Christmas in the Crosshairs
- Is there a war on Christmas?
- Is Christmas sacred to some solely because it's being used to sell merchandise?
- What are the origins of Christmas?
- Is Christianity rightfully the USA's national religion?
- Freedom of religion or freedom from religion? What
did the Founding Fathers intend and which constitutional interpretation is correct?
Make your voice heard at 2nd Sight Magazine's Facebook Forum:
--or Email the Editor (Subject "Christmas in the Crosshairs"):
Wesley Clark on Secrecy and Openness
Democratic presidential contender Gen. Wesley Clark today
announced his intention "to reverse Mr. Bush's secrecy policies" and "to create the most open and honest government in American
He cited the now-familiar litany of Bush Administration excesses and declared that "On day one of my Administration,
I'll sign an Executive Order reversing George Bush's FOIA rollbacks, and restoring the public's right to know."
the party of accessibility and accountability," he said. "They're the party of secrecy and special interests. This is just
another way to draw the line between us."
See the text of his January 16 remarks here.
Something's Wrong Here:
The PROTECT Act, National Security, and the Threat to Civil Liberties
August 14, 2003 -- The
American criminal justice system is built on case law tempered by the US Constitution. We are considered innocent until proven
guilty, guaranteed by the constitution to the right to counsel, a speedy trial, the due process of law, and to be protected
from excessive bail and cruel and unusual punishments. The body of law and legal precedents are used to bolster and argue
the merits of cases by defense and prosecution alike.
When the government enacts new legislation, new definitions allow interpretation
of existing case law to be broadened to include new definitions and conditions, as well as changing, limiting, or compelling
judicial decisions with new guidelines.
The PROTECT Act is one such legislation. Signed into law by President Bush on April 30, 2003, the PROTECT Act includes the much-applauded
AMBER alert, but also allows law enforcement to use existing legal tools "for the full range of serious sexual crimes against children."
According to the government's fact sheet, the PROTECT Act has been designed
to revise and strengthen the prohibition on virtual child pornography; prohibit obscene materials that depict children, and
provide tougher penalties compared to existing laws; and encourage greater voluntary reporting of suspected child pornography
found by internet service providers.
Sounds good -- on the surface. However, the same act cripples prudent application
of these positive measures by curtailing the ability of judges to deviate from mandatory sentencing in consideration of mitigating
circumstances. If the law is to be interpreted without leeway for judges to use their own good judgment, we will be reduced
to treating perceived lawbreakers as being mere case numbers to be processed according to the letter of the law under this
Good judgment is generally defined as using a combination of knowledge,
discernment, wisdom, experience, and common sense to arrive at conclusions and decisions that determine appropriate action.
Judges are supposed to use their good judgment when deciding cases and imposing sentences, that's why we call them 'judge'
to begin with. With the strict implementation of the PROTECT Act, there will be no room for considering the individual circumstances
of each case.
Under prior law, wiretaps were authorized under certain conditions, but
not for many of the various crimes associated with using the Internet. Using the public's horror of child predators on the Internet, the government now has opened the door for spying on public
Internet use. Unfortunately, tinkering with the bill didn't end there.
In fact, an amendment was made to the PROTECT Act at the last minute, under
"There was no public hearing, no notice to the judiciary, the
bar, the Sentencing Commission or other interested parties, and no debate. A vote against Amber Alert would have been like
a vote against motherhood and few legislators were willing to have to defend such a vote to their constituents."
The Feeney Amendment -- named for US Rep. Tom Feeney (R- FL), who is a founding member of Washington Waste Watchers, a group working to "Combat Government Waste, Fraud and Abuse" -- has further complicated the benefits the PROTECT Act was meant to provide crime victims by taking authority away from
judges to give reduced prison sentences. The claim was that the amendment would eliminate "much-abused grounds of departure
such as 'diminished capacity, aberrant behavior,' and 'family and community ties' in 'downward sentencing,' or sentencing
for less than the mandatory minimum.
While there well may have been some cases of abuse or misuse of 'downward'
sentencing before this bill was passed, there are certainly a lot of people in prison -- a record of 2.1 million men and women as of 2002 -- belying the claim that without federal legislation, judges are soft on crime, or crimes against children in particular.
In fact, the record shows that prosecutors, who presumably take the more adversarial position against defendants, make four
out of five 'downward-sentencing' requests.
Justification for sentencing guideline changes within the PROTECT Act was
that "last year, the Supreme Court declared unconstitutional a federal law that criminalized the possession of "virtual" child
pornography, materials whose production may not have involved the use of real children." This decision has made it immeasurably
more difficult to eliminate the traffic in real child pornography," according to the DOJ factsheet.
However, justification for the Feeney Amendment had nothing to do with
children. The case cited in the amendment was Koon v United States, an opinion written by Supreme Court Justice Anthony Kennedy which rejected the District court's departure from guideline
sentencing by giving lighter sentences to two ex-policemen convicted in the beating of Rodney King.
Another troubling aspect of the PROTECT Act is how it fits in with the
Bush administration's actions to fight terrorism. The Act makes it more difficult for defendants accused of serious crimes
against children to obtain bail, similar to other existing provisions for drug, firearms, and violent crimes. This too opens
a door, and more people can be kept behind bars for indefinite periods -- a direct violation of our rights under the constitution.
Moreover, who is going to decide what is child pornography? If you take
a photo of your new smiling baby lying butt-naked on a blanket, a common portrait sometimes even taken by professional photographers
in times gone by, could you be prosecuted for child pornography? The US already incarcerates 476 out of every 100,000 citizens, more per capita than any other developed country. Those inclined to conspiracy theories might assert that the erosion of
judicial freedom under the PROTECT Act is a brilliantly calculated solution to protect a Fascist regime in order to deprive
enemies of the power to buck the system.
At a press conference in Arizona this week, President Bush was campaigning
for his environmental policy which will allow cutting of protected forests by lumber companies under the pretext of fire-prevention.
"We believe in bringing people together to try to reach agreement
on forest projects. We believe all voices should be heard. But we want to expedite the process to avoid the legal wrangling
and the delays that take place in our courts. Delays in our courts prevent us from doing the job necessary to maintain healthy
In other words, he wants the appearance that we are all having our say
and that the government is considerate of our concerns. But in reality, his administration has already decided what needs
to be done and is going to do it their way over anyone's objections.
This attitude has become abundantly clear in every aspect of his administration's
activities, and bodes ill for our rights as citizens and our freedom as individuals. In the case of the PROTECT Act, legislation
empowering the government to take them from us was hidden in a bill to protect children. What's next?
The National Security Council has determined that "major institutions of
American national security were designed in a different era to meet different requirements. All of them must be transformed."
With the events of 9/11, no one disagrees that we need to protect ourselves against terrorism. However, how far should this
"We must strengthen intelligence warning and analysis to provide
integrated threat assessments for national and homeland security. Since the threats inspired by foreign governments and groups
may be conducted inside the United States, we must also ensure the proper fusion of information between intelligence and law
In a speech made when he signed the PROTECT Act into law, President Bush
said: "Every person who would think of abducting a child can know that a wide net will be cast. They may be found by a police
cruiser, or by the car right next to them on a highway. These criminals can know that any driver they pass could be the one
that spots them and brings them to justice."
As the "fusion of information between intelligence and law enforcement"
takes place, other 'integrations' will surely be in store. We already have cameras pointed at us, wherever we drive, wherever
we walk in our cities. The government is under pressure to act to protect us from terrorism. When tools designed for public
safety come under the domain of the federal government, will they care about our rights?
In an article published on May 1, 2003, columnist Michael Stephens made
"Terrorist acts are theatrical challenges to the status quo. Successful,
high-profile strikes like 9/11 cast grave doubts on the government's ability to protect their citizens and maintain order.
To strike back, the government must show it can generate control mechanisms that are at least more muscular than the terrorists'
power to undermine their control. The shadowy, nomadic character of terrorism, and the continuing ability of Al Qaeda members
to elude capture, humiliate the government. The antidote is the theatre of confinement: the creation of internment camps that
represent the containment of terrorism and place symbolic limits on the disturbing idea of uncontrollably proliferating terrorist
forces. What matters is not that real terrorists are locked up, but that someone is locked up to reassure the public."
The next person facing a judge for sentencing could be you -- would you
want the judge's hands to be tied by the federal government? Worse may be yet to come, if the treatment of captives from the
war in Afghanistan is any indication.
Under the jurisdiction of the military, we are still holding 680 prisoners
at Camp X-Ray in Guantanamo Bay without benefit of legal council, identification to outside sources, or even basic shelter afforded ordinary
prisoners in the US. They are not US citizens, though some are British and Australian, according to some sources. They are
not afforded the rights of US citizens under the 6th amendment to the Bill of Rights, and even if they were US
citizens, they are subject to military trials held in secret because they were captured while, as the Bill of Rights states,
"in the militia, when in actual service in time of war or public danger." However, while being treated as military prisoners,
the Geneva Convention is not being applied to them and they are not being afforded POW status. There is no accountability
for their captors to any outside authority.
From the same article quoted above, columnist Michael Stephens writes:
"In both Britain and America, dramatic terrorist attacks provoked
hastily conceived and poorly thought out legislation that was generated more or less overnight to provide a quick fix for
complex, long-standing, historical problems. In both cases, many innocent people have been incarcerated indefinitely to impress
a public that cares little about legal niceties and wants to see results. The American government admits that at least 60
of the prisoners that it is currently holding without due process at Guantanamo Bay are innocent."
It's probably safe to say that every American feels dread and horror over
the 9/11 attack and wants those who aided and abetted the hijackers responsible for the attack to face justice. The government
went into Afghanistan looking for terrorists, and while public sentiment following 9/11 was running hot, not many protested
the incarceration of presumed al Qaeda members at Guantanamo Bay. One public opinion poll revealed that 44% of the American public even supported torture of prisoners in order to obtain evidence against terrorists.
Similarly, it's safe to say that everyone cares about catching child abductors
before they've killed or molested innocent children. However, the AMBER alert, while it is a wonderful idea with tremendous
potential for rescuing abducted children, carries with it a terrible potential for misuse against persons deemed terrorists or 'enemies of the state.' If the rules continue to be stretched to apply to circumstances they weren't designed for in the interest of "expediting
the process," this innovation could be used for alleged terrorists designated for "urgent" apprehension.
In the wrong hands, the AMBER alert could carry the image of any one of
us across the country in the blink of an eye, with Orwellian potential for seizure with 'extreme prejudice' by the tragically
overzealous and calculatingly misled.
I'm a moderate, and have long adopted a wait-and-see attitude toward the
Bush administration since 9/11. I know that world conditions are far more complicated than we ordinary people can possibly
understand, and have maintained faith that our government will do what is best for its people. But even I can see that something
is wrong here.
I used to make fun of conspiracy theorists. Now, I'm beginning to wonder if the extremists who have been predicting a "New World Order" with jack-booted thugs putting down any public protest against the policies of the regime may be right. I'm going to be watching
the activities of Ashcroft and the rest of the Bush administration all the way through Election Day -- if there is an actual Election Day, and not just
-- Cat, the Editor
Sources for this article:
|at the 2nd Sight Forum
Texas Continues War on Women With Ultrasound Bill
We're building. Browse our early articles. Content accepted for publication consideration, email the Editor.
- Wesley Clark on Secrecy and Openness
- More Historical Intelligence Budget Data Disclosed
- Disclosure of Environmental Hazards and National
- Something's Wrong Here
- An Assault Against the Federal Courts
- Related Links
More Historical Intelligence Budget Data DisclosedHistorical intelligence budget appropriation figures
for the Defense Intelligence Agency and the National Security Agency for Fiscal Year 1972 have turned up in publicly accessible
archives even though they are considered "classified" by the U.S. government.
The FY 1972 appropriations and the FY
1973 requests for DIA and NSA were detailed in the papers of Rep. George Mahon, a former member of the House Appropriations
They were located by Villanova University scholar Prof. David Barrett, who is preparing a book on congressional
oversight of intelligence in the early cold war.
The U.S. Constitution singles out budget expenditures as the one category
of executive branch information that must be published from time to time (Article I, section 9). Yet in seeming defiance
of this obligation, the Central Intelligence Agency refuses to disclose even fifty year old budget information, the subject
of a pending FOIA lawsuit. The CIA claims that to do so would damage the national security of the United States and
jeopardize intelligence methods.
Even some CIA officials privately concede that this claim is ridiculous, and it is
hard to find a responsible person outside of CIA who will defend it.
Prof. Barrett generously provided a copy of the Mahon documents containing the historical DIA and NSA budget
figures, which are posted here.-- by Stephen Aftergood for Secrecy News
Disclosure of Environmental Hazards and National SecurityDoes the disclosure of data regarding environmental hazards at chemical
facilities threaten national security by providing terrorists with information about potential targets?
While the first
impulse of officials at many levels of government has been to clamp down on information regarding the locations and quantities
of toxic material inventories and the consequences of their accidental release, there is reason to believe that this approach
In fact, national security might be strengthened through greater disclosure.
In a recent
Master's Thesis, one U.S. Air Force student author investigated the impact of government controls on such information and
considered whether environmental secrecy could effectively discourage terrorism.
Air Force Maj. Joseph D. Jacobson
conducted his own research "to explore the question of whether reasonably accurate targeting data is obtainable through means
other than government-provided environmental information."
"The answer is a disturbing yes.... Even without a computer,
telephone books, newspapers, and trade journals could be effectively used as [terrorist] planning tools. Unless our
society is ready to completely suspend several amendments to the U.S. Constitution, we must assume that those planning attacks
on chemical facilities have the research tools they need for adequate targeting."
Moreover, there is a "down side"
to efforts to restrict environmental information. Official controls may impede the public's ability to contend with
chemical hazards, thereby reducing safety and security, the author wrote.
"The road that restricts access to information
leads us to a destination where the public is blissfully unaware of the dangers surrounding them while terrorists carefully
research targets for maximum potential impact. The other road allows an informed public to prepare for potential attacks,
plan responses, and put pressure on industry to change practices and processes in a meaningful way, thus reducing the likelihood
See "Safeguarding National Security Through Public Release of Environmental Information: Moving the Debate to the Next Level" by Joseph D. Jacobson, a master's thesis submitted to the George Washington University School of Law, August 31,
2002, 97 pages (in a very large 3.9 MB PDF file)
An Assault Against the Federal Courts:
The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo
August 13, 2003 -- On
July 28, Attorney General John Ashcroft issued a memorandum to all federal prosecutors outlining the Department of Justice's
policies with respect to downward departures, in light of the PROTECT Act. It states that prosecutors should not "acquiesce"
to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutor's objections,
the memo requires the prosecutor, within 14 days, to report the departure to DOJ. In short, DOJ's departure policy is no policy
The result, Senator Edward Kennedy has argued, will be to establish a "blacklist" of federal judges who downwardly
The PROTECT Act and the Ashcroft memorandum indicate a distrust of the judiciary, and a belief that more offenders
should be imprisoned for longer periods of time. These beliefs, however, could not be more wrong.
In its state and
federal prisons, combined, America incarcerates approximately 1 out of every 143 of its residents (over 2.1 million people).
In comparison, England, Italy, France and Germany are only about 1 out of every 1,000. The federal inmate population now exceeds
that of any single state. And this is largely due to Congress's Draconian mandatory minimum sentencing laws.
the inception of the PROTECT Act, the federal judiciary has voiced grave concern - and even outrage - at its requirements.
On May 5, during his address to the Federal Judges Association Board of Directors, the Chief Justice William Rehnquist took
issue with parts of the Act. On June 26, US District Court Judge John S. Martin published an Op Ed in The New York Times,
announcing that he was resigning from the bench due to the PROTECT Act.
On July 18, Judge Myron H. Bright of the US Court of Appeals for the Eight
Circuit, in his concurring opinion in United States v. Flores, urged, "I want to conclude by making a plea to the district
judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose
your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate
and/or the Sentencing Guidelines.... [And l]et me say further that judges generally do not object to appropriate guidelines
for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have
said in other sentencing opinions that I have written, 'Is anyone out there listening?'"
The Chief Justice and Judges
Martin and Bright are far from alone in their views. Last week, Chief Judge Marilyn Hall Patel of the Northern District of
California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the
wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal
cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy
makers in the legislative and executive branches."
Next week, the US Sentencing Commission will convene public hearings
to receive input regarding how it should amend the Guidelines to substantially reduce departures, pursuant to the dictates
of the PROTECT Act. Hopefully, with Congress's cooperation, they will take Justice Kennedy's wise suggestion that lowering
the ranges downward, will itself reduce downward departures, by minimizing the instances in which judges are forced by the
Guidelines to impose a long sentence that is unjust under the circumstances of the individual case.
in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY
Act. (Ironically, or appropriately, the 'Y' is missing.)
The Act does have one redeeming feature: It would reduce the
much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction.
But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would
reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors - predictably leading
to longer sentences.
Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act
and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It
would also make it more difficult for federal judges to invoke the "safety valve" - a legal mechanism whereby judges can sometimes
sentence a first-time drug offender below the mandatory minimum sentence.
Excerpts from the article written by Mark H. Allenbaugh in FindLaw.com
The PROTECT and VICTORY Acts do not do justice. Instead, they rob the
federal judiciary of their discretion to impose just sentences. (And meanwhile, they mandate ever more malicious sentences
offenders that will only lead to more Americans languishing in prison.)
This assault on judicial independence
must end. Judges, who rarely speak out on matters that involve Congress or the Executive, have spoken out strongly in this
instance. If we fail to listen, we do so at our peril.