In “deep, deep trouble.”

Lou Dobbs sez: “If there is a close election anywhere in this country, we’re in deep, deep trouble.” Well — that would be us in 2000, 2004 … and 2006. So Lou’s on the money. Dobbs has a wide audience … and he got the story out — having the public alert to possible fraud is the kind of “oversight” we must establish for ourselves.

Here’s another quote worth noting:

“The right of voting for representatives is the primary right by which all other rights are protected. To take away this right is to reduce a man to slavery..”
~ Thomas Paine

An even darker underbelly of voting repression is electioneering — I’m beginning to think that the only safe vote is by mail … maybe a little more than half the nation needs to take a “day trip” on November 7th, out of their county and away from their polls, so that there is every reason to submit an absentee ballot. [If that is a consideration, get all the details early, including deadlines.]

Here’s voting news of the moment — something of a hair ball [hack, hack!] Oh, go ahead … laugh — at least they can’t legislate against that!

Last piece is typical of those appearing across the nation.

Jude

Suppressing The Vote
The Nation: GOP Tries To Disenfranchise Voters
Katrina Vanden Heuvel, CBS
http://www.cbsnews.com/stories/2006/09/29/opinion/main2052495.shtml

With Election Day around the corner, and concerns about another voting debacle of Florida 2000-proportions running high (especially given problems at primaries this year in Maryland, Ohio, Illinois and several other states), Republicans in Congress are on the job and doing everything they can to further disenfranchise voters.

Rather than taking the necessary steps to strengthen, expand and improve the democratic process, the GOP has launched a new effort to create modern-day Jim Crow exclusionary practices through new voter ID requirements.

The House recently passed a bill along party lines requiring voters to present a photo ID beginning in 2008. Starting in 2010, voters would need to pay for a government-issued proof of citizenship — a virtual poll tax. This shameful legislation was passed just months after the reauthorization of the Voting Rights Act when President Bush declared “the right of ordinary men and women to determine their own political future.”

“If the (House) Bill passed the Senate and became law, the electorate would likely become more middle-aged, whiter and richer — and, its sponsors are anticipating, more Republican,” the New York Times wrote in a recent editorial

Demos, a national public policy organization, reports that the legislation would disproportionately impact people of color, individuals with disabilities, rural voters, people living on reservations, the homeless, and low-income people — all of whom studies show are less likely to carry a photo ID and more often have to change photo ID information.

Senate Democrats have asked that Majority Leader Bill Frist not bring the bill to the floor. In a letter to Frist, Senators Reid, Kennedy, Dodd and Obama wrote: “The burdensome and costly requirements of obtaining (citizenship) documents not only could prevent many eligible voters from participating, but … Worst of all, this bill recalls a dark era in our nation when individuals were required to pay a poll tax to cast their ballot and has been termed a 21st century poll tax.” Frist’s next move remains to be seen.

States, too, are getting into the voter suppression act. Georgia, Missouri and Indiana have passed similar ID requirements. The laws were overturned by the courts in Georgia and Missouri while in Indiana, the law was upheld by district court and is now under appeal. The right-wing pins hopes on appealing all the way to the Supreme Court where decisions by Scalia and the Supremes seem to fall in their “1 Man, 1 Vote — sort of” favor.

“This is the most sinister scheme I’ve ever seen,” said former Georgia Gov. Roy Barnes, “and it’s going on nationwide.”

“Voter suppression doesn’t happen with intimidation on Election Day,” said Michael Waldman, executive director of The Brennan Center for Justice, “but rather through silent and sometimes secret government actions in the weeks leading up to an election.”

If the Republicans are truly concerned about “the integrity of our voting process,” as Rep. John Boehner claims, they should take a look at flawed voting machines that, according to the Washington Post, “scientists have shown they could manipulate … to report a vote total that differed from the actual total cast by voters.”

Or they could address the fact that the Diebold machines tested in Cuyahoga County, which includes Cleveland, rendered a paper trail “nearly 10 percent of (which was) destroyed, blank, illegible, or otherwise compromised.” Or they could explain why a Princeton professor was able to hack into a voting machine as an experiment. Or they could reform the administering of elections, so that partisan secretaries of state with lofty political ambitions such as Katherine Harris and Ken Blackwell are no longer running the show. Or they could try to stop the purges of valid voters from the voter rolls …

The blueprint for what to do is out there. Robert Pastor, director of a commission on electoral reform organized by former President Jimmy Carter and former Secretary of State James Baker, told the Washington Post, “The Carter-Baker commission identified 87 steps that need to be undertaken. Regrettably, almost none of them are being done right now. I would start by establishing statewide, nonpartisan election administration.”

And Americans can start by voting Democrat this November, and then pressing a new Congress to give us common sense reforms that create a truly democratic, transparent and legitimate electoral system.

Just hope your vote is counted — correctly. ++

Diebold Added Secret Patch to Georgia E-Voting Systems in 2002, Whistleblowers Say
Matthew Cardinale, Atlanta Progressive News
September 28, 2006
http://www.rawstory.com/showarticle.php?src=http%3A%2F%2Fwww.atlantaprogressivenews.com%2Fnews%2F0091.html

(APN) ATLANTA – Top Diebold corporation officials ordered workers to install secret files to Georgia’s electronic voting machines shortly before the 2002 Elections, at least two whistleblowers are now asserting, Atlanta Progressive News has learned.

Former Diebold official Chris Hood told his story concerning the secret “patch” to Robert F. Kennedy, Jr., for Kennedy’s second article on electronic voting in this week’s Rolling Stone Magazine.

Hood’s claims corroborate a second whistleblower who spoke with Black Box Voting and Wired News in 2003.

Whistleblower Accounts
“With the primaries looming, [Chief of Diebold’s Election Division] Urosevich was personally distributing a ‘patch,’ a little piece of software designed to correct glitches in the computer program,” Rolling Stone Magazine reported.

“We were told that it was intended to fix the clock in the system, which it didn’t do,” Hood told Rolling Stone. “The curious thing is the very swift, covert way this was done.”

“It was an unauthorized patch, and they were trying to keep it secret from the state,” Hood told Rolling Stone.

“We were told not to talk to county personnel about it. I received instructions directly from Urosevich. It was very unusual that a president of the company would give an order like that and be involved at that level,” Hood told Rolling Stone.

The “patch” was applied to about 5,000 polling places in Fulton and DeKalb Counties in 2002, Rolling Stone reported.

Hood did not immediately return a text message from Atlanta Progressive News and his voicemail was not operational.

The second whistleblower, Rob Behler, was contracted to work with Diebold in the lead up to the 2002 Elections.

Two patches were applied in June and July 2002 respectively while Behler worked in the Diebold warehouse; another patch was applied in August 2002 after Behler left the warehouse, Wired News reported.

“Behler said Diebold programmers posted patches to a file-transfer-protocol site for him and his colleagues to apply to the machines,” Wired News reported.

Diebold officials first denied any patches were applied in an interview with Salon in 2003, according to Wired News.

“We have analyzed that situation and have no indication of that happening at all,” Joseph Richardson, Diebold spokesperson, is reported to have told Salon at the time.

This story later changed.

Activists Speak Out
Elections integrity activists are outraged by the relevations, although they say the apparent secretive nature of “the patch” has only confirmed the things they already suspected and feared.

“The fact that they were doing any patch of any kind is very disturbing,” Garland Favorito of VoterGA, an organization that is suing the State of Georgia over the meaningless nature of elections here, told Atlanta Progressive News.

“It raises the distinct possibility the machines might have counted [in a] different [manner] on Election Night than when certified,” Favorito said.

“It corroborates two of our key points of the suit. One, machines can count differently on Election Night than when certified. So, the only way is to verify on Election Night. Two, it’s another example of how people have been removed from the counting of the votes,” Favorito said.

“I’m not surprised people are playing tricks. As far as the patch, I say ‘time out’ for that,” Donzella James, who is contesting her purported loss in the Democratic Primary in Georgia’s 13th Congressional District to US Rep. David Scott (D-GA), told Atlanta Progressive News.

“I’m definitely going to look into it. I’m glad there’s a credible person–Kennedy–who has brought this information forward,” James said.

An outspoken advocate for a voter verified paper trail since her days in the Georgia State Senate, James said she is getting ready to run again in 2008 whatever the outcome of her lawsuit.

“It immediately shows Diebold has not been telling the truth, has been covering up facts, in state after state, year after year. This is someone who knows. He has insider knowledge,” Brad Friedman of BradBlog told Atlanta Progressive News.

“These are things people suspected. He confirmed it. Diebold never gave a damn about security, accuracy, or transparency,” Friedman said.

What is worse, the use of last-minute patches on electronic voting machines are routine, Friedman said.

“It has happened all over the country. Because they find out about security issues at the last minute and apply them without going through the proper procedures,” Friedman said.

At a recent press conference called by Donzella James, poll watchers say one county official locked herself in a room with the machine for three unexplained minutes during the recent Primary.

Cathy Cox’s Role
Where was Georgia Secretary of State Cathy Cox during all this?

Apparently, Diebold leadership asked employees to not let her office know about the patch or patches.

And Diebold first alleged this application of patches wasn’t going on.

However, Georgia Secretary of State Cathy Cox appears to have found out anyway.

And Diebold appears to have at some point acknowledged the patches existed.

At least one patch was approved by Kennesaw State University, who got a state contract to do so, according to Wired News.

And Diebold admitted to the Elections Assistance Commission about the “0808″ patch, Garland Favorito said.

Cox wrote a letter after the 2002 Elections, asking Diebold to address a total of 29 problems with the functioning of their E-voting machines, technology, and procedures, Rolling Stone reported.

This list of 29 items was also brought up in a press conference by US Rep. Cynthia McKinney, her first major press conference on electronic voting.

Cox referred to the item of the mysterious patch as “The application/implication of the 0808 patch.”

“The state was seeking confirmation that the patch did not require that the system ‘be recertified at national and state level’ as well as ‘verifiable analysis of overall impact of patch to the voting system,’” Rolling Stone Magazine reports.

But shouldn’t they be seeking her confirmation and not the other way around?

Diebold’s reply to Cox’s letter, if one exists, has not been made publicly available, according to Rolling Stone.

“She [Cox] should be the one confirming it, not the vendor. She’s the one responsible for running elections in Georgia,” Favorito told Atlanta Progressive News.

“She appears to be trying to privatize the election system to the point where she’s trying to ask the vendor to determine if they’re in compliance, rather that using their own resources,” within the Office of the Secretary of State, Favorito said.

“They claim [as an excuse] to have changed the operating system and not the tabulating software. We believe the law says the systems have to be re-certified with a patch of any kind.

The State did not certify those patches. The State took Diebold’s word,” Favorito said.

“However, State Law does not seem to support Diebold’s testimony,” Favorito said.

Atlanta Progressive News will be looking more into how Diebold was, or was not, able to satisfy Cox’s 2002 concerns.

“Atlanta Progressive News is the only media outlet in Georgia that’s covering this story,” Garland Favorito of VoterGA said. ++

CNN’s Lou Dobbs: Alarming Congressional Testimony On The Threat Of Electronic Voting Machines
John Gideon
9/29/2006
http://www.bradblog.com/?p=3553#more-3553

Dobbs Says, ‘This country has got to think about going to paper ballots…If an election is close, we’re in deep, deep trouble.”

“Congress today heard alarming testimony on the threat of electronic voting machines and experts at the hearing testified that e-voting machines are vulnerable to tampering, outright fraud, and political manipulation. They also testified it’s uncertain whether the votes of millions of Americans will count on election day,” said Lou Dobbs at the top of yesterday’s report.

Thursday’s Lou Dobb’s Tonight Democracy at Risk segment centered on a hearing before the House Administration Committee yesterday where experts told the committee about the possibility of tampering, fraud, or political manipulation.

Dobbs closed with: “I think, we’re at the point…that this country [has] got to start thinking about going to paper ballots because these machines — it’s obvious. The training is not there. The backup, the lack of a paper trail. If there is a close election anywhere in this country, we’re in deep, deep trouble.”

Princeton University’s Ed Felten was on hand among those testifying to demonstrate his Diebold Virus Hack originally reported by Brad the week before last. Here’s a taste:

PROF. EDWARD FELTEN, PRINCETON UNIVERSITY: It takes about one minute of access to the machine. And I can show you roughly what would be involved. It would involve opening the door on the side of the machine, which would require getting a key, as I said, those are for sale on the Internet. There may be some security tape that would need to be removed and might be missing already.

Opening up this door, putting in a memory card like this, into the side of the machine. The memory card would have been prepared in advance with the computer virus on it. Then pressing the red power button and waiting about 30 seconds.

PILGRIM: The committee clearly need no additional evidence that the computer could be effectively hacked.

The text-transcript of Thursday’s segment on Lou Dobbs Tonight follows in full…

DOBBS: Congress today heard alarming testimony on the threat of electronic voting machines and experts at the hearing testified that e-voting machines are vulnerable to tampering, outright fraud, and political manipulation. They also testified it’s uncertain whether the votes of millions of Americans will count on election day. Kitty Pilgrim has the story.

(BEGIN VIDEOTAPE)
KITTY PILGRIM, CNN CORRESPONDENT, LOU DOBBS TONIGHT (voice over): The hearing is focused on how insecure the technology is, featuring a demonstration of how quickly a machine could be hacked.

PROF. EDWARD FELTEN, PRINCETON UNIVERSITY: It takes about one minute of access to the machine. And I can show you roughly what would be involved. It would involve opening the door on the side of the machine, which would require getting a key, as I said, those are for sale on the Internet. There may be some security tape that would need to be removed and might be missing already.

Opening up this door, putting in a memory card like this, into the side of the machine. The memory card would have been prepared in advance with the computer virus on it. Then pressing the red power button and waiting about 30 seconds.

PILGRIM: The committee clearly need no additional evidence that the computer could be effectively hacked.

BARBARA SIMONS, U.S. PUBLIC POLICY COMMITTEE: Because of the risks of software bugs, malicious code, or computer failure, we cannot trust that the results in a paperless voting machine accurately reflect the will of the voters. That is why voter verified paper ballots or audit trials, or VPATs, as we refer to them, are needed.

PILGRIM: In many primaries the deficiency of the machines and the inadequate preparation of the poll workers who run them was evident. Testimony about review of the recent Ohio primary was chilling.

KEITH CUNNINGHAM, ELECTION DIR., ALLEN COUNTY, OHIO: Nearly 17 percent of those tapes showed a vote discrepancy of one to five votes from the electronic machine. And nearly 10 percent of those tapes were either destroyed, blank, missing, taped together, or in some other way compromised.

PILGRIM: Some say the machines can be made secure and flaws repaired in time for the November election. But experts caution just jerryrigging a paper trail attachment is dangerous.

PROF. MICHAEL SHAMOS, CARNEGIE MELLON UNIVERSITY: It should be obvious that adding a new device with moving mechanical parts to an existing electronic machine cannot improve its reliability.
(END VIDEOTAPE)

PILGRIM: Now, the legislation considered by the House committee calls for a voter verified paper trail on every electronic voting machine. Another bill, by Senator Boxer, provides financial reimbursement for the states to help pay for backup paper ballots.

DOBBS: I think, we’re at the point, it looks to me, Kitty, that this country is, as Senator Dorgan, or Congressman Holt have suggested, I mean, we’ve got to start thinking about going to paper ballots because these machines — it’s obvious. The training is not there. The backup, the lack of a paper trail. If there is a close election anywhere in this country, we’re in deep, deep trouble.

PILGRIM: It’s very clear. And the technology’s just been put in too fast. It’s not understood and it’s definitely not understood at the local level, which is the most important level when you have an election.

DOBBS: And unfortunately, nearly all of the knowledge on these machines is held by the companies that manufacture them. And that does not make me, for one, and I’m sure millions of others very comfortable.

Kitty, thank you. Keep up this terrific reporting on this very scary proposition. Kitty Pilgrim. ++

Ghost in the Machine
Bruce Funk is out of a government job but still raising a ruckus over hackable voting machines
September 28, 2006
Ted McDonough, Salt Lake City Weekly
http://www.slweekly.com/editorial/2006/cityweek_1_2006-09-28.cfm

Shown the door of the Emery County Clerk’s office six months ago, Bruce Funk has become a folk hero of sorts. He’s the easygoing pin-up for those who believe new touch-screen voting machines are vote-stealing democracy destroyers.

One such group will even sell you a T-shirt. “I Know Bruce Funk,” the shirt reads, “A voice for America against ‘hackable’ voting equipment.”

This March, Funk became the nation’s second county election official to test the new wave of vote-by-computer machines by bringing in computer technicians to try to hack one. A few weeks later, Funk was out on his ear. Depending on whom you believe, he either resigned in frustration or was maneuvered out of the office to which he was so often re-elected he’s lost count of how many terms he served.

If Funk wanted his county clerk job of 23 years back, he might have had a court case. After all, he was elected by the people of Emery County and couldn’t be fired by county commissioners, or—as Funk suspects—by the lieutenant governor operating in concert with a voting-machine maker.

But he isn’t suing. It’s not his style. The grandfather who occasionally frees mountain lions caught in bobcat traps on his farmland south of Price is mild-mannered. Anyway, he was near retirement age when he was shown the door.

But that doesn’t mean Funk’s going away quietly. Raising alarm bells over voting machines scheduled to be used throughout Utah in November is his new job. “This takes precedence over anything after my family,” Funk said.

Earlier this month, Funk brought a case against Emery County to get copies of the minutes from a closed-door meeting Emery County Commissioners held in late March with representatives of the lieutenant governor, who is the state’s top election official, and representatives of Diebold, the company that sold Utah its new voting machines. After the off-the-books session, Funk was called in by commissioners and—he claims—bullied into resigning. Funk quickly thought better and informed commissioners he would be staying to finish out his term, but locks were changed and the Emery County Republican Party was asked to select a replacement.

Funk feels certain if the minutes and recordings of the hush-hush meetings were unsealed, they would show the maker of voting equipment conniving with state politicians to get rid of an elected county official who raised uncomfortable questions—confirming some of the worst fears of conspiracy theorists.

Fueling the conspiracy fire, the Utah State Records Committee denied Funk’s request, ruling the meetings for which Funk wanted records were properly closed to the public.

Two representatives of Lt. Gov. Gary Herbert present at the meeting—Deputy Director Michael Cragun and Joe Demma, Herbert’s chief of staff—deny pressuring for Funk’s ouster, saying they discussed only how to fix the intentionally hacked voting machines for the next election. Also present at the March 27 closed-door meeting was Diebold’s regional sales representative. She did not respond to a request for comment.

Emery County Attorney David Blackwell said neither the lieutenant governor’s representatives nor Diebold asked for Funk’s ouster, but he doesn’t deny that one reason for the closed-door session was to talk about getting rid of Funk.

Emery County was in a jam, Blackwell said. Commissioners had signed a contract with the lieutenant governor’s office pledging to use the new voting machines. But the county’s chief election official, Funk, refused to use them. Funk’s ability to do his job was in question, Blackwell said.

Commissioners also discussed potential legal action to oust Funk, an elected official, said Blackwell. If Funk refused to run a Diebold election, the only way for the county to stay in compliance with its state contract was to get rid of him, or at least strip him of his power over elections. “It would have been ugly,” Blackwell said.

In the end, he said, Funk made it easy by resigning. Commissioner Ira Hatch said Funk was given several opportunities to reconsider, but Funk was adamant about quitting if the county used Diebold equipment.

Funk is a farm boy but not a bumpkin. He was one of the first in the state to switch from the punch card, choosing new voting technology during the mid-1990s. But when the vote-by-computer machines arrived this year, there were problems. Printers jammed. Meters on some turned red, showing low memory. Looking for answers, Funk called in Black Box Voting, an election watchdog group formed after the 2000 “hanging chad” debacle that has become a leading critic of the new voting machines.

Black Box’s technicians attempted to hack into the Emery County machines, then publicized alleged security holes they found.

Those who continue the fight against the new election machines say events since Funk’s ouster suggest Emery County may have killed the canary in the coal mine.

They point to a recent study by Princeton professor Edward Felton, who claims—as Black Box did earlier in Emery County—to have hacked through Diebold’s security and change voting machine computer programs.

Diebold noted the Princeton team hacked an old version of their machine, one since replaced with more secure software. Officials at Utah’s lieutenant governor’s office also note Utah’s Diebold machines are a newer version.

Demma said state officials aren’t ignoring bad news for Diebold, acknowledging “many problems” in other states. But the Emery County experience actually comes out in Diebold’s favor, he said. When Diebold came back to repair whatever Funk and Black Box had done, Demma said Diebold technicians found traces of Black Box trying to hack in but failing because of the machine’s advanced security.

Out of a government job, Funk hopes to form a company to advise how to run secure elections with the new equipment. He wishes governments would take on the job now being done by Black Box: Looking for vulnerabilities in the voting machines and fixing them. Too many, he said, have their heads in the sand.

“The election officials don’t want these concerns being raised and then having voters looking over their shoulder and questioning everything,” Funk said. “They are assuring the integrity of the election, but the integrity of the vote contained in the machine is the part that gives me the heartburn.” ++

What’s right and good doesn’t come naturally. You have to stand up and fight for it - as if the cause depends on you, because it does. Allow yourself that conceit - to believe that the flame of Democracy will never go out as long as there’s one candle in your hand.
~ Bill Moyers

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

1 comment September 30th, 2006

Dynamiting the remaining pillar — the Judiciary

And that judiciary better mind their “institutional limitations.” Best to note that the final piece here is not like Aziz Huq’s article of yesterday, Terror 2016 – it’s ‘real time.’

Jude

Gonzales Cautions Judges on Interfering
MICHAEL J. SNIFFEN, AP
Friday, September 29, 2006
http://www.washingtonpost.com/wp-dyn/content/article/2006/09/29/AR2006092900511.html

WASHINGTON — Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

“Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,” Gonzales said.

And he said the independence of federal judges, who are appointed for life, “has never meant, and should never mean, that judges or their decisions should be immune” from public criticism.

“Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot - and should not - be shielded from criticism,” Gonzales said. “A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches.”

His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration’s most reliable supporters on the Supreme Court.

The attorney general did not refer to any specific case or decision but only to wartime, military and foreign affairs cases in general.

Gonzales has sent Justice Department lawyers into federal courts from coast to coast defending Bush’s detention of terrorist suspects at Guantanamo Bay, Cuba, his plans to try some of them before military tribunals and his use of the National Security Agency to wiretap Americans without court warrants when they communicate with suspected terrorists abroad.

Over administration objections, the Supreme Court ordered that detainees could challenge aspects of their imprisonment in federal courts and overturned Bush’s plans for military tribunals, forcing Bush to ask Congress to approve a new version of the panels.

A handful of federal district judges either ordered an end to the warrantless wiretapping or agreed to hear court challenges to it. Opponents of the plan argue the NSA program violates the Foreign Intelligence Surveillance Act’s requirement that the government get a warrant from a court that meets in secret before wiretapping Americans to gain intelligence information.

The administration contends that despite the statute’s language, the president has inherent authority from the Constitution to order such eavesdropping without court permission. Justice lawyers also have argued that the challenges to the NSA program should be thrown out of court because trials would expose state secrets. Most of the judges’ rulings and proceedings have been stayed pending appeal.

Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice “had to raise enough money to run print ads and place television spots around the state in order to retain my seat.”

In such contested elections, “most of the contributions come from lawyers and law firms, many of whom have had, or will have, cases before the court,” Gonzales said. “The appearance of a conflict of interest is difficult to dismiss.”

He noted favorably that some states have adopted other ways of picking judges, including merit selection and appointment with simple up-or-down retention elections rather than contested campaigns. With polls showing many voters think judges can be swayed by campaign contributions, Gonzales said, “If Americans come to believe that judges are simply politicians, or their decisions can be purchased for a price, state judicial systems will be undermined.” ++

Know Your Place
by digby
9/30/2006
http://digbysblog.blogspot.com/

Just in case they failed to get the memo:

Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

Right. The Empty Codpiece and his federalist society drones are the ones the constitution anticipated should be interpreting the constitution when the US engaged in an unending, undeclared “war” on a tactic.

If these Republicans manage to hold on to the presidency, which they very well may since we’ve anointed St McCain of Guantanamo, I guess we’d better get used to the idea that we are living in an All American form of military dictatorship. There really is no other way to interpret Gonzales’ statement.

Funny how we managed to get through the cold war and WWII without stripping the courts of authority, but then the Commies and the Nazis were nothing (nothing, I tell you!) to the existential threat posed by Osama bin Laden and his henchmen. It’ll be a miracle if the country survives. ++

PFAW: Bush Judges Confirm Opponents’ Fear
News Release, BuzzFlash
Fri, 09/29/2006
http://www.buzzflash.com/articles/releases/025

Report Documents Impact of Bush-Nominated Appeals Court Judges

Federal appeals court judges nominated by President Bush are threatening and undermining Americans’ rights and liberties, and working to reduce congressional authority to protect those rights and liberties, according to a legal analysis published today by People For the American Way Foundation.

“President Bush has fallen far short in keeping his promise to appoint judges who will interpret the law, not make it,” said People For the American Way Foundation President Ralph G. Neas. “Judges nominated by President Bush and confirmed by the U.S. Senate are undermining Americans’ rights, liberties, and legal protections.”

The report, Confirmed Judges, Confirmed Fears, covers cases decided between September 1, 2004 and May 31, 2006. It provides a significant update to preliminary analyses of Bush-nominated judges that PFAWF published in 2004. The new report documents that troubling trends identified in earlier reviews have continued as more Bush appointees gain more experience and tenure on the appellate courts - more and more opinions seek, sometimes successfully, to cut back broadly on Americans’ rights under our Constitution and laws.

“The cumulative impact of the Bush administration’s ideological approach to judicial nominations is beginning to be felt,” said People For the American Way Foundation Vice President and Legal Director Elliot M. Mincberg. “What we’re seeing is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts.”

For example, Confirmed Judges, Confirmed Fears reports that two controversial Bush appellate judges - Michael McConnell on the Tenth Circuit and Lavenski Smith on the Eighth Circuit - cast deciding votes in rulings that significantly restricted individuals’ rights under the Family and Medical Leave Act, including one decision that struck down a Department of Labor regulation protecting workers.

In addition, Bush-nominated appellate judges wrote or joined opinions that:

* tried to rewrite legal protection for employees against sexual harassment under Title VII of the 1964 Civil Rights Act, explicitly contradicting the Equal Employment Opportunity Commission and several previous court decisions Lutkewitte v. Gonzales, D.C. Cir. (Judge Brown)

* attempted to significantly weaken Section 2 of the Voting Rights Act by requiring proof of discriminatory intent in voting cases, a requirement that another judge explained was flatly inconsistent with Congress’ language and intent Johnson v. Governor of Fla., 11th Cir. (Judge Pryor)

* cast the deciding vote that the First Amendment did not apply at all to a restrictive municipal “English only” mandate Moldonado v. City of Altus, 10th Cir. (Judge Hartz)

* cast the deciding vote to limit the ability of health clinics to challenge anti-abortion laws Nova Health Systems v. Gandy, 10th Cir. (Judge Tymkovich)

* tried to rule that taxpayers could not sue to obtain restitution of government funds illegally transferred to private universities in violation of the Establishment Clause Laskowski v. Spellings, 7th Cir. (Judge Sykes)

* cast the deciding vote effectively authorizing partisan challengers who targeted African-American precincts to challenge voters, creating what the dissenting judge called a “threat of suppression, intimidation or chaos sown by partisan political operatives.” Summit County Democratic Cent. & Exec. Comm. v. Blackwell, 6th Cir. (Judge Rogers)

* tried to prevent terminally ill patients from seeking to obtain access to drugs partly approved by the FDA when no other government approved treatment options are available Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, D.C. Cir. (Judge Griffith)

Another damaging trend documented in the report is judges preventing, or advocating in dissent to prevent, individual Americans from having their day in court and presenting their claims to a jury. In a number of cases, Bush judges have been specifically criticized by their colleagues for improperly applying the summary judgment standard and denying plaintiffs their day in court despite the existence of important evidence supporting their claims, or for other reasons have tried to throw such cases out of court. Bush-nominated appeals court judges have written or joined opinions that have sought to:

* prevent a female worker from attempting to prove that significant salary disparities between her and male employees violated the Equal Pay Act Ambrose v. Summit Polymers, Inc., 6th Cir. (Judge Sutton)

* deny the family of a murdered 8-year old girl the opportunity to try to prove in court that local officials had helped put her in danger Bright v. Westmoreland County, 3d Cir. (Judge Smith)

* stop an African-American man from pursuing a claim that his constitutional rights had been violated by state troopers engaged in racial profiling Gibson v. Superintendent, 3d Cir. (Judge Van Antwerpen)

* overturn a lower court decision that a female sheriff department employee who had been sexually harassed by the sheriff (who, among other things, called her vagina a “snapper” and stroked “his mustache while telling [her] he was ‘clearing off her seat’”) could pursue a claim that she had effectively been forced to resign Wright v. Rolette County, 8th Cir. (Judge Melloy)
* prevent an African-American employee fired from a Wal-Mart store, who had been called a “lawn jockey” by his supervisor, from trying to prove he had suffered illegal racial discrimination and harassment Canady v. Wal-Mart Stores. Inc., 8th Cir. (Judge Riley)

* stop a Wal-Mart employee at another store from even presenting to a jury her claim that she had been fired because of illegal pregnancy-based employment discrimination Quick v. Wal-Mart Stores, Inc., 8th Cir. (Judge Riley)

It is important to note that decisions are included in this review based on objective criteria described below, not on whether PFAW Foundation agrees or disagrees with the opinions expressed. We do not take a position on every case, opinion, or ruling included in this report.

The report makes clear that judges who received strong bipartisan support have been much less likely to write or join opinions that seek to rewrite the law to damage Americans’ rights. On the other hand, judges who received significant opposition and concern in the Senate — like William Pryor, Janice Rogers Brown, Jeffrey Sutton, D. Brooks Smith, and Michael McConnell — have often written or joined such troubling opinions.

Note on Methodology: We reviewed non-criminal cases in which Bush-nominated appellate judges have participated from Sept. 1, 2004 through May 31, 2006 that raise issues concerning congressional authority, as well as all civil cases raising significant issues of constitutional liberties, civil rights, employment discrimination, consumer rights, privacy, environmental protection, congressional authority, access to justice, and similar matters involving the rights and interests of ordinary Americans. (We did not include habeas corpus cases raising individual criminal law claims or immigration cases involving the status of individual immigrants.) Because the purpose of this look at President Bush’s appellate judges was to determine whether and to what extent those judges are having an impact on these significant areas of the law, we focused our review on cases in which the court’s decision was divided, making the role of individual judges potentially decisive. Because some of these judges have been on the federal courts for a relatively short period of time, because most appellate decisions are unanimous, and because cases are assigned randomly, some of the Bush-nominated judges have not participated in divided cases in these areas of concern. Our report does not examine the record of Judge Roger Gregory, since he was originally nominated to the Fourth Circuit by President Clinton. ++

‘Operation Return to Sender’ stumbles
Jennifer Van Bergen, Raw Story
Thursday September 28, 2006
http://tinyurl.com/nouu4

Questions are being raised about the arrest, detention, and treatment of a long-term Ukrainian legal resident alien in Florida.

Bella Maryanovsky, a thirty-year legal resident of the United States, was arrested last week on Tuesday, September 19, when she entered immigration offices for a routine update of her green card papers. It appears she was arrested under a new immigration program called “Operation Return to Sender.”

According to Michael Chertoff in a June 2006 press release, “Operation Return to Sender is another example of a new and tough interior enforcement strategy that seeks to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration.”

“The fugitives captured in this operation,” claimed Chertoff, “threatened public safety in hundreds of neighborhoods and communities around the country. This department has no tolerance for their criminal behavior.”

However, Maryanovsky, according to her family and friends, has long been an upstanding member of society. She is currently employed placing engineers in jobs nationwide with salaries ranging from $75,000 to $250,000.

Gino Sedikov, Maryanovsky’s attorney, explained in a Monday conversation that he has yet to determine the charges on which Maryanovsky is being held. She was not provided with a “notice to appear” or given any indication that her immigration file had been flagged or that Immigration and Customs Enforcement (ICE) intended to arrest her. Sedikov believes this is part of the new policy in the ICE office.

Michael Keegan, a spokesman for ICE in Washington, D.C. told RAW STORY in a phone conversation on Wednesday, “It is not our job to create the law. It is not our job to interpret the law. Our job is to enforce the law.” According to Keegan, “the posture of law enforcement agencies has completely changed since 9/11.”

The most likely reason Maryanovksy’s file was flagged is that in 1989 she was convicted – wrongfully, according to her family – of committing a crime that at the time was not a deportable offense. Laws passed in the 1990’s that applied retroactively, according to Keegan, would have made her offense a deportable one.

However, according to immigration expert Mark Levey, who has practiced immigration law in Washington, D.C. for twenty years, only crimes that were aggravated felonies at the time of commission were swept in under the retroactive rule. Thus, Levey believes that Maryanovsky’s immigration file was probably flagged incorrectly.

“Because Maryanovsky’s crime precedes the 1990’s laws,” Levey explains, “although she is still deportable, she is nonetheless eligible for bond and for relief from removal based on her good character.”

Why was Maryanovsky arrested now, almost twenty years after her conviction? Keegan contends, “It’s because we’re such a good agency,” implying that ICE does a better job than its predecessor, Immigration and Naturalization Service (INS).

According to Sedikov, thousands of immigrants are sitting in jails and detentions centers without any hope of what is called “relief from removal” – that is, cancellation of a charge that would otherwise result in deportation.

The present immigration system, reformulated under the Department of Homeland Security after the passage of the Homeland Security Act of 2002, was divided into two parts: an enforcement agency (Immigration and Customs Enforcement, or “ICE,” ironically referred to by immigration attorneys as the “ICEmen”) and a separate service agency for getting a green card.

ICE is further divided into an investigative unit, a deportation/removal unit, and a detection/arrest unit. Because of these divisions, “the wheels of justice move slowly,” says Sedikov. A detainee’s file is supposed to follow them from unit to unit, but sometimes – as in Maryanovsky’s case – the file is lost. The detainee may then wait in detention for months until the file is found. Even when a file is accounted for, detainees may still spend weeks in jail, since detention centers are overfull. [emphasis, mine.]

In the meantime, explains Sedikov, if the detainee is not held near an immigration court there is no mechanism by which they can be brought before an immigration judge to challenge their detention. The individual must simply wait until the right official in the right department of ICE decides it is time to bring them to court. Immigration courts do not have sheriffs who can bring detainees in, so judges will not entertain an attorney’s request for a bond hearing unless the detainee is accessible. Thus, an individual put into detention falls into a sort of black hole.

According to Sedikov, “ICE has no duty to respect [the attorney’s] requests.”

Sedikov claims he has left 70 messages on the Maryanovsky case in five days, and has received no return call from ICE officials. His current aim is to have her transferred to a location that would allow her to be brought before a judge.

Maryanovsky claims that she is currently being held in a jail cell with an accused murderer. Last week she was in a cell with five other people and only two beds, so she slept on a “urine-laden cement floor.”

To make matters more disheartening, Maryanovsky takes medication for heart arrhythmia and high blood pressure. She confided to her family and friends that prison personnel mockingly refused to give her medication, telling her, “When you have a heart attack, then we’ll help you.”

One friend, Lauren, who wished to keep her last name private, said that she has visited Maryanovsky twice, and her ankles and extremities are swelling. “[She] can go into heart failure,” Lauren told RAW STORY. According to family members, her blood pressure hit 220/110, and the family obtained a doctor’s letter to present to immigration authorities, but she was still apparently not being given her medication.

Maryanovsky is scheduled soon to be transferred to Krome Detention Center, outside Miami, according to Sedikov. Two years ago, Krome garnered much press attention when an 81-year old Haitian Baptist minister, Joseph Dantica, died while being detained there after seeking asylum. He fell ill during his hearing, after, like Maryanovsky, requesting medication for high blood pressure. Officials contend that he died of pancreatitis and deny responsibility for his death.

Ray Del Papa of the South Florida Peace and Justice Network – a coalition that includes representatives from such groups as the Quakers, Pax Christi, Buddhist Peace Fellowship, Jewish Arab Defense Association, Haiti Solidarity, and many others – told RAW STORY that he sees an incongruity in the arrest and detention of such persons as Maryanovsky or Dantica while known terrorists, such as Luis Possada Carriles, Orlando Bosch, and Virgilio Paz Romero, are allowed to remain free in the U.S., despite their criminal records.

Sedikov claims that the arresting officer told him, “We got orders to arrest everybody.”

That officer, Keith Bradley, refused to confirm or deny anything about the case to RAW STORY, saying “I still have a mortgage and bills to pay.”

Some have speculated that Maryanovsky’s sudden arrest and detention may have a political motive. Levey disagrees, as does RAW STORY managing news editor Larisa Alexandrovna, who was raised together with Maryanovsky since their arrival in the United States. But Alexandrovna, who did not contribute to the writing or editing of this piece, says she believes readers should “view this as a typical day.”

“Sure, I find it odd that in Southern Florida – where immigration targets are usually Cuban, South American, and Haitian – suddenly a Ukrainian Jew is arrested, held without charge, and her file goes missing,” says Alexandrovna. “But I also find it odd that thousands of people are being swept up in these raids, we don’t know their actual citizenship status, they are disappeared and held in detention facilities, and no one notices. It is all odd,” added Alexandrovna in a Wednesday evening email. ++

What’s right and good doesn’t come naturally. You have to stand up and fight for it - as if the cause depends on you, because it does. Allow yourself that conceit - to believe that the flame of Democracy will never go out as long as there’s one candle in your hand.
~ Bill Moyers

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

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