TBR News January 28, 2012

Jan 28 2012

The Voice of the White House


Washington, D.C. January 26, 2012: “Anyone who studies history or economics realizes that this country is heading into the roiled waters just above Niagara Falls. Blue collar jobs have all vanished overseas. Young people cannot get jobs anywhere. The national debt is out of control. Obama is not in control. His administration is trying to clamp down on any possible dissent in the public by getting the FBI, the DHS and other agencies to spy on any person or organization that might cause serious uproar prior to the November election. Realizing that over 60 million Americans do not have, and will never get, clear title to their homes, a frenzied administration is making all kinds of vague and unfulfillable promises to mortgage holders while having websites that are exposing the immense problems quietly shut down. We know of at least one concerned site that was shut down by a company known to work closely with the government on security matters. Jails are packed with people, many of whom are entirely innocent of any crime and national law enforcement, feeling it has Presidential support, is brutalizing any person or persons who question the government’s actions, the endless wars, the growing poverty and unemployment and finally, the brutal reality that they are not paying off their mortgages but only paying rent to someone who bought a “financial package” from the Bank of America and other huge, bloated and very powerful national banks. Where will this end? To the readers of history, the prospects for civil disobedience that would grow into something far worse, are very, very clear.”

The Caging of America

Why do we lock up so many people?


January 30, 2012

by Adam Gopnik

The New Yorker

            A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.

That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

            The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.

The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia—a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement—still resonates:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

Not roused up to stay—that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!”—that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.

In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.

The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”

Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.

Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.

For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.

Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.

So what is the relation between mass incarceration and the decrease in crime? Certainly, in the nineteen-seventies and eighties, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works—that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.

And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.

All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.

But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime—e.g., street prostitution and public gambling—mostly went down through the period.)

Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.

Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is—and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.

One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.

Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.

Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that, if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.

At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets—to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment.

The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries—just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.

Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)—many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.

“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care. ♦


Homeland Security Wants to Spy on 4 Square Miles at Once

January 23, 2012 

by Spencer Ackerman

It’s not just for the Afghanistan and Iraq wars anymore. The Department of Homeland Security is interested in a camera package that can peek in on almost four square miles of (constitutionally protected) American territory for long, long stretches of time.

Homeland Security doesn’t have a particular system in mind. Right now, it’s just soliciting “industry feedback” on what a formal call for such a “Wide Area Surveillance System” might look like. But it’s the latest indication of how powerful military surveillance technology, developed to find foreign insurgents and terrorists, is migrating to the home front.

The Department of Homeland Security says it’s interested in a system that can see between five to 10 square kilometers — that’s between two and four square miles, roughly the size of Brooklyn, New York’s Bedford-Stuyvesant neighborhood — in its “persistent mode.” By “persistent,” it means the cameras should stare at the area in question for an unspecified number of hours to collect what the military likes to call “pattern of life” data — that is, what “normal” activity looks like for a given area. Persistence typically depends on how long the vehicle carrying the camera suite can stay aloft; DHS wants something that can fit into a manned P-3 Orion spy plane or a Predator drone — of which it has a couple. When not in “persistent mode,” the cameras ought to be able to see much, much further: “long linear areas, tens to hundreds of kilometers in extent, such as open, remote borders.”

If it’s starting to sound reminiscent of the spy tools the military has used in Iraq and Afghanistan, it should. Homeland Security wants the video collected by the system to beam down in “near real time” — 12 seconds or quicker — to a “control room (T) or to a control room and beyond line of sight (BLOS) ruggedized mobile receiver on the ground,” just as military spy gear does. The camera should shift to infrared mode for nighttime snooping, and contain “automated, real time, motion detection capability that cues a spotter imager for target identification.” Tests for the system will take place in Nogales, Arizona.

The range of this system isn’t as vast as the newest, latest cameras that the military either has or is developing. The Army’s super-powerful ARGUS camera, heading to Afghanistan, can look out at 36 square miles at a time; the Air Force’s Gorgon Stare looks out on an entire city at once. On deck are the military’s fleet of spy blimps, which will will generate 274 terabytes of information every hour. Compared to that, the Department of Homeland Security is positively myopic.

But. Those systems are used against insurgents, who are not protected by the Fourth Amendment’s prohibitions on unreasonable searches. Even if the wide-area surveillance DHS is after is just used at borders or airports, those are still places where Americans go about their business, under the presumption that they’re not living in a government panopticon.

It’s also ironic: the Department of Homeland Security actually isn’t so hot on its own drone fleet. When Danger Room asked an official at the department’s science directorate about using spy drones to spot bombs inside the U.S., she replied, “A case has to be made that they’re economically feasible, not intrusive and acceptable to the public.”

Still, what’s military technology one day is law-enforcement tech the next. As I reported for Playboy last month, more and more cop shops are buying spy drones, and increasingly, the Federal Aviation Administration is approving their use for domestic flights.

That also means that federal and local police can expect to replicate some of the military’s more frustrating aspects of persistent spying — namely, the constant, massive backlog of real-time video they’ll need to analyze. It’s gotten so bad that the Pentagon’s mad scientist shop, Darpa, is trying to automate cameras so human analysts aren’t constantly drinking from a fire hose of spy data.

Still, privacy advocates might soon have a whole new tech-driven battle with the Department of Homeland Security on their hands. It’s hardly clear from the pre-solicitation that the department only expects to operate the cameras after getting a court order — or if it thinks it needs one in the first place. And even if the department isn’t necessarily after the uber-powerful ARGUS or Gorgon Stare cameras, that might only be a matter of time. The wars will end; the spy tech won’t. And it might be keeping tabs on your neighborhood next.

State Bill Outlaws Use Of Fetuses In Food Industry

January 27, 2012-

by Bill Chappell


A bill introduced in the Oklahoma Legislature has some folks scratching their heads, as it prohibits “the manufacture or sale of food or products which use aborted human fetuses.”

Since the bill was introduced late last week by State Sen. Ralph Shortey, a Republican from Oklahoma City, corners of the Internet have been buzzing with the news, as people try to figure out two things: 1) is this real; and 2) is there any reason the bill might be needed?

News of the bill was first reported by the AP and The Daily O’Collegian, a student newspaper at Oklahoma State University. It sparked a lively debate in the O’Collegian’s readers’ comments section, which is connected to Facebook.

The AP and the O’Collegian say that Shortey didn’t respond to calls for comment. Two calls from NPR to the senator’s office went to voicemail and were not returned. But Tulsa radio station KRMG managed to get in touch with him to ask about the legislation, Senate Bill 1418.

The senator says that his research shows there are companies in the food industry that have used human stem cells to help them research and develop products, including artificial flavorings.

“I don’t know if it is happening in Oklahoma, it may be, it may not be. What I am saying is that if it does happen then we are not going to allow it to manufacture here,” Shortey tells KRMG’s Nicole Burgin.

To that end, his proposed statute reads, “No person or entity shall manufacture or knowingly sell food or any other product intended for human consumption which contains aborted human fetuses in the ingredients or which used aborted human fetuses in the research or development of any of the ingredients.”

My own research suggests that Shortey may have noticed a boycott directed at PepsiCo, which since 2010 has worked with flavor research firm Senomyx to develop sweeteners and other flavorings.

Based in San Diego, Senomyx has been accused of using proteins derived from human embryonic kidney cells in its research, which has been used by many large food companies. An article in the Miami New Times summarizes those claims, notes the company’s denial of them — and also notes that in 2003, the company filed a patent for “recombinant methods for expressing a functional sweet taste receptor.”

That patent, for what is essentially an automated taste test, was granted in 2008. It mentions HEK 293, or Human Embryonic Kidney 293, a widely available cell line that was originally cultured in the early 1970s from a human embryo in the Netherlands.

  So, it seems that Sen. Shortey’s bill mostly targets the potential use of stem cells in food research. But in the past decade, several attempts have been made to use animal stem cells to produce food. For instance, NASA has tinkered with using pigs’ stem cells to grow “lab meat,” according to a Popular Mechanics article from 2009.

The article continues, “Today, scientists funded by companies such as Stegeman, a Dutch sausage giant, are fine-tuning the process. It takes just two weeks to turn pig stem cells, or myoblasts, into muscle fibers.”

And the group New Harvest has long been involved in the search for “meat alternatives,” in the form of “plant-based meat analogs and cultured meat,” according to its site.

Shortey’s bill was among hundreds submitted just before the state’s Thursday deadline, as Oklahoma legislators vied to get their bills entered for discussion in the upcoming session, which runs from Feb. 6 into late May.

Thanks to NPR Southern Bureau Chief Russell Lewis and KOSU’s Rachel Hubbard for flagging the story.


Top This One For A Speeding Ticket in Kingsville, TX

January 25, 2012

Common Dreams


Two Texas Highway Patrol Officers were conducting speeding enforcement on Hwy 77, just south of Kingsville , TX.
            One of the officers was using a hand held radar device to check speeding vehicles approaching the town of Kingsville.  The officers were suddenly surprised when the radar gun began reading 300 miles per hour and climbing.
            The officer attempted to reset the radar gun, but it would not reset and then it suddenly turned off.

Just then a deafening roar over the Mesquite tree tops on Hwy 77 revealed that the radar had in fact, locked on to a USMC F/A-18 Hornet which was engaged in a low flying exercise near this, it’s Naval Air home base location in Kingsville TX.
            Back at the Texas Highway Patrol Headquarters in Corpus Christi the Patrol Captain fired off a complaint to the US Naval Base Commander in Kingsville for shutting down his equipment.
            The reply came back in true USMC style:
            “Thank you for your letter….
            You may be interested to know that the tactical computer in the Hornet had detected the presence of, and subsequently locked on to, your hostile radar equipment and automatically sent a jamming signal back to it, which is why it shut down.
             Furthermore, an Air-to-Ground missile aboard the fully armed aircraft had also automatically locked on to your equipment’s location.
             Fortunately, the Marine Pilot flying the Hornet recognized the situation for what it was, quickly responded to the missile system alert status and was able to override the automated defense system before the missile was launched to destroy the hostile radar position on the side of Hwy 77, south. of Kingsville
            The pilot suggests you cover your mouths when swearing at them, since the video systems on these jets are very high tech. 
             Sergeant Johnson, the officer holding the radar gun, should get his dentist to check his left rear molar. It appears the filling is loose. Also, the snap is broken on his holster.”
            Semper Fi

Obama’s Mortgage ‘Investigation’ Designed to Fail?


Common Dreams staff

            In last night’s State of the Union speech President Obama announced the creation of a committee to investigate “the abusive lending and packaging of risky mortgages.”

All across the US, Occupy protestors have been “reclaiming” foreclosed homes and boarded up properties in what some are calling a “tactical shift” in the movement which has targeted the inequality in the distribution of wealth in the US. The ‘investigation’ announcement came just as a bank-friendly ‘settlement’ is about to be announced by the state attorney generals. Reports of the settlement talks, the ‘too-big-to-fail’ banks — Bank of America, Wells Fargo & Co, JPMorgan Chase & Co, Citigroup and Ally Financial Inc — would provide $20 billion to $25 billion of ‘relief’ to homeowners in exchange for being exempted from lawsuits for improper foreclosures and abuses in mortgage loans.

The findings of the new ‘investigation’ would come after the settlement gives the banks a get-out-of-jail-free card.

Matt Taibbi wrote on the proposed settlement: “The current proposed deal is a huge giveaway to the banks, a major shafting to most of the investors, and would probably give homeowners either next to nothing or some cosmetic reward, i.e. a little bit of principal forgiveness, counseling, etc. If the Obama administration was serious about helping actual human beings through this settlement, then it would be fighting for homeowners to get the same bailout the banks would get. If the banks are getting a trillion or more dollars of legal immunity, why shouldn’t homeowners get that much debt forgiveness? Or, half that much? A quarter?”

Democratic state attorneys general and Obama administration officials met on Monday in Chicago to discuss the terms of the settlement. An announcement on the deal is expected any day.

President Obama last night:

“And tonight, I am asking my Attorney General to create a special unit of federal prosecutors and leading state attorneys general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans. ”

* * *

Bloomberg News reports:

Obama Will Create Unit to Investigate Mortgage Misconduct After Protests

President Barack Obama said he will create a mortgage crisis unit that includes federal and state officials to investigate wrongdoing by banks related to real estate lending. […]

“This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans,” Obama said in the speech.

New York Attorney General Eric Schneiderman will co-chair the unit along with officials from the Department of Justice, Securities and Exchange Commission and Internal Revenue Service.

* * *

Yves Smith writes at nakedcapitalism:

Is Schneiderman Selling Out? Joins Federal Committee That Looks Designed to Undermine AGs Against Mortgage Settlement Deal

[…] So get this: this is a committee that will “investigate.” The co-chair, Lanny Breuer, along with DoJ chief Eric Holder, hail from white shoe Washington law firm Covington & Burling, which has deep ties to the financial services industry. Even if they did not work directly for clients in the mortgage business, they come from a firm known for its deep political and regulatory connections (for instance: Gene Ludwig, the Covington partner I engaged for some complicated regulatory work when I was at Sumitomo Bank, later became head of the OCC). We’ve written at length on how the OCC is such a shameless tout for the banking industry that it cannot properly be called a regulator. Similarly, the SEC has been virtually absent from the mortgage beat, no doubt because its enforcement chief, Robert Khuzami, was general counsel to the fixed income department at Deutsche Bank. That area included the trading operation under Greg Lippmann who we have described as Patient Zero of so called mezz CDOs, or to the layperson, toxic mortgage paper that kept the subprime bubble going well beyond its sell date. And we don’t need to say much about the DoJ. It has been missing in action during this entire Administration.

Neil Barofsky, former prosecutor and head of SIGTARP, doesn’t buy the logic of this committee either:

A lot of soi-disant liberal groups have fallen in line with Obama messaging, which was the plan (I already have the predictable congratulatory Move On e-mail in my inbox). Let’s get real. The wee problem is that this committee looks like yet another bit of theater for the Administration to pretend, yet again, that it is Doing Something, while scoring a twofer by getting Schneiderman, who has been a pretty effective opponent, hobbled.

If you wanted a real investigation, you get a real independent investigator, with a real budget and staffing, and turn him loose. […]

Put it another way: one thing that would convince me that this committee was serious was if the settlement pact was put on hold until the investigation were completed. The fact that the settlement push is in high gear is yet more proof that this committee is yet another bit of regulatory/enforcement theater, just like the Foreclosure Task Force, or the servicer consent decrees (confirmed as an embarrassment via the use of badly conflicted “consultants”), or the current OCC investigation into foreclosure abuses, which excludes all sorts of injuries inflicted upon homeowners, most notably servicer fees abuses and misapplication of payments. […]

It would be better if I were proven wrong, but this looks to be yet another clever Obama gambit to neutralize his opposition. With all the same key actors in place – Geithner, Walsh, Holder – there is no reason to believe the Administration has had a change of heart until there is compelling evidence otherwise.

* * *

The question remains whether Schneiderman’s unit will be window dressing for a get-out-of-jail-free settlement with banks that are currently facing heat from state attorneys general over fraudulent foreclosures.

Here’s the reaction from the New Bottom Line, a relatively new coalition of homeowner advocates and community groups that had been making this very demand loudly for years:

President Obama has heard the calls of the 99% and announced a full, federal investigation into the fraudulent activities of big banks…. We will continue to make sure that this investigation uncovers the truth about the activities of the big banks. And in order to provide real and meaningful relief to millions of homeowners, the end result must be at least $300 billion in principal reduction and restitution for those who have lost their homes, especially targeted at the most hard hit communities. This will reset the housing market and the economy.

* * *

David Dayen at Firedoglake:

The unit will be co-chaired by Eric Schneiderman, the New York Attorney General who bravely waged an often lonely battle to stop a misguided settlement on foreclosure fraud. But “co-chair” is the operative word here, and it suggests that the entire maneuver was created to grease the wheels for the pre-arranged settlement, while turning this investigatory arm into nothing so much as regulatory theater. […]

This is a classic Obama move, putting a threat or a rival inside the tent. It happened with Elizabeth Warren and David Petraeus and Jon Huntsman, and it’s happening again. It divides the coalition against a weak settlement, which will at the least shut down state and federal prosecutions on foreclosure fraud and servicing issues. It puts hopes in yet another investigation, one with little chance for success… I’d really like to be wrong about this. But this just reads like a gambit, a fix, a charade.

# # #

Google announces privacy changes across products; users can’t opt out

January 24, 2012

by Cecilia Kang,

Washington Post

            Google will soon know far more about who you are and what you do on the Web.

The Web giant announced Tuesday that it plans to follow the activities of users across nearly all of its ubiquitous sites, including YouTube, Gmail and its leading search engine.

Google has already been collecting some of this information. But for the first time, it is combining data across its Web sites to stitch together a fuller portrait of users.

Consumers won’t be able to opt out of the changes, which take effect March 1. And experts say the policy shift will invite greater scrutiny from federal regulators of the company’s privacy and competitive practices.

The move will help Google better tailor its ads to people’s tastes. If someone watches an NBA clip online and lives in Washington, the firm could advertise Washington Wizards tickets in that person’s Gmail account.

Consumers could also benefit, the company said. When someone is searching for the word “jaguar,” Google would have a better idea of whether the person was interested in the animal or the car. Or the firm might suggest e-mailing contacts in New York when it learns you are planning a trip there.

But consumer advocates say the new policy might upset people who never expected their information would be shared across so many different Web sites.

A user signing up for Gmail, for instance, might never have imagined that the content of his or her messages could affect the experience on seemingly unrelated Web sites such as YouTube.

“Google’s new privacy announcement is frustrating and a little frightening,” said Common Sense Media chief executive James Steyer. “Even if the company believes that tracking users across all platforms improves their services, consumers should still have the option to opt out — especially the kids and teens who are avid users of YouTube, Gmail and Google Search.”

Google can collect information about users when they activate an Android mobile phone, sign into their accounts online or enter search terms. It can also store cookies on people’s computers to see which Web sites they visit or use its popular maps program to estimate their location. However, users who have not logged on to Google or one of its other sites, such as YouTube, are not affected by the new policy.

The change to its privacy policies come as Google is facing stiff competition for the fickle attention of Web surfers. It recently disappointed investors for the first time in several quarters, failing last week to meet earnings predictions. Apple, in contrast, reported record earnings Tuesday that blew past even the most optimistic expectations.

Some analysts said Google’s move is aimed squarely at Apple and Facebook — which have been successful in building unified ecosystems of products that capture people’s attention. Google, in contrast, has adopted a more scattered approach, but an executive said in an interview that the company wants to create a much more seamless environment across its various offerings.

“If you’re signed in, we may combine information you’ve provided from one service with information from other services,” Alma Whitten, Google’s director of privacy for product and engineering, wrote in a blog post.

“In short, we’ll treat you as a single user across all our products, which will mean a simpler, more intuitive Google experience,” she said.

Google said it would notify its hundreds of millions of users of the change through an e-mail and a message on its Web sites. It will apply to all of its services except for Google Wallet, the Chrome browser and Google Books.

The company said the change would simplify the company’s privacy policy — a move that regulators encouraged.

Still, some consumer advocates and lawmakers remained skeptical.

“There is no way anyone expected this,” said Jeffrey Chester, executive director of the Center for Digital Democracy, a privacy advocacy group. “There is no way a user can comprehend the implication of Google collecting across platforms for information about your health, political opinions and financial concerns.”

Added Rep. Edward J. Markey (D-Mass), co-chair of the Congressional Privacy Caucus: “It is imperative that users will be able to decide whether they want their information shared across the spectrum of Google’s offerings.”

Google has increasingly been a focus of Washington regulators.

The company recently settled a privacy complaint by the Federal Trade Commission after it allowed users of its now-defunct social-networking tool Google Buzz to see contacts lists from its e-mail program.

And a previous decision to use its social network data in search results has been included in a broad FTC investigation, according to a person familiar with the matter who spoke on the condition of anonymity because the investigation is private.

Federal officials are also looking at whether Google is running afoul of antitrust rules by using its dominance in online searches to favor its other business lines.

Claudia Farrell, a spokeswoman for the FTC, declined to comment on any interaction between Google and regulators on its new privacy changes

Shot-Up Image of President Draws a Secret Service Inquiry

January 26, 2012

by Marc Lacey

New York Times

PHOENIX — The Secret Service said Thursday that it was looking into a photograph posted on the Internet that showed a group of young Arizona men posing in the desert with guns while holding up what appeared to be a bullet-riddled image of President Obama’s face.

The photograph showed seven casually dressed young men, four of whom clutched weapons and one of whom held up a T-shirt covered with small holes and gashes and bearing a likeness of Mr. Obama above the word “HOPE.” The weapons held aloft appeared to be a revolver, a bolt-action rifle and two assault rifles.

“We’re aware of it, and we’re conducting the appropriate follow-up steps,” said Ed Donovan, a Secret Service spokesman in Washington.

The photo, along with the remark “Another trip to the ranch,” was posted on Jan. 20 on the Facebook page of Sgt. Pat Shearer, a police officer in Peoria, Ariz., a Phoenix suburb. The image was removed from Sergeant Shearer’s page on Thursday afternoon shortly after inquiries about it to the Peoria Police Department. Sergeant Shearer, a decorated officer who was honored in 2007 for helping to save a driver trapped in a burning vehicle, did not respond to a request for comment on Thursday.

Jay A. Davies, a police spokesman, said in an e-mail that the department was conducting “an administrative investigation into any possible policy violations on the part of our employee.”

The photograph was also posted on the Facebook page of one of the young men holding a gun in the image. He was identified as a student at Peoria’s Centennial High School.

Danielle Airey, a spokeswoman for the Peoria Unified School District, said district officials were conducting an investigation and working to identify any students involved. “We will also wait to hear from local and federal authorities to cooperate with their investigations,” she said in an e-mail.

The Secret Service has an Internet Threat Desk that reviews online comments and images that raise potential threats to protected officials, especially the president. Mr. Obama made a brief visit to the Phoenix area on Wednesday.

“Individuals certainly have a right to free speech, but we certainly have a right to speak to individuals to see what their intent is,” Mr. Donovan said.



Scientists predict 70 percent chance major quake to hit Tokyo in 4 years, AFP says

January 24, 2012


TOKYO (TR) – Researchers at the University of Tokyo say the increase in tremors in and around the nation’s capital since the 2011 Tohoku earthquake and tsunami means there is a 70 percent chance the city will suffer a magnitude seven earthquake within four years, according to Agence France-Presse.

An average of 1.48 earthquakes per day with magnitudes of three or higher have hit the Tokyo area since March 11, 2011, AFP reported, citing the Japan Meteorological Agency. That represents a fivefold increase, the news agency said.

The last major quake to hit the area was the magnitude 7.9 Great Kanto Earthquake which struck in 1923 and killed over 100,000 people. The 2011 earthquake, centered in the Pacific Ocean just off Japan’s Miyagi Prefecture, and the tsunami it created claimed an estimated 19,000 lives and damaged Tokyo Electric Power Company’s Fukushima Daiichi nuclear power plant.

The greater Tokyo area, with a population of over 35 million, is the world’s most populated metropolitan area and sits at the intersection of three continental plates.

Judge: Americans can be forced to decrypt their laptops

January 23, 2012

by Declan McCullagh

American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.

Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21–or face the consequences including contempt of court.

 Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination.

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.

Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she’s even able to do so is not yet clear).

 Colorado Springs attorney Phil Dubois, who once represented PGP creator Phil Zimmermann, now finds himself fighting the feds over encryption a second time.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals,” Fricosu’s attorney, Phil Dubois, said this afternoon. “I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.” (See CNET’s interview last year with Dubois, who once represented PGP creator Phil Zimmermann.)

Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” he said.

Today’s ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passphrases. Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination,” the court ruled (PDF).

A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

Prosecutors in this case have stressed that they don’t actually require the passphrase itself, and today’s order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding “the password to the drive, either orally or in written form.”

Because this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to Colorado U.S. Attorney John Walsh saying “I hereby approve your request.”

The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled “Compelled Production of Plaintext and Keys.”)

Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can’t be forced to give “compelled testimonial communications” and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant’s minds, the argument goes, so why shouldn’t a passphrase be shielded as well?

Fricosu was born in 1974 and living in Peyton as of 2010. She was charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing “imminent foreclosure” or whose owners were relocating outside the state. Some of the charges could yield up to 30 years in prison; she pleaded not guilty. Her husband, Scott Whatcott, was also charged.

Conversations with the Crow

            When the CIA discovered that their former Deputy Director of Clandestine Affairs, Robert T. Crowley, had been talking with author Gregory Douglas, they became fearful (because of what Crowley knew) and outraged (because they knew Douglas would publish eventually) and made many efforts to silence Crowley, mostly by having dozens of FBI agents call or visit him at his Washington home and try to convince him to stop talking to Douglas, whom they considered to be an evil, loose cannon.          

Crowley did not listen to them (no one else ever does, either) and Douglas made through shorthand notes of each and every one of their many conversation. TBR News published most of these (some of the really vile ones were left out of the book but will be included on this site as a later addendum ) and the entire collection was later produced as an Ebook.

 Now, we reliably learn, various Washington alphabet agencies are trying to find a way to block the circulation of this highly negative, entertaining and dangerous work, so to show our solidarity with our beloved leaders and protectors, and our sincere appreciation for their corrupt and coercive actions, we are going to reprint the entire work, chapter by chapter. (The complete book can be obtained by going to:


Conversation No. 112


Date: Wednesday November 26, 1997

Commenced: 1:02 PM CST

Concluded: 1:38 PM CST

GD: Hello, Robert. Bought your tree yet?

RTC: Good day to you, Gregory. A bit early.

GD: Perhaps. Those plastic trees are so much better than the real ones. Why murder a perfectly innocent tree just to encourage reckless spending in the shops? Do trees, which are part of the great system, come into our homes, cut our children off at the feet and stick them up in the woods, covered with squirrel shit?

RTC: Now, Gregory, don’t mar the joys of the season. Trees are traditional, after all.

GD: Well, so were burning witches at the stake but that finally died away. After that, our southern friends just burnt blacks up in the trees for entertainment.

GGRT: Gregory, where is your Christmas spirit?
GD: In my liquor cabinet, that’s where. You know, Robert, I like fine art and really decent music. I love classical music and I have hundreds of recordings. Most of them are Baroque and of those, the majority are religious in nature. I have masses, motets, requiems, te Deums and so on. I greatly enjoy the music but I am not a fan of the Gospels, most of which are pure propaganda, written decades after the fact by people who could never have been period witnesses to any ministry that Jesus might have promulgated. The music stands on its own feet, not on the strength, or weakness, of dogma. And when I am in Florence, I love to walk through the galleries of the Uffizi and admire the grand art. Most of it is religious in nature because in those days, artists were not allowed to portray the nude human figure except in a religious connotation. Aside, it’s downright funny, looking at the Shroud of Turin fake because that particular Jesus has a nice scarf wrapped around his genitals.

RTC: Yes, well, it kept people happy for a long time, Gregory.

GD: Yes and then we had the French Revolution, didn’t we? Yes, I suppose I ought to get a tree, which is pagan in origin by the way, and hang up wax figures on it of my enemies, with knitting needles thrust up their fundaments.

RTC: My, I feel sorry for the poor tree with all that weight on it.

GD: Now, Robert, not everyone hates me. I mean you don’t hate me, do you?
RTC: No, I don’t but I know quite a few people who wish you would take a long walk on a short pier.

GD: Dare I guess the names, Robert?

RTC: Do we have the time?

GD: ‘Had we but world enough, and time…’ Just a quote remembered dimly from my wonderfully rich days spent in my local high school. Yes, one of the bright spots in my life, Robert.

RTC: I take it you had problems there with them.

GD: No, Robert, they had problems there with me. Robert, you know, I am a peaceful person by nature. I am reflective. I love animals, but of course not sheep in the carnal sense, and good music, and better wine and my own cooking. I always minded my business as a child and was very courteous and civilized to my elders and even to most of my peers. Ah, but that was when I was a child. As I grew older and realized what vileness covered the earth, I grew increasingly disenchanted. But I never instigated anything against anyone, ever. But I never permitted anyone to attack or, worse, dishonor me, Robert. Never. And I had trouble in school because I did not socialize and I had a really vicious, but educated, tongue. If I was mocked, my retorts drove people to weeping and distraction. I played no favorites, Robert. I was democratic there. Teachers, parents, siblings, peers, whatever. They started it and I finished it. And if they were too big and too strong to attack directly, there was always the indirect attack. They might never know that it was I who ruined some pathetic aspect of their sheep-like lives but I always knew and I liked to treasure such moments. Our friend Heini Müller found no fault with this and in fact used to tell me I was one of the most entertaining scoundrels he ever met. And Heini was quite decent too, head of the Gestapo as he had been, but even he was not as creative as I was and in interrogations issues, I could beat him hands down and Heini was very, very good.

RT: That he was. The few times I dealt personally with him I was very favorably impressed with not only his abilities, his forensic abilities, but also his character.

GD: I don’t think I am going to ask you about my character, Robert.

RTC: No, don’t worry about that, Gregory. You have plenty of character but our friend Heini was right. You are very medieval in your approach to the problems of life. You know, that’s why you could never have really worked for us. I mean if we told you to blow someone up, you would cheerfully do it if you agreed with our motives but if you didn’t, you would balk. No, we can’t have that. You have distinct abilities but no one but yourself can do anything with them, can they?

GD: Of course not. On the other hand, if I like you, I will certainly blow things up on your behalf. Or in your case, build a death ray for you to use on your Swiss neighbors. Take the meaning I am sure.

RTC: I have not complained, have I?

GD: I would hope not. I rarely have blown anything up, Robert but there was one exception. It was quite awful if you stopped to think about it but no one ever did.

RTC: Have I heard this one?
GD: No. I don’t talk about it.

RTC: Anyone killed or maimed for life?
GD: No, but there was some damage done. Mostly to property and, as King Ronald the First said, there was collateral damage.

RTC: Yes, Reagan’s pet phrase when one of our assaults on an unfriendly person was successful. What was your collateral damage?

GD: Yes, we all have our memories, Robert, thoughts to warm us on cold winter nights like a fat woman in the sack. Lots of warm blubber to comfort you. Nothing else to comfort me, believe me.

RTC: (Laughter) What do you have against fat people?

GD: Fortunately, nothing attached to my body, Robert.

RTC: Your explosive venture?

GD: Just trying to set me up, Robert? Tape recorder whirring? No, not you. That’s why I open my heart to you. Explosives? In my senior year of high school, I was considered quite a negative person by almost everyone. I had my little games, like the soap in the stock pot story, but no one ever suspected me because, believe it or not, I was a sweet-faced child who looked ten years younger than I was and who was very, very considerate and polite to people. At least generally. Anyway, some of the teachers, who had gotten very tired of my comments directed to them in class decided that while I had earned my diploma, I ought not to be given it in public. Why? Because of my satires and sallies. They would poke at me in class with what they pathetically thought was sarcasm and I would riposte with a thrust into their livers. No, they despised me so while I could get my diploma, they did not want me to get it at a graduation ceremony.

RTC: Very nasty, Gregory. Are you sure you hadn’t committed some atrocity unmentioned here?
GD: No. I am a private assassin, not a public one. I never got caught and was never suspected. On the other hand, I can cheerfully report that I was often accused of things I had never done and when I was discovered to be totally innocent of the charges, never apologized to. I used to get even for such things.

RTC: And the graduation? You spoke of explosives. Did you blow up the school?
GD: No, just a part of it. There was a patio off of the main corridor of the school. It was called the Honor Court and could only be entered by janitors and honor students. The rest of us were forbidden to go into it. It was a Spanish-style patio with four walls but open to the sky. There were bamboo plants around the place and a really ugly fountain in the center. A ceramic cherub holding a dolphin that shot a steam of water up out of his mouth. The anus would have been much more interesting an exit but they chose the mouth. Anyway, this ugly statue that would only excite a myopic pedophile had a basin below it, a basin filled with ugly, piebald carp which the honor students were permitted to feed. And on the surrounding walls of it were small bronze plates with the year of a graduating class on it. ‘37’ or ‘’42’ and so on. A solemn ceremony year graduating year as the class valedictorian and others of the sainthood of the perfect of God entered the patio and the plate for that year was solemnly tapped into place with the handle of an even more sacred trowel, one that had been used to tamp for twenty years. I think they kept it locked in a safe in the main office until it was needed. Anyway, one of the walls of this sacred grove was blank, another had the glass windows of the chemistry laboratory in it and yet another one had glass windows looking onto the corridor. The main corridors through which passed hundreds of students, all of whom were forbidden to enter the sacred grove. When I was told I could get my diploma but was not wanted at the graduation ceremonies because I was a very negative person and reflected badly on everybody except the janitors, I got rather angry. Now I had no use for most of the students and certainly none of the teachers but I felt that I had as much right to walk up the aisle and get my diploma as anyone else. I really did and in this case, my family was upset with the school, not with me. It didn’t do any good so I was told that my father would take me out to a very nice French restaurant in lieu of my attending graduation ceremonies. Dishonor, Robert, dishonor. That I never tolerated so I prepared a nice surprise. On the other side of that corridor was the outside auditorium where the graduation ceremonies would take place. I went to an establishment that, in those days things were much freer than they are today, that sold dynamite and I bought a case of 75% sticks, a box of caps, a crimper and the longest roll of 5 seconds per inch fuse I could get. I took the stuff home and made the dynamite into a sort of a long shawl  by tying the sticks together at the tops and bottoms. Each stick is formatted to take an explosive cap so I rigged the whole thing up, wrapped it in a blanket and smuggled it into the school on the eve of graduation. It was safe enough because all the janitors and teachers were out in the rapidly-filling auditorium so I had no trouble wrapping the fat punk with a long blanket of destruction. I shoved the fused cap into one of the sticks and lit the other end. No one saw me come and no one saw me go. And I was home about two minutes or so, talking with my family who were getting ready to take me out to my consolation dinner, when we all heard a massive explosion. It rattled the windows but my father, who knew everything, assured it that it was a sonic boom. Of course he was wrong but who was I to correct him? Not I, certainly. Anyway, we left for the restaurant and we had to pass near the school. My, my, roads blocked off, police cars, fire trucks with lights blazing and so on. A detour and curiosity on my father’s part. I would loved to have enlightened him but there are times, Robert, times when silence is golden. We had a lovely consolation dinner and on the way back, we had to pass down the highway past the school, except we couldn’t. It seems the buildings were on fire so we went home and I took a nice shower and put some Bach on the record player.

RTC: Anyone killed?

GD: No, no one killed but a great deal of damage. Some of my classmates who were present called me the next morning and, being a curious person, I drove over to the school. Of course a janitor told me the main hall was a mess and I couldn’t go down it but I convinced him I had a family Bible in my locker and I needed to get it. I’m a pretty good con man and he let me through and off I went. Merciful Jesus, Robert, what a mess I saw that day. The high school orchestra had been playing, endlessly and always out of tune, Elgar’s  Pimp and Circumcision march while respectful students trekked up the aisles past adoring parents to get their diplomas. My, and just then, there was a great flash and a roar somewhere off to the left followed by the rapid descent of many Spanish roof tiles into the outdoor auditorium. Window glass burst out upon them and there was a rain of tile upon their heads. Panic. Screaming parents running around. Toppled metal chairs. Fleeing school officials, the local Methodist minister who was blessing people, the school choir and orchestra. By the way, high school orchestras ought to be banned on principle. They are a standing affront to music lovers. So Pompeii with Vesuvius erupting is what it was. I was establishing my alibi at the time and enjoying the idea of good French food when the disaster came upon them but from the havoc and wreckage I was able to observe, coupled with the hysterical and disjointed reports of my peers, I pieced the whole thing together. Tipped over metal chairs, abandoned mortar boards, sheet music fluttering in the wind, blood stains, shattered tiles, and on the stage, a tipped-over lectern, the school flag hanging by one corner, more scattered chairs and, I have always remembered this poignant touch, a base viola lying abandoned where its terrified wielder had abandoned it. Oh, the sacred patio? Oh my, what a shambles. The statue was blasted into dust and all that remained was a corroded copper pipe squirting water into an empty basin that had been breached almost totally. Sacred, dated sections were scattered all over the patio along with the ruptured remains of the carp, bamboo, roof tiles and a broken bench once occupied by the elite. The fires had been caused when the wall of the chemistry lab had blown in, knocking all the chemicals onto the floor. Some combination of their contents had started a raging fire that had burnt up into the attic and roared through it like crap through a goose. My, my, what a finale to my distress and grief- laden school years. No one was seriously injured but there were plenty of scalp cuts that tended to bleed a bit, trampled musical instruments and, of course, major damage to the school in general and the sacred precincts of the elite in specific. Dead carp, smashed altar and ruined bushes all laid out for me to view with awe and great joy.  Now there is my explosive adventure, Robert. Have you anything to say?
RTC: Lucky no one was killed.

GD: That’s a matter of opinion, Robert. I can quickly think of at least two or three dozen people I could have wished visiting the sacred carp for the last time and wondering what all those little road flares were doing strapped around the fat-assed cupid. Just before the cap went off. I wasn’t planning on such an occurrence but sometimes life gives you little bonuses.

RTC: (Laughter) And all of this so soon before Christmas, Gregory. And you got away with it, I assume?
GD: I did indeed. One could say that I went out with a bang. A very large one, Robert, very large. Another precious memory to treasure in moments of distress and grief. Haven’t you any such moments?
RTC: No, thank God.

GD: Just revolutions, assassinations and exploding airliners instead. Well, whatever pleases you, Robert.

(Concluded 1:38 PM CST)

To His Coy Mistress

Andrew Marvell. 1621–1678

HAD we but world enough, and time

This coyness, Lady, were no crime

We would sit down and think which way

To walk and pass our long love’s day.

Thou by the Indian Ganges’ side

Shouldst rubies find: I by the tide

Of Humber would complain. I would

Love you ten years before the Flood,

And you should, if you please, refuse

Till the conversion of the Jews.

My vegetable love should grow

Vaster than empires, and more slow;

An hundred years should go to praise

Thine eyes and on thy forehead gaze;

Two hundred to adore each breast,

But thirty thousand to the rest;

An age at least to every part,

And the last age should show your heart

For, Lady, you deserve this state,

Nor would I love at lower rate.

But at my back I always hear

Time’s wingèd chariot hurrying near;

And yonder all before us lie

Deserts of vast eternity.

Thy beauty shall no more be found,

Nor, in thy marble vault, shall sound

My echoing song: then worms shall try

That long preserved virginity,

And your quaint honour turn to dust,

And into ashes all my lust:

The grave ‘s a fine and private place,

But none, I think, do there embrace.

Now therefore, while the youthful hue

Sits on thy skin like morning dew,

And while thy willing soul transpires

At every pore with instant fires,

Now let us sport us while we may,

And now, like amorous birds of prey,

Rather at once our time devour

Than languish in his slow-chapt power

Let us roll all our strength and all

Our sweetness up into one ball,

And tear our pleasures with rough strife

Thorough the iron gates of life:

Thus, though we cannot make our sun

Stand still, yet we will make him run


Dramatis personae:

                         James Jesus Angleton: Once head of the CIA’s Counterintelligence division, later fired because of his obsessive and illegal behavior, tapping the phones of many important government officials in search of elusive Soviet spies. A good friend of Robert Crowley and a co-conspirator with him in the assassination of President Kennedy

            James P. Atwood: (April 16, 1930-April 20, 1997) A CIA employee, located in Berlin, Atwood had a most interesting career. He worked for any other intelligence agency, domestic or foreign, that would pay him, was involved in selling surplus Russian atomic artillery shells to the Pakistan government and was also most successful in the manufacturing of counterfeit German dress daggers. Too talkative, Atwood eventually had a sudden, and fatal, “seizure” while lunching with CIA associates.

            William Corson: A Marine Corps Colonel and President Carter’s representative to the CIA. A friend of Crowley and Kimmel, Corson was an intelligent man whose main failing was a frantic desire to be seen as an important person. This led to his making fictional or highly exaggerated claims.

            John Costello: A British historian who was popular with revisionist circles. Died of AIDS on a trans-Atlantic flight to the United States.

            James Critchfield: Former U.S. Army Colonel who worked for the CIA and organizaed the Cehlen Org. at Pullach, Germany. This organization was filled to the Plimsoll line with former Gestapo and SD personnel, many of whom were wanted for various purported crimes. He hired Heinrich Müller in 1948 and went on to represent the CIA in the Persian Gulf.

            Robert T. Crowley: Once the deputy director of Clandestine Operations and head of the group that interacted with corporate America. A former West Point football player who was one of the founders of the original CIA. Crowley was involved at a very high level with many of the machinations of the CIA.

            Gregory Douglas: A retired newspaperman, onetime friend of Heinrich Müller and latterly, of Robert Crowley. Inherited stacks of files from the former (along with many interesting works of art acquired during the war and even more papers from Robert Crowley.) Lives comfortably in a nice house overlooking the Mediterranean.

            Reinhard Gehlen: A retired German general who had once been in charge of the intelligence for the German high command on Russian military activities. Fired by Hitler for incompetence, he was therefore naturally hired by first, the U.S. Army and then, as his level of incompetence rose, with the CIA. His Nazi-stuffed organization eventually became the current German Bundes Nachrichten Dienst.

            Thomas K. Kimmel, Jr: A grandson of Admiral Husband Kimmel, Naval commander at Pearl Harbor who was scapegoated after the Japanese attack. Kimmel was a senior FBI official who knew both Gregory Douglas and Robert Crowley and made a number of attempts to discourage Crowley from talking with Douglas. He was singularly unsuccessful. Kimmel subsequently retired, lives in Florida, and works for the CIA as an “advisor.”

            Willi Krichbaum: A Senior Colonel (Oberführer) in the SS, head of the wartime Secret Field Police of the German Army and Heinrich Müller’s standing deputy in the Gestapo. After the war, Krichbaum went to work for the Critchfield organization and was their chief recruiter and hired many of his former SS friends. Krichbaum put Critchfield in touch with Müller in 1948.

            Heinrich Müller: A former military pilot in the Bavarian Army in WWI, Müller  became a political police officer in Munich and was later made the head of the Secret State Police or Gestapo. After the war, Müller escaped to Switzerland where he worked for Swiss intelligence as a specialist on Communist espionage and was hired by James Critchfield, head of the Gehlen Organization, in 1948. Müller subsequently was moved to Washington where he worked for the CIA until he retired.

            Joseph Trento: A writer on intelligence subjects, Trento and his wife “assisted” both Crowley and Corson in writing a book on the Russian KGB. Trento believed that he would inherit all of Crowley’s extensive files but after Crowley’s death, he discovered that the files had been gutted and the most important, and sensitive, ones given to Gregory Douglas. Trento was not happy about this. Neither were his employers.

            Frank Wisner: A Founding Father of the CIA who promised much to the Hungarians and then failed them. First, a raging lunatic who was removed from Langley, screaming, in a strait jacket and later, blowing off the top of his head with a shotgun.           

            Robert Wolfe: A retired librarian from the National Archives who worked closely with the CIA on covering up embarrassing historical material in the files of the Archives. A strong supporter of holocaust writers specializing in creative writing. Although he prefers to be called ‘Dr,’ in reality he has no PhD

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