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NSA, The More We Know The More We Fear – For a Reason

The recent opinion piece (below) by Amy Zegart and Marshall Erwin of the conservative Hoover Institution suggests the NSA spy agency’s real problems are caused by our not knowing how well they protect us from terrorists.  They think the NSA should focus on this rather than correcting our  “misperceptions” about how they use our email and telephone data. They wrote that, “…there is no evidence the NSA is engaged in any illegal domestic snooping,” even though such evidence requires transparency and everything the NSA does is secret.

Setting aside recent proof that NSA employees do sometimes breach security protocols, we know the NSA maintains a database of electronic “envelope”  information from all our calls and emails. From this information they create their meta-data analysis that reveals how closely each of us is linked to anyone else. But the NSA also has yet to deny that they are storing the content of our emails, and possibly our phone calls, in huge data storage facilities such as the recently built Utah Data Center, officially called the Intelligence Community Comprehensive National Cybersecurity Initiative Data Center. The NSA may not be previewing all this content data, but saved records can be accessed and reviewed in the future if they choose to look. By any stretch of meaning, saving private electronic content by government, even if it is never opened, is still an unreasonable government seizure prohibited by the Fourth Amendment.

So, is it reasonable for government to seize all our private emails or phone conversations providing they don’t peek? If so, then what’s to stop state or local law enforcement from doing the same. And what’s to stop the NSA from making secret allegations, obtaining secret FISA court access to stored communications or even altering those files to persecute citizens perceived as a threat? Our founding fathers would not have consented to this and neither should we. Protecting us from terrorist threats doesn’t justify suspending Fourth Amendment rights protecting us from tyranny at home.

Shedding light on NSA's snooping

The NSA’s image problem

To know the spy agency is not necessarily to love it.


By Amy Zegart and Marshall Erwin

November 1, 2013

In the wake of Edward Snowden‘s ongoing revelations about U.S. surveillance programs, the National Security Agency is facing the worst crisis in its 60-year history. Today, too many Americans mistakenly believe the NSA is listening to their phone calls and reading their emails. But misperception is only part of the agency’s problem. In an Oct. 5-7 YouGov national poll we commissioned, we also found the more that Americans understand the NSA’s activities, the less they support the agency. [snip]

Our poll results found the part about the public’s ignorance was true. But we did not find that ignorance bred greater distrust of the agency. [snip]

For example, Americans who accurately understood the NSA’s telephone metadata program were no more favorable toward the agency than those who mistakenly thought metadata involved snooping on the content of calls. [snip]

NSA Director Gen. Keith Alexander [has said]: “And so what’s hyped up in a lot of the reporting is that we’re listening to your phone calls. We’re reading your emails. That’s just not true.” [snip]

The NSA needs to win this debate on the merits. What we need to know is whether the agency’s telephone and Internet surveillance programs are wise and effective.

Though legal scholars will continue to debate endlessly just what “relevance” or “targeting” means, the message from these disclosures for the rest of us is this: There is no evidence that the NSA is engaged in any illegal domestic snooping operations.

For national security, the more important question now is whether these programs are good counter-terrorism policy. We have lost sight of that.

[read more at http://www.latimes.com/opinion/commentary/la-oe-zegart-nsa-effectiveness-20131101,0,1883353.story#axzz2jMeD4paf ]

DOJ Let’s Halliburton off the Hook for Destroying Gulf Oil Spill Evidence

It seems possible that Halliburton Energy Services didn’t what it’s three-dimensional computer simulations of what when wrong in the Macondo Well blow-out to get into the hands of federal prosecutors. The simulations were destroyed and the DOJ filed criminal charges against Halliburton for this destruction of evidence. Halliburton was subsequently allowed to settle the charges of destroying evidence with the DOJ, pleading to just one count. Sen. John McCain is among those who feel that justice was not being served here. The following excerpt is from E&E News. A link to the full article is found below as is a PDF copy of Sen. McCain’s letter.

Republican questions Halliburton’s Gulf spill settlement

Jeremy P. Jacobs, E&E reporter

Published: Thursday, August 1, 2013


Arizona Sen. John McCain today expressed deep concerns about the Department of Justice’s recent settlement with Halliburton Energy Services Inc. over the destruction of evidence following the 2010 Deepwater Horizon oil spill.

The Republican asked DOJ several questions about how the $200,000 settlement came about and whether it is sufficient given the nature of the allegations. [SNIP]

Halliburton admitted to one count of destroying evidence and agreed to pay the maximum statutory penalty of $200,000. Additionally, Halliburton faces three years of probation and has agreed to cooperate with DOJ’s ongoing investigation into the Gulf of Mexico explosion and spill that killed 11 rig workers.

The settlement stems from three-dimensional computer simulations that Halliburton ran after the blowout on the Macondo well. Engineers were trying to determine whether BP PLC’s decision to use fewer centralizers around the well’s casings than Halliburton had recommended may have caused the blowout. [SNIP]

“Why did DOJ settle this case for such a relatively small fine rather than choose to prosecute Halliburton to the full extent of its culpability in the Deepwater Horizon disaster?” McCain asked.

McCain also raised questions about Halliburton’s decision to contribute $55 million to the National Fish and Wildlife Foundation separate from the settlement.

Read John McCain’s Letter Here: http://www.eenews.net/assets/2013/08/01/document_pm_01.pdf

What Good Can Be Salvaged from the Trayvon Martin Case

Trayvon Martin is dead and George Zimmerman walks free. Was justice served?

From http://www.flickr.com/photos/23354940@N03/9280339883/: Hood Up! Justice for Trayvon Martin
Hood Up! Justice for Trayvon Martin by musyani75

That answer depends on who is asking the question. It should be a national outrage that this question splits us along both racial and political lines, but this has all become too predictable for outrage on these grounds. If we focus on the facts of the case the verdict divides us and there is no chance for reconciling our opposing views. If we shift the focus to our racial divide the glacial pace of reconciliation is measured in generations and no satisfactory solution can be seen. If we shift the focus to politics the question of justice will fade like an echo in the wind of endless partisanship. But focusing strictly gun laws in Florida may hold some slim hope for something good to come out of Trayvon’s death.  If this trial has done anything useful, it has been to drawn attention to the crazy legal framework that informed this verdict.

Who instigates a conflict that turns deadly has always been a factor in determining guilt. The concept is that deadly conflicts are be avoided at the earliest possible stage, before they turn deadly. If you initiate the conflict, the onus is on you to end it before someone gets hurt. The “stand your ground” laws in Florida and elsewhere upends this logic. Now, whoever walks away from a murderous gun fight can legally claim it was self-defense, even if the dead guy was unarmed. It is mostly a reasonable assumption that the survivor of a deadly conflict must have felt their life was in danger at some point.

In Florida, you can now walk up to anyone in the street, provoke them into assaulting you physically and then shoot them in self-defense. You are no longer held responsible for their death. If this was not the intent of the “stand your ground” laws, it is the absurd practical implication following this verdict. These laws, with their faulty legal premises, need to be overturned.

Still I have to wonder what the legal outcome would have been if Trayvon also had a gun and ended up shooting Zimmerman first. Would days pass before he was arrested and charged?  Would he have been acquitted by this jury?

If the only twist to this story was that Trayvon had managed to turn the barrel of Zimmerman’s gun around at the last instant to kill him, would the legal premise of the stand your ground law have been applied to Mr. Martin?  Would the actions of the police and the outcome of the justice system been different?  These questions are too important to ignore, but I am afraid the best answers to them depends largely on what we teach our children.

People Falsely Convicted Spend Years In Jail Before Exonerations, And They Are the Luck Ones.

The following is an abridged summary of a report on criminal exonerations in the United States.  This summary is my attempt to provide quick overview of the findings in the report.  I encourage everyone to download the report and read it in detail.  You cannot get the full impact of this work from this abridged version.
Exonerations in the United States, 1989 – 2012
Report by the National Registry of Exonerations
May, 2012
This is the first Report from the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.  The Registry can be found at exonerationregistry.org. It includes detailed information on the 873 individual exonerations in the United States from January, 1989, through the end of February, 2012.
 “Exoneration,” as we use the term, is a legal concept. It means that a defendant who was
convicted of a crime was later relieved of all legal consequences of that conviction through a decision by a prosecutor, a governor or a court, after new evidence of his or her innocence was discovered. As you will see in this report, the number of exonerations in the United States is not a good measure of how often our justice system produces false convictions.  The full report also contains wrenching examples of truly innocent people falsely caught up in the system.
  • The procedure for convicting a defendant of a crime is set by law: unless the defendant pleads guilty, he must be convicted at a trial before a judge or a jury by proof beyond a reasonable doubt.
  • There is no set legal procedure for deciding that a convicted defendant is innocent when subsequent proof of innocent surfaces.
  • Persons convicted of a crime can appeal but
    • Appeals are mostly based on some misapplication of law at trial
    • New evidence cannot be presented to win a chance to appeal
    • Accuracy of the trial court’s judgment is not reviewed
    • Winning an appeal triggers a new trial, not an exoneration
  • Most exonerated defendants have their convictions vacated by courts at some point, but that almost always occurs in some form of “collateral review” or “extraordinary relief” proceeding after the process of ordinary appellate review has run its course, which can take years.
All told, we know of 873 individual exonerations from January 1989 through February 2012. For these exonerees:
·          93% were men (816/873) and 7% were women (57/873).10
  • We know the race of the defendants in 92% of the cases (802/873):
    • 50% were black (399/802),
    • 38% were white (303/802),
    • 11% were Hispanic (86/802), and
    • 2% were Native American or Asian (14/802).
  • 8% pled guilty (71/873) and the rest were convicted at trial – 87% by juries and 8% by judges.
  • 37% were cleared at least in part with the help of DNA evidence (325/873).
  • 63% were cleared without DNA evidence (548/873).
  • Almost all had been in prison for years; half for at least 10 years; more than 75% for at least 5 years.
  • As a group, the defendants had spent more than 10,000 years in prison for crimes for which they should not have been convicted – an average of more than 11 years each
As a procedural matter, these exonerations occurred in several ways; in some cases, in more than one way:
113 Pardons: Governors issued pardons based on evidence of the defendants’ innocence.  In 41 cases of defendants whose charges had previously been dismissed, and three who had been acquitted on retrial by a jury or a judge.
673 Dismissals: Criminal charges were dismissed by courts, generally on
motion by the prosecution, after new evidence of innocence emerged.
76 Acquittals: Defendants were acquitted on retrial on the basis of newly
presented evidence that they were not guilty.
11 Certificates of Innocence: In a small number of cases courts have issued “certificates of innocence,” “declarations of wrongful imprisonment,” or similar judgments of innocence.
10 Posthumous Exonerations: Ten defendants received posthumous exonerations; two of them also received a judicial declaration of innocence.
The 2003 Report divided the exonerations it listed into four crime categories: Murder
(including a few manslaughter convictions), Rape (including other sexual assaults), Other
Crimes of Violence, and Drug and Property Crimes.30 In Table 1 we compare the cases in the 2003 Report and those in the National Registry, using those classifications.
Exonerations by Category of Crime
1989 – 2003 REPORT
1989 – 2012 REPORT
Murder (including manslaughter)
60% (205)
48% (416)
Rape (and other sexual assaults)
36% (121)
35% (305)
Adult Victims
30% (103)
23% (203)
Minor Victims
5% (18)
12% (102)
Other Crimes of Violence
3% (11)
11% (94)
Drug and Property Crimes
1% (3)
7% (58)
100% (340)
100% (873)
The overall average is 11.9 years from conviction to exoneration, 13.0 years from arrest. The range varies greatly. Exoneration generally takes long when the crime is more serious.
Time to Exoneration: All Crimes (Five-Year Moving Average)
Black defendants are heavily overrepresented among exonerees: they are heavily overrepresented among those arrested and imprisoned for violent crimes and drug crimes. But the disproportions we see are greater than what one would expect. In 2000, for example, 46% of state and federal prisoners were black; in 2008, that  proportion was 38%.42Using either bench mark, black exonerees, at 50%, are somewhat overrepresented among all exonerees – but this disparity is unevenly distributed. In 2008, 43% of homicide prisoners were black,43 only slightly fewer than the 49% of homicide exonerees who were black. For robbery, the difference is greater: 52% of prisoners and 64% of exonerees were black; for drug crimes, 45% of prisoners and 60% of exonerees were black (but the number of cases is small). Finally, for sexual assault, the difference is huge: 25% of prisoners, but 63% of exonerees were black.
The 873 exonerations in the Registry come from 43 states, the District of Columbia, the
Commonwealth of Puerto Rico, 19 federal districts, and the military. They are very unevenly distributed by state, and especially when broke down by county. This suggests we are missing many cases – both innocent defendants from jurisdictions where exonerations are vanishingly rare, and exonerated defendants whose cases have received little or no public attention.  Two-thirds of all exonerations occur in just 10 states. In the most recent report, Excluding Federal cases, the top 10 states account for 64% of all exonerations. They are:
1. Illinois 101
2. New York 88
3. Texas 84
4. California 79
5. Michigan 35
6. Louisiana 34
7  Florida 32
8. Ohio 28
9. Massachusetts 27
10. Pennsylvania 27
There is a well-known list of factors that are associated with exonerations: eyewitness
misidentification, false confession, perjury, false or misleading forensic evidence, official
misconduct.  More than one factor may be present in a false conviction.  For all exonerations, the most common causal factors are perjury or false accusation (51%), mistaken eyewitness identification (43%), and official misconduct (42%).  For 104 exonerations, our information includes clear evidence of severely inadequate legal defense, but we believe that many more of the exonerated defendants – perhaps a clear majority – would not have been convicted in the first instance if their lawyers had done good work.
The most important thing we know about false convictions is that they happen and on a regular basis. We don’t know how often they occur or what types of cases are most common. Most false convictions never see the light of day. We know only about the rare ones that are discovered and corrected (at least in part) by exoneration – and we miss many cases in which innocent defendants are exonerated, probably most. We do know that the more we look, the more exonerations we find, and the more varied they are.
The most important goal of the criminal justice system is accuracy: to identify and condemn the guilty, and to clear the innocent. The most effective way to do so is by careful, honest and open minded work before conviction, in the investigation and prosecution of criminal charges.
The next most important task is to remain open minded after conviction about the possibility of error. The overwhelming majority of convicted defendants are guilty. Most never dispute their guilt and few ever present substantial post-conviction evidence of innocence. When that does happen, however, it should be taken seriously. We know of many exonerated defendants who were imprisoned for years, even decades after they presented strong evidence of their innocence.  We cannot prevent all false convictions, but we must not compound these tragedies by stubbornness or arrogance or, worst of all, indifference.
The National Registry of Exonerations is the largest database of its kind ever assembled. We have already learned a great deal from it. In particular, it is now clear that false convictions are not one sort of problem but several, and that the solutions that might prevent them vary drastically from one context to another: For homicides, the biggest problem is perjury and false accusation, most often by supposed eyewitnesses, with official misconduct a close second. False convictions in adult rape cases, on the other hand, are primarily based on eyewitness mistakes – more often than not, mistakes by white victims falsely identifying black defendants. Most false convictions in child sex abuse cases, by contrast, are for fabricated crimes that never occurred.  And so forth.
We will learn more as the Registry matures and we gather data about a larger number of
exonerations across a wider range of settings. The more we learn about false convictions the better able we will be to prevent them, or failing that, to identify and correct them after the fact.

The Death Penalty in Alabama: Judge Override

Equal Justice initiative
122 Commerce Street
MontgomeryAlabama 36104
July 2011


No capital sentencing procedure in the united States has come under more criticism as unreliable, unpredictable, and arbitrary than the unique Alabama practice of  permitting elected trial judges to override jury verdicts of life and impose death sentences.

  • Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment.
  • Since 1976, Alabama judges have overridden jury verdicts 107 times. Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.
  • Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override.
  • Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country. Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.
  • Override is legal in only three states: Alabama, Delaware, and Florida. However, Florida and Delaware have strict standards for override. No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999. In Delaware and Florida, override often is used to overrule jury death verdicts and impose life – which rarely happens in Alabama.
  • Alabama’s trial and appellate court judges are elected. Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment, political pressure injects unfairness and arbitrariness into override decisions.
  • Override rates fluctuate wildly from year to year. The proportion of death sentences imposed by override often is elevated in election years. In 2008, 30% of new death sentences were imposed by judge override, compared to 7% in 1997, a non-election year. In some years, half of all death sentences imposed in Alabama have been the result of override.
  • There is evidence that elected judges override jury life verdicts in cases involving white victims much more frequently than in cases involving victims who are black. Seventy-five percent of all death sentences imposed by override involve white victims, even though less than 35% of all homicide victims in Alabama are white.
  • Some sentencing orders in cases where judges have overridden jury verdicts make reference to the race of the offender and reveal illegal bias and race-consciousness. in one case, the judge explained that he previously had sentenced three black defendants to death so he decided to override the jury’s life verdict for a white defendant to balance out his sentencing record.
  • Some judges in Montgomery and Mobile Counties persistently reject jury life verdicts to impose death. Two Mobile County judges, Braxton Kitrell and Ferrill McRae, have overruled 11 life verdicts to impose death. Former Montgomery County Judge Randall Homas overrode five jury life verdicts to impose the death penalty.
  • There are considerably fewer obstacles to obtaining a jury verdict of death in Alabama because, unlike in most states with the death penalty, prosecutors in Alabama are not required to obtain a unanimous jury verdict; they can obtain a death verdict with only ten juror votes for death. Capital juries in Alabama already are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.

Evidence That Juvenile Jails Don’t Work

What follows  is important information needed to understand our juvenile justice system and how it is failing us in many ways.  The evidence suggests that jailing juveniles doesn’t rehabilitate and appears to cause more harm than good.  This was originally posted earlier this year, but in light of renewed discussions on how to curb violence in America, a review of our Juvenile Justice system is appropriate.

No Place for Kids: The Case for Reducing Juvenile Incarceration

The Annie E. Casey Foundation’s new report, No Place for Kids: The Case for Reducing Juvenile Incarceration assembles a vast array of evidence to demonstrate that incarcerating kids doesn’t work: Youth prisons do not reduce future offending, they waste taxpayer dollars, and they frequently expose youth to dangerous and abusive conditions. The report also shows that many states have substantially reduced their juvenile correctional facility populations in recent years, and it finds that these states have seen no resulting increase in juvenile crime or violence. Finally, the report highlights successful reform efforts from several states and provides recommendations for how states can reduce juvenile incarceration rates and redesign their juvenile correction systems to better serve young people and the public.


State-level data:


Download the Map of Recurring Maltreatment in Juvenile Correctional Facilities in the U.S. (2.17 KB)

Gun Homicide Rate 22 Times Higher Than Other Advanced Nations

The following was just published in October.  Given the events of yesterday it is worth going back to read this again.  Clearly we need to reconsider some sensible changes to our gun laws to keep them out of the hands of people who are emotionally unstable, domestic abusers and criminals.  We should also have a national law against gun trafficking (crazy that we don’t).

From: John Hopkins Bloomberg School of Public Health

October 25, 2012

Restricting High-Risk Individuals from Owning Guns Saves Lives

On July 20, a gunman in Aurora, Colorado, used an assault rifle to murder 12 people and wound 58 others. Although this was one of the worst mass shootings in U.S. history, all mass shootings account for a small percentage of gun violence that occurs in the U.S. every day. In the past 100 days since the Aurora shooting, an estimated 3,035 Americans have died as a result of gun violence.

new report by researchers at the Johns Hopkins Bloomberg School of Public Health examines policies and initiatives for reducing gun violence in the U.S. by reforming current gun policies. The report, a synthesis of prior research and analysis conducted by researchers with the Johns Hopkins Center for Gun Policy and Research, includes the following key findings:

  • Easy access to firearms with large-capacity magazines facilitates higher casualties in mass shootings.
  • “Right-to-carry” gun laws do not reduce violent crime.
  • Prohibiting high-risk groups from having guns–criminals, perpetrators of domestic violence, youths under age 21, substance abusers, and those with severe mental illnesses–and closing loopholes that enable them to have guns are integral and politically feasible steps to reduce gun violence. 

Please go to the new report (above) or the full News Release.