As reported by the London Telegraph, here is yet another reason why David Cameron, the British Conservative Party (a/k/a Tory) leader is a considered a lock to defeat hapless Prime Minister Gordon Brown of the Labor Party in the spring election:
Jack Straw has admitted that the Government caved in to Libyan demands to include the Lockerbie bomber in a prisoner transfer deal.
The Justice Secretary said that he originally wanted Abdelbaset Ali Mohmed al Megrahi omitted from the agreement, but then relented, deciding the bomber should be eligible.
He said that the Libyans deserved “something” in return for giving up their nuclear weapons programme, but vehemently denied striking a “backdoor deal” over Megrahi.
Shortly after the reversal of Britain’s stance, a multi-billion pound oil exploration agreement between Libya and BP was rubber-stamped.
Mr Straw insisted that the disclosures were a “red herring” as Kenny MacAskill, the Scottish justice minister, made the final decision on Megrahi’s release.
Opposition parties are calling the release of the Lckerbie bomber a "terrorist for trade" deal.
As we suggested in a previous posting, former Department of Homeland Security boss Tom Ridge is backpedaling on his marketing-driven claim that politics entered into the pre-election national terror-threat level. From USA Today:
Former Homeland Security secretary Tom Ridge, speaking for the first time about accusations made in his new book, says he did not mean to suggest that other top Bush administration officials were playing politics with the nation's security before the 2004 presidential election.
"I'm not second-guessing my colleagues," Ridge said in an interview about The Test of Our Times, which comes out Tuesday and recounts his experiences as head of the nation's homeland security efforts in the first several years after the Sept. 11, 2001, attacks...
His most explosive accusation: that Secretary of Defense Donald Rumsfeld and Attorney General John Ashcroft pressed him to raise the national threat level after Osama bin Laden released a videotape criticizing President Bush shortly before Election Day 2004. Ridge writes he rejected raising the level because bin Laden had released nearly 20 such tapes since 9/11 and the latest contained nothing suggesting an imminent threat...
Now, Ridge says he did not mean to suggest he was pressured to raise the threat level, and he is not accusing anyone of trying to boost Bush in the polls. "I was never pressured," Ridge said.
On Good Morning America today, Ridge said that "a lot of people are hyperventilating about that passage," but he suggested that "this was one of several times that the process worked" since ultimately the threat level was not elevated. He said he never questioned "any of my colleagues' motives or rationales."
"I think [Cheney is] right, pure and simple," Ridge said on 'Good Morning America' Monday. Ridge said of Holder's decision, "it's wrong, it’s chilling, and it’s inappropriate."
Agree or disagree, the former VP provides a compelling interview on FNC about national security. On the impending investigation of CIA interrogators, Cheney said: "I just think it's an outrageous precedent to set, to have this kind of, I think, intensely partisan, politicized look-back at the prior administration."
This is the type of legislation that federal solons would have liked to slip through without anyone noticing. Imagine the media firestorm and outcry from so-called civil libertarians and privacy advocates if Bush was still in office.
Internet companies and civil liberties groups were alarmed this spring when a U.S. Senate bill proposed handing the White House the power to disconnect private-sector computers from the Internet.
They're not much happier about a revised version that aides to Sen. Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNET News has obtained a copy of the 55-page draft of S.773 (excerpt), which still appears to permit the president to seize temporary control of private-sector networks during a so-called cybersecurity emergency.
The new version would allow the president to "declare a cybersecurity emergency" relating to "non-governmental" computer networks and do what's necessary to respond to the threat. Other sections of the proposal include a federal certification program for "cybersecurity professionals," and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license.
"I think the redraft, while improved, remains troubling due to its vagueness," said Larry Clinton, president of the Internet Security Alliance, which counts representatives of Verizon, Verisign, Nortel, and Carnegie Mellon University on its board. "It is unclear what authority Sen. Rockefeller thinks is necessary over the private sector. Unless this is clarified, we cannot properly analyze, let alone support the bill."
Just asking--could there be an ulterior motive in play? In general, what is the basis for granting these sweeping powers in a free society? Also, since the private sector would take the lead in restoring services after a large-scale cyberattack, why is this bill even necessary? More about this proposed legislation here.
In an August 27 statement, DHS "announced new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry." However, the Washington Post says the policies aren't really new:
The Obama administration will largely preserve Bush-era procedures allowing the government to search -- without suspicion of wrongdoing -- the contents of a traveler's laptop computer, cellphone or other electronic device, although officials said new policies would expand oversight of such inspections.
The policy, disclosed Thursday in a pair of Department of Homeland Security directives, describes more fully than did the Bush administration the procedures by which travelers' laptops, iPods, cameras and other digital devices can be searched and seized when they cross a U.S. border. And it sets time limits for completing searches.
But representatives of civil liberties and travelers groups say they see little substantive difference between the Bush-era policy, which prompted controversy, and this one.
Separately, a corruption investigation of Gov. Bill Richardson is apparently all for naught:
New Mexico Gov. Bill Richardson and former high-ranking members of his administration won't be criminally charged in a yearlong federal investigation into pay-to-play allegations involving one of the Democratic governor's large political donors, someone familiar with the case said.
The decision not to pursue indictments was made by top Justice Department officials, according to a person familiar with the investigation, who asked not to be identified because federal officials had not disclosed results of the probe.
"It's over. There's nothing. It was killed in Washington," the person told The Associated Press.
So, the Justice Dept won't prosecute Richardson, won't prosecute those individuals intimidating voters in Philadelphia, but will prosecute CIA interrogators while at the same time trying to come up with reasons to set terrorists free. And they said the Bush Justice Department was politicized?
Physical and mental fitness (and diet) are going to be even more important if socialized medicine gets pushed through against the wishes of the American people. Once that takes effect, we'll need to further emphasize self-sufficient lifestyle choices to avoid winding up in the clutches of what will be a horribly failed system. The lawyers often call this approach “self help.”
Most of the national media (with the exception of one news network, a few newspapers, and talk radio) are too busy being stenographers for the administration and the Democrats to grasp what's really going on. As the New York Post describes:
It's been a hilarious August, watching media supporters of President Obama's health care package puzzle over the obscure motivations of the noncompliant Americans rallying against it...
While the commentariat's condescension is almost comical, the whole evil-or-stupid explanation misses the elephant in Obama's room: Americans of all stripes, it turns out, aren't very keen about the government barging into their lives...
After 11 months of federal bailouts and freakouts, Americans have become bone tired of panicky power grabs from Washington. It's the big government, stupid.
The message of the various Tea Party protests, which predated this summer's ahistorical media panic over town hall "lynch mobs," has been pretty simple, says Matt Kibbe, president of FreedomWorks, the nonprofit that has helped organize the protests, told Reason magazine this spring. "It was: stop spending so much money, stop borrowing so much money, and stop bailing out people who were irresponsible."
Anyway, the point we're making is that it's all good for the local health club to have at least some of the flat-screen TVs in the cardio area tuned to cable news. But that also means that the tedious Obama permanent campaign gets inflicted on anyone working out on the stationary bikes, stairmasters, and so forth. As Valerie Cherish, in one of her catchphrases from The Comeback, would say, "I don't need to see that!"
The living rooms of America are a different matter: Thank goodness for Animal Planet, the Food Network, NatGeo, and other channels, which so far haven't been compromised or politicized (as far as we know, anyway). Even ESPN sadly is no longer safe from politicization.
With its disappearing market share, the mainstream national news media has found itself in a downward spiral. Unfortunately the big media still sets the news agenda to a large degree. With some exceptions mentioned above, most of the America media is blatantly in the tank for the current administration and the Democrats generally (with the exception of Hillary Clinton of 2008 vintage). As we've previously noted, in the year 2008, the fourth estate went morally as well as financially bankrupt.
And while we often try to avoid the nauseating administration lapdogs that dominate most of the national media precincts, we're fortunate that excellent websites and blogs keep readers on the top of the latest one-sided excesses in electronic and print media bias--so that we don't always actually have to watch. In general, taking a vacation from the news cycle can also be very beneficial.
Those aforementioned websites also do a fantastic job in covering developments that most of the national journalists avoid at all costs.
Our view is that all politicians regardless of affiliation should be treated with the same level of scrutiny. With that in mind, we made a list in no particular order of how the media reports on--or not--equivalent political events or issues.
Please feel free to forward additional double-standard examples to us, as this list is by no means exhaustive, and we will otherwise continue to add to it.
As a further public service, we include the crickets sound effect (well known to political- and sports-talk radio fans) to signify instances when the so-called mainstream media ignores--primarily for ideological reasons--a legitimate news story.
===================================
Bush fires 9 U.S. Attorneys. Media response: Headlines, demands for investigation, saturation coverage
Clinton fires 93 U.S. Attorneys. Media response: crickets
===================================
Bush appoints Texas associates to Executive Branch positions: Media response: blatant cronyism, corruption
Obama appoints Chicago associates to Executive Branch positions: Media response: crickets
===================================
Bush politicizes Justice Department: Media response:
saturation coverage culminating in high-level investigation
Obama politicizes Justice Department: Media response: crickets
====================================
Republican lawmaker caught in scandal. Media response::
saturation coverage; mention party affiliation in first sentence
Democrat lawmaker caught in scandal. Media response:
never mention party affiliation, assuming story isn't spiked in the first place
====================================
Bush works out, plays golf, goes on vacation. Media response::
obsessive waste of time, shirking his duties, insensitive in time
of war
Obama works out, plays golf, goes on vacation. Media response:
a glorious affirmation of youthful vitality in the presidency
====================================
Nancy Reagan wears designer clothes: Media response::
corruption, decadence and insensitivity in White House
Michelle Obama wears designer clothes: Media response:
A glorious affirmation of style and glamour in the White House
=====================================
Domestic and (international) protests during Bush administration. Media response: citizens exercising their freedom of speech,
legitimate form of public discourse
Ordinary citizens confronting lawmakers at healthcare townhalls during Obama administration: Media response: angry mobs, paid organizers, racists, brownshirts, "astroturf"
Corollary: Democrats send busloads of union and
ACORN members to pack healthcare town halls. Media response: crickets
=====================================
Bush administration engages in counter-terrorism surveillance: Media response: assault on civil liberties, shredding the Constitution
Obama administration collects names and email addresses of
those citizens opposed to its healthcare reform polices: Media response: crickets
Extensive ACORN multiple state vote fraud in 2008 election. Media response: crickets
=====================================
Cheney meets privately with energy industry officials. Media response: corrupt practices in White House,
demands for investigation
Obama meets privately with pharmaceutical industry officials. Media response: crickets
=====================================
Bush compared to Hitler, caricatured, etc. Media response:
citizens exercising freedom of speech
Obama compared to Hitler, caricatured, etc. Media response:
citizens engaging in racist acts
=====================================
Bush invokes God, refers to his his religious faith. Media response:
violation of church and state, religious zealotry
Obama invokes God, refers to his his religious faith. Media response: crickets
=====================================
Extensive media focus on John McCain's health and age
(even though age discrimination is against the law).
John McCain releases his medical records.
Coverage of health of Bill Clinton (obesity) or
Barack Obama (lifetime cigarette smoker). Neither
candidate releases medical records. Media response: You guessed it--crickets
======================================
Sarah Palin's background in Alaska. Media response:
Sends hundreds of reporters to dig up dirt on the governor.
Obama's background in Chicago. Media response: crickets
======================================
Sarah Palin's gaffes and misstatements (real or imagined). Media response: saturation coverage
Obama/Bidens gaffes and misstatements (real). Media response: crickets
======================================
NBC reporter Norah O'Donnell criticizes Sarah Palin for
neglecting her family in favor of seeking the vice presidency.
NBC reporter Norah O'Donnell (or anyone else) omits mentioning
that she (O'Donnell) has three small children at home.
=======================================
John Kerry's Vietnam Service. Media response:
constantly mentioned during 2004 presidential campaign
Bob Dole's bravery on the WWII battlefield. Media response during 1996 presidential
campaign: crickets
=======================================
Media in general celebrates/promotes teen promiscuity
Gov. Palin's daughter becomes pregnant: Media response:
Teen promiscuity is no longer worth celebrating or promoting
Just to lighten the mood a bit...you remember the wedding entrance video that went bigtime viral, right? Well, here's the flip side--the divorce court entrance!
How does an administration respond when its domestic agenda verges on imploding? It's generally called "Operation Change The Subject," through a manufactured scandal and a related witchhunt.
The Obama administration launched a criminal investigation Monday into harsh questioning of detainees during President George W. Bush's war on terrorism, revealing CIA interrogators' threats to kill one suspect's children and to force another to watch his mother sexually assaulted.
At the same time, President Barack Obama ordered changes in future interrogations, bringing in other agencies besides the CIA under the direction of the FBI and supervised by his own national security adviser. The administration pledged questioning would be controlled by the Army Field Manual, with strict rules on tactics, and said the White House would keep its hands off the professional investigators doing the work.
Despite the announcement of the criminal probe, several Obama spokesmen declared anew—as the president has repeatedly—that on the subject of detainee interrogation he "wants to look forward, not back" at Bush tactics. They took pains to say decisions on any prosecutions would be up to Attorney General Eric Holder, not the White House.
Monday's five-year-old report by the CIA's inspector general, newly declassified and released under a federal court's orders, described severe tactics used by interrogators on terror suspects after the Sept. 11, 2001, attacks. Seeking information about possible further attacks, interrogators threatened one detainee with a gun and a power drill and tried to frighten another with a mock execution of another prisoner.
It remains to be seen if there is any legal culpability on the part of the interrogators, but this administration has a unique approach to homeland security: try to release the bad guys, and prosecute the (arguably) good guys. And harsher techniques have been on display in any given episode of The Shield.
AG Holder tapped New Haven, CT, career federal prosecutor John Durham to conduct the initial investigation into whether there is enough evidence to warrant a full investigation of whether current or former CIA employees violated anti-torture or other laws while questioning high-value terror detainees.
Writing in the Washington Post, former CIA general counsel Jeffery Smith provides six reasons why such prosecutions would not be in the national interest:
•These techniques were authorized by the president and approved by the Justice Department. The relevant committees of Congress were briefed. Although the Justice Department's initial legal opinions were badly flawed, the fact remains that the agency responsible for interpreting and enforcing the law said the techniques were "legal." That alone will make prosecutions very difficult.
•the CIA provided the inspector general's report to the Justice Department in 2004. Justice has not prosecuted any CIA officers but did successfully prosecute a contractor who beat a detainee to death, an incident that was initially reported to the department by the CIA...Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.
• after Justice declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses.
•prosecuting CIA officers risks chilling current intelligence operations.
• prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world.
• President Obama has decisively changed the policies that caused so much damage.
Apparently the administration may continue the controversial rendition policy.
This Time Magazine article details the linkage between California fires and drug trafficking:
The damage they do to society is well-known, but drug traffickers, it turns out, also aren't the most environmentally-minded campers. Law enforcement officials say that a wildfire now raging in Santa Barbara's Los Padres National park, burning more than 136 square miles, was sparked by a cooking fire started by the hirelings of a Mexican drug cartel which was growing thousands of marijuana plants in the remote canyons.
Far from an isolated incident, the Los Padres fire, according to law enforcement agents, highlights an alarming trend: the invasion of California wilderness and parklands by armed Mexican drug cartels. Firefighters discovered more than 30,000 pot plants growing near the Santa Barbara blaze. Pushed north by a Mexican army crack-down, tougher border controls, and violent gang wars back home that have led to hundreds of killings, these cartels view California's 31 million acres of wilderness as a green El Dorado for marijuana cultivation. Not only is it closer to millions of eager American pot-smokers, but this vast expanse of land is simply too big for the state's sheriffs and forest rangers to monitor.
What happened to the initiatives to move National Guard troops to our southern border?
The Washington Post reveals the latest outrage from the detainee lobby, and we're pretty confident that these "civil libertarians" weren't looking at publicity photos for the new season of America's Next Top Model.
The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.
Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency's interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.
If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify.
The photos were taken by researchers hired by the John Adams Project, a joint effort of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, to support military counsel at Guantanamo Bay, according to the sources, who spoke on the condition of anonymity because of the sensitive nature of the inquiry. It was unclear whether the Justice Department is also examining those organizations.
Both groups have long said that they will zealously investigate the CIA's interrogation program at "black sites" worldwide as part of the defense of their clients. But government investigators are now looking into whether the defense team went too far by allegedly showing the detainees the photos of CIA officers, in some cases surreptitiously taken outside their homes...
Tracking international CIA-chartered flights, researchers have identified hotels in Europe where CIA personnel or contractors stayed. In some cases, through hotel phone records, they have been able to identify agency employees who jeopardized their cover by dialing numbers in the United States. Working from these lists, some of which include up to 45 names, researchers photographed agency workers and obtained other photos from public records, the sources said.
Remember the hue and cry and media group-think when one CIA paper shuffler was allegedly outed in a phony scandal? Now we have what appears to be a real, legitimate threat to the safety of multiple U.S. counterterrorism operatives. What of their privacy rights? And would John Adams really approve?
A guest editorial posted at CNet.com predicts the end of privacy as we know it:
Internet denizens and urban dwellers alike need to recognize that an era of anonymity is ending.
The population of the world stands at about 7 billion. So it takes only 10 digits to label each human being on the planet uniquely.
This simple arithmetic observation offers powerful insight into the limits of privacy. It dictates something we might call the 10-Digit Rule: just 10 digits or so of distinctive personal information are enough to identify you uniquely. They're enough to strip away your anonymity on the Internet or call out your name as you walk down the street. The 10-Digit Rule means that as our electronic gadgets grow chattier, and databases swell, we must accept that in most walks of life, we'll soon be wearing our names on our foreheads.
A study of 1990 U.S. Census data revealed that 87 percent of the people in the United States were uniquely identifiable with just three pieces of information (PDF): five-digit ZIP code, gender, and date of birth. Internet surfers today spew considerably more information than that. Web sites can pinpoint our geographical locations, computer models, and browser types, and they can silently track us using cookies. Banking sites even confirm our identities by verifying that our log-ins take place at consistent times of day...
Our physical belongings also betray our anonymity by silently calling out identity-betraying digits. Small wireless microchips--often called radio frequency identification, or RFID, tags--reside in car keys, credit cards, passports, building entrance badges, and transit passes. They emit unique serial numbers. Once linked to our names--when we make credit card purchases, for instance--these microchips enable us to be tracked without our realizing it.
Top officials from the George W. Bush White House are disputing claims in former Homeland Security Secretary Tom Ridge’s coming book that they pressured him to adjust the terror threat level for political gain.
“We went over backwards repeatedly and with great discipline to make sure politics did not influence any national security and homeland security decisions,” former White House chief of staff Andy Card told POLITICO. “The clear instructions were to make sure politics never influenced anything.
Ridge's allegation is disturbing, if true. This is the type of story that the media loves to run with, and Ridge will probably be making the rounds of the hand-wringing talk shows before long. To Ridge's credit, he refused to tamper with the pre-election threat level, otherwise we'd already be hearing calls for a special prosecutor (and maybe we'll hear that anyway). There is also some indication that Ridge himself might possibly be backpedaling or at least putting out information inconsistent with previous statements. But one thing to keep mind. In general, when publishers fork over big bucks (or medium bucks) for a boring political memoir that nobody wants to or will read, they also tend to "encourage" the politician/ghostwriter to come up with a sensational revelation to generate buzz. The buzz usually fades quickly along with sales, and before long, the book wind up in the remainder bin anyway.
The lead attorneys in the high-profile New Haven firefighter case that reached the Supreme Court appeared together in a lively August 18 panel discussion called Discrimination Claims After Ricci v. DeStefano.
Victor A. Bolden, New Haven CT Corporation Counsel, and Karen Lee Torre, attorney for the victorious firefighters, proved that individuals can forcefully disagree about a highly charged, highly publicized and sensitive controversy but still engage in a civil, friendly discussion. Each lawyer presented formal remarks followed by a short audience Q&A.
We attended the extremely informative event held before a packed house in the regal Grand Courtroom of Quinnipiac Univ. School of Law in Hamden, Connecticut. Apparently the event was taped by the CT-N Network for replay in the near future.
Background
In its highly anticipated opinion in Ricci et al. v. DeStefano et al., the U.S. Supreme Court in a 5-4 decision ruled on June 29 that a group of 20 New Haven, CT, firefighters were wrongfully denied promotions despite their passing grades on the lieutenant and captain test when the city decided to toss the exam results.
This landmark decision overturned a ruling in favor of the city by then-Judge Sotomayor and two of her colleagues on the U.S. Court of Appeals for the 2nd Circuit.
Further background on this case be found here and here.
Two Perspectives
Attorneys Bolden and Torre disagreed somewhat about the application of the new "strong basis in evidence" rule as enunciated without specific precision by the high court. This rule requires the existence of strong body of proof of a discriminatory employment practice before an employer can proactively take steps to fix the situation--which in New Haven's case was ignoring the test results.
As reported by local media covering the event, Bolden "predicted municipalities nationwide would struggle mightily for years in trying to apply [the] new legal standard." Torre agreed to some extent that the rule is murky--"she said the court did provide a road map by showing what isn't one: stray remarks, lobbying of minority power brokers and testimony from hired-gun experts and disgruntled test takers, as she maintains happened in New Haven." Lower courts will have to grapple with this new rule for years to come.
During the Q&A, Torre contended that a trial lawyer can get an expert to testify that "the sun rises in the west and the tooth fairy was witness to it," especially when it comes to rival test developers.
Torre also commented that disparate impact can emerge in all occupational exams, such as the bar exam, medical boards, and testing for stock broker licensing. But the litigation has primarily focused on civil service. Disparity in testing outcomes doesn't always mean discrimination, she added. Title VII is an equal opportunity law--"you have no right to a job. You only have a right to far consideration based on your qualifications and your ability to do the job."
What is the New Standard?
Led by Justice Kennedy, the high court explained its new rule as follows:
We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute…
Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action...
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim…
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability...
Back to the Panel Discussion
Both litigators came across as professional, reasonable, and sincere, but Bolden seemed to go with vague generalities along with a stated wish to not "relitigate" the case (which may be wholly understandable given the constraints of his municipal job duties). Although each obviously put their own spin on the outcome, Bolden's often non-committal presentation seemed to lack specificity, while Torre seemed more in command of both the facts and the law revolving around Ricci. The difference in approach is reflected in the content of this posting.
University of Connecticut Law School Prof. Sachin S. Pandya kicked off the discussion with a relatively brief explanation of the difference between the legal doctrines of disparate treatment and disparate impact in employment discrimination cases under Title VII of the U.S. Civil Rights Act.
Title VII, originally enacted in 1964, is the nation's primary civil rights law, that makes it illegal for an employer to discriminate on the basis of race, color, religion, sex, or national origin. Similar statutes, which sometimes contain additional protections, have been enacted at the state level.
To make a long story sort of short, disparate treatment or overt discrimination directly affects an employee or applicant who must establish a prima facie case of discrimination. The burden of proof then shifts to the employer to establish a legitimate nondiscriminatory reason for its hiring decision. In rebuttal, the plaintiff has the opportunity to show that the state reason was pretext discrimination. The disparate impact claim (the principal issue in Ricci) centers on an outcome, regardless of the motive of the employer. The employer has the opportunity to then establish it acted on the basis of job-related business necessity, while the plaintiff can respond with a showing that the employer could have used an available alternative, nondiscriminatory practice.
In other words, disparate-impact claims attack a neutral policy or practice that has a disproportionately negative impact on a statutorily-protected group. Disparate-impact claims do not require proof of an intent to discriminate.
Pandya said that the City of New Haven declined to certify the promotional results based on fears of losing a disparate impact lawsuit. It found itself in a no-win situation. But that under Ricci, even a well-intentioned employer shouldn't take race into consideration.
Attorney for the Petitioners
Next, Torre then spoke about the case from her perspective.
Torre remarked that the fact summary of Justice Kennedy's majority opinion was good but "sterile." Justice Alito's concurrence, she said, more fully addressed the behind-the-scenes "dirt," i.e., the politically and racially charged context in the New Haven civil service. According to Torre, Ricci was about "crude race mongering."
Torre said her extensive research revealed that reverse discrimination lawsuits in connection with public sector test results primarily concentrate in public safety and public schools. Police and fire department promotions coast to coast have become paralyzed by disparate impact litigation, she recalled.
Torre claimed that disparate impact is a judge-created doctrine and does not appear in the text of Title VII. In 1971, the high court in Griggs v. Duke Power Co. interpreted Title VII to prohibit an employer's facially neutral (i.e., on its face) employment practices if these practices are discriminatory in operation. In Griggs, the so-called touchstone for disparate impact liability is the lack of business necessity. If an employment practice which operates to exclude minorities cannot be shown to be related to job performance, the practice is prohibited.
According to Torre, liberal jurists misused and exploited the Griggs holding to guarantee equal results rather than opportunity, something Congress never intended. This is a body of law built up by activist judges rather than by statute. In 1991 amendments to Title VII, Congress said no to quotas, and also said don't tamper with civil service tests or manipulate the results on the basis of race. She also emphasized that the city of New Haven conceded that the test in question was job related.
Contrary to what was reported in the media, Torre explained that there was no precedent for either the District Court or the Second Circuit's ruling in favor of the city. This disinformation was an attempt by the media to run interference for the Sotomayor nomination, she said.
During a brief Q&A session that followed the lawyers' formal remarks, Torre maintained that employers all over the country have engaged in manipulating test scores to equalize racial outcomes. But there was no legal precedent for throwing out an entire test, because Congress has expressly disallowed so-called "race norming."
The District Court decision by Janet Bond Arterton, a Clinton appointee, was a departure from Title VII jurisprudence, Torre contends. The judge erred in ruling that an employer can ignore test results if you don't like the outcome. And contrary to the District Court holding, diversity and role models were factors explicitly rejected by the Supreme Court 15 years ago. The Supreme Court's majority opinion corrected the District Court's erroneous application of precedent, she said.
Torres said that Ricci will have its greatest impact in the highly politicized public sector. She predicated that far fewer similar disputes will emerge in the private sector where employers will be more inclined to us legally valid job-related tests and act on them. Many municipalities, she added will try to get around Ricci where elected officials are subject to the push and pull of politics. Disparate impact leads to the "worst kind" of political pressure, she said.
Attorney for the Respondents
In his presentation, Attorney Bolden recounted the history and context of the case, which included three decades of successful lawsuits in New Haven by black firefighters over hiring and promotions in the run-up to the Ricci litigation. He indicated that the situation forced the city to try to balance the competing priorities of disparate treatment and disparate impact against each other, and that the city would have been sued one way or another. Bolden further noted that disparate impact did not "originate" in New Haven. For example, under guidance issued by the U.S. Equal Employment Opportunity Commission, disparate impact is presumed only if the minority success rate on a given test is less than 80 percent of the success rate of the majority group.
Bolden said that he is concentrating on how to move forward on civil service promotions in compliance with the somewhat fuzzy strong basis in evidence standard in a way that is productive, i.e., what is the best way to determine who will be a lieutenant or captain on the New Haven Fire Department. He offered no specifics in accomplishing this goal, other than alluding to possibly changing the weighting of the testing to favor the oral exam. Bolden reaffirmed that the strong basis in evidence standard will pose a real problem for cities such as New Haven and will impose a continuing tension between disparate treatment and impact. And that going forward, treatment will trump impact.
In response to a audience question about the shelf life of Ricci should another reverse discrimination case make its way to the high court, Torre declared that Ricci never will be overruled. It was really a 9-0 decision, she contended, since all nine Justices agreed that the District Court and the Appeals Court were wrong in affirming summary judgment for the city. At the high-court level, the disagreement was whether to remand the case for trial on Title VII liability which the four Justices in the minority wanted to do. The five Justices in the majority, however, determined that the undisputed facts established that New Haven violated Title VII; therefore, vacating the lower court action and entering summary judgment for the firefighters without a trial was the appropriate legal remedy.
Bolden nearly brought down the house when he joked that only a zealous advocate like Karen Torre could twist a 5-4 decision into one that was 9-0!
The Future
Torre also forecasted that the Court will in the coming years take up the issue of whether Title VII's disparate impact provisions violate the U.S. Constitution's equal protection guarantee under the 14th Amendment. If the Court's ideological balance stays the same, which is speculative, the likelihood is that disparate impact doctrine-- depending upon the facts--could be struck down on equal protection grounds. There are several cases pending that will eventually work their up to the Supreme Court. As Justice Scalia wrote in a separate concurrence, "But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."
On an inspirational note, Torre explained that unlike the tenacious New Haven firefighters that she represented who were all in, most litigants won't embark on such a long legal journey after setbacks in lower courts. To get case heard before the Supreme Court, lawyers and their clients must be "audacious, fanciful, and bold."
Patronage vs. Performance
Hiring or promotion decisions can be subjective to some degree even in the best of circumstances. In general, there are terrific employees or potential hires (or college applicants) that simply underperform on standardized tests for whatever reason or combination of reasons; that doesn't in any way make them bad persons. However, isn't it reasonable that employers have the latitude to screen workers with a properly vetted, sufficiently job-related vocational exam at least as one component in the hiring process? (Moreover, in the Internet age, review materials are readily available to any interested party.)
As a practical matter, when a fire breaks out, or the menacing Jason wearing a hockey mask shows up at someone's front door, the public expects the first responders to be the most savvy, strongest, and toughest officers available--irrespective of ethnicity or any other classification. Isn't public safety the fundamental mandate for these agencies rather than to function as a job bank for social engineering?
The Boston Herald reports on an unprecedented increase in currency smuggling, an activity usually linked to drug trafficking and terrorism financing.
The number of people caught trying to sneak cash in and out of the country is skyrocketing nationally and in New England, customs data show, with “hot money” being detected in diaper boxes, money belts, underwear, baby clothes, bras and candy boxes.
Nationally, seizure totals have soared by 50 percent, from about $50 million to $75 million, between 2005 and 2008, according to figures provided to the Sunday Herald by U.S. Customs and Border Protection. Seizure amounts are up 66 percent in New England during the same four years, from $1.5 million to $2.5 million.
According to customs data, at least $2.1 million has been seized in New England during the current fiscal year, and the region is on a pace to hit $3 million for 2009.
The Herald also posts an AP story about the potential danger to homeland security from an electromagnetic pulse attack:
A New York businessman is sounding the alarm on a potential terror threat that he says has not gotten the attention or action it deserves, despite a congressional committee’s finding that the country grows more vulnerable to it by the day.
Henry Schwartz, chairman of Steuben Foods and Elmhurst Dairy, is so concerned that an enemy’s electromagnetic pulse attack could paralyze America that he will gather a group of scientists, congressmen and others for a conference next month on how the country should protect itself...
An electromagentic pulse, or EMP, is a split-second burst of energy that occurs when a nuclear device is detonated high in the atmosphere. A Department of Homeland Security disaster guide for the public explains an EMP "acts like a stroke of lightning but is stronger, faster and shorter."
The National Terror Alert calls our attention to a disturbing and potentially dangerous scenario at the southern border as detailed in a series of reports by Homeland Security Today. The threat assessment involves warring rival drug cartels in Mexico, the rise of Islamist extremism in Latin America, and an alleged alliance between jihadists, drug cartels, and conventional street gangs. According to one expert cited in the material, "the nexus between gangs, other transnational criminal organizations and Islamic fundamentalists is what gangs do and have done for centuries...gangs acting as carriers, security escorts, moving currency, and acting as 'enforcers' is also what gangs do and have done for centuries." Click here to read the entire series of articles.
At the same time, according to AP, "U.S. law officers who work the border are being charged with criminal corruption in numbers not seen before, as drug and immigrant smugglers use money and sometimes sex to buy protection, and internal investigators crack down."
Obama supporter Camille Paglia, the scholar and culture critic, insists she has no buyer's remorse but still concludes that the healthcare reform effort is a "clunker":
Case in point: the administration's grotesque mishandling of healthcare reform, one of the most vital issues facing the nation. Ever since Hillary Clinton's megalomaniacal annihilation of our last best chance at reform in 1993 (all of which was suppressed by the mainstream media when she was running for president), Democrats have been longing for that happy day when this issue would once again be front and center.
But who would have thought that the sober, deliberative Barack Obama would have nothing to propose but vague and slippery promises -- or that he would so easily cede the leadership clout of the executive branch to a chaotic, rapacious, solipsistic Congress? House Speaker Nancy Pelosi, whom I used to admire for her smooth aplomb under pressure, has clearly gone off the deep end with her bizarre rants about legitimate town-hall protests by American citizens. She is doing grievous damage to the party and should immediately step down.
There is plenty of blame to go around. Obama's aggressive endorsement of a healthcare plan that does not even exist yet, except in five competing, fluctuating drafts, makes Washington seem like Cloud Cuckoo Land. The president is promoting the most colossal, brazen bait-and-switch operation since the Bush administration snookered the country into invading Iraq with apocalyptic visions of mushroom clouds over American cities.
You can keep your doctor; you can keep your insurance, if you're happy with it, Obama keeps assuring us in soothing, lullaby tones. Oh, really? And what if my doctor is not the one appointed by the new government medical boards for ruling on my access to tests and specialists? And what if my insurance company goes belly up because of undercutting by its government-bankrolled competitor? Face it: Virtually all nationalized health systems, neither nourished nor updated by profit-driven private investment, eventually lead to rationing.
I just don't get it. Why the insane rush to pass a bill, any bill, in three weeks? And why such an abject failure by the Obama administration to present the issues to the public in a rational, detailed, informational way? The U.S. is gigantic; many of our states are bigger than whole European nations. The bureaucracy required to institute and manage a nationalized health system here would be Byzantine beyond belief and would vampirically absorb whatever savings Obama thinks could be made. And the transition period would be a nightmare of red tape and mammoth screw-ups, which we can ill afford with a faltering economy.
But somehow liberals have drifted into a strange servility toward big government, which they revere as a godlike foster father-mother who can dispense all bounty and magically heal all ills. The ethical collapse of the left was nowhere more evident than in the near total silence of liberal media and Web sites at the Obama administration's outrageous solicitation to private citizens to report unacceptable "casual conversations" to the White House. If Republicans had done this, there would have been an angry explosion by Democrats from coast to coast. I was stunned at the failure of liberals to see the blatant totalitarianism in this incident, which the president should have immediately denounced. His failure to do so implicates him in it.
It is laughably absurd for liberals to attack Americans for exercising their First Amendment rights, when they have organized the following: massive protests that shut down college campuses and, indeed, entire cities during the Vietnam War; marched en masse during the nuclear-freeze movement in the 1980s; organized corporate shakedowns to force race-based initiatives; set up a lawn-chair village outside President George W. Bush's Crawford, Texas, ranch during the Iraq war -- and disrupted congressional hearings, got in the face (literally) of Secretary of State Condoleezza Rice, and called Gen. David H. Petraeus "General Betray Us"; and orchestrated nationwide vote fraud by the Association of Community Organizations for Reform Now and voter intimidation by the New Black Panther Party in Philadelphia. (I could go on, but The Washington Times is only so many pages long.)
So the masters of the organized protest hate it when protesters organize against them.
The artist formerly known as Stuart Smalley and many other politicians elected by slim margins often owe their narrow election victories to "voter outreach"--i.e., ballot fraud by ACORN and other community organizers as facilitated by ethically compromised state officials themselves elected through the Soros-funded Secretary of State Project.
In general, Democrats really come apart at the seams in response to common-sense proposals to require showing a photo ID to vote. They usually block legislation to that effect in state houses where they hold the majority.
Even Mexico, among many other countries, has a more secure voting process than the U.S.
Last year, Democrats even went all the way to the Supreme Court in an unsuccessful bid to set aside an innocuous Indiana photo ID law.
So now NewsBusters reports that a Democrat lawmaker, Rep. Eugene Green of Texas, who opposes photo ID for federal elections, is nonetheless insisting on a photo ID to gain entry to his town hall meetings. This is, of course to verify that attendees live in his district. In other words, you need to bring an ID to talk to him, but not to vote for him.
From AP: The White House continues to be detainee-centric:
The Obama administration plans to place federal employees in the largest immigration detention facilities in the country to monitor detainee treatment.
This oversight role is currently handled by private contractors. But under the new plan, Immigration and Customs Enforcement officials would be placed at the largest jails to directly supervise how the detention centers are managed, according to people briefed on the government's plan.
The government has been criticized for its treatment of immigration detainees, and Homeland Security Secretary Janet Napolitano has made detention policies a top priority for her department.
Separately, DHS is forcing Sheriff Joe in Arizona (and perhaps other similarly situated law enforcement officials) to make a difficult choice under new 278(g) enforcement and detention policies:
Valley residents are getting used to the fanfare and bitter debate that accompany Maricopa County Sheriff Joe Arpaio's "crime suppression operations," like the one in Chandler nearly two weeks ago. It has been 18 months since Arpaio launched the first raid in central Phoenix, but do they work?
Arpaio says "yes": The operations clear warrants, nab illegal immigrants and reinforce the message that illegal immigrants aren't welcome in the county...
It's those undocumented immigrants accused of committing crimes that the federal government now wants local law-enforcement to target. The Department of Homeland Security clarified its policy last month to reiterate that local agencies participating in the 287(g) program should only target "criminal aliens," those who have committed a crime other than illegal border crossing.
Arpaio has less than 90 days to weigh the two strategies as he considers his continued participation in the federal program.
If he accepts the new policy, he can still conduct sweeps, but his deputies will have to release illegal immigrants who have not committed crimes. If that policy had been in effect during the past 18 months, the Sheriff's Office would have had to release 150 of the sweeps detainees. If Arpaio doesn't agree to the terms, he won't be able to continue the identification program in the jails.
U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.
A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.
Current and former CIA and Justice Department officials who have firsthand knowledge of the interrogation files contend that criminal convictions will be difficult to obtain because the quality of evidence is poor and the legal underpinnings have never been tested.
Regardless of the finer points of federal statutes that might make for a riveting discussion in a law school classroom, let's remember one thing. As a practical matter the problem for investigation zealots is that no one outside of the Beltway media echo chamber and the "detainee lobby" cares about this. And in terms of safeguarding America, what purpose will be served (other than self-serving rhetoric) in the course of this investigation by publicly revealing sensitive intelligence techniques or hauling counter-terrorism officials in front of show trials?
According to the Washington Times, the U.S. is editing the bureaucratic lexicon again but seemingly keeping the same policies in place:
It's official. The United States is no longer engaged in a "war on terrorism." Neither is it fighting "jihadists" nor locked in a "global war."
President Obama's top homeland security and counterterrorism official on Thursday declared as unacceptable the terms crafted by the George W. Bush administration.
It is now solely a "war with al Qaeda" and its violent extremist allies, said John Brennan, head of the White House homeland security office, during a speech Thursday at the Center for Strategic and International Studies, a Washington think tank.
The semantic shift is intended to bring precision to the way the president and his aides talk about the nation's efforts to defeat al Qaeda, though Bush administration officials say the policies that are being put to use have not changed dramatically
...Critics on the left and the right have pointed out that the Obama administration has continued such Bush-era policies as extraordinary rendition and drone attacks in Pakistan. There remains an international and domestic surveillance program that is cloaked in mystery, and the war in Afghanistan, where Mr. Obama has increased the number of U.S. troops and the military continues to house enemy combatants at Bagram Air Base. In addition, the White House is still considering the indefinite detention of terrorist suspects
As reported by ABC, Brennan also threw some cold water (so to speak) on the notion of closing the Gitmo jail by the deadline set forth in the executive order:
White House Homeland Security Czar John Brennan Thursday indicated the Obama administration might not make President Obama’s January 22, 2010 deadline to close the Detainee Center at Guantanamo Bay.
"I don’t have a crystal ball,” Brennan said. “At this point it is unknowable exactly how many people will be transferred next week, month, several months and what the conditions on the ground will be on 1 January and 21 January…Everybody is doing everything possible in the administration to realize the President's goal.”
And congratulations to Justice Sotomayor who yesterday received Senate approval of her nomination. Click here for a review of a page-turning book written by one of her new colleagues.
Remember when the Bush administration was routinely blasted for assaulting civil liberties and shredding the Constitution? Those were the good old days. The criticism usually arose in connection with counter-terrorism initiatives, of course, not domestic political dissent. Yet on Monday, the Obama administration put out a call for anyone who encounters any "fishy" information (i.e., information that runs counter to a government-run healthcare system) to forward that information to a designated White House email address. The Washington Examiner and other news outlets and websites wonder how this squares with freedom of speech and personal privacy:
The White House request that members of the public report anyone who is spreading "disinformation" about the proposed national health care makeover could lead to a White House database of political opponents that will be both secret and permanent, according to Republican lawyers on the Senate Judiciary Committee who are examining the plan's possible implementation...
In a letter to Obama Tuesday, Republican Sen. John Cornyn wrote that, given [White House director of new media Macon] Phillips' request, "it is inevitable that the names, email address, IP addresses, and private speech of U.S. citizens will be reported to the White House." Cornyn warned the president that "these actions taken by your White House staff raise the specter of a data collection program."
"I can only imagine the level of justifiable outrage had your predecessor asked Americans to forward emails critical of his policies to the White House," Cornyn continued. "I urge you to cease this program immediately."
Up until November 4, 2008, being a community organizer was a fantastic vocation. In fact, it was that role--unlike say military or law enforcement experience, business experience, or executive experience of any kind--that qualified someone to become the U.S. president. Now, when average, non-ideological citizens themselves engage in participatory democracy, they've somehow morphed into a "mob" rather than a community organization. Yesterday, ordinary citizens met with Congressman Chris Murphy in Simsbury, CT about healthcare. Murphy did not exactly cover himself in glory: Swing-district solons like Murphy will have to make a fundamental decision, perhaps one that will directly determine their political career going forward: vote the way the party machine tells them to or represent their constituents. And whose more out of touch: the politicians themselves or the reporters/editors that cover them? In this video, an outspoken, grassroots concerned citizen interacts with two seemingly clueless reporters from the local paper, the Hartford Courant.Here's the bottom line: while the free enterprise system can sometimes be unfair if not corrupt, and healthcare insurance reform is needed, the average American does not want socialism
Under "ObamaCare," Republican-turned-Democrat Arlen Spector, a cancer survivor, and former PA Democrat Gov. Bob Casey (PA Sen. Bob Casey, Jr.'s father) would both have been goners long ago, according to the New York Post:
The controversial core of ObamaCare is a so-called "public option" that critics insist would eventually wipe out the ability of average Americans to get the kind of care Specter and the senior Casey received. This already is being set up, with the establishment in the Obama stimulus bill (passed with votes from both Sens. Casey and Specter) of the ominous-sounding "Federal Coordinating Council for Effectiveness Research."
Modeled after European equivalents such as the British National Institute for Health and Clinical Excellence, the council is supposed to assign a monetary value to your life. This is done through a "QALY" -- a "Quality-Adjusted Life-Year." In Britain, The Wall Street Journal reports, NICE refuses to pay more than $22,000 "to extend a life by six months."
In other words, had Obama's plan been in effect in 1993, given the QALY of the 63-year-old Arlen Specter and the 61-year-old Bob Casey Sr., and had they been private citizens on the Obama public-insurance plan, both might, literally, have been allowed to die...
Pennsylvanians are well aware that the Specter and Casey families have benefited directly from high-profile medical treatment that the Obama plan would deny to average folks. So the question for Sens. Specter and Casey is: Would they be willing to enroll themselves and their families in the public plan the president is pushing?
Would they give up the quality health care that extended the senior Casey's life by seven years and quite literally saved Specter from death -- not once but three times?
On ABC News, Michelle Malkin aptly noted that ObamaCare is the "redistribution of health."
The latest trial balloon released into the media: We're not in Kansas anymore--or are we?
The Obama administration is looking at creating a courtroom-within-a-prison complex in the U.S. to house suspected terrorists, combining military and civilian detention facilities at a single maximum-security prison.
Several senior U.S. officials said the administration is eyeing a soon-to-be-shuttered state maximum security prison in Michigan and the 134-year-old military penitentiary at Fort Leavenworth, Kan., as possible locations for a heavily guarded site to hold the 229 suspected al-Qaida, Taliban and foreign fighters now jailed at the Guantanamo Bay detention camp in Cuba.
The officials outlined the plans — the latest effort to comply with President Barack Obama's order to close the prison camp by Jan. 22, 2010, and satisfy congressional and public fears about incarcerating terror suspects on American soil — on condition of anonymity because the options are under review.
Other than for the sake of empty political rhetoric, remind us again why we are closing Gitmo?
While we're on the subject of the press, The Daily News, usually part and parcel of Obama-complaint media and the "civil liberties" chorus, did show some unusual editorial independence in assailing the legal advocacy in support of incarcerated terrorists at Gitmo and elsewhere:
Regular old U.S. criminals should be so lucky as to enjoy the devoted legal representation that has rallied to the sides of Islamist terrorists convicted of plotting the mass murder of Americans.
Self-styled human rights champions who made the Guantanamo Bay detention center a false symbol of barbarism have turned to easing the ultra-secure domestic imprisonments of fanatic jihadists.
They say that the likes of shoe-bomber Richard Reid, serving life in the Super Max prison in Florence, Colo., and American Taliban John Walker Lindh, held in tough confinement in Indiana, have a constitutional right to pray with fellow Muslim inmates.
Those include Ramzi Yousef, mastermind of the 1993 World Trade Center bombing, 9/11 plotter Zacarias Moussaoui and Wadih el-Hage, one-time aide to Osama Bin Laden, who was convicted of an embassy bombing that killed 247 people in 1998. You can imagine the kinds of things that might come up in such an Arabic-speaking prayer group.
Absolute isolation is necessary and neither cruel nor unusual for a class of inmates who will wreak mayhem wherever then can, inside prison or out. Lest you doubt, recall what happened in 2006 when three of the Trade Center bombers had mail privileges: They sent 90 cheerleading letters to terror networks that were printed in Arabic newspapers and used as recruiting flyers.
The perversity of wielding the First Amendment to claim that radical crazies have a constitutional right to exercise their religion together, not separately, is beyond breathtaking. And yet, in this day and age, it is not simply being laughed right out of court.
