PROBABLE CAUSE

Yesterday’s 5-4 Supreme Court ruling striking down the District of Columbia’s ban on handguns and affirming the right to have guns for self-defense in the home raises the question, yet again, as to the meaning of the Second Amendment. Does the amendment specifically protect an individual’s right to own guns, or is that right specifically tied to service in a state militia?

The Second Amendment reads, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Pulitzer Prize winning author Gary Wills in his book, A Necessary Evil, wrote what I consider to be one of the most lucid and scholarly explanations of the amendment. Wills explains that the framers intentionally used the plural “arms” rather than the singular form of the word because “arms” means military service. Similar forms of the word are used in terms such as under arms, call to arms, to take up arms or lay down one’s arms.

The draft of the Second Amendment written by James Madison also lends credence to Wills explanation:

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

Madison is clearly referring to the military and to conscientious objectors who are exempted from “bearing arms” for their country.

Wills uses Article VI of the Articles of Confederation to explain the meaning of the word “keep” in the amendment. Article VI reads, “Every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”

Militias kept their arms in arsenals and armories. If the Congress had meant something other than “in public stores”, they could easily have written, “in the home”.

In his dissent, Justice John Paul Stevens supported Wills interpretation by stating the obvious. The Second Amendment is notable for its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.” It’s important to note that both of the rights were explicitly protected in Pennsylvania and Vermont when the framers wrote the Second Amendment. So why didn’t these intelligent and visionary men add the same words to the Second Amendment?

Wills concedes that there may be other reasons for arguing for a right to own one’s handguns and to keep them at home. It’s just not a constitutional right guaranteed by the Second Amendment.

Today, the House of Representatives, with bipartisan support, essentially gutted the Fourth Amendment to the Constitution.

The Fourth Amendment guards against unreasonable searches and seizures. It specifies that judicially sanctioned searches must be supported by probable cause.

The Federal Intelligence Surveillance Act, passed in 1978, prescribes procedures for the physical and electronic surveillance and collection of foreign intelligence information between foreign powers, which may include American citizens engaged in espionage. The Patriot Act of 2001 amended FISA to include terrorists and groups not backed by foreign governments.

The FISA court meets in secret and approves or denies requests for search warrants. Between 1979-2006 a total of 22,990 applications for warrants were made to the Court. Only 5 were rejected.

Despite the overwhelming approval of requests for search warrants by the FISA court, the President ignored the law and ordered the National Security Agency to intercept phone calls and e-mail between people abroad and people in the United States without a warrant, as long as the target was not in this country.

Of course, this isn’t the first time the President has ignored the law, as evidenced by his authorization of torture and his refusal to honor the right of habeas corpus. And it isn’t the first time that Congress has aided and abetted Bush’s attempts to create an Imperial Presidency by shredding the Constitution in the name of fighting terrorism.

The legislation passed by the House today creates retroactive immunity for the phone companies and essentially dismisses the 40 lawsuits brought against the telecom industry. This is akin to a burglar asking a judge to change the law after he has been caught burglarizing a home.

Even if you agree that the telecom companies should be shielded from liability since the government lied to them about the legality of its requests, the law should permit suits that would force full disclosure of Bush’s actions and require a full accounting to Congress of all surveillance conducted since 9/11.

The Democratic victories in 2006 were supposed to usher in new era of accountability. Instead, collusion between the telecoms and Democrats now in charge of Congress has killed any efforts to hold anyone accountable for crimes committed under the guise of security.

The Supreme Court’s 5-4 ruling recognizing Habeas Corpus rights for Guantanamo prisoners means that justice has survived in the USA for another day - - just barely.

Most people are unaware that of the nearly 770 men held at Guantanamo since the base opened, only 19 have actually been charged. There are currently about 250 men who are being held without charges in Guantanamo. Many of them have been held for over six years.

Now just step back and think about that last sentence for a moment.

A country founded on the rule of law is holding men indefinitely in a prison outside our borders. Imagine the outrage if 250 Americans were being held indefinitely in a foreign country for years without charges or trials.

Yesterday’s wise decision by the court has absolutely nothing to do with freeing “terrorists” and everything to do with what the U.S. supposedly stands for. Anyone accused of crimes, yes, even war crimes, has a right to face their accuser and to present and hear evidence that ultimately determines their guilt or innocence. If these 250 men are guilty, then the government should charge them and bring them to trial in a reasonable amount of time.

Even when these prisoners are eventually brought to trial, lawyers representing them in the habeas corpus petitions predicted that the government would be unable to prove to civilian judges in most of the cases that the men committed war crimes. Many of them will have to be released. So not only have we locked these men up and metaphorically thrown away the key, but the government apparently doesn’t have sufficient evidence to prosecute them. This uncomfortable but critical fact may explain their indefinite detentions.

I can’t end this blog without commenting on the dissenting statement made by Antonin Scalia. Scalia, who joined the 3 other conservatives on the Court in voting against recognizing Habeas Corpus rights for prisoners, claimed that the Court’s decision ultimately means that more Americans would be killed. That’s right. Recognizing Habeas Corpus rights for detainees means more deaths for Americans.

If that fear mongering, twisted slice of logic doesn’t illustrate how far the “justice” train has gone off the tracks in this country, I don’t know what does.

Tatum O’Neal’s recent arrest for drug possession is another sad reminder of America’s failed war on drugs.

The drug market today in the United States is estimated at $150 billion a year. We have the highest incarceration rate for any Western nation at a cost of $30 billion a year. According to the U.S. Department of Justice, 81% of these dollars are spent on substance-involved offenders. One in three African-American males are in prison on drug-related charges. Gang and gun violence has skyrocketed. Many of our inner cities have become war zones.

Similar results were observed during alcohol prohibition. It shouldn’t take a rocket scientist to conclude that the same fate would follow if prohibition were used for other drugs.

Most western countries decided long ago that prohibition wouldn’t work and have found more cost effective ways to control and manage drugs. These countries have less drug abuse, lower HIV rates, and spend a much smaller percentage of their tax dollars on drug crimes and incarceration.

The U.S. rightly concluded that alcohol abuse and the use of tobacco were health problems and not criminal issues. This approach has yielded a 50% reduction in the use of tobacco — the most addicting of drugs, which results in 400,000 deaths a year.

It is estimated that 85 million Americans have consumed an illegal drug, but there are only about 1 million regular cocaine users, defined as those who have used the drug at least once in the preceding week. There are an estimated 5 million Americans who regularly use marijuana but an estimated 70 million who experimented with it.

Drugs such as cocaine and heroin are habitually consumed by a small percentage of the residents of any western country. If drugs were legalized in the U.S., there is no reason to think that Americans would be any different.

Despite attempts by some current religious figures and politicians to redefine the Constitutional meaning of religious freedom in the narrow context of Christianity, everyone in this country has the right to practice whatever religion they choose — or to practice no religion at all. Religious freedom also means, however, that anyone can claim to be a prophet no matter how ridiculous or insidious his or her beliefs.

Such is the case with the Fundamentalist Church of Jesus Christ of Latter Day Saints in the west Texas town of Eldorado. The FLDS, which teaches that polygamy brings glorification in heaven, is a breakaway sect of the Mormon Church.

Warren Jeffs, who is now in jail in Mohave County, Arizona, awaiting trial on five counts of sexual conduct with a minor, four counts of incest and one count of conspiracy to commit sexual conduct with a minor, founded the FLDS. In November, he was sentenced to two consecutive terms of five years to life in Utah after being convicted on two charges of being an accomplice to rape in connection with a marriage he performed in 2001.

Warren Jeffs isn’t the first man to use religion as a cover for pedophilia, sexual abuse and rape, nor, unfortunately, will he be the last. This begs the question. Isn’t about time for some common sense regarding religion?

Common sense certainly was in short supply yesterday when the Texas Supreme Court affirmed the Third Court of Appeals ruling, which said that Child Protective Services failed to show an “immediate danger” to the children seized from the FLDS sect in Eldorado. The end result is that nearly all the children must be returned to their parents. The Third Court of Appeals had ruled last week that the state failed to show that any more than five of the teenage girls who were seized by child welfare officials were being sexually abused. Gee, only five?

Under Texas law, children can be taken from their parents if there’s a danger to their physical safety, an urgent need for protection and if officials made a reasonable effort to keep the children in their homes. The high court agreed with the appellate court that the seizures fell short of that standard.

In their less than Solomon like ruling, the justices said child welfare officials can take numerous actions to protect children short of separating them from their parents and placing them in foster care, and that the court may still put restrictions on the children and parents to address concerns that they may flee once reunited.

Apparently, the justices failed to clarify how long Child Protective Services should wait in the future before deciding an “immediate danger” exists for the rest of the children. Recently released photos show Jeffs with one his brides, a twelve-year old girl.

While they wait for the next rape or for the sect to flee to another state, maybe the justices could work on the definition of “parent” and what legally constitutes a “religion”.

In my February 27^th blog, I wrote about the case of Don Siegelman, a Democrat and former Alabama governor, who was charged with conspiracy and bribery and sentenced to seven years in prison. Fifty-two former state attorneys-general had asked Congress to investigate whether the charges brought against Siegelman were part of a five-year secret campaign to ruin the governor orchestrated by President Bush’s former chief political adviser Karl Rove.

Yesterday, the House Judiciary Committee subpoenaed Rove. They want to ask him about the White House’s role in firing nine U.S. attorneys in 2006 and the prosecution of Siegelman, who was released in March when a federal appeals court ruled that he raised “substantial questions of fact and law”.  Siegelman has now asked the 11th U.S. Circuit Court to overturn his jury conviction or grant him a new trial.

Rove has repeatedly said that he had no conversations with the President regarding the decision to fire the nine U.S. attorneys, which flies in face of his claims of executive privilege and Justice Department documents, which show that Rove questioned whether the nation’s 94 U.S. attorneys should all be replaced at the start of Bush’s second term and worked to get some prosecutors dismissed.

Rove’s claims that he had no involvement in the campaign to smear Siegelman are equally disingenuous, considering that the office of U.S. Attorney Leura Canary handled Siegelman’s prosecution. Her husband Bill Canary, one of Rove’s close Alabama associates, had run the campaign of Siegelman’s opponent, Governor Riley, in 2002.

The Justice Department should investigate these claims, however, Michael Mukasey, the current U.S. Attorney General and clone of Alberto “I don’t remember” Gonzales, has refused. Mukasey’s refusal to do his job will come as no surprise to anyone who followed his Senate confirmation hearings. When questioned about whether waterboarding was torture, Mukasey stated that, “I think it would be irresponsible of me to discuss particular techniques with which I am not familiar.”

That unbelievable claim set off alarm bells for every Democrat on the Senate Judiciary Committee except for Chuck Schumer of New York and Diane Feinstein of California. Mukasey’s refusal to acknowledge that waterboarding was torture clearly revealed that he saw his role as a lapdog for the administration rather than an officer sworn to uphold the Constitution. Thank you Chuck and Diane.

It’s unclear whether Rove will ever be forced to testify before Congress. However, by refusing to comply with a subpoena, he can be held in contempt. The Sergeant-at Arms for the House can arrest Rove and bring him to the House floor to answer the charges. The Senate last used this process, which is called inherent contempt, in 1934.

Given this administrations blatant disregard for the rule of law, it’s long past time for Congress to use any means necessary to bring Rove to justice.

Yesterday’s indictment of Lori Drew of suburban St. Louis, who allegedly helped create a MySpace account in the name of someone who didn’t exist to convince Megan Meier she was chatting with a 16-year-old boy named Josh Evans, is a long overdue wake-up call to all those who are bullying or harassing others by posting and sending fraudulent messages on the Internet.

Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl. Each of the four counts carries a maximum possible penalty of five years in prison. Lori Drew will be arraigned in St. Louis and then moved to Los Angeles for trial.

Megan hanged herself at home in October 2006, allegedly after receiving a dozen or more cruel messages, including one stating the world would be better off without her. Both Megan and MySpace are named as victims in the case.

According to the indictment, Drew and her coconspirators allegedly “used the information obtained over the MySpace computer system to torment, harass, humiliate, and embarrass the juvenile MySpace member in direct violation the My Space agreement. The indictment contends they committed or aided in a dozen “overt acts” that were illegal, including using a photograph of a boy that was posted without his knowledge or permission.

Facebook has experienced similar problems. At Indiana University and the University of Virginia, two Facebook groups recently caused an outrage by making fun of Asian students. A student at Fisher College in Boston was expelled last year for his online criticism of a campus security officer.

This is the first time the federal statute on accessing protected computers has been used in a social-networking case, but I sure hope it isn’t the last. As a mystery writer, I spend considerable time on the Internet collecting research, updating my website, and social networking with fellow writers. I have no idea how much of my private data is out there in cyberspace, but I do know that anyone can become a target of harassment and false charges. And once a message is posted or a charge made, it’s very difficult to prove it false and even more difficult to trace.

Hopefully, more cities and states will soon add cyberbullying and harassment to the growing list of Internet and computer crimes.

The hottest crime story in Minnesota and on the Internet involves the death of Chris Jenkins, a University of Minnesota college student whose body was found in the Mississippi River in February of 2003. Originally ruled “undetermined” or “drowning” by the Minneapolis Police Department, the cause of death was recently changed to “homicide” because of the dogged efforts of Kevin Gannon and Anthony Duarte, two retired NYPD detectives.

Gannon and Duarte have investigated more than 40 similar deaths around the country over the last decade in which seemingly healthy, well-adjusted college students suddenly are discovered drowned, weeks or months after they left a local bar or college party and disappeared. Kristi Piehl, a reporter for KSTP, a local Twin Cities television station, who first broke the story, reported that in Minnesota and Wisconsin alone, 18 young men with similar profiles have disappeared since 1997.

The two detectives believe that a nationwide network of murderers killed Jenkins and dozens of other young men. The gang’s signature trademark is supposedly a smiley face found at crime scenes in Wisconsin, Ohio, Pennsylvania, Indiana and Iowa.

Though the detectives insist they have evidence that supports their conclusions, only Chris Jenkins’ death has been officially ruled a homicide, though no smiley face was found at the crime scene. The FBI has reviewed a number of the investigations and determined that there is no Serial Killer Club.

Whether Gannon and Duarte have actually discovered a murder club or merely created the latest urban legend remains to be seen. But whatever the outcome, writers everywhere see a crime novel or screenplay in the making.

According to a report by a Pentagon panel, the dollar value of Army contracts quadrupled from $23.3 billion in 1992 to $100.6 billion in 2006. While the Pentagon outsourced hundreds of troop support jobs to private companies, the number of Army contract supervisors was cut from 10,000 in 1990 to 5,500 currently.

In what writer Naomi Klein calls “disaster capitalism” in her terrific book The Shock Doctrine, this collusion between the private sector and the Pentagon and the resulting costs to American taxpayers is finally beginning to emerge. Congressional investigators have estimated that one in every six dollars charged by U.S. contractors for Iraq reconstruction was questionable. Current estimates run as high as $100 billion wasted taxpayer dollars.

An audit released last week by the special inspector general for Iraq reconstruction reported that millions of dollars of lucrative Iraq reconstruction contracts were never finished because of excessive delays or poor performance, including projects that were falsely described by the U.S. government as complete.

In February, Federal prosecutors in Rock Island, Illinois indicted four former supervisors from KBR, the largest private contractor for the Pentagon in Iraq, along with a decorated Army officer and five executives from KBR subcontractors based in the U.S. or the Middle East. Those defendants and two other KBR employees have pled guilty in Virginia. They join a list of 36 people indicted on Iraq war-contract crimes.

The Boston Globe recently reported that KBR has two shell companies in the Cayman Islands for bookkeeping purposes. Because the companies are offshore, KGB and its workers avoid paying about $100 million a year in Social Security and Medicare taxes.

Senator John Kerry has sponsored a bill that would close loopholes for companies registering overseas. On the remote chance that his bill gets through both the Senate and the House, I wouldn’t hold your breath waiting for the current occupant of the White House to sign it.

In his farewell address in 1961, Republican President and former General Dwight Eisenhower warned against the rise of what he called the “military industrial complex”.

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Oh, how I wish we had heeded Eisenhower’s advice.

Extensive research has found that people rarely are capable of total and perfect recall of events. In high stress situations, such as officer-involved shootings, memory and recall become even more tenuous.

Independent studies conducted by Alexis Artwohl and others found that 52% of officers involved in shootings reported memory loss for part of the event and 46% reported memory loss for some of their own behavior. 39% reported disassociation or a sense of detachment or unreality. 21% noted memory distortion, i.e., they saw heard or experienced something that did not really happen or it happened very differently than they remembered. 22% reported experiencing memory loss after the shooting.

Artwohl also found that officers experienced perceptual distortions. 62% of officers involved in shootings viewed the incident in slow motion, while 17% reported that time slowed down. 84% noted that sounds diminished, while 16% thought that sounds intensified. 79% had tunnel vision, whereas 71% experienced heightened clarity.

She concluded that if a police officer’s recollection of an event is not a totally accurate representation of reality, it does not necessarily mean that the officer is lying or trying to engage in a cover-up. Her conclusion applies to eyewitnesses and suspects as well. No one should accuse an individual of lying simply due to inaccurate, inconsistent or missing memories.

Her research may be of little help or consolation to the family and friends of Sean Bell, the 23-year-old New York City man who died in a hail of bullets fired by three police officers in the early morning hours of November 25th, 2006. But Artwohl’s research can explain the conflicting testimony of police officers, eyewitnesses and the two survivors of the shooting who testified during the trial that concluded last Friday.

And it can also help explain how Detective Michael Oliver, Detective Gescard F. Isnora, and Detective Marc Cooper could fire 50 shots at unarmed men. According to published reports, each of the three detectives charged in the shooting believed that he was the only officer who was shooting and was fearful of return fire. Detective Oliver testified that had no idea Detective Isnora was shooting right beside him, and vice versa.