, to stand up and face those enemies of democracy that, far from seeking unity and peace among the citizens of the world, instead seek to ruin socialist peoples and dominate on behalf of small groups of people.”


Are the U.S. and Israel Heading for a Showdown?
No One Thinks So, But It Just Might Happen

by Ira Chernus


Here’s the question no one is asking as 2012 ends, especially given the effusive public support the Obama administration offered Israel in its recent conflict with Hamas in Gaza: Will 2013 be a year of confrontation between Washington and Jerusalem?  It’s on no one’s agenda for the New Year. But it could happen anyway.

It’s true that the Israeli-Palestinian peace process appears dead in the water. No matter how much Barack Obama might have wanted that prize, Israeli Prime Minister Benjamin Netanyahu has rebuffed him at every turn.  The president appears to have taken it on the chin, offering more than the usual support for Israel and in return getting kloom (as they say in Hebrew).  Nothing at all.

However, the operative word here is “appears.” In foreign affairs what you see — a show carefully scripted for political purposes — often bears little relation to what you actually get.

While the Obama administration has acceded to the imagery of knee-jerk support for whatever Israel does, no matter how outrageous, behind the scenes its policies are beginning to look far less predictable. In fact, unlikely as it may seem, a showdown could be brewing between the two countries. If so, the outcome will depend on a complicated interplay between private diplomacy and public theater.

The latest well-masked U.S. intervention came in the brief November war between Israel and Gaza. It began when Israel assassinated a top Hamas leader deeply involved in secret truce talks between the supposedly non-communicating foes.

Destructive as it was, the war proved brief indeed for one reason: the American president quickly stepped in. Publicly, he couldn’t have sided more wholeheartedly with Israel. (It felt as if Mitt Romney had won, not lost, the election.)  In private, though, as he pressured Egyptian President Morsi to force Hamas to a truce, he reportedly pushed Israeli Prime Minister Benjamin Netanyahu just as hard.

The truce agreement even had an Obama-required twist.  It forced Israel to continue negotiating seriously with Hamas about easing the blockade that, combined with repeated destructive Israeli strikes against the Palestinian infrastructure, has plunged Gaza so deep into poverty and misery. Talks on the blockade are reportedly proceeding, though wrapped in the deepest secrecy. It’s hard to imagine Israel upholding the truce and entering into a real dialogue to ease the blockade without significant pressure from Washington.

Washington is also deeply involved in the tensions between Israel and the Palestinian Authority (P.A.) in the West Bank. When P.A. president Mahmoud Abbas asked the U.N. General Assembly to accord Palestine observer status, Israel publicly denounced any such U.N. resolution. The Obama administration wanted to offer a far softer resolution of its own with Israeli approval. The Israelis gave in and sent a top official to Washington to negotiate the language.

In the end, the U.S. had no success; the stronger resolution passed overwhelmingly. Israel promptly retaliated by announcing that it would build 3,000 additional housing units in various settlements on the West Bank. To make the response stronger, the Israeli government indicated that it would also make “preliminary zoning and planning preparations” for new Israeli settlements in the most contentious area of the West Bank, known as E1. Settlements there would virtually bisect the West Bank and complete a Jewish encirclement of Jerusalem, ending any hope for a two-state solution.

Washington Can Lay Down the Law

There is a history of the Israeli government publicly announcing settlement expansions for symbolic political effect, and then, under U.S. pressure, pursuing only limited construction or none at all. Some observers suspect Netanyahu is now playing the same game.

As the New York Times reported, “For years, American and European officials have told the Israelis that E1 is a red line. The leaked, somewhat vague, announcement… is a potent threat that may well, in the end, not be carried out because the Israeli government worries about its consequences.” Prominent Israeli columnist Shimon Shiffer was more certain. “Netanyahu,” he wrote, “does not plan to change the policies of his predecessors, who assured the Americans Israel would not build even one house in problematic areas” like E1.

Maybe that’s why Netanyahu sounded so tentative on the subject in an interview: “What we’ve advanced so far is only planning [in E1], and we will have to see. We shall act further based on what the Palestinians do.” Israeli officials admitted to the New York Times that the move on E1 was “symbolism against symbolism.”

But several European nations took the E1 threat seriously and responded with unusually sharp criticism. Some Israeli insiders claimed that Obama’s hidden hand was at work here, too. The American president, they speculated, gave the Europeans “the green light to respond with extreme measures… The European move is essentially an American move.”  If so, it was all done in private, of course.  (The White House publicly denied the claim.)

However Peter Beinart,editor of the Open Zion page at the Daily Beast and author of The Crisis of Zionism, claims administration officials have told him that such behind-the-scenes maneuvering is Obama’s new strategy. Publicly, Washington will “stand back and let the rest of the world do the confronting. Once the U.S. stops trying to save Israel from the consequences of its actions, the logic goes, and once Israel feels the full brunt of its mounting international isolation, its leaders will be scared into changing course.”

As Beinart suggests, international isolation is what worries Israelis most. A cut-off of U.S. military aid would be troubling indeed but in itself hardly fatal, since Israel already has the strongest military in the Middle East and a sizeable military-industrial-high-tech complex of its own.

What Israel needs, above all, from the U.S. is diplomatic support to protect it from international rejection, economic boycotts, and a diplomatic tsunami that could turn Israel into a pariah state. Political analysts have long assumed that any Israeli leader who loses the protection of the U.S. would pay the price at the polls.

That’s why some insiders, like Daniel Kurtzer, former U.S. ambassador to Israel and Egypt, think Obama can “lay down the law” to Israel on E1 — behind closed doors, of course. The influential Israeli journalist Anshel Pfeffer puts the situation in the simplest of terms: “It is clear who is boss.”

Obama’s New Diplomatic Weapon

The rules of Israel’s political game, however, may also be changing. And that’s a key to understanding why 2013 could be the year of confrontation between the leaderships of the two countries. Netanyahu has allied his Likud party with the strongest party to its right, Yisrael Beitenu. To seal his victory in the upcoming election on January 22nd, he’s put his political fate in the hands (or talons) of his country’s hawks.

If he wins (which everyone assumes he will), he’ll have to satisfy those hawks — and they don’t care about shrewd secret bargaining or holding on to allies. What they want, above all, are public displays of unilateral strength made with much fanfare, exactly like the recent settlement-expansion announcement and the accompanying threat to turn E1 into an Israeli suburb. Many observers have suggested that the primary audience was Netanyahu’s new, ever-more-right-wing partners. Plenty of them still don’t trust him, especially after the ceasefire in Gaza under pressure from Washington.

Most analysts saw the Israeli announcement as a public punishment of the Palestinians for their success at the U.N. The BBC’s Kevin Connolly had a different interpretation: Israeli hawks felt that letting the U.N. vote pass without some strong response “would be seen as a sign of weakness.”

Israeli political life has always been haunted by a fear of weakness and a conviction that Jews are condemned to vulnerability in a world full of anti-Semites eager to destroy them. The hawks’ worldview is built upon this myth of insecurity. It demands instant retaliation so that Jews can show the world — but more importantly themselves — that they are strong enough to resist every real or (more often) imagined threat.

To keep the show going, they must have enemies. So they seek out confrontations and, at the same time, “actually welcome isolation,” as the venerable Israeli commentator Uri Avnery says, “because it confirms again that the entire world is anti-Semitic, and not to be trusted.” 

“For the sake of his target voter,” writes another Israeli columnist, Bradley Burston, “it’s in Netanyahu’s direct interest for the world to hate Israelis” and for Obama to be “fed up and furious with Israel. That is, at least until Election Day.”

Obama owes the Israeli prime minister nothing after the recent U.S. election season in which Netanyahu practically campaigned for Mitt Romney and publicly demanded that the U.S. threaten an attack on Iran –- a demand that the administration publicly rebuffed.  The president might finally be fed up, and so in a mood to ratchet up private pressure on the Israelis.

If Obama is planning to put more heat on them, he will undoubtedly wait until after their election. Then, in the late winter months of 2013, before spring comes and Netanyahu can revive the possibility of an attack on Iranian nuclear facilities, the president might well provoke a showdown.

He has good reason. If he can secure a definitive halt to settlement expansion, he can bring the Palestinians back to the table with a promise to press Israel to negotiate seriously for a two-state solution. In a chaotic region where the U.S. seems to be losing ground weekly, Washington could score sizeable foreign policy points, especially in improving relations with regional powers Turkey and Egypt.

And faced with Netanyahu’s new post-election government, Obama would find himself with a new diplomatic weapon in his arsenal. Suppose — an administration aide might suggest to an Israeli counterpart — the U.S. publicly reveals that it’s allowing, perhaps even pushing, other nations to isolate Israel.

Some Israeli hawks would undoubtedly welcome the chance to proclaim Obama as Israel’s greatest enemy and demand that Netanyahu resist all pressure. But Israeli centrists — still a large part of the electorate — would be dismayed, or worse, at the thought of losing Washington as their last bulwark against international rejection. The fear that Israel could become a pariah state, blacklisted, embargoed, and without its lone invaluable ally would be a powerful incentive. They’d insist that Netanyahu show flexibility to avoid that fate.

Netanyahu would find himself caught in a political battle he could never hope to win. To avoid such a trap, he might well risk yielding in private to U.S. pressure, with the understanding that the two allies would publicly deny any change in policy and the U.S. would continue to offer effusive public support. (The Israelis could always find some bureaucratic excuse to explain a halt — even if termed a “delay” — to settlement expansion.)

Battle on the Home Front

That prospect should be tempting for Obama, but he has domestic political risks of his own to weigh.

There’s a common misconception that the administration worries most about “the Jews.” The latest polls, however, show 73% of U.S. Jews supporting Obama’s policies on the Israeli-Palestinian conflict. Nearly as many want him to propose a specific plan for a two-state solution, even if it means publicly disagreeing with Israel. Nor is there too much reason to worry about Jewish money, since most Jewish contributors to the Democrats are liberals who are pro-Israel but also pro-peace.

Nor are Christian Zionists the big problem. They do have some clout in Washington, but not enough to make Obama fear them.

The administration’s main worry is undoubtedly the Republican Party and especially its representatives in Congress. Recent polls by CNN, the Huffington Post, and Pew indicate that Republicans are roughly twice as likely as Democrats to take Israel’s side, while Democrats are about five times as likely to sympathize with Palestinians. Men, whites, and older people are most likely to support Israel unreservedly in the conflict.

In the U.S. presidential campaign, Republicans were eager to play on the traditional American belief in Israel’s insecurity: an innocent victim surrounded by vicious Arabs eager to destroy the little Jewish state. Obama, the GOP charged, had “thrown Israel under the bus.”

But the issue never gained real traction, an indication that the domestic political climate may be changing. Another small sign of change: a relatively weak measure threatening a cutoff of funding to the Palestinians, which in the past would have sailed through Congress, recently died in the Senate.

If Obama and the Democrats come out of the “fiscal cliff” process looking strong, they will feel freer to put real pressure on Israel despite Republican criticism. The more they can keep that pressure hidden from public view, while mouthing all the old “we stand with Israel” clichés, the more likely they are to take the risk.

In such a situation, Israeli right-wingers might well give their GOP allies enough evidence to rip off the mask. Then, Obama would have to speak more candidly to the American people, though his honesty would surely be well tempered with political spin.

Our goal, he might say, has always been to make Israel secure, something long ago achieved. We’ve ensured that Israel maintains such a huge military advantage over its neighbors, including its Iron Dome missile defense system, that it is now effectively safe from any attack. And we’ll continue ensuring that Israel maintains its military superiority, as we are required to do by law.

But now at long last, he would continue, we are showing our friendship in a new way: by bringing Israel and its Palestinian neighbors to the negotiating table so that they can make peace. Israelis shouldn’t have to live eternally in a fortress. We refuse to condemn them to that kind of future. We are instead taking steps to help them be free to flourish in a nation that is genuinely secure because it has made peace. Some may call it tough love, but let everyone understand that it is an act of love.

Whether Obama believed such talk or not would hardly matter. Public theater deftly meshed with private diplomacy is the key to peace. And confrontation in 2013 could be the first step on the path toward it.

Ira Chernus is a TomDispatch regular and professor of religious studies at the University of Colorado at Boulder

While Report on CIA Abuse Stays Secret, Senators Blast Tinseltown Torture



December 20, 2012

by Spencer Ackerman


Three senators are furious at how the new movie on the manhunt for Osama bin Laden portrays torture. Unlike other critics of the film, they have the power to actually correct the record, by declassifying a major Senate inquiry into the CIA’s torture program. Only they’re not doing it.

Sens. Dianne Feinstein (D-Calif.), Carl Levin (D-Mich.) and John McCain (R-Ariz.) want Zero Dark Thirty distributor Sony Pictures to know they think the film buys into the false narrative that torturing detainees helped the U.S. nab Osama bin Laden. McCain, a torture victim himself, says he was “sickened” by the movie. Feinstein called it “a combination of fact, fiction and Hollywood in a very dangerous combination,” and all three prepared a letter to Sony registering their objections, as The Hill first reported. “Grossly inaccurate and misleading” is how the letter, released late Wednesday, describes the movie.

All of which is well and good, even if we don’t consider the movie to be pro-torture. The problem is, the senators are complaining about fake torture when they could be showing us the truth about the real stuff . If the problem with Zero Dark Thirty is that it’s not an accurate presentation of the utility of torture (and we shudder at the thought that torture ought to be evaluated according to its utility), the senators could make a major push to declassify a massive report put together by Feinstein’s committee into what the CIA’s torture program did and didn’t do.

Last week, Feinstein announced that the Senate intelligence committee she chairs finally approved a 6,000-page study into the CIA’s treatment of terrorism detainees in its custody that took almost four years to investigate. By reviewing more than “6 million pages of CIA and other records,” Feinstein said, the report details how the detainees were treated, how they were interrogated, and, crucially, “the intelligence they actually provided and the accuracy — or inaccuracy — of CIA descriptions about the program.” Feinstein promised “startling details” and “critical questions” about the program, promising it would “settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in this report.” Small problem: the report is secret, so you can’t read it.

At least not yet. Feinstein says the report will remain classified until President Obama and “key executive branch officials” review it. Then her committee will consider declassifying it. So the report that could settle the debate about torture won’t settle the debate about torture until the self-interested parties who’ve stymied accountability for torture decide it’s safe to settle the debate about torture.

It’s not like Obama has any interest in exposing the torture program. After an early and acrimonious decision to partially declassify key Justice Department memos authorizing the torture — for which Obama deserves praise — he’s done nothing. A special prosecutor empowered by Attorney General Eric Holder ended up not indicting any CIA official who abused detainees, and didn’t even consider investigating the top officials who authorized the torture in the first place. There has been even less official public reckoning with what the torture program entailed, something that would fray Obama’s relationship with a CIA that implements his lethal drone program, since a former Bush administration aide described that program as amounting to “war crimes.” And it’s worth noting that under Obama’s watch, the U.S. military placed accused Wikileaker Bradley Manning in conditions that were harsher than those for many Guantanamo Bay detainees.

Morris Davis, a retired Air Force colonel, also sees the easy way to get beyond the Zero Dark Thirty debate for some actual accountability. “As it stands now, the only information guaranteed to reach the public is the false account of torture in a Hollywood movie,” Davis writes in Der Spiegel. “That makes it vitally important to make the Guantanamo military commissions open and transparent, and to declassify the Senate Intelligence Committee report.”

Zero Dark Thirty also threatens to mess up the career of the Pentagon’s intelligence chief. McClatchy reported that Michael Vickers, already lionized in the counterterrorism film Charlie Wilson’s War, is under investigation for allegedly leaking information about the SEALs who conducted the raid to filmmakers Kathryn Bigelow and Mark Boal. The Pentagon has rallied to Vickers’ side, calling McClatchy’s reporting “unwarranted, unfounded, and unfair” even while conceding the department’s inspector general is examining Vickers. The Hill’s Carlo Munoz reports that the top Democrat on the House Armed Services Committee, Adam Smith (D-Calif.), has thrown his full support behind Vickers, considering him not to have jeopardized national security.

Zero Dark Thirty will inevitably stir heated disagreement. What’s important is to disclose and reckon honestly with the very ugly history that it presents, fictionally or otherwise.


The Absurd Chuck Hagel Anti-Semitism Accusations

December 20, 2012

by Justin Logan

US News

When the facts are on your side, argue the facts. When the law is on your side, argue the law. When neither the facts nor the law are on your side, call your opponent an anti-Semite.

Such is the neoconservative approach to the marketplace of ideas.

Beltway elites are currently carrying on a kabuki debate over whether Chuck Hagel, a two-term U.S. senator, is an anti-Semite. Stop and ponder this for a second. You’re being asked to believe that an anti-Semite has been hiding in plain sight, for 12 years at the senate and afterward heading the Atlantic Council, an establishmentarian think tank, and teaching at Georgetown. An anti-Semite.

            The entire charade is absurd, but the good news is that if the Obama people are smart, they can cut the neocons down to size, and prevent this sort of thing from poisoning our politics, at least for a while.

Let’s start at the beginning. In case you haven’t been following along, the substance of the charge boils down to two quotes, both given to veteran U.S. Middle East policymaker Aaron David Miller in an interview for Miller’s 2008 book. They are as follows:

The political reality is that…the Jewish lobby intimidates a lot of people [on Capitol Hill].

…I’m a United States senator. I support Israel. But my first interest is I take an oath of office to the Constitution of the United States. Not to a president. Not a party. Not to Israel. If I go run for Senate in Israel, I’ll do that.

            Bill Kristol and his Weekly Standard have been running a campaign against Hagel, putting these quotes up in bright lights, and the Wall Street Journal’s Bret Stephens has now piled on with his own accusation of anti-Semitism, suggesting that the dearth of Jewish voters in Nebraska allowed the people of Nebraska to elect Hagel. Twice.

The people trafficking in this nonsense are counting on two things: No one scrutinizing the allegation very hard (since it’s so ridiculous) and the moral cowardice of Barack Obama. Let’s hope neither of those things works out.

First, it really was all thumbs of Hagel to refer to a “Jewish lobby.” Jewish Americans are not monolithic, and many of them disagree on Middle East policy with AIPAC, or the Conference of Presidents, or whomever. Moreover, lots of gentiles agree with AIPAC on Middle East issues. So “Jewish lobby” really is a misnomer. Of course, deploying the more accurate term, Israel lobby, hasn’t prevented anyone from having their arguments mischaracterized and being labeled anti-Semitic, so it’s not clear why the phrasing matters. One anonymous (of course!) Senate staffer leaking to Kristol’s Standard alleged that the Hagel quote really showed that Hagel believes “a nefarious Jewish lobby…secretly controls U.S. foreign policy.” Of course, Hagel never said anything like that.

            But let’s take the “Jewish lobby” remark on its own terms. The Daily Beast’s Ali Gharib, in an old-school journalistic move, picked up the phone and called Miller to find out what he thought about the characterization of Hagel’s remark:

I let Miller know by phone that the passage was seized upon to tar Hagel as an anti-Semite. “Seized upon is an understatement,” Miller told me. “It was hijacked.” In fact, Miller—a Mideast adviser to six Secretaries of State who no one in their right mind could ever call “anti-Israel”—quotes Hagel approvingly. In the passage, Miller noted that few members of Congress are willing to publicly criticize AIPAC or Israel, but there are a few exceptions. “One who is willing is Chuck Hagel, the two-term Republican senator from Nebraska,” Miller wrote. “Of all my conversations, the one with Hagel stands apart for its honesty and clarity.” The line introducing the one cherry-picked by this Senate aide, and reproduced uncritically by [the Weekly Standard], begins with this statement from Miller: “Hagel is a strong supporter of Israel and a believer in shared values.” I asked Miller if he still viewed Hagel as “pro-Israel.” “I don’t think there’s a Senator of note in the Senate who is not pro-Israel,” he responded. “But there is a difference between a special relationship with Israel and an exclusive relationship with Israel. I believe in the former and Chuck Hagel believes the former.”

As to the “I’m a United States senator…” quote, Hagel was explaining to Miller why he didn’t sign every one of the raft of letters circulated on Capitol Hill by AIPAC. (Even AIPAC officials have made light of the letter-signing ritual. Steve Rosen once cracked to journalist Jeffrey Goldberg that he could have the signatures of 70 U.S. senators on a cocktail napkin within 24 hours. Not Hagel’s apparently.)

            With the anti-Semitism charge out of the way, you have to wonder what’s really driving the opposition to Hagel. By all lights, Hagel does not seem excited about another U.S. war in the Middle East, be it with Syria or with Iran. This view is very much in keeping with the view of the American people, so if you’re Kristol or Stephens, you don’t want to fight a substantive battle on policy.

But the neocons are not only counting on no one paying too close attention, they’re also counting on Obama to fold up like a cheap lawn chair. There’s every indication that if Obama nominates Hagel, he’ll be confirmed. In the words of Sen. Carl Levin, “If he’s nominated, he’d be fine. We all know him up here. He’ll be fine.” So the neocons are counting on frightening Obama into pulling back the nomination.

            The important thing for Obama and his people to keep in mind here is that the bark of the neocons is a lot worse than their bite. They tried to paint Obama as a mullah-loving peacenik in the 2012 campaign,and failed miserably. We hear a lot from the neocons here in Washington, partly because the Republicans have been too foolish to marginalize them in the wake of Iraq, and partly because they are supported by lavish sinecures at think tanks and ideological magazines. As Kristol himself remarked in 2005, we were fast approaching a point where “there are going to be more neoconservative magazines than there are neoconservatives.”

If Obama stands up to them over Hagel, he’ll remind everybody in Washington what the rest of the country knows well enough: There’s no reason to care what Bill Kristol thinks.

Review of FBI forensics does not extend to federally trained state, local examiners


December 23, 2012

by Spencer S. Hsu,

The Washington Post


Thousands of criminal cases at the state and local level may have relied on exaggerated testimony or false forensic evidence to convict defendants of murder, rape and other felonies.


The forensic experts in these cases were trained by the same elite FBI team whose members gave misleading court testimony about hair matches and later taught the local examiners to follow the same suspect practices, according to interviews and documents.


In July, the Justice Department announced a nationwide review of all cases handled by the FBI Laboratory’s hair and fibers unit before 2000 — at least 21,000 cases — to determine whether improper lab reports or testimony might have contributed to wrongful convictions.


But about three dozen FBI agents trained 600 to 1,000 state and local examiners to apply the same standards that have proved problematic.


None of the local cases is included in the federal review. As a result, legal experts say, although the federal inquiry is laudable, the number of flawed cases at the state and local levels could be even higher, and those are going uncorrected.


The FBI review was prompted by a series of articles in The Washington Post about errors at the bureau’s renowned crime lab involving microscopic hair comparisons. The articles highlighted the cases of two District men who each spent more than 20 years in prison based on false hair matches by FBI experts. Since The Post’s articles, the men have been declared innocent by D.C. Superior Court judges.


Two high-profile local-level cases illustrate how far the FBI training problems spread.


In 2004, former Montana crime lab director Arnold Melnikoff was fired and more than 700 cases questioned because of what reviewers called egregious scientific errors involving the accuracy of hair matches dating to the 1970s. His defense was that he was taught by the FBI and that many FBI-trained colleagues testified in similar ways, according to previously undisclosed court records.


In 2001, Oklahoma City police crime lab supervisor Joyce Gilchrist lost her job and more than 1,400 of her cases were questioned after an FBI reviewer found that she made claims about her matches that were “beyond the acceptable limits of science.” Court filings show that Gilchrist received her only in-depth instruction in hair comparison from the FBI in 1981 and that she, like many practitioners, went largely unsupervised.


Federal officials, asked about state and local problems, said the FBI has committed significant resources to speed the federal review but that state and local police and prosecutors would have to decide whether to undertake comparable efforts.


FBI spokeswoman Ann Todd defended the training of local examiners as “continuing education” intended to supplement formal training provided by other labs. The FBI did not qualify examiners, a responsibility shared by individual labs and certification bodies, she said.


Michael Wright, president of the National District Attorneys Association, said local prosecutors cannot simply order labs to audit all or even a sample of cases handled by FBI-trained examiners, because such an undertaking might be time- and cost-prohibitive for smaller agencies.


The chairman of the laboratory accreditation board of the American Society of Crime Laboratory Directors said it is gathering information to guide members.


“It is something we take seriously, and we are going to address it accordingly,” said Pamela Bordner, the chairman.


The announcement in July of the Justice Department review of federal cases marked a turnabout from the mid-1990s, when an inquiry looked at a limited number of cases and, in the area of hair comparison, focused on the work of one examiner at the FBI lab.


In its April investigation, The Post found that Justice Department officials failed to tell many defendants or their attorneys of questionable evidence and that the results of the review remained largely secret.


In addition, Justice Department officials have for years blamed errors on isolated failures by rogue examiners, careless prosecutors or inept defense lawyers.


But former chiefs of the FBI lab’s hair and fiber unit now acknowledge that the problems were more widespread. Some federal examiners, testifying in cases across the country, overstated the importance of hair evidence and responded to questions about the scientific accuracy of hair matches by citing amorphous statistics drawn from their experience.


Moreover, they said, examiners should have been trained to accurately portray their findings in court. When local lab examiners went to the FBI for training, they received the same inadequate instruction.


Myron T. “Mike” Scholberg, hair unit chief from 1978 to 1985, and Alan T. “Al” Robillard, chief from 1988 to 1990, said that in hindsight, they were not properly trained to answer a crucial question for jurors: How often might the hairs of different people appear to match? The truth is that there was no scientific way to know.


Instead of simply acknowledging the uncertainty, agents at times drew statistics from their cases without explaining why that was an incomplete or even misleading answer, Scholberg and Robillard said.


Harold A. “Hal” Deadman Jr., a top hair unit scientist who trained more than 600 examiners from 1972 to 1987, said he always explained to jurors why his case experience gave an incomplete picture of the accuracy of hair comparisons.


But Deadman said DNA testing should be done in all convictions that were based mainly on visual hair comparison, because of weaknesses in trial testimony and examiner results.


Interviews with the former unit chiefs, as well as more than 20 practitioners, scientists and legal experts, and a review of court records, training notes and transcripts of meetings indicate that some FBI lab examiners tried to skirt the limitations of their scientific findings in testimony and that they were encouraged to do so by their trainers.


As warnings about the problems mounted — through DNA exonerations, whistleblower complaints, court rulings — bureau managers implemented stronger protocols, but they limited disclosure of the problems they found. More forthcoming disclosure could have jeopardized convictions.


“If the FBI is going to be a role model, we need to see this federal audit lead to wider audits of labs across the country,” said Myrna S. Raeder, a Southwestern University law professor who is leading an American Bar Association effort to improve forensic evidence. “If you had even the elite FBI analysts out there crossing the line and exaggerating the forensics, that sent a terrible message that ‘anything goes.’ ”


In a letter this month to the Senate Judiciary Committee, the Justice Department acknowledged that FBI examiners “may have exceeded the limits of the science by overstating . . . conclusions” in some cases.


“The Department and the Bureau believe it is necessary and appropriate that defense counsel and defendants are informed of any inappropriate testimony by FBI Laboratory examiners,” Acting Assistant Attorney General Judith C. Appelbaum wrote.


Powerful testimony


Before DNA profiling, testimony of a hair match was a powerful way for prosecutors to boil down an ambiguous case to a single, incriminating piece of physical evidence left at the scene of a crime.


No other agency in the United States performed as many hair examinations or believed as much in the technique as the FBI lab’s 10-member unit of hair examiners.


But The Post’s investigation earlier this year showed how agents, prosecutors or both sometimes exaggerated the significance of the evidence they had.


For example, in a 1980 Indiana robbery case, one agent told jurors that he was unable to distinguish between the hair of different people just once in 1,500 cases he had analyzed.


In one of the District cases, federal prosecutors claimed that the agent had been unable to tell hair samples apart only “eight or 10 times in the past 10 years, while performing thousands of analyses.”


In another, the prosecutor said in closing arguments, “There is one chance, perhaps for all we know, in 10 million that it could [be] someone else’s hair.” That defendant was declared innocent this year.


The problem is, as an expert peer review panel wrote in Melnikoff’s case, “There is not — and never was — a well established probability theory for hair comparison.”


As noted in 2009 by the chief of the FBI hair team, the proper answer to the question of how often hairs from different people might match is, “We do not know.”


Peter Neufeld, co-founder of the Innocence Project, said hair analysis practitioners should end their resistance to putting scientists in charge of setting clear, consistent standards for lab reports and testimony.


“When the stakes involve life and liberty, those scientific parameters and standards should be set by scientists, not by law enforcement,” said Neufeld, whose organization advocates for people trying to prove their innocence through DNA testing. The Innocence Project and the National Association of Criminal Defense Lawyers were consulted by the FBI on the national review.


Vague standards


The FBI has known for decades that hair found at a crime scene is a valuable piece of evidence. Before DNA testing, agents would use a microscope to compare the evidence with a sample of hair from a suspect.


A visual analysis can tell animal hairs from human hairs; human hairs by race and body part; whether hairs were dyed or otherwise treated; and how hairs were removed from the body. Visual comparison, at its best, also can accurately narrow the pool of criminal suspects to a class or group or definitively rule out a person as a possible source.


But it was not possible to declare an absolute match. So the FBI had a problem. Hair comparisons could yield good evidence. But agents struggled to explain to a jury how good.


Morris Samuel “Sam” Clark was the head of the FBI’s hair unit when it began training state and local analysts in 1973. He said he long believed that examiners could trace hairs from a crime scene to a particular person with a high degree of probability — even though there is no scientific proof that is possible.


But Clark, who did graduate work in biology at Harvard and retired in 1979, said laboratory experience should not be discounted. He did “hundreds and hundreds of comparisons” over nearly 20 years, and he believes that he was a qualified court expert, he said in an interview from his home in Spotsylvania County.


The FBI’s training regimen, which required agents to compare hairs side-by-side under high-powered microscopes for a year before working on live cases, gave lab veterans confidence that they could tell the difference between individuals’ hairs just as an ordinary person could distinguish between their faces.


They embraced a set of vague standards. In written lab reports, FBI agents would include the caveat that hair examination was not a basis for positive identification.


In court, however, they could suggest that it would be highly unlikely for an examiner’s match to be wrong. The bureau left it up to individual labs and examiners to explain matters to jurors. Agents were trained to say that in their “personal experience” they had rarely seen hairs from different people that looked alike.


That evolved into jurors’ hearing numbers that had a huge impact even if they lacked scientific grounding. After a slaying in Tennessee in 1980, an FBI agent testified in a capital case that there was one chance in 4,500 or 5,000 that a hair came from someone other than the suspect.


But as experts from around the world would later note, the FBI-taught answer was misleading. In reality, FBI examiners did not compare every hair to every other hair they had ever examined. They simply compared crime-scene hairs and hair samples from individuals relevant in each case.


Examiners kept no “database” of samples, which went back to police evidence files. And differences between hairs are so fine that a person can generally keep only a handful of hairs in mind at any time.


“The claim you could keep all those hairs in your head and sort them in your mind, that would be hard to do,” said Mark R. Wilson, a 23-year FBI veteran who helped develop DNA testing for hair in 1996. “After about three or four [hairs], it gets confusing.”


The claim was called into question at an international conference hosted by the FBI in 1985, but the training was not overhauled for at least a dozen more years.


“It was not promoted, put it that way,” to give juries a more accurate picture of the limits of the technique, said John W. Hicks, who spent about five years in the hair unit in the 1970s and who directed the FBI lab from 1989 to 1994.


Robillard, the former hair unit chief, said that he always waited for a defense attorney to challenge his claims about the accuracy of hair analysis but that neither they nor judges usually caught the logical sleight of hand.


“You would expect a defense attorney to say, ‘Wait — are you, Robillard, saying you compared every person’s hair to every other one?’ That’s the screaming question for cross-examination,” Robillard said. “I can’t off the top of my head remember ever having a defense attorney say that.”


Like the other agents interviewed, Robillard, now a private expert who lives on Martha’s Vineyard, in Massachusetts, said FBI experts were not trying to mislead but to convey in layman’s terms why they were confident in their hair associations.


Not all former chiefs agreed that examiners should have testified differently. Edward L. “Ed” Burwitz, who led the unit from 1985 to 1988, called that “a legal question that I don’t feel confident to answer.”


Like others, Burwitz said he never got complaints about examiners’ testimony. He called the recent criticism a matter of “Monday morning quarterbacking.”


Clark also defended his work, including the FBI training.


“This was not fly-by-night stuff, not idle conclusions on our part. I think we made a very significant contribution to the criminal justice system,” Clark said. “If [examiners] made a mistake, it’s a personal mistake, and it’s not a matter of [our] training them . . . nor the whole science of microscopic hair exams, because we did our best.”


Crash courses


The FBI lab began training state and local hair examiners in 1973, as the bureau worked with the nation’s crime lab directors to expand forensic methods.


Deadman said he trained about 600 examiners from outside the FBI between 1973 and 1987, and others estimated that an additional 450 examiners were trained over the next dozen years.


No one knows how many cases local and state hair examiners handled. Estimates of their collective caseload vary from 20 percent to more than half of all hair exams during the period under review. Most of the rest were federal cases.


Yet, FBI agents and others say they doubt the quality of the training, even as they acknowledge that it was a valued credential for state and local labs.


Instead of working with hairs for an entire year before starting trial work, some local trainees spent a week at the FBI Academy at Quantico and then went back to labs where they were one of one or two designated “criminalists,” analyzing everything from hair to paint chips to glass, Robillard said. They might handle a handful of hair cases a year, using substandard equipment while under constant pressure from investigators.


With 200-plus crime labs serving 18,000 police agencies in the early 1990s, DeForest said, “There was no monitoring of people. . . . That whole thing for something this complex was ill-conceived, and maybe [the FBI] should have recognized that.”


In 2004, Melnikoff lost his crime lab job in Washington because of errors whose discovery led to three overturned convictions in Montana. One of those cases was the child rape conviction of Jimmy Ray Bromgard, who served more than 15 years in prison before DNA tests showed he didn’t commit the crime.


At Bromgard’s 1987 trial, Melnikoff said he found head and pubic hairs “microscopically indistinguishable” from Bromgard’s, and he told the jury that there was less than one chance in 10,000 of a coincidence. He based this assertion on his case experience, multiplying by 100 the 1 in 100 frequency with which he claimed to have seen head and pubic hairs he could not tell apart.


After Bromgard was exonerated in 2002, a five-member panel that included Deadman said Melnikoff made “egregious misstatements not only of the science of forensic hair examinations but also of genetics and statistics.”


Melnikoff’s defense in a civil suit brought by Bromgard was that he simply acted as he was trained.


Michael A. Howard, a 24-year Oregon State Police veteran who also took the Quantico course, noted that Melnikoff’s examination and lab report followed FBI practices.


“I took the [FBI] class in 1982 and was not advised to avoid the use of probabilities. . . . We were taught that our own experience was most important, and that is what Mr. Melnikoff was doing,” Howard told a federal court in Montana in 2007.


In an interview, Howard elaborated. “They didn’t say, ‘Use it,’ and they didn’t say, ‘Don’t use it,’ ” he said. Instead, he said, the FBI’s position was, “You’re going to have to decide for yourself, based on your experience, how strong you can state it.”


Gilchrist also was accused of misidentifications, misleading testimony and withholding or destroying evidence. In 2001, she was fired from the Oklahoma City Police Department, and authorities set out to reexamine more than 1,400 assigned cases, including a dozen death row cases.


In one case, David Johns Bryson spent 16 years in prison for a 1982 rape, but he was freed in 1999 after DNA results showed another man committed the crime.


Gilchrist testified that she found four hairs that were like Bryson’s and that she never saw hairs from different people with the same characteristics. She said, “I would think it would be impossible not to be able to distinguish hairs from two different individuals.”


But in April 2001, Douglas W. Deedrick, then head of the FBI unit, found that Gilchrist’s matches were wrong and that by implying hairs were “unique,” Gilchrist “misrepresent[ed] the science.”


Again, Gilchrist took her cue from bureau training. In her files, she kept a certificate of completion from her January 1981 class, including a session on “Discussion of the significance of hair comparisons, testimony matters and pertinent literature.”


In her notes, she copied the FBI caveat that one cannot conclusively determine the source or origin of a hair. But, the notes also showed that instructors were teaching their students how to sidestep the limits of the science — by pointing out their experience.


“Can conclude source — point out however in my experience, have rarely seen hairs from diff. people exhibiting the same microscopic characteristics,” the notes say.


Eventual change


FBI veterans pointed out that the hair unit gave up members who helped the agency pioneer forensic nuclear and mitochondrial DNA testing. As DNA testing became more common, the limits of microscopic hair comparison became clearer.


Max Houck, who was the unit’s first civilian, non-agent examiner, said he changed the way he testified in the late 1990s after consulting an old statistics textbook. Training of examiners also shifted away from citing numbers, probabilities or statistics by 2001, Houck said, as the lab gained outside accreditation and replaced agents with civilian scientists.


Asked why it took until now to correct errors, Houck, the head of the new D.C. Department of Forensic Science, cited a variety of reasons: The “conservatism” of forensic science, the legal system’s dependence on precedence and, finally, government bureaucracy and the FBI’s proud culture.


“Could it have happened sooner? Yes,” he said. “Would it have cost more money? Yes. Would it have been more disruptive? Probably. Would we have gotten a better answer? I don’t know.”


To his list, Houck added one more question. “Does that mean justice was served? Not necessarily.”

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