A Fake Consultant Exclusive: Political Robots Fail In Operational Service

It has been quite some time, Gentle Reader, since we addressed the issue of political robot design, but recent events have forced us to return to the subject once again.

As you undoubtedly are aware, three high profile ‘bots from Robotican™ Labs have recently experienced major failures.

It was originally thought that the problems were isolated to the Robotican™.1 Congressional Series of Devices...but it is now known that the failures also extend to the.2 Gubernatorial Series as well.

In today’s story we will examine what is known about these failures, how they may impact other devices in Political Service, and what solutions might be available to address these issues.

First, a bit of background: In 2007 we examined the state of the robotic art in considerable detail, and there is some information from that analysis which should be brought to the table today:

In putting today’s “non-optimal behavior modalities” into a proper context, it’s important to remember that Robotican™ Labs devices are not designed for fully autonomous operation—instead, they depend on central management of operating parameters and onboard software updates that are “pushed” out to the devices on a daily basis.

The reason for this design choice is to enable all Robotican™ devices to create a more consistent “ideological display” output: in other words, to allow the .1 Congressional Series, the .2 Gubernatorial Series, the .3 Presidential Series, the Murdoch Series of Media Robots (and the Murdoch’s derivative, the Atwater SpokesBot Series) to all deliver the same messages simultaneously, and to provide the ability to immediately revise that ideological output should operators determine the need for such change exists.

This can have its disadvantages, and there are many who have noted a “parroting” effect over the years; a problem now rendered more acute with the expanded use of YouTube as a campaign analysis tool by both opposition and independent researchers.

(Systems fielded by the Democrobot Device Program are far more autonomous, which reduces the “parroting” effect. Of course, this also makes it much more difficult to get the ‘bots to operate in unison; an effect that has been noted frequently by observers since at least 1968.)

The failure that is the easiest to explain, I’m told, is the recent breakdown of Robotican™ Lab’s Revo-Ensign v1994.1. The Revo-Ensign ‘bot is one of the many Revolution®-Class v199x.1 Devices that were introduced into service during the 1994, ’96, and ‘98 election cycles. Several of those devices have failed in spectacular manner, most notably the Revo-Vitter v1998.1, the Revo-Greene-Waldholtz v1994.1, and the Revo-Foley v1994.1.

Since the 1994 electoral cycle all Robotican™ Devices (including Murdoch Series Media Robots) have come with the Moral Majority snap-in pre-installed as an Operating System enhancement.

The problem seems to be an incompatibility issue between this snap-in and the Human.exe program’s RealityEmulatorProcess, which is one of the core processes that is allowed direct access to the Operating System Kernel.

In order to avoid “Uncanny Valley” problems, Robotican™ software engineers of the 1980s programmed for a certain number of “moral failures” in the robot fleet, but they could not anticipate the data errors that would result when Human.exe, the snap-in, and the OS Kernel interacted.

The most obvious sign of non-optimal behavior was seen in the Media.exe program. When the program is initialized it calls the MediaModulatorProcess (the second of three core processes that can access the OS Kernel). Software engineers now know that in failure mode the output from that Process can become severely garbled.

In some instances so many “unrecoverable errors” occurred that over the years since the snap-in was introduced several Revolution©-Class Devices have required “unscheduled withdrawal” from Political Service.

The repair appears to be fairly simple, and Robotican™ software engineers have, on several occasions, asked for permission to remove or modify the Moral Majority snap-in, but in every instance the requests have been denied by Corporate Management.

(It is not known if Fundraising.exe is impacted by the presence of the snap-in. The third “core” process, AcceptDonationsProcess, is called by the program, but considerable research conducted in the runup to the 2000 campaign cycle suggested the Process remains unaffected, even when the Operating System is in failure mode. More recent research, however, contradicts those conclusions.)

Now here’s where the story turns weird.

During 1998 and 1999 Robotican™ design teams were preparing to field test the Operating System Release Candidate for the Compassionate©-Class Devices that would be introduced into Political Service for the 2000 cycle and beyond.

Instead of removing the Moral Majority snap-in from the new OS, Corporate Management ordered engineers to create a new program, Faith.exe, as its replacement; the theory being that a closer association between Faith Factors and the OS Kernel would yield a more robust design that would be less likely to fail. Associated with the program are two new core processes, MoralObjectionProcess and JustifyActionProcess.

At the same time, a Revolution©-Class ‘bot was transferred from .1 Congressional Service to .2 Gubernatorial Service: the Revo-Sanford v1994.1. Normally, this would involve the installation of new OS components...but in this case, the Robotican™ design team was ordered to implement a retrofit of the Revo-Sanford to a Compassionate©-Class Device.

The result was the Compasi_Sanford v2000.2...and the problems began almost immediately...and strangely enough, on several occasions animals seem to be associated with the bizarre behaviors noted by engineers and technicians working on the project.

Examples? At one point in 2004 the Device was confusing pigs with humans, and in 2005 the Compasi_Sanford held a news conference to announce his intention to appoint a horse as his Legislative Liaison.

This was hardly a unique situation: an effort to retrofit a Revolution©-Class Device from .2 Gubernatorial Service to a Compassionate©-Class .3 Presidential Service Device resulted in the release of the GWBmatic 3000 v2000.3 and its own upgrade, the v2004.3—Devices that many say set the “gold standard” for political robot failure.

(There are some who would say the gold standard was not set by the GWBmatic 3000, however, pointing to the Evangi-Haggard v.1984.SB, which imploded in a most spectacular manner in 2006.)

Experts will tell you that you will encounter more problems with any retrofit project than you will in a “new build” project; the Robotican™ engineers I have been in consultation with are suggesting that the same effect is in play here.

It should be noted, however, that others feel the Faith.exe program and its MoralObjectionProcess and JustifyActionProcess are the real source of the problem, and that any effort to apply software of this type to ‘bots working in Political Service will inevitably result in disaster.

The third Device we will we discuss today is not part of a Series of Robotican™ Labs ‘bots, but is instead a “one-off” experimental design: the SarahCuda v2006.Xa.

For more or less a decade Corporate Management had been pressing design engineers to develop a system that could effectively function in a “consistent ideological output” environment while avoiding the “parroting” problem...and for those in the Robotican™ “Skunk Works” engineering group, this task now had the highest priority.

One possible solution, designers thought, would be to create disassociation between the SaraCuda and the Compassionate© Series of ‘bots.

With very little in the way of time or resources, Skunk Works engineers decided to attempt deployment of the still unproven “Maverick II” software suite, and by 2006 the Device was being field-tested in the remote and friendly environment of Alaska.

The software suite does have its limitations, however: because of the lack of resources available, there was no effort to develop a fully-functional QueryResponseProcess. Instead, the designers installed “call and response” and “predictive algorithm” technologies that were based on “sampling” responses into the Device’s onboard data storage facility for recall later.

Although the Device was experiencing anomalies during its experimental phase of Alaska Gubernatorial Service, Corporate Management was so desperate in the runup to the 2008 election that they rushed the SaraCuda into full operation, despite the concerns of test engineers.

“No Device can successfully function in a hostile media environment running call and response software, and they knew it when they sent her out there, and they did it anyway. I couldn’t believe they would be so willing to accept the risk, even after we warned them what might happen...”

--Harry Paratestes, Robotican™ design engineer

Although initial results were encouraging, it soon became clear that the limitations of the software were going to lead to the very disaster predicted by the design and test team. After the 2008 election, there was hope that the Device could be repaired and returned to Gubernatorial Service, but a cascading series of failures within the Operating System and the MediaModulatorProcess have now caused Corporate Management to initiate an “unscheduled withdrawal” of the Device from Service.

As of today it appears that the Device has been returned to Experimental Service, and it also appears that the call and response software is still running, suggesting that extensive development effort lies ahead before a successful redeployment can occur—or that the Device may be converted into a Murdoch Series Media Robot.

It’s time to bring this story home, so let’s see where we’ve been:

Robotican™ engineers are dealing with three different failures in three different types of ‘bots—and in two of those failures, there are crippling incompatibilities that appear to be beyond the ability of the engineering team to resolve. Corporate Management appears to be unwilling to acknowledge that an incompatibility exists...and unwilling to allow removal of the software that is at the heart of the failures.

In the third case, desperation compounded by lack of time and resources led to the massive failure of the still-experimental SaraCuda, and it now appears that an effort may be underway to “repurpose” the Device for Media Service.

Will the current Robotican™ fleet of Compassionate©- and Revolution©-Class Devices be capable of leading the charge back to victory, or will Corporate Management be forced to place a new generation of ‘bots into operation?

Can a Robotican™ Operating System be fielded that does not require the Faith.exe program or its derivatives?

And finally, has the reliance on a consistent ideological output—and the resultant “parroting” effect—become more of a detriment than an advantage in the effort to garner votes at election time?

These are the questions for the future...and the next time we address this subject, maybe we’ll have more answers.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance...and today is the last day of voting...and while I’m not normally inclined to use the “hard sell”...I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before...) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

On Gay History, Or, This Is Not A Stonewall Story

Pride Month has come and gone, Gentle Reader, with no comment from this desk.

It’s not that I’m in some way insensitive to the subject; instead it’s more of a desire, once again, to stay off the beaten path.

And in that spirit, I do indeed have a story of Gay History...but it’s not from the Summer of ’69...instead, this story was already well underway before the Summer of ’29.

So put on something très chic and let’s head on over to Harlem...at the time of the Renaissance...because it’s time to meet Gladys Bentley.

As so often happens, I had no idea I would be writing a Gay History (HerStory?) story—and the funny thing is, it’s all Groucho Marx’s fault.

For those not aware, Groucho starred in what is now an ancient television game show, “You Bet Your Life”. The basic concept was that the guest would come on and demonstrate a talent, do a little comedic banter with Groucho, and then answer questions for money.

There is a newly released DVD set of episodes from the show, and I was watching the very first episode of the set...and along comes this woman who introduces herself as Gladys Bentley. After a few words, she sits down at the portable piano that was provided, and much to my amazement she proceeds to pound out some of the most amazing boogie-woogie it has ever been my pleasure to watch.

Naturally, a Google search ensued...and that’s when it got interesting.

You see, Gladys Bentley, in 1920s and 1930s Harlem, was the most famous Drag King of her time (yes, Virginia, there are Drag Kings, just as there are Drag Queens)...and all of a sudden, it was time to write a “couple days after Pride Month” story.

The history of early 20th Century Harlem is associated with two notable trends: black migration caused by the gradual desegregation of the neighborhood and the introduction of Prohibition and the speakeasy culture.

“...a costume ball can be a very tame thing, but when all the exquisitely gowned women on the floor are men and a number of the smartest men are women, ah then, we have something over which to thrill and grow round-eyed.”

--“Lady Nicotine”, Geraldyn Dismond Major, describing the “Faggot’s Ball” in her “Between Puffs” column for “The Inter-State Tattler”, February 1929

For those unaware, 1920s Harlem was the home of an active gay community, and it was apparently the perfect place for a black woman who once wrote that “even as I was toddling, I never wanted a man to touch me....”. By the end of the decade she had worked herself up from playing rent parties to stardom on “Jungle Alley”: appearing at The Cotton Club and eventually becoming the “headliner-in-residence” at the predominantly lesbian The Clam House (the entendre being entirely intentional).

It is reported that there was a surprising amount of integration on Jungle Alley—of multiple kinds—which helped Gladys Bentley soon became the darling of the white, black, gay, and straight social sets. (Langston Hughes even modeled a character in the play “Little Ham” after her.) Her ability to write and perform some of the bawdiest lyrics ever while “working the room”—especially the ladies--kept The Clam House packed...and it set her up for an even bigger gig to come.

Connie’s Inn, another famous speakeasy, had closed, and in its place was the Ubangi Club. To “kick things up a notch”, as it were, the new management not only hired Bentley, but provided for her an entire chorus line of “pansies”; the combination of the effeminate male chorus line and the female butch headliner forming a sort of gender-bending fugue that that came together in elaborate stage shows produced by the likes of Leonard Harper.

Eventually she moved over to the Mad House, performing under the stage name of Barbara “Bobbie” Minton...which, before long, caused the club to change its own “stage” name to Barbara’s Exclusive Club in her honor.

She recorded music as well, first in the late 1920s, for OKEH records; some of that music can be heard today by visiting just the right websites.

Eventually...Miss Bentley became a Mrs....more than once.

“A friend, visiting her, pointed inquiringly at two pictures on Miss Bentley’s dresser...

“Who are they?” the visitor inquired innocently.

“Oh” Miss Bentley replied “That’s my husband (pointing to the male) and that’s my wife.”

--From “The Third Sex” By Albert Duckett, in “The Chicago Defender”, March 2, 1957

Bentley’s first marriage—to a white woman, in Atlantic City—was reportedly covered in the society pages of the New York papers. Bentley also reports that there were two marriages to men, in later years, both ending in divorce—a topic to which we will return later.

All of this came to an end as the Depression deepened, and in 1937, less than five years after she had moved into a Park Avenue apartment she moved out to Los Angeles to live with her mother.

World War II revived the gay scene on the West Coast, and Bentley was able to find work at bars such as the San Bernardino Club and Joaquin’s El Rancho in Los Angeles and Mona’s Club 440 in San Francisco (“Where Girls Will Be Boys!”), along with other artists such as Miss Jimmy Reynard and Miss Beverly Shaw.

(Fun Fact: Some sort of club has occupied the same location as the old Mona’s right up to this very day, and if you find yourself in San Francisco you can visit Apartment 24, the current occupant of the spot (the website tells us to “think of classic age rock star David Bowie's over the top apartment in the 1960s....”).)

In 1945 World War II came to an end...and not long after that, so did the “gender-bending” phase of Gladys Bentley’s life.

“I thought that nought is worth a thought,
And I’m a fool for thinking.”

--From ”The Chant of the Brazen Head”, Winthrop Mackworth Praed

Before we proceed further, a few words about the public ”presentation” of homosexuality.

If you read media accounts from the 1930s—and later--that deal with gay issues, one thing that will become quickly apparent is the way the gay lifestyle is presented as an aberrant condition. You will likely also note the admonitions that a gay person must be suffering from internal torment, and unable to live a happy life.

Here are a couple quick examples:

“...Dr. Berger reasons that 99 out of any 100 Lesbians are successful in hiding their strange sex habit...

...Since it is easier for a woman to hide the fact that she is sexually cold than for a man to hide the fact that he cannot satisfactorily perform functions expected of a normal husband...

--From “The Third Sex” by Albert Duckett, in “The Chicago Defender”, March 2, 1957

“...still, in my secret heart I was weeping and wounded because I was traveling the wrong road to real love and true happiness. I could not find them in the cruel, unusual world of my strange private life.”

That second example is from an August 1952 “Ebony” Magazine article written by Gladys Bentley, “I Am A Woman Again”.

In the article Bentley renounces her entire life...and in doing so she paints a portrait of a woman who would have been a whole lot happier if she would have had the freedom to just be herself.

She describes a childhood that was spent mostly alone, parents who tried to “fix” her gender confusion by making her dress in something other than her brothers’ suits...an attraction to her teacher that she did not understand...and what she herself portrays as “extreme social maladjustment”.

Even then there was a feeling that you could cure “Teh Gay”, and as a child Bentley’s mother “began to take me from doctor to doctor...”; an effort to which Bentley herself would eventually return.

Fast forward again to post-1945...and the time she married a sailor.

“Don” was a friend-of-a-friend from San Diego via San Francisco who was told to introduce himself to Ms. Bentley if he should happen to find himself in Los Angeles...which eventually happened.

Despite the fact that “I hated sailors at the time” because of their aggressive nature they began to spend a great deal of time together—so much so that she began to introduce him as her brother.

“One day, I told Don all about my life. I admitted to him that he had me very confused because I couldn’t understand what I was doing letting a normal man pay attention to me.”

In the midst of tremendous anxiety about the future of their relationship (what with Don being the accepting type and all, they had decided to marry), she decided to visit another physician, to whom she announced the news of her impending marriage.

““That’s just what I wanted to hear” the doctor told me. “Now I can tell you what I’ve known for a long time. Your sex organs are infantile. They haven’t progressed past the stage of those of a fourteen-year-old-child.””

The solution? Injections of female hormones, three times weekly.

(There are those, notably Eric Garber, who question this account.)

“The treatment was expensive but it was worth every penny it cost.”

Fast forward to two lines later in the story:

“Even though our marriage did not last...”

Eventually Bentley began to study religion seriously, and she was in the process of becoming an ordained minister at the time of her 1958 appearance on the episode of “You Bet Your Life” that was the genesis for this story in the first place.

(Another Fun Fact: An 11-year-old Candice Bergen appears as a contestant in the second half of that same episode.)

In one way, Gladys Bentley’s story came to an untimely end just two years later, in 1960, when she died from influenza...but in another, more profound way, the story remains unresolved to this day.

It is, after all, still impossible for most same-sex couples to marry—and the Federal Government has yet to acknowledge the legal marriages that have occurred.

And those who do choose to carve out a different gender rôle for themselves, as well as those who are merely “committing the crime” of being gay are still ostracized by many in the larger society, even to the point that “God Hates Fags” has become the rallying cry for a weird and twisted church.

That said, the story is moving in the right direction...Prop 8 notwithstanding...with several states now granting to same-sex couples the right to marry—and the LBGT community gaining more and more political power all the time (can you say gAyTM?).

The remainder of the Obama Administration promises to be an exercise in...well, we’re not sure: will the Administration live up to the Candidate’s promises—or will the LBGT community find itself feeling the same way vis à vis the Democrats as the “teabag” community (not that one...the other one...) feels about the Republicans: taken for granted while at the same time lacking better options.

So how’s that for a “not Pride Month” story?

History that stretches back more than 40 years before Stonewall...great music...a bawdy personal life...repression, regret, and recriminations...and in the end, an Administration that is having to face up to the demands of those who seek more equal treatment.

And all of that...because of Groucho Marx.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance...and while I’m not inclined to use the “hard sell”...I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before...) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

On Death And Justice, Or, What If The Death Penalty Could Be Fair?`

Those who support Progressive causes are in an odd position these days: we’re often in the majority on issues that matter; and we’re seriously talking about how to turn what, just a few years ago, was a wish list...into a “reality list”.

Staying in the majority, however, requires the assistance of centrist voters--and that means, from time to time, finding philosophical compromise with voters we’d like to keep “in the fold”.

In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.

What if we could bridge that gap?

In today’s discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death...in fact, those who might not be guilty of any crime at all.

Before we proceed further, a bit of “full disclosure”: I am personally inclined to end the death penalty. The reason for this change in personal philosophy is related to the work of The Innocence Project, who would want you to know that as of the date of this writing 240 people convicted of various crimes were later exonerated in the United States through the use of DNA testing (17 of those being inmates who were on various Death Rows at the time).

It occurs to me that the only acceptable level of error in executions is zero, which has also led me to support the option of life without the possibility of parole as an effective death penalty substitute; the thinking here being that a wrongly convicted individual can always be released from life without parole...but until Dr. McCoy returns from his five year mission, the odds that an accidental execution can be reversed are quite low indeed.

“On the other hand, the worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man.”

--From “A Charge to Keep”, George W. Bush

As you are no doubt aware, in order to obtain a criminal conviction in the United States a prosecutor must prove “guilt beyond a reasonable doubt”.

This standard, however, does not guarantee that only the guilty are convicted.

Improper convictions can be obtained for a variety of reasons, which can include eyewitnesses who make mistakes, situations that involve false confessions, the inappropriate use of informants, or even the occasional governmental misconduct.

To reduce the potential for these sorts of failures, I’m proposing that after conviction, and during the “penalty phase” of a trial involving capital crimes, we determine if the evidence presented can meet a higher “burden of proof” than what is required to merely convict a defendant of the crime for which they are facing trial.

That higher burden of proof:

“Guilt beyond any doubt.”

In other words, if, during the penalty phase, the defense could create any doubt at all as to whether the defendant is guilty, or that the conviction is appropriate, that defendant would no longer be death penalty eligible, and a sentence of life without the possibility of parole would be imposed.

This is a good start to reduce the number of improper capital convictions...but there is another important reason the innocent are convicted that this proposal cannot address: incompetent lawyers.

However, there is a way to get at a resolution for this problem: a requirement that all defendants in capital cases be represented by Federally-accredited “death penalty” attorneys, combined with a requirement that each State maintain a staff of accredited attorneys that would be available to defend those individuals who are facing capital crimes and cannot afford private accredited counsel.

All of this could be imposed by Congress with statute law; and an Act defining “cruel and unusual punishment” in part as a failure, in capital cases, to provide the “guilt beyond any doubt review” and accredited attorneys should do the trick just nicely.

Dimitri: I was talking to Zeus the other day, and he thinks you’re a bad influence on me.
Tasso: That’s interesting, because I think he’s a bad influence on you.
Dimitri: In what way?
Tasso: He makes you think the voices in your head are real.

--From "Plato and a Platypus Walk Into A Bar...", Thomas Cathcart and Daniel Klein

There are two counterarguments that might quickly occur to the reader, and I will attempt to address them both here.

First, it is indeed true that this will not absolutely guarantee that there will be no further improper executions...and it is also true that the only way to make such an absolute guarantee is to end the use of the death penalty altogether.

However, this is a great compromise, in that is reduces the odds of such an execution to near zero while still leaving open the potential for executions in cases where no doubt of any kind can be established by the defense.

Secondly, there will be concerns that this proposal will only allow the death penalty to be imposed under the most extreme and unusual circumstances, to which I would reply: that’s exactly correct.

The idea here is that virtually everyone who is accused of a capital crime would end up sentenced to life without the possibility of parole...except in those most rare of circumstances where there can be no doubt whatever as to the guilt of the accused.

This is also a great compromise—after all, does even the most conservative Christian voter amongst us really want to take the chance that innocent people are executed?

To help this process along, I would further propose that Congress enact legislation that allows anyone facing Federal crimes or capital crimes, in any State, the right to obtain and introduce, post-conviction, evidence that could absolutely prove the innocence of a convicted person...and I would encourage Congress or the State Legislatures to pass legislation that would apply this protection to those convicted of all crimes in all States.

We might consider creating “Review Magistrates” to conduct an initial, less formal, review of such claims, with claims deemed appropriately credible advancing to a more formal Court setting for final disposition.

This will also cause some to object to the added burden imposed on the legal system...but the goal of the Constitution’s due process and equal protection clauses is not to round up a few of the innocent in order to get all the guilty incarcerated...instead, it’s just the opposite: to let a few of the guilty go free in order to ensure that the odds of the innocent being convicted remain as low as possible.

And with all that said, let’s wrap this thing up:

In order to find a way to compromise between the philosophies of those who seek to end capital punishment and those who support its application, I’m proposing that we review the evidence after conviction in capital cases, as part of the “penalty phase” of such trials, and if the defendant can create any doubt at all, of any kind, as to the propriety of that conviction, that defendant shall be sentenced to life without parole.

I’m also proposing that all defendants facing capital crimes be represented by accredited “death penalty” attorneys, and that defendants have the opportunity, post-conviction, to present exculpatory evidence if it should become available.

The use of the death penalty, not unlike the issue of abortion, has pulled people of good conscience to diametrically opposite sides of a national debate that is not easily resolved.

This set of proposals tries to find the compromise between those two sides, and in doing that we hope to convince centrist voters that Progressives are more than just wild-eyed dreamers—that, instead, they’re realists who seek solutions that represent the interests of all Americans, even those with whom they might not always agree.

In a political world where one side seeks fairness and compromise and inclusion and the other side seeks a ever-crazier brand of moral purity...which they can’t quite seem to live up to...it seems to me that the side seeking compromise is hugely advantaged in elections...and that, as far as I’m concerned, sounds pretty good.

Special Note: We have become aware of concerns related to the health of Walter Cronkite, and we hope he is as hale and hearty as he would want to be.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance...and while I’m not inclined to use the “hard sell”...I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before...) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

On Looking Deeper, Or, Things About Iran You Might Not Know

It has been an amazing week in Iran, and you are no doubt seeing images that would have been unimaginable just a few weeks ago.

For most of us, Iran has been a country about which we know very little…which, obviously, makes it tough to put the limited news we’re getting into a proper context.

The goal of today’s conversation is to give you a bit more of an “insider look” at today’s news; and to do that we’ll describe some of the risks Iranian bloggers face as they go about their business, we’ll meet a blogging Iranian cleric, we’ll address the issue of what tools the Iranians use for Internet censorship and the companies that could potentially be helping it along, and then we’ll examine Internet traffic patterns into and out of Iran.

Finally, a few words about, of all things, how certain computer games might be useful as tools of revolution.

The first task for today…let’s talk about blogging:

It turns out that bloggers in Iran risk running afoul of the Press Law of 1986, which, in addition to requiring the licensing of media outlets, reads in part:

Article 6: The print media are permitted to publish news items except in cases when they violate Islamic principles and codes and public rights as outlined in this chapter…

…5. Encouraging and instigating individuals and groups to act against the security, dignity and interests of the Islamic Republic of Iran within or outside the country…
…7. Insulting Islam and its sanctities, or, offending the Leader of the Revolution and recognized religious authorities (senior Islamic jurisprudents);
8. Publishing libel against officials, institutions, organizations and individuals in the country or insulting legal or real persons who are lawfully respected, even by means of pictures or caricatures; and
9. Committing plagiarism or quoting articles from the deviant press, parties and groups which oppose Islam (inside and outside the country) in such a manner as to propagate such ideas (the limits of such offenses shall be defined by the executive by-law)…

… Article 25: If a person, through the press, expressly and overtly instigates and encourages people to commit crimes against the domestic security or foreign policies of the state, as specified in the public penal code, and should his/her action bear adverse consequences, he/she shall be prosecuted and condemned as an accomplice in that crime. However, if no evidence is found on such consequences he/she shall be subject to a decision of the religious judge according to Islamic penal code.

Article 26: Whoever insults Islam and its sanctities through the press and his/her guilt amounts to apostasy, shall be sentenced as an apostate and should his/her offense fall short of apostasy he/she shall be subject to the Islamic penal code.

Article 27: Should a publication insult the Leader or Council of Leadership of the Islamic Republic of Iran or senior religious authorities (top Islamic jurisprudents), the license of the publication shall be revoked and its managing director and the writer of the insulting article shall be referred to competent courts for punishment.

(In Iran, the penalty for apostasy is death.)

Those bloggers who are not licensed can still be prosecuted under the Penal Code, as the OpenNet Initiative reports in an excellent article they’ve just posted on the subject.

In 2008 the Iranian parliament passed a law which provides for the death penalty for bloggers who engage in non-permitted activities, a situation faced today by Yaghub Mehrnahad, who publishes the “Mehrnahad” blog.

(Interestingly, this blog can be reached in Persian, but an attempt to access the same URL with Google Translate returns this message:

“You are not authorized to view this page

The Web server you are attempting to reach has a list of IP addresses that are not allowed to access the Web site, and the IP address of your browsing computer is on this list.”

More about that later.)

There is also the risk of torture: a problem noted by the BBC at least as far back as 2005.

Ironically, Mohammad Ali Abtabi, a cleric and former Vice-President of Iran whom you may have recently seen on “The Daily Show” maintains a blog in which he does criticize Iranian society on a regular basis, including his assessment of the recent election as “a huge swindling”…which has now caused the authorities to place him under arrest.

So how does Iran manage to control Internet access?

What they aren’t doing is employing the simplest method possible: cutting off all access. This is presumably because of the negative impact on the Iranian economy that would be caused by business being unable to do what they need to do online.

There are several methods being employed, including a requirement that all Internet Service Providers in the country connect to the state-owned Data communication Company of Iran (DCI) for international access, that all ISPs put in place “filtering” and monitoring technologies, and that households be blocked from having access to high-speed Internet connections.

As of this writing the fastest Internet connection now available for an Iranian household is 128k, about double the speed of a dial-up connection…and as you might guess, not fast enough to allow Iranians to use such services as YouTube. A 6MB cable Internet connection, not uncommon in the US, would be roughly 50 times faster. Because of this the total capacity of Iran’s international Internet connections are roughly 12GB per second. Normal traffic is about 5GB per second, which, we are told, is about the same as a mid-size American city.

OpenNet reports that after an initial period of reliance upon foreign monitoring software, the government decided to create an “in-house” capability, and as a result there are locally developed software packages designed to allow access to the actual data packets in messages—meaning that authorities can read such things as e-mails and instant messages after they are sent and before they pass through the DCI “gateway”.

There has been a conversation regarding the role of Western equipment suppliers in all of this; and it is alleged that a Nokia/Siemens joint venture (Nokia/Siemens Networks) has sold to the Iranians equipment that is used to monitor the Internet use of Iranian citizens. The company denies this, however.

They also want you to know that the joint venture has been sold to a third party, and that, as their press release tells us: “providing people, wherever they are, with the ability to communicate ultimately benefits societies and brings greater prosperity”.

Another method of blocking access is to deny connections to certain sets of IP addresses, and this is why, presumably, I could not access the translated version of the “Mehrnahad” blog. This method would also allow the Iranians to block access to and from inside the country to sites like the BBC, Google, and Blogspot.

There is a way around “address blocking” which involves setting up “relays” and “bridges” that can be accessed by people in Iran—and this is something you yourself can do that can be of considerable benefit to Iranians trying to reach out to the rest of us.

The Iranian Government is also trying to locate and isolate those with Twitter accounts that are set to the Tehran time zone…and you can help make that process tougher by either setting up a Twitter account and setting the time zone to Tehran, or changing your existing account’s time zone.

The next few minutes are going to get a bit geeky, and for this I apologize in advance.

In order for your computer to use certain services that involve communicating with other computers the operating system utilizes a series of “ports” (this is all in the software, so don’t bother looking at the back of the machine to find them).

Some quick examples: the TCP/IP connection your computer is using to access the Internet is through Port 80 and the FTP service runs on Port 21.

There are two kinds of ports—TCP and UDP—and there is no reason to explain here why or how they differ.

There are thousands of ports, the ports used are usually specific to a particular service, and there are giant lists of assigned ports that everyone can access. A service can (and usually does) use more than one port for two-way communication with a computer, which is why the Federal Emergency Management Agency Information System uses TCP Port 1777 and UDP Port 1777.

The routing data that packets of information display as they travel through the Internet includes the port that the packet is seeking to access…and that data is accessible to all routers…and if you controlled the gateway through which all inbound and outbound Internet traffic was passing through you could block packets that seek to utilize certain ports.

Experts are suggesting that this is exactly what is happening today in Iran, with more than 80% of traffic bound for ports using the Adobe Flash Player being blocked, nearly 75% of the POP Service (e-mail) traffic being blocked, and roughly 70% of traffic bound for ports used by “proxy servers” being intercepted. (Proxy servers, by the way, are the same type of connections we discussed earlier that you can set up at home to help Iranians trying to reach the Internet.)

Voice over IP (VoIP), the Internet “telephone” service, is proving to be a troublesome issue for censors, as it has legitimate business purposes and is difficult to censor without either having someone listening on the other end of the line or installing a monitoring system worthy of the National Security Agency.

Interestingly, with the exception of the few hours immediately following the vote, the amount of Internet blockage, overall, seems to be fairly close to what it was just before the voting. However, the amount of “instability” has been highly variable, suggesting that certain blocks of IP addresses have been temporarily “withdrawn” from the Internet’s address structure, for want of a better term, and then once again made known to that same addressing infrastructure.

It is suggested that this may be because the Iranian Government has been able to institute a sufficient level of monitoring on those address blocks so as to make them comfortable with again allowing the users of those addresses access to the Internet.

In one of the oddest developments I’ve heard so far, there are reports that certain communications protocols used by some games are not being blocked. We will not go into specifics here, but it seems strange indeed that the video game your mother didn’t want you playing all day might actually be a tool for surreptitious communication.

And with all that said, let’s wrap it up for today.

Here’s what we’ve learned: it is indeed hazardous to be a blogger in Iran.

Despite the fact that it can get you tortured or get you the death penalty, there are those who take the risk—including a former Vice-President who now finds himself under arrest.

We can help Iranian citizens by installing software on our own computers that helps them obtain uncensored Internet access, and about 1/3 of that traffic is getting through.

The regime is not attempting to permanently shut down all Internet traffic—and in fact, that would be a cure that might be as bad as the disease.

The Iranian Government, instead, is developing and operating a sophisticated system of Internet blocking, but it is not perfect…and there are odd connections that could be used that most people would never think of as useful for the purpose.

Finally, a Western company is accused of selling equipment to Iran that could be used for Internet monitoring, but the company in question denies that the gear they sold Iran can perform the tasks the accusers say it can.

It is rare indeed to be able to see two revolutions taking place at the same time--but as you’re watching the news from the newest Iranian Revolution…keep an eye on the news of the Internet Revolution as well.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected…with an announcement due this week...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On The Costs Of Care, Or, You Don’t Want Every Item On This Menu

I don’t know if you’ve been thinking about it, but the costs of long-term care have been on the mind of some friends of mine lately.

For reasons that we won’t go into here, they are in the process of pricing long-term care at care facilities…and yesterday afternoon, we had a chance to have a look at the “menu” of services (the facility's term) that can be purchased at this particular location.

If you are facing this issue in your own family, if you are a taxpayer thinking about how we plan to fund long-term care in the future…or if, one day, you expect to be old yourself…this conversation will surely matter.

To protect the innocent, I won’t be mentioning names today, but here’s what you need to know:

The location in question is an “assisted living facility” located near Seattle, it is somewhat upscale, but by no means ”posh”, and it is a residence of substantial size, with dozens of clients living there. It is not a “mom and pop” business run out of a house, but instead a more corporate operation.

The first thing you are charged for is the “apartment” in which you reside and some basic services to go with it. Those services include “finishing the place” with blinds and appliances, weekly housekeeping and linen, and the power and the water and the cable (“Basic Extended”).

You’re also paying for the 24-hour staff presence, “recreation” services, and scheduled transportation.

Also included: two meals daily, but not breakfast.

Telephone charges are not included.

The cost, for a single person: $1900 per month for a studio, $2300 for a one bedroom, and $2800 for a two-bedroom. There are nicer “views” available, which add about $400 to each price. Adding a second person costs $600 extra every month.

You will note that this price does not include medical and “personal” services…and for that, we will turn to the actual “menu”.

"Old wood to burn! Old wine to drink! Old friends to trust! Old authors to read!"

--Francis Bacon, Apothegms. No. 97.

Start with the basics: a daily wake-up call is $50/month; having a load of personal laundry washed every week or having a staff member make the bed daily adds $70 monthly. Housekeeping is $30/hour…so hopefully the resident can clean their own apartment.

Breakfast is $95 each month.

To determine what additional needs you might have, a nursing assessment is conducted at the time of admission.

If it’s determined that the resident needs bathing assistance, costs work like this:

If the resident can wash themselves, but need to be watched during the shower, that service, once a week, is $165 monthly. If the resident needs a staff member to help them shower, add $60 (If two staff members are required, that’s an extra $140 monthly).

Can the resident dress themselves?

A daily reminder to change clothes costs $100/month. If a staff member needs to spend under 10 minutes a day to help the resident dress, that’s $175/month, if 15 – 20 minutes of assistance is required, that’s $250 monthly.

Can the resident take care of their own personal grooming? If they can’t, that adds $150 to the monthly charges.

There are also “toileting programs”.

Having the staff remind you to go to the bathroom costs $200/month (this also covers the occasional incontinence event), and having a staff member monitor you in the bathroom raises the rate to $275 (this also covers the occasional “bowel accident”).

A “structured toileting program” runs $350…and if you need to be checked for bowel accidents regularly, or need someone to wipe for you, or have regular accidents requiring changes of clothing, that’s $425 a month added to the bill.

Some people have had surgical procedures that require them to use a bag attached to their colon for waste removal. The site where the bag is attached is called a “stoma site”, and the service associated with stoma care is at least $250 monthly at this facility. Supplies (such as colostomy bags) are not included in this price.

Can the resident walk to meals on his or her own?

If yes, but they need a verbal reminder to go to meals, that’s $175/month. If the resident requires assistance to get to the dining room, that’s $225 monthly…and if it takes longer than 5 minutes on average to assist the resident, that adds $275 to the bill each month.

Special diets, prescribed by a physician, add $500 to the monthly bill.

Can the resident take their own medications?

If not, the minimum charge is $230 monthly, which covers up to 5 medications daily, “served” two times a day.

If the client takes more than five meds daily (or takes meds more than twice daily) that cost could potentially increase by another $165/ month.

Oxygen service: add another $150 monthly.

While all that seems expensive…we haven’t come to the big-ticket item yet.

There will be residents who will require “memory support”.

The simplest form of this service provides “redirecting, reassurance, orientation to surroundings, responding to questions/concerns that arise from diminished short term memory” and several checks daily to ensure the resident is on the property. Those who receive this level of service are also physically escorted to meals. The service costs $300 per month.

For $400 the resident is walked back from meals, and a staff member provides verbal cues to get the resident dressed. The resident will also be “convinced” to bathe, if need be.

If the resident requires physical cues to perform the same tasks, the cost jumps to $550 (and at this stage the resident might require two staff members to get them to perform personal hygiene).

The highest level of care also provides someone to check on the resident every two hours, and costs $800 monthly.

This is hardly a complete list: for example, there are charges for making appointments and other “clerical” services, for “concierge” service, and for other incidentals.

However, there’s one other significant charge about which you should be aware, and that’s the cost for nursing services.

Wound care that involves changing a dressing, and takes less than 5 minutes, is $15 for each occurrence. This service must be provided by a licensed nurse…and if you add it up, it works out to $180/hour that the facility is charging you for the services of an LPN/LVN (depends on where you live) who is not likely to be making above $25/hour. (Each dressing change that lasts from 5 – 10 minutes costs $20; meaning at least $120/hour.)

Add it all up, and the chances that you’ll be paying at least $3000 a month are (in the words of Johnny Mathis) awfully good.

"If Mr. Selwyn calls again, shew him up; if I am alive I shall be delighted to see him; and if I am dead he would like to see me."

--Henry Fox, the First Baron Holland

So how is all this relevant to politics, you might ask?

How about this: we are about to enter an age where millions of Americans will require this sort of long-term care…and many of us do not have $3000 per month available to pay for this kind of care.

How many? It is estimated that 70 million Americans will be 65 or over by 2030, and if the numbers from 1999 continue to be valid, roughly 30% of those people will be living in an institutional setting.

20 million people, at $3000 a month, equals $60 billion that will be required to cover the cost of long-term care for this group—each and every month. That’s $720 billion a year.

So how do we deal with the problem when it hits us?

I don’t know…but consider this: it is going to be tough to reduce these costs, if only because these are tasks that are not well suited for automation. These are services, for the most part, that require one-on-one care (or even two-on-one care)…and those who provide the care will want pay raises…which we will want to provide, in order to help keep the quality of care at a high level.

You should also know that there are substantial costs associated with “fixing broken workers”. The fact that workers are often required to assist clients that are physically large or physically awkward puts a lot of these workers out on injury leave…and the unhappy fact is that understaffing is a common way to try to control labor costs in nursing facilities, adding to the injury problem these workers face.

How bad is the healthcare injury problem? Ironically, the Bureau of Labor Statistics tells us health care facilities are the most dangerous work environment in the United States.

“General medical and surgical hospitals (NAICS 6221) reported more injuries and illnesses than any other industry in 2007—more than 253,500 cases.”

To put it another way, there are basically two kinds of healthcare workers: the ones with back injuries…and the ones who don’t yet have back injuries.

As we wrap this thing up, let’s ask that question we ask almost every time: what have we learned today?

If you hadn’t already been thinking about it, it is fantastically expensive to have to receive care at an assisted-living facility, and soon there may be as many as 20 million Americans who will be in that situation…or something even more expensive, such as “skilled nursing facilities” (more commonly referred to as “nursing homes”).

We could be looking at having to find $720 billion (in today’s dollars) to cover the annual cost of that care.

It is going to be very tough to reduce those costs, unless you can develop ways to deliver the same care in a less-expensive environment…or you can find a way to reduce the number of people who will require such care.

Considering the cost of “memory care”, money invested in Alzheimer’s mitigation today might pay huge dividends later.

So that’s the deal: there is a giant bill that’s coming due, we better be thinking about it now…and one way or another, this will become one of the biggest fights in American politics as we move into the middle third of this century—so we can either get ready for it now, or we can all act surprised later.

Of course, if enough of us require “memory care”…then I guess that surprised look on our faces won’t be an act, eh?

On Torture And War Crimes, Part Two, Or, Dr. Addicott And I Find Common Ground

When last we met, Gentle Reader, it was to work through a series of legal precedents and statute law; the goal of the exercise being to determine if we could or could not define waterboarding as torture.

We have the kind assistance of Professor Jeffrey Addicott, who has provided us with his written testimony from his recent appearance before the Senate Judiciary Committee and a personal interview, where he walked me through some of his thinking on the matter.

Today we’re going to take a look at the precedent that he has used to reach the conclusion that waterboarding is not torture.

It’s also possible that the analysis may result in the discovery of a bit of common ground…but as I noted in Part One, it’s common ground that neither one of us might have seen coming.

To begin, a quick review from yesterday:

Dr. Addicott wants you to know that waterboarding is not torture.

He relies on the argument that since the “Five Techniques” (“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water) used on Irish prisoners by the United Kingdom were found not to be torture by the European Court of Human Rights, and waterboarding is not worse than the five techniques, it logically follows that waterboarding is not torture.

Although waterboarding might be cruel, inhuman, and degrading, Dr. Addicott would remind you that legally, torture requires severe physical pain over an extended, but unspecified, period of time.

He also notes a lack of lack of legal precedent specifically defining waterboarding as torture in either US or international courts.

I asked Dr. Addicott why 18 USC § 2340 (which defines torture, in part, as “…an act…specifically intended to inflict severe physical or mental pain or suffering” and defines “severe mental pain”, in part, as “the threat of imminent death…”) wouldn’t be the definition of torture that should apply.

His basic responses were that the alleged acts took place overseas to non-US citizens, therefore there is a jurisdictional issue; and that a lack of specificity in the statute males it unclear whether waterboarding would be torture.

Here’s how he expressed it to me:

“Those are words, those are descriptive words…that only find meaning when we have a court define what that means; that’s the whole problem with our Anglo-Saxon tradition, is that you have words that are put out in statute but what, you know, what does “severe” mean, what does “prolonged” mean, is it five minutes, is it 10 minutes…is it four drops to the head, is it three drops of water on your head, what does it mean?”

He also wants you to know that we do the same thing to our own military personnel who undergo “Survival, Evasion, Resistance and Escape” (SERE) training, which indicates the procedure isn’t torture.

He also tells us in his written testimony that the “shock the conscience” standard should apply to define torture.

Additionally, he cites Blefare v United States (362 F.2d 870) and Leon v. Wainwright (734 F.2d 770) to suggest that coercive interrogation is already permitted under US law.

With the catch-up complete, let’s have a look at Dr. Addicott’s assertions.

Right off the bat, Dr Addicott does correctly assert that…

“…the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3)”.

…in the opinion of the European Court of Human Rights.

However, there is precedent that declares waterboarding is torture, as another international tribunal saw things a bit differently.

You undoubtedly are aware of the Nuremberg Trials, which addressed the conduct of officials of Nazi Germany at the end of World War II. A similar process took place to bring Japanese officials to account, the International Military Tribunal for the Far East. Here’s what they had to say about waterboarding:

“Torture and Other Inhumane Treatment

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment [euphemism for waterboarding], burning, electric shocks, the knee spread, [page number removed] suspension, kneeling on sharp instruments and flogging.

The Japanese Military Police, the Kempetai, was most active in inflicting these tortures. Other Army and Navy units, however, used the same methods as the Kempetai. Camp guards also employed similar methods. Local police forces organized by the Kempetai in the occupied territories also applied the same methods of torture.”

Dr. Addicott feels that 18 USC § 2340 doesn’t apply because the acts took place outside the US to non-US citizens…but the statute tells us jurisdiction applies if “the alleged offender is a national of the United States”.

Conspiracy to torture is also a crime, meaning that those who ordered this behavior would also face potential legal liability, even if the person doing the torturing is not a US citizen.

So what about the argument that SERE trainees are subjected to the same treatment?

The difference, I suggest, is that there is no threat of imminent death when a trainee is waterboarded, which is what 18 USC § 2340 requires.

Can waterboarding actually carry the threat of imminent death?

I know someone who can tell us.

Dr. Allen Keller, MD is an Associate Professor at New York University and the founder and Director of the Bellevue/NYU Program for Survivors of Torture, which has provided care for more than 2000 torture survivors. He’s also a member of the Advisory Council of Physicians for Human Rights.

He offered this assessment in testimony before the Senate Select Committee on Intelligence

“Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse.”

Dr. Addicott also relies on court rulings to demonstrate that coercive methods of obtaining evidence are permissible under US law.

He points two cases for guidance. In the first, Blefare v United States (362 F.2d 870), he tells us (in written testimony) that:

“the appellants were suspected of swallowing narcotics which were lodged in their rectums or stomachs…Then, without Blefare's consent the doctor forcefully passed a soft tube into the "nose, down the throat and into the stomach," through which fluid flowed in order to induce vomiting. This resulted in the discovery of packets of heroin and the subsequent conviction of Blefare.

Unlike Rochin [Rochin v. California, (342 U. S. 165)], the Ninth Circuit refused to hold that the involuntary intrusion into Blefare's stomach shocked the conscience.

While all that is true, it’s also irrelevant to the facts of the case as it appears in the record.

First, the Ninth Circuit had no reason to reach a conclusion about whether evidence was obtained from Blefare in a manner that “shocked the conscience” because the evidence that the appeal was trying to suppress did not belong to Blefare, but to his co-defendant, Donald Michel (who had voluntarily consented to the intubation that led to the recovery of the challenged evidence).

The second reason the challenged evidence was not suppressed had to do with the fact that the searches of Blefare and Michel were held to be “border searches”.

This, from Blefare:

“No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit…Mere suspicion has been held enough cause for a search at the border.”

Dr. Addicott also misstates the effect of Leon v. Wainwright (734 F.2d 770).

From his written testimony:

“For instance, in Leon v. Wainwright the Eleventh Circuit brushed aside the fact that police officers had used "force and threats" on kidnap suspect Jean Leon in order to get the suspect to reveal the location of his victim. When apprehended by a group of police officers in a Florida parking lot, Leon refused to reveal the location of his kidnap victim (the victim, Louis Gachelin, had been taken by gunpoint to an apartment where he was undressed and bound). In order to get the suspect to talk, police officers then physically abused Leon by twisting his arm and choking him until he revealed where the kidnap victim was being held. In speaking to the use of brutal force to get the information needed to protect the victim, the Court deemed that the action of the officers was reasonable given the immediate concern to find the victim and save his life.”

It is inaccurate to say the Court “brushed aside” the use of force and threats.

What actually happened was that the defendant confessed twice—and it was that second confession that was being challenged.

The first confession…the one taken by force…was not admitted into evidence; therefore its admissibility--and by extension, the means by which it was obtained--was not an issue to be considered by the appeals court.

This, from the ruling in Leon v Wainwright:

“Meanwhile, Leon was taken to the police station. He was questioned there by detectives who had neither been involved in the threats and use of force at the scene of his arrest nor witnessed it. After being thoroughly informed of his rights and signing a Miranda waiver form, he gave full oral and written confessions of the crime. This entire process was concluded about five hours after his arrest…

…The totality of the circumstances in this case clearly confirms the finding that the second statement was voluntary.[4] The police, motivated by the immediate necessity of finding the victim and saving his life, used force and threats on Leon in the parking lot.[5] Hours later, Leon was questioned at the police station by a completely different group of police officers. These officers were not even participants in the surveillance team at the parking lot. Prior to questioning him the officers meticulously explained to him his constitutional rights. He specifically waived his right to have counsel present. The necessity of saving the victim's life, the different physical setting, the different group of questioning officers, and the meticulous explanation to appellant of his constitutional rights constituted a sufficient break in the stream of events to dissipate the effects of the first coercion. The challenged confession was properly admitted into evidence.”

There is a question of what to do if it is suspected that torture has been committed. Here is a portion of Dr. Addicott’s comment on the matter, from his written testimony.

“…those who order, approve, or engage in torture must be criminally charged. If the United States determines that waterboarding as practiced by the CIA is torture, there is no option. Under the Torture Convention violators must be prosecuted. Similarly, lawyers at the Department of Justice who approved the practice must also be prosecuted… In short, in my legal opinion, the subject waterboarding technique used on the al-Qa'eda operatives did not constitute torture and requires no binding obligation to prosecute.”

With all respect to the Professor, this looks like circular logic. To “determine” that torture occurred requires a trial, as Dr. Addicott has previously noted, yet he says here there’s no need for a trial because, by his determination, no torture occurred.

It also appears that his analysis on this point is factually inaccurate, in that there is no obligation to prosecute under either the Geneva Conventions or the Torture Convention. Here are the pertinent texts:

“Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee [sic] in any territory under its jurisdiction.”

--UN Convention Against Torture

“Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

--Geneva Convention relative to the Treatment of Prisoners of War

The phrase “bring such persons…before its own courts” will be a subject of controversy, so let me clear it up now. In Europe, the “court” process involves the use of “investigating magistrates” who would decide if this sort of case should or should not be brought to trial; a function that, in the US, would be handled by a Special Prosecutor or the FBI and the appropriate US Attorney, possibly through the federal grand jury process.

As you can see, there is an obligation to investigate people suspected of torture…but no mandate to prosecute every suspected offense…which means, just like in a RICO case, you can round up the lower-level “actors”, convince them to “flip” on the other co-conspirators up the chain in exchange for immunity…and then you prosecute the ringleaders.

We have spent some considerable time addressing the questions around what is and what is not torture…but now we get to an issue that makes the “torture question” irrelevant.

Remember way back in Part One when I asked you to keep that “cruel and inhuman treatment” phrase in the back of your mind?

And remember the European Court of Human Rights ruling that called the “Five Techniques” cruel and inhuman?

Well, guess what?

If a prosecutor can demonstrate that waterboarding is not torture, but merely “cruel or inhuman” (a standard that only requires “serious” mental or physical pain, not the “severe” standard required for torture)…that’s a “war crime”, as defined by the War Crimes Act of 1996 (18 USC § 2441(d)(1)(B)).

And those who commit a war crime, it turns out:

“…shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

And that’s where we get to the point that Dr. Addicott and I finally reach some common ground:

Maybe torture prosecutions are bad policy.

Especially when it’s easier to prove a war crime than it is to prove torture.

Once again, we have come a long way to get here, but let’s review it all before we finish:

Dr. Addicott and I differ on where we should look for a definition of torture.

Despite the language of 18 USC § 2340, he does not feel there’s jurisdiction to prosecute under the US Code.

He does not feel waterboarding is torture, but he acknowledges that the “Five Techniques” are “cruel and inhuman”.

There is precedent in international law to draw the conclusion that waterboarding is torture which Dr. Addicott did not note in his written testimony.

Because waterboarding does create the threat of imminent death and does cause severe and long-lasting mental problems, I feel it is also torture as defined by US law.

Dr. Addicott proffers legal precedent to support his position that the use of coercive techniques does not violate US law…but when you actually examine the texts of the rulings he cites, it appears that he either misunderstands the rulings or misstates their application to this question.

He also testifies inaccurately when he asserts that all cases “determined” to be torture must be prosecuted…firstly, because of the circular logic of “determined”, and secondly, because the two pertinent texts simply don’t read the way his testimony reports they read.

But all that said, it turns out that even if waterboarding is somehow not torture…that it does not cause “severe physical or mental pain or suffering”…it appears highly likely that the technique causes “serious physical or mental pain or suffering”…which, mirabile dictu, is the legal standard for proving a war crime.

Which leads us to the one point upon which we both agree: there should be prosecutions.

Prosecute under 18 USC § 2441 or treat it like any other “organized crime” case: start inviting “parties of interest” to flip on their co-conspirators, immunize the cooperative…and if a judge and jury decides it’s the right choice, people are going to have to go to prison.

So there you go: we started out questioning how torture is defined, and we ended up at a place where, because of the War Crimes Act, that definition become less relevant, a bit of common ground might have been found, and in the search for that common ground we’ve discovered a better way to ensure that justice can be done.

AUTHOR’S NOTE: I want to offer a hearty “thank you” to Dr. Addicott for taking the time to talk to me for this story. If we wish to do serious journalism, interviewing the people in the news is critical, and I very much appreciate his willingness to make himself available during the production of this pair of stories.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On Torture And War Crimes, Part One, Or, I Interview Dr. Addicott

I can’t tell you the number of times I began a story with a plan for where it would go, only to discover that the plan isn’t going to work.

The stories sometimes seem to write themselves…but other times, the research seems to do the writing instead; this being one of those times.

When the production of this story began it was with the intention of trying to explain what should be the “controlling authority” in terms of defining torture, a precedent set by the European Court of Human Rights, or Title 18 of the United States Code.

Having reviewed both statute law and numerous judgments in law courts worldwide as well as the recent Senate Judiciary Committee testimony of Professor Jeffrey Addicott, and having conducted an interview with Dr. Addicott personally, I’ve come to two rather surprising conclusions:

It may not really matter whether waterboarding is torture…and although neither I nor Dr. Addicott might have seen it coming, it’s starting to appear that he and I might agree on one thing:

Waterboarding, whether it’s torture or not, is a war crime.

There’s a big backstory here, so off we go:

Everybody remember the Senate Judiciary Committee’s “Torture Hearings” back on May 13th…the one where the FBI interrogator testified from behind a “security screen”?

Excellent.

One of those giving testimony that day was Professor Addicott; he of the Center for Terrorism Law at St. Mary’s University in San Antonio, Texas. In his testimony Dr. Addicott suggested that the words waterboarding and torture are thrown around in each other’s company rather casually and without much in the way of law to guide those doing the throwing.

In both his written and oral testimony, he suggested the best guidance for answering the question of whether waterboarding is torture can be found in an examination of a 1978 ruling of the European Court of Human Rights, Ireland v. the United Kingdom.

Well, I read that ruling, and a wee bit of statute law…and I began to wonder if Dr. Addicott might have missed a thing or two.

18 USC § 2340 and 2340A are the sections of the United States Code that deal specifically with “Torture”. Torture is defined in the statute, and jurisdiction applies if…

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(18 USC § 2340A(c) tells us that conspiring to commit torture is also a crime.)

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

--18 USC § 2340A(a)

I mentioned that torture is defined…and here is the part of that definition that we’ll be discussing:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from…

(c) the threat of imminent death…

--18 USC § 2340

The more I kept at it, the more I couldn’t shake the feeling that it made more sense that surely the United States Code should be the “controlling authority” on the question of what is or is not torture, not the ruling of a foreign court.

I sent an email to Dr. Addicott asking two questions:

--if he might be kind enough to explain why the US Code isn’t the final authority here, and if so,

--isn’t the fact that waterboarding is predicated on a threat of imminent death enough to make it torture, based on the definition laid out in 18 USC § 2340?

After a weekend of phone tag, Dr. Addicott was kind enough to explain to me some of his thinking on the matter. Some of that conversation will be repeated here, along with excerpts from the written testimony he provided the Senate Judiciary Committee.

(I’ll be “Q”, Dr. Addicott will be “A”.)

Q: “Why is the European Court of Human Rights ruling more dispositive, when you’re defining torture, than the US Code?”

A: “…basically, the individuals that we are alleged to have tortured, I use the word alleged because I don’t believe it amounts to torture…are not US citizens.”

He also noted that because the alleged torture took place outside the US, international law applies, specifically the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”).

Q: “OK, but when I’m looking at 18 US Code, 18 US Code says “whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned.” So wouldn’t that imply that Americans, wherever they are, would be covered under the statute?”

A: “It would be hard…Regarding the shocking the conscience standard in the latest case, which was Chavez v. Sanchez, [ actually Chavez v. Martinez, (538 U.S. 760) ] if you read that case, that court did not even look at…uh…US Code in deciding whether or not shock the conscience, so I think when you’re looking at an international sphere it’s better to look at the international cases in regards to torture, particularly when you have a case that defines…uh…interrogation…”

Further light is shed on the question by reading this portion of Dr. Addicott’s written testimony:

“In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining "severe pain or suffering" in the context of interrogation practices against suspected "terrorists" comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote (16-1), the Ireland court found certain interrogation practices (called the "five techniques") by English authorities to investigate suspected terrorism in Northern Ireland to be "inhuman and degrading," i.e., ill-treatment, under the European Convention on Human Rights, but not severe enough to rise to the level of torture (13-4). According to the Court, the finding of ill-treatment rather than torture "derives principally from a difference in the intensity of the suffering inflicted."”

(That phrase “inhuman and degrading”? Keep it in mind, as it will figure prominently in Part Two.)

The “Five Techniques”?

“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water.

From Dr. Addicott's written testimony:

“To the reasonable mind, considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques authorized by the Department of Justice legal memorandums – waterboarding – would not constitute torture (the CIA method of waterboarding appears similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).”

You may recall a reference to the “shock the conscience” standard. It’s pertinent here because of doctrine found in the May 2005 “Torture Memo” written by Steven Bradbury of the Office of Legal Counsel, quoted here:

“Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot "be said to shock the contemporary c.onscience"”

The standard came from Rochin v. California, (342 U. S. 165). Long story short, police officers forced capsules full of morphene from inside Rochin’s body after watching him swallow them. In overturning the conviction, the Supreme Court ruled:

“…that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience…They are methods too close to the rack and the screw to permit of constitutional differentiation.”

Dr. Addicott’s written testimony also notes that the circumstances of Blefare v United States (362 F.2d 870) are similar to Rochin and support his view that if forcing evidence from the body does not “shock the conscience” waterboarding must not, either.

Additionally, Dr. Addicott asks us to consider a case that originated in Florida, Leon v. Wainwright (734 F.2d 770), in which a suspected kidnapper was choked and otherwise physically abused to obtain the information needed to save the kidnap victim. Since the conviction was upheld, we can surmise that even coercive interrogations have a place in American law.

Finally, the written testimony tells us we should consider the degree of physical pain that is inflicted by the interrogation method in deciding what torture is and what it is not.

“Certainly the red thread in these definitions is a combination of two essential elements: (1) the infliction of severe physical pain to the body or mind used to; (2) punish or obtain information. International law adopts this formula but sharpens it by stipulating that a State actor must carry out the act of torture.”

Add it all up, Dr. Addicott would tell you, and waterboarding, which fulfilled a vital interest and doesn’t rise to the level of behavior in Rochin, is not torture.

Let’s stop for a moment and review where we’ve been:

Dr. Addicott tells us that waterboarding is not torture first because it’s being done outside the US to non-citizens, and secondly, because of that Ireland v United Kingdom ruling, among others, but I’m of the opinion that the US Code is the better place to look for a definition of torture.

If an interrogation method doesn’t involve enough physical pain, over some period of time, to “shock the conscience”, Dr. Addicott feels, it’s not torture.

And in his view, the fact that coercive methods are used to obtain evidence is not necessarily illegal under American law.

Once again, this has become one of those stories that will require us to take a pause and pick it up tomorrow…but when we do, we’ll take a second look at some of those court rulings, and we’ll see if there might be other precedent that matters—and then we’ll consider a section of the United States Code that might shed an entirely different light on the whole question of what whether the question “waterboarding: is it torture?” even makes much of a difference in obtaining convictions for this behavior.

There will be a lot more in Part Two, so come back tomorrow for the rest...of the story.


WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.