Daily Nonsense

I found this article on the local Seattle PI web site and I think that it’s important enough to reproduce here.

Wily legal maneuver is holding off foreclosures

Homeowners demand to see original papers

By MITCH STACY
THE ASSOCIATED PRESS

ZEPHYRHILLS, Fla. — Kathy Lovelace lost her job and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork.

And just like that, the foreclosure proceedings came to a standstill.

Lovelace and other homeowners around the country are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

During the real estate frenzy of the past decade, mortgages were sold and resold, bundled into securities and peddled to investors. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed.

Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, buying the homeowner some time and turning up the pressure on the lender to renegotiate the mortgage.

“I’m going to hang on for dear life until they can prove to me it belongs to them,” said Lovelace, a 50-year-old divorced mother who owns a $200,000 home in Zephyrhills, near Tampa. “I’ll try everything I can because it’s all I have left.”

In interviews with The Associated Press, lawyers, homeowners and advocates outlined the produce-the-note strategy. Exactly how many homeowners have employed it is unknown. Nor is it clear how successful it has been; some judges are more sympathetic than others.

More than 2.3 million homeowners faced foreclosure proceedings last year and millions more are in danger of losing their homes. On Wednesday, President Barack Obama will unveil a plan to spend at least $50 billion to help homeowners fend off foreclosure.

Chris Hoyer, a Tampa lawyer whose Consumer Warning Network Web site offers the free court documents Lovelace used to file her request, has played a major role in promoting the produce-the-note strategy.

“We knew early on that the only relief that would ever come to people would be to the people who were in their houses,” Hoyer said. “Nobody was going to fashion any relief for people who have already lost their houses. So your only hope was to hang on any way you could.”

Tom Deutsch, deputy executive director of the American Securitization Forum, a group that represents banks, law firms and investors, dismissed the strategy as merely a stalling tactic, saying homeowners are “making lawyers jump through procedural hoops to delay what’s likely to be inevitable.”

Deutsch said the original note is almost always electronically retained and can eventually be found.

Judges are often willing to accept electronic documentation. And lenders are sometimes allowed to produce other paperwork to establish they are the holder of a loan. Still, assembling such documents to a judge’s satisfaction takes time, which to homeowners is the point.

Lovelace filed her produce-the-note demand last fall after the bank acknowledged that her original mortgage document had been lost or destroyed. Since then, there has been no activity on the foreclosure — no letters from the lender, no court filings.

The law firm handling the foreclosure for the lender refused to comment.

A University of Iowa study last year suggested that companies servicing mortgages are often negligent when it comes to producing the documentation to support foreclosure. In the study of more than 1,700 bankruptcy cases stemming from home foreclosures, the original note was missing more than 40 percent of the time, and other pieces of required documentation also were routinely left out.

The first big success of the produce-the-note movement came in 2007 when a federal judge in Cleveland threw out 14 foreclosures by Deutsche Bank National Trust Co. because the bank failed to produce the original notes.

Michael Silver, a lawyer for two of the families in that case, said at least one eventually lost its home. Still, he considers the case a success.

“From the perspective of the person who’s in the home, you may have kept them in the house another 10 or 12 months,” he said. “If I can get a result with economic benefits to a client, then I think I won.”

Democratic Rep. Marcy Kaptur of Ohio endorsed the strategy in a fiery speech on the House floor during debate on the federal bank bailout last month.

“Don’t leave your home,” she said. “Because you know what? When those companies say they have your mortgage, unless you have a lawyer that can put his or her finger on that mortgage, you don’t have that mortgage, and you are going to find they can’t find the paper up there on Wall Street.”

April Charney, head of foreclosure defense for Jacksonville Area Legal Aid in Florida, said the strategy has been so successful for her that she now travels around the country to train other lawyers in how to use it. She said she has gotten cases delayed for years by demanding that lenders produce paperwork they cannot find.

“This is an army of lawyers getting out there to stop foreclosures so we can get to the serious business of creating solutions,” Charney said. “Nothing good is going to happen as long as we continue to bleed homeowners.”

[Thanks, SeattlePI]

The RIAA has appealed to the court system to disallow the Web Cast streaming of the proceedings in the forthcoming case against Joel Tenenbaum.  Their argument?  They are afraid the results would be edited out of context and make them look bad.

Really?

How can they possibly look an worse?  Considering that they have waged a fruitless war upon children, the handicapped, and people who don’t even own computers, I think it’s hard for them to look any worse.

The issue in this particular trial is that the RIAA is also facing it’s fiercest opposition yet in the form of Charles Nesson, the William F. Weld Professor of Law at Harvard Law School.  Now, it’s been obvious to everyone that the RIAA is deathly afraid of Harvard and the legal guns it could bring to bear against them.  In the 5 years of fruitless litigation against college students the RIAA has not served a single subpoena against Harvard or its students.

If the US Congress and the US Senate are not afraid of being re-mixed to look bad then why the hell should the RIAA?  Either their arguments have merit and will sway public opinion in their favor or not.

RIAA Fears ‘Manipulation’ of Courtroom Web Broadcast

By David Kravets January 20, 2009 | 4:16:18 PMCategories: RIAA Litigation

The Recording Industry Association of America is objecting to the webcasting of pretrial arguments in an upcoming file-sharing trial.

The RIAA claims that the re-runs “will be readily subject to editing and manipulation by any reasonably tech-savvy individual.”

That is among the arguments the RIAA is making in urging a federal appeals court to reverse a Massachusetts federal judge’s order that would allow the pretrial broadcast this Thursday. The broadcast, assuming it goes forward, will include a Boston University student and his attorney challenging the RIAA’s copyright infringement case. It is believed to be the first time a U.S. federal trial court has allowed a live internet stream from the courtroom.

“Petitioners are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the internet will take on a life of its own in that forum,” the RIAA wrote (.pdf) the U.S. 1st Circuit Court of Appeals. “The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and broadcast (sic) rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioner’s case.”

The RIAA is taking exception to the fact that the feed will be distributed on the Berkman Center for Internet and Society’s website. The head of the center is Charles Nesson, who is defending Joel Tennenbaum, the defendant in the case.

“Accordingly, in the name of ‘public interest,’ the district court has directed the general public to a website replete with propaganda regarding the Defendant’s position in connection with this case, and that is specifically designed to promote Defendant’s interests in this case,” the RIAA wrote.

Last week, U.S. District Judge Nancy Gertner of Massachusetts granted the over-the-internet coverage for the 2 p.m. hearing. Only a handful of U.S. trial judges have ever allowed cameras in their courtrooms during a live proceeding. Most of the states grant local judges the discretion whether to allow cameras.

“At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation,” Gertner wrote in granting the internet coverage.

The 1st Circuit did not indicate when it would rule.

The RIAA also said the broadcast “creates a serious risk of unfairly infecting the pool from which the jury in this case will be selected.”

The RIAA, which has sued about 30,000 individuals on allegations of copyright infringement, claims it is winding down its 5-year-old litigation campaign. The recording industry’s litigation and lobbying arm told the circuit court that, “The public interest will not be served by broadcasting a single snippet of these proceedings, because doing so places a misleading emphasis on a limited aspect of the judicial process.”

Image: Modernhumorist.com

[Thanks, Wired]

Below I have pasted an article from my favorite non-American news source, The Guardian.  I read them frequently when I feel as if I can’t trust the ’standard’ news outlets.  Their agenda is quite different than say, Fox News or MSNBC.

Obama inauguration: Let the remaking of America begin today
Alan Rusbridger in Washington
Tuesday 20 January 2009 22.42 GMT

Barack Hussein Obama was today sworn in as 44th president of the United States of America in front of quite possibly the largest mass of humanity ever to have gathered in one place for a single political moment.

As many as 2 million people in ­Washington’s National Mall heard their new commander-in-chief deliver a sombre 20-minute speech in which he acknowledged that the country was in the midst of crisis – mired in wars, its economy struggling and its national confidence sapped. He promised the largely silent crowd that the challenges would be met, but warned it would take time, some sacrifice, a new form of politics and a re-engagement with the world, in which America would recognise that “power alone cannot protect us, nor does it entitle us to do as we please”.

President Obama took the oath just after midday under a crisp and ­cloudless azure sky in front of the glistening cream dome of the Capitol, which, it is now accepted, was partly built by slaves.

The day, cold enough to freeze breath, had begun with millions of individual journeys by coach, train and on foot as the crowds began converging before dawn for a moment widely taken as one of renewal and of double foreclosure. This was to be the end of the last eight years of Republican rule and of the bars which, at any previous time in history, would have made the election of an ­African American president unthinkable.

They had come to celebrate – and for days they had been doing just that in parties and balls all over town. The cheer as Obama swore his oath on ­Lincoln’s Bible rippled and roared all the way from the Lincoln Memorial to the Capitol, nearly two miles away.

But when Obama spoke it was immediately apparent that the tone of this inauguration was grave, addressed as much to the hundreds of millions tuned in around the world as to the shimmering sea of upturned faces in front of him.

“That we are in the midst of crisis is now well understood,” he said. “Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age.

“Homes have been lost; jobs shed; businesses shuttered. Our healthcare is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.”

If this was read as a repudiation of the previous eight years of Bush, there was plenty more of it. There was, said Obama, a nagging fear that American decline was inevitable; he wanted an end to “petty grievances and false promises”; the time had passed for “protecting narrow interests and putting off unpleasant decisions”; a nation could not prosper long “when it favours only the prosperous”.

In one of the few lines to be greeted by fervent applause, he turned to defence, proclaiming “we reject as false the choice between our safety and our ideals”. In a thinly-veiled reference to Guantánamo and torture he promised not to abandon the rule of law and human rights “for expedience’s sake”.

There was further implicit criticism of his predecessor’s policies in his comments on science and the environment. He vowed to “restore science to its rightful place” and made several references to climate change, acknowledging the threat to our planet and saying America would in future “harness the sun and the winds and the soil” for energy.

On international affairs, he singled out the Muslim world, offering “a new way forward based on mutual interest and mutual respect. America would leave Iraq “to its people” and forge a “hard-earned peace” in Afghanistan.

All inauguration ceremonies consciously celebrate, and reference, both the constitution and former presidents.

Four ghosts hovered over yesterday’s ceremony. Lincoln’s Gettysburg address gave the new president the overarching theme for his speech – the “new birth of freedom”. It is Lincoln, the gangly lawyer from ­Illinois, who has fascinated Obama more than any other previous president.

Lincoln’s Emancipation Proclamation freeing slaves and yesterday’s inauguration were in some ways bookends to the darkest stain on America’s history. For many in the crowd this was the over-riding reason for the pilgrimage to Washington. Obama put it simply: “A man whose father less than 60 years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.”

The second ghost was Martin Luther King, who, had he lived, would have been an 80-year-old spectator. No one in the crowd could have been oblivious to the echo across time of the words that had rung out from the other end of the National Mall 45 years previously.

And then there were JFK and FDR. Obama’s call for responsibility and sacrifice recalled both Kennedy in 1961 and Roosevelt’s heartfelt cry in 1933: “We now realise as we have never realised before our ­interdependence on each other.”

Obama’s serious tone and his unflinching acknowledgement of the economic hurricane blowing through America echoed Roosevelt’s speech at the time of the last serious global depression, in which an incoming president vowed “to speak the truth, the whole truth, frankly and boldly … with a candour … which the present situation of our nation impels”.

The endless crowd listened solemnly to the same sentiments today. They might have come wishing for something more uplifting, but, for many, the day reached beyond symbolism to a moment of genuine transformation after which nothing could be the same again.

As Obama headed back into the ­Capitol building at the end of the ­ceremony clouds began rolling over what had until then been a pure blue sky. But there was one final, rousing cheer as the helicopter carrying George W Bush rose over the gleaming dome of government and took the former president off to Texas – and out of public life for ever.

[Thanks, Guardian]

In an interview with Bob Woodward of the Washington Post, Susan J. Crawford, has admitted that Mohammed al-Qahtani, the suspected 20th terrorist in the 9/11 attack on the US was brutally tortured while being detained in the Guantanamo Bay detention facility.  Brutally tortured by Americans while being held without regard for the Geneva Convention.

Tortured by us.  Tortured by Americans.

Let’s couple this with Still Vice President Cheney’s admission on December 15th that he authorized and approved of the interrogation tactics used against a so-called "high value prisoner" at the controversial Guantanamo Bay prison,.  So Cheney admitted to giving official sanctioning of torture.

Where is the moral outrage?  Where are the arrests and public humiliation of these government officials?  Why is Still Vice President Dick Cheney not locked up right now?  We know that he believes that he is above the law (or worse, a law unto himself), but surely saner minds know better.

Why has there been no action?  Why has the name Cheney not be irrevocably linked with torture like Aaron Burr has been linked with treason?

Detainee Tortured, Says U.S. Official
Trial Overseer Cites ‘Abusive’ Methods Against 9/11 Suspect

By Bob Woodward
Washington Post Staff Writer
Wednesday, January 14, 2009; A01

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Military prosecutors said in November that they would seek to refile charges against Qahtani, 30, based on subsequent interrogations that did not employ harsh techniques. But Crawford, who dismissed war crimes charges against him in May 2008, said in the interview that she would not allow the prosecution to go forward.

Qahtani was denied entry into the United States a month before the Sept. 11 attacks and was allegedly planning to be the plot’s 20th hijacker. He was later captured in Afghanistan and transported to Guantanamo in January 2002. His interrogation took place over 50 days from November 2002 to January 2003, though he was held in isolation until April 2003.

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani’s interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."

At one point he was threatened with a military working dog named Zeus, according to a military report. Qahtani "was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation" and "was told that his mother and sister were whores." With a leash tied to his chains, he was led around the room "and forced to perform a series of dog tricks," the report shows.

The interrogation, portions of which have been previously described by other news organizations, including The Washington Post, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani’s heart rate dropped to 35 beats per minute, the record shows.

The Qahtani case underscores the challenges facing the incoming Obama administration as it seeks to close the controversial detention facility at Guantanamo Bay, Cuba, including the dilemmas posed by individuals considered too dangerous to release but whose legal status is uncertain. FBI "clean teams," which gather evidence without using information gained during controversial interrogations, have established that Qahtani intended to join the 2001 hijackers. Mohamed Atta, the plot’s leader, who died steering American Airlines Flight 11 into the World Trade Center, went to the Orlando airport to meet Qahtani on Aug. 4, 2001, but the young Saudi was denied entry by a suspicious immigration inspector.

"There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001," Crawford said of Qahtani, who remains detained at Guantanamo. "He’s a muscle hijacker. . . . He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’ "

That, she said, is a decision that President-elect Barack Obama will have to make. Obama repeated Sunday that he intends to close the Guantanamo center but acknowledged the challenges involved. "It is more difficult than I think a lot of people realize," Obama said on ABC’s "This Week," "and we are going to get it done, but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous, who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted, even though it’s true."

President Bush and Vice President Cheney have said that interrogations never involved torture. "The United States does not torture. It’s against our laws, and it’s against our values," Bush asserted on Sept. 6, 2006, when 14 high-value detainees were transferred to Guantanamo from secret CIA prisons. And in a interview last week with the Weekly Standard, Cheney said, "And I think on the left wing of the Democratic Party, there are some people who believe that we really tortured."

"I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe," said Crawford, a lifelong Republican. "But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward."

"The Department has always taken allegations of abuse seriously," Pentagon spokesman Geoff Morrell said in an e-mail. "We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohammed Al Qahtani, the alleged 20th hijacker. They concluded the interrogation methods used at GTMO, including the special techniques used on Qahtani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on Al Qahtani, although permissible at the time, are no longer allowed in the updated Army field manual."

After the Supreme Court ruled in the 2006 Hamdan v. Rumsfeld case that the original military commission system for Guantanamo Bay violated the Constitution and the Geneva Conventions, Congress rewrote the rules and passed the Military Commissions Act, creating a new structure for trials by commissions. The act bans torture but permits "coercive" testimony.

Crawford said she believes that coerced testimony should not be allowed. "You don’t allow it in a regular court," said Crawford, who served as a judge of the United States Court of Appeals for the Armed Forces from 1991 to 2006.

Under the act, Crawford is a neutral official overseeing charges, trials and sentencing, with ultimate decision-making power over all cases coming before the military commissions.

In May 2008, Crawford ordered the war-crimes charges against Qahtani dropped but did not state publicly that the harsh interrogations were the reason. "It did shock me," Crawford said. "I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it."

The harsh techniques used against Qahtani, she said, were approved by then-Defense Secretary Donald H. Rumsfeld. "A lot of this happened on his watch," she said. Last month, a Senate Armed Services Committee report concluded that "Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there." The committee found the interrogation techniques harsh and abusive but stopped short of calling them torture.

An aide to the former defense secretary accused the committee chairman, Carl M. Levin (D-Mich.), of pursuing a politically motivated "false narrative" that is "unencumbered by the preponderance of the facts."

In June 2005, Time magazine obtained 83 pages of Qahtani’s interrogation log and published excerpts that showed some of the extreme abuse. The report of a military investigation released the same year concluded that Qahtani’s interrogations were "degrading and abusive."

Crawford said she does not know whether five other detainees accused of participating in the Sept. 11 plot, including alleged mastermind Khalid Sheik Mohammed, were tortured. "I assume torture," she said, noting that CIA Director Michael V. Hayden has said publicly that Mohammed was one of three detainees waterboarded by the CIA. Crawford declined to say whether she considers waterboarding, a technique that simulates drowning, to be torture.

The five detainees face capital murder charges, and Crawford said she let the charges go forward because the FBI satisfied her that they gathered information without using harsh techniques. She noted that Mohammed has acknowledged his Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating statements to the FBI.

"There is no doubt he was tortured," Gitanjali S. Gutierrez, Qahtani’s civilian attorney, said this week. "He has loss of concentration and memory loss, and he suffers from paranoia. . . . He wants just to get back to Saudi Arabia, get married and have a family." She said Qahtani "adamantly denies he planned to join the 9/11 attack. . . . He has no connections to extremists." Gutierrez said she believes Saudi Arabia has an effective rehabilitation program and Qahtani ought to be returned there.

When she came in as convening authority in 2007, Crawford said, "the prosecution was unprepared" to bring cases to trial. Even after four years working possible cases, "they were lacking in experience and judgment and leadership," she said. "A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything."

She noted that prosecutors are required to determine whether any evidence possessed by the government could be exculpatory; if it is, they must turn it over to defense lawyers. It took more than a year, she said — and the intervention of Deputy Defense Secretary Gordon England — to ensure they had access to all the information, much of it classified.

Crawford said detainee interrogation practices are a blot on the reputation of the United States and its military judicial system. "There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality." The system she oversees probably can’t function now, she said. "Certainly in the public’s mind, or politically speaking, and certainly in the international community" it may be forever tainted. "It may be too late."

She said Bush was right to create a system to try unlawful enemy combatants captured in the war on terrorism. The implementation, however, was flawed, she said. "I think he hurt his own effort. . . . I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it."

"We learn as children it’s easier to ask for forgiveness than it is for permission," Crawford said. "I think the buck stops in the Oval Office."

Researchers Julie Tate and Evelyn Duffy contributed to this report.

Defense Lawyers for the Blackwater 5 had thought to influence justice by having their clients surrender in Utah.  A state that traditionally supports the military, the lawyers for the defense hoped to find a sympathetic jury there.

Those hopes were squashed like bugs underfoot when a federal judge there ordered the defendants to report to a District of Columbia courthouse on January 6th of next year.  Considering the likelihood that this will be a high profile case that is sure to set precedent, I can only applaud the judge’s decision to move venue to the capitol.

Of course, the larger issues remain.  Will the corporation itself and the legislators who approved the no-bid contract which allowed Blackwater to be in Iraq in the first place ever be called to task?  Probably not in this lifetime, but Karma is a bitch and we will certainly hope for justice.

 

Judge: Blackwater guards must report to DC court

Staff and agencies
08 December, 2008

Blackwater charges: 14 counts of manslaughter

The shooting by the largest U.S. security contractor in Iraq sparked international condemnation, launched congressional hearings and inspired anti-American insurgent propaganda.

A sixth Blackwater guard struck a deal with prosecutors, turned on his former colleagues, and pleaded guilty to killing one Iraqi and wounding another.

Prosecutors said the slain included young children, women, people fleeing in cars and a man whose arms were raised in surrender as he was shot in the chest.

Blackwater, which was not charged in the case, maintains its guards were protecting themselves from what they believed was an imminent car bomb attack.

In all, 17 Iraqis were killed in the assault. But Assistant Attorney General Patrick Rowan said evidence in the case could only prove the guards shot 14, although he left open the possibility of future charges.

The guards are Donald Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn., and Paul Slough, an Army veteran from Keller, Texas.

The sixth guard, who is cooperating with the government, is Jeremy Ridgeway of California. He pleaded guilty to one count each of manslaughter, attempted manslaughter, and aiding and abetting. In his plea agreement with prosecutors, Ridgeway admitted there was no threat from a white Kia sedan whose driver, a medical student, was killed and his mother, in the front passenger seat, was injured.

Following a car bombing elsewhere in the city, the heavily armed Blackwater convoy sought to shut down an intersection. Prosecutors said the convoy, known by the call sign Raven 23, had violated an order not to leave the U.S.-controlled Green Zone.

Khalid Ibrahim, a 40-year-old electrician who said his father, Ibrahim Abid, 78, died in the shooting, welcomed the charges.

"The killers must pay for their crime against innocent civilians, Ibrahim said in Iraq. "Justice must be achieved so that we can have rest from the agony we are living in. We know that the conviction of the people behind the shooting will not bring my father to life, but we will have peace in our minds and hearts."

But the drama is far from over. After more than a year of investigative missteps and fierce debate, the Justice Department now faces stiff challenges to the evidence and legal grounds at the heart of its case.

Most importantly, prosecutors must prove they did not rely on protected statements the guards gave to State Department investigators within hours of the shootings.

The State Department gave limited immunity to all the guards in the four-car convoy, promising not to prosecute them based on the initial statements recounting how the violence began. The move left Justice Department and FBI investigators with a crime scene long gone cold and with limited forensic evidence to bolster their case.

"We fully expect that the defendants will raise the issue," Rowan said. "We‘ve been very careful and very painstaking in the way we have investigated this case, the way we have assembled evidence. And we fully expect to prevail when the court hears that issue."

Defense attorneys also will argue that the guards cannot be charged under a law intended to cover soldiers and military contractors since the men worked as civilian contractors for the State Department. Rowan, however, said Blackwater was supporting the military‘s mission in Baghdad and the law therefore applies to them.

It is the first time prosecutors have used that argument to prosecute contractors. The Justice Department recently lost a somewhat similar case against former Marine Jose Luis Nazario Jr., who was charged in Riverside, Calif., with killing four unarmed Iraqi detainees.

The Moyock, N.C.-based Blackwater said it stands behind the guards despite being "extremely disappointed and surprised" that one had pleaded guilty.

[Thanks, News One]

Remember those 17 Iraqi civilians murdered by member of the ‘elite’ security force, Blackwater?  On September 16th, 2007, a firefight (if the strafing of civilians with automatic weapons can be considered a firefight!) in Nisour Square left 17 civilians dead, 14 of whom the FBI has determined were unjustifiable.

Well, the 5 Blackwater murderers implicated in that heinous crime have agreed to surrender to US authorities in their home state of Utah. Specific charges against the murderous crew will be made public today.  Eye-witnesses are expected to testify that the killings were unprovoked.

Some of my original posts:

• Blackwater: Murderer, confession revealed.

• FBI Confirms: Blackwater Employees are Murderers

• Blackwater: Murderer, confession revealed.

Blackwater guards ‘to surrender’

Five employees of the US security firm Blackwater charged over the 2007 fatal shooting of 17 Iraqis will surrender to US federal authorities, reports say.

Contracted to defend US diplomats, the firm says its guards acted in self-defence when they opened fire when ambushed by Baghdad insurgents.

Details of the charges are expected to be made public on Monday, with reports saying the men will surrender in Utah.

The Iraqi government has welcomed the move to hold "criminals accountable".

The killings have become a central issue in Iraq’s relationship with the US and raised questions about the oversight of US contractors operating in war zones.

Witnesses and family members maintain the shooting on 16 September 2007 was unprovoked.

‘Politically motivated’

Although the indictment was made in Washington, the Associated Press reported that the men would surrender to federal marshals in Utah, the home state of one of the five guards, Donald Ball.

That way the men could argue that the case should be heard in Utah, considered more conservative and pro-gun than Washington, AP said.

"Donald Ball committed no crime," said his lawyer, Steven McCool. "We are confident that any jury will see this for what it is: a politically motivated prosecution to appease the Iraqi government."

Defence lawyers are expected to file a series of challenges before the guards can even go to trial.

While the exact charges remain unclear, the US justice department has been considering manslaughter and assault charges against the guards for weeks.

The New York Times has previously reported that an FBI investigation had concluded that 14 of the deaths at the busy Baghdad intersection were unjustified.

Young children were among the victims.

As well as Mr Ball, the other men indicted are Dustin Heard, Evan Liberty, Nick Slatten and Paul Slough.

A sixth Blackwater employee is negotiating a plea deal in return for testifying against his colleagues, AP reported, adding that the indicted men are decorated military veterans.

Contractor conditions

The problem of private armed guards in Iraq remains unresolved, mainly because they continue to provide security for the many American and other foreign officials in the country.

US law is unclear on whether contractors can be charged in the US or anywhere else for crimes committed overseas.

In October 2007, the Iraqi government approved a draft law revoking the immunity from prosecution that private security contractors enjoyed under Iraqi law.

The US has since put in place new guidelines for security contractors.

Based at a vast ranch complex in North Carolina, Blackwater is one of the main private providers of security within Iraq, and its contract there was extended in April.

[Thanks, BBC News]

As the ripples of the economic debacle continue to spread we will be seeing more cases like WaMu.  Washington Mutual collapsed in September and was acquired by JPMorgan for $1.9 billion. It was this nation’s largest bank failure in history.

Hopefully it will be the last such failure, but my guess is that the greed and malfeasance that fueled Wall Street for so many years under the tutelage and consent of still president Bush will find other companies at the brink of disaster.

WaMu cutting 3,400 Seattle-area jobs, 9,200 total

JPMorgan Chase & Co. is eliminating the jobs of 3,400 Washington Mutual employees in the Seattle area, part of 9,200 job reductions nationwide, a spokesman said Monday.

By TIM KLASS
Associated Press Writer

SEATTLE — JPMorgan Chase & Co. is eliminating the jobs of 3,400 Washington Mutual employees in the Seattle area, part of 9,200 job reductions nationwide, a spokesman said Monday.

Outside of Seattle, where WaMu is based, the biggest number of job cuts is 1,600 at credit card call centers in San Francisco and Pleasanton, Calif., and layoffs are generally no more than a few hundred in other areas, JPMorgan spokesman Thomas A. Kelly said.

None of the more than 20,000 workers in branch banks are being cut, he said.

"Our branch staff is not changing at all," Kelly said. "We need all the branch personnel we have now."

Washington Mutual, the nation’s largest savings and loan, collapsed in September and was acquired by JPMorgan for $1.9 billion. It was the nation’s largest bank failure in history.

WaMu had between 41,500 and 42,000 employees nationwide at the time, and the 3,400 Seattle-area layoffs amount to about 80 percent of the bank’s local work force, leaving about 900 workers, mostly at branches.

Earlier Monday, JPMorgan chief executive James L. "Jamie" Dimon met here behind closed doors with about 200 WaMu employees from retail branches. His visit came on the final day of WaMu pink slips, although "the vast majority were notified previously," especially in the last two weeks, Kelly said.

Dick Conway of Dick Conway & Associates, an economist and regional economic forecaster, said the job losses underscored his prediction that the four-county region that includes Seattle will have fallen into recession by the end of the month.

King, Pierce, Snohomish and Kitsap counties already have been hard hit by the construction and homebuilding industry collapse, making layoffs in other sectors especially painful, "but this one doesn’t appreciably affect the (regional) forecast," Conway said.

The WaMu jobs being eliminated are almost entirely white-collar positions ranging from executives, managers and supervisors to less highly paid workers in areas where JPMorgan staff can assume the added load, Kelly said.

Kelly said 4,000 positions nationwide, including 1,500 in the Seattle area, will be gone by the end of January while another 5,200, including 1,900 in the Seattle area, will help with the transition to the new ownership, with some work extending through the end of 2009.

All are getting severance packages based on longevity under WaMu policies, and transition workers are being paid at twice their previous rate until their jobs end, he said. The Seattle Times quoted unnamed bank sources as saying that severance consists of five weeks’ pay for each of the first two years of service and two weeks’ pay for each succeeding year.

"The transition employees are helping us move from WaMu computing systems, accounting systems and branding to the Chase brand," Kelly said.

The extra pay for transition staff will cushion the impact of the layoffs "but will not in the end prevent it," Conway said.

Loss of the WaMu headquarters in the 55-story Washington Mutual Tower will likely boost the downtown Seattle office vacancy rate, especially as new buildings that were started before the economic tailspin are completed, he added.

Washington Mutual was weighed down by its deep exposure to the crumbling mortgage market, which has been the hardest hit area of the markets since the middle of 2007. As mortgages increasingly defaulted beginning in 2007, Washington Mutual was forced to set aside billions of dollars to cover losses.

Shares of JPMorgan fell $5.54, or 17.5 percent, to $26.12 Monday as the broader market tumbled as investors continue to worry about the sagging economy.

[Thanks, Seattle Times]

Yikes!  There is apparently an oft forgotten little clause in the U.S. Constitution (Article One, Section Six) that prohibits senators from taking a civil office if that legislator has ever voted to increase the pay for that job.  Could this preclude Hillary from accepting the post of Secretary of State?

There is also some ‘legal’ precedent that allows for Congress to lower the wage for that particular job.  This is some kind of smoke and mirrors band-aid that means Hillary wouldn’t benefit financially from the higher salary she’d previously voted on.  I’m far, far, far from being a legal expert, but the text in the article below seems unambiguous.

Obama likely to name Hillary Clinton to Cabinet. But wait! Can he?

The president-elect, no-drama Barack Obama, is expected to name his new secretary of State, all-drama Hillary Clinton, as early as tomorrow as part of the week’s rollout for his national security team.

But can he?

As pointed out by a number of bloggers in recent hours, including our eloquent friend Susan over at Wake Up America, there’s a clause in the U.S. Constitution (Article One, Section Six) that prohibits senators (or representatives) from taking a civil office if the legislator has voted to increase the pay for that job.

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

A president-elect who’s a former part-time constitutional law professor, even one without his BlackBerry, presumably is aware of this prohibition, obviously designed to prevent double-dipping and raising your own salary, which is only allowed in Wall Street banks.

And Obama surely knows of its historical precedents.

And if Obama makes the appointment of his former bitter rival, she’ll no doubt take office as the point person for U.S. foreign policy.

But the appointment of the loser of the Democratic presidential nomination by the winner of that nomination and of the subsequent general election wouldn’t be properly Clintonian without some extra dramatic flourishes. This is likely only the beginning of such chapters.

Apparently, President Nixon ran into the same problem when he wanted to appoint Ohio’s Republican Sen. William Saxbe as attorney general.

The solution back then, since dubbed the "Saxbe fix," was for Congress to pass another law (not without some outspoken dissent from Democratic senators, by the way) reducing the AG’s pay so Saxbe wouldn’t benefit financially from the higher salary he’d previously voted on.

Similar fixes occurred when President Jimmy Carter named Edmund Muskie secretary of State and H. Clinton’s own husband Bill named Lloyd Bentsen to head Treasury.

So much for the actual money aspect and strict construction.

We’re not lawyers. But we do speak English. And to our eyes that constitutional clause doesn’t say anything about getting around the provision by reducing or not benefiting from the increase of said "Emoluments."

It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee’s elected term. Period. Which it has.

This seems more like a TV scriptwriter’s trick to keep everyone hanging around through the commercials starting tomorrow.

– Andrew Malcolm

[Thanks, LA Times]

The most recent controversy to surround disgraced ex Attorney General stems from a lawsuit filed against him by 8 individuals who applied for, but were refused, positions with DOJ’s Honor Program and Summer Law Intern Program. 

A June internal investigation has revealed that certain candidates were excluded because of their liberal-leaning resumes.  Whoops!  Violating department policies and civil service law to exclude Democrats again.  That brings the total individuals wronged by Alberto due to political party collateral damage to 17.

I wonder if there is any single thing that Alberto accomplished during his brief tenure that can overshadow all of these political fuck-ups?  Probably not.  Yet another stunning legacy from the still president Bush administration.

Leahy, Conyers Want Info On DOJ Paying Gonzales’ Legal Bills

By John Bresnahan

Nov 24, 2008

(The Politico) Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and House Judiciary Committee Chairman John Conyers (D-Mich.) want Attorney General Michael Mukasey to give them the details on how much the Justice Department is spending to defend former AG Alberto Gonzales.

Gonzales has been sued by eight individuals who applied for, but were turned down, positions with DOJ’s Honor Program and Summer Law Intern Program. An internal investigation found that several former high-ranking DOJ officials may have improperly sought to block the hiring of liberal applicants for these prestigious entry-level positions inside Justice.

As with previous cases where former officials are sued over job-related actions, the Justice Department is paying up to $24,000 per month for Gonzales’ private attorneys, according to media reports. The two Democrats want information on the agreement between DOJ and Gonzales over the legal fees.

"Following the publication of the Inspector General [Glenn Fine's] report, several individuals whose applications for employment through these programs were turned down during the period that the hiring process was improperly politicized have filed suit against Mr. Gonzales and others who held senior positions at the Department at the time,’" Leahy and Conyers wrote. "Recent press accounts indicated that the Department of Justice has decided to pay up to $24,000 a month for a private attorney to represent Mr. Gonzales in connection with this lawsuit. As far as we can tell, the Department has thus far failed to confirm or publicly account for any aspect of this arrangement."

The two chairmen want to know who at DOJ approved the agreement with Gonzales, and why, if IG Fine found that the alleged politiicization of the hiring process may have violated DOJ policy, "did the Department determine that the conduct at issue in this lawsuit was within the scope of Mr. Gonzales’s employment and that his representation is in the interest of the United States? "

Copyright 2008 POLITICO

[Thanks, CBS News]

You really have to wonder what she was thinking.  When President George H.W. Bush officially pardoned the first Thanksgiving turkey in 1989, it became a cute little White House tradition and photo op for the President and his family. 

A lighthearted moment for the 6 o’clock news normally filled with war and famine. An opportunity for the POTUS d’ jour to appear a little less of a monster.  But fundamentally, it’s a silly and stupid ‘tradition’ that is better left forgotten.  My guess is it’s the National Turkey Federation and the Poultry and Egg National Board who continue to send the White House a live bird that foster this pseudo-tradition.  Like Americans need a reminder to eat a bird on Thanksgiving…

This last Thursday, Failin’ Palin decided that as governor she could enjoy the same photo op as still president Bush and held a little turkey pardoning of her own.  It all sounds banal, right?  Enough for a page 3 ‘feature’ in the Wasilla Wildlife Weekly perhaps?  Well, that would have been the case had she not totally failed to understand the underlying premise of the pardon itself. 

Her failure?  She pardoned one bird while standing directly in front of the mass wholesale slaughter of hundreds of other fowl victims.

Audiences gobble up latest Palin interview

BACKFIRE: Camera catches slaughter of turkeys after governor’s playful pardon.

By SEAN COCKERHAM
scockerham@adn.com

Published: November 22nd, 2008 02:33 AM
Last Modified: November 22nd, 2008 03:06 AM

It’s being called "gobblegate," "the interview of death," and "Silence of the Turkeys."

Gov. Sarah Palin granted a Thanksgiving pardon to a turkey at a Mat-Su poultry farm on Thursday, a photo-op associated with presidents but done by governors as well.

But by Friday, video of Palin giving an upbeat interview while other turkeys were being slaughtered behind her had turned into an Internet sensation, with the governor once again at the center of controversy.

The video, shot by KTUU Channel 2, had 1.2 million hits on YouTube. It was prominently featured on the home pages of newspapers such as the Chicago Tribune and Denver Post. MSNBC’s "Countdown" paired the video with "breaking news" headlines such as "Gov. Palin picks worst possible backdrop for TV news interview." Countered the conservative site RedState.com: "Media shocked to discover how farming works"

Such footage of any governor would no doubt have drawn interest, but the continuing obsession with the former Republican vice presidential nominee sent this one into the stratosphere.

The governor’s office wasn’t particularly amused.

"It’s unfortunate because it’s been a rough fall and this was meant to be a lighthearted event," said Palin spokesman Bill McAllister.

McAllister said Palin wasn’t aware that the slaughter was going on behind her in the interview — during which Palin was asked if she was concerned about "state programs on the chopping block" and why she wanted to pardon a turkey.

"For one, you need a little bit of levity in this job. … to just participate in something that isn’t so heavy handed politics that invites criticism," Palin replied. "Certainly we’ll probably invite criticism for even doing this too, but at least this was fun."

‘THAT’S JUST LIFE’

Anthony Schmidt, owner of Triple D Farm & Hatchery, where this all took place, said Friday that animal rights activists from around the nation had been calling all day to "say how horrible it was they were killing that turkey and people could see it."

"And I guess, to some degree I understand that. If I had my choice it wouldn’t have been aired, that part of it. But, on the other hand, that’s just life," he said. "Americans are going to consume 46 million turkeys at Thanksgiving. I’m only doing six or seven hundred. Give somebody else a hard time."

Schmidt said he was busy during the governor’s visit and didn’t realize turkeys were being killed right behind the governor, or he would have stopped it. He said the publicity is increasing turkey orders but he doesn’t like the fallout.

"They’re sliming the governor and I think it’s wrong, totally, wrong," Schmidt said. "I mean, come on guys, get a life."

McAllister said the slaughter had not started at the time the cameras were set up. He said that, while the cameras were rolling and a worker at the farm began placing turkeys head-down in a big metal cone to cut their necks and drain blood, Kris Perry, the governor’s friend and director of her Anchorage office, "was actually physically nudging (the KTUU videographer), saying ‘look at this,’ and encouraging him not to frame the shot to include that, or to do something about it later, where he wouldn’t use it," McAllister said. McAllister said KTUU showed the slaughter in its 5 p.m. broadcast, but not at 6 p.m., and pulled the video from its Web site. "So obviously there was concern about it there too."

BEHIND THE SCENE

KTUU News Director Steve MacDonald said the footage was too graphic, out of context, and should not have made it on the air at all. He said the station wasn’t attempting to embarrass Palin and had a breakdown in its vetting system.

"We feel really bad about what happened. We take our reputation very seriously, we take our place in the community very seriously and the last thing we want to do is harm our integrity with our viewers," MacDonald said.

MacDonald said the station’s videographer denies Perry was nudging him during the shot. He said the crew thought Palin knew what was going on behind her but believes McAllister was correct that the slaughter didn’t start until after the interview began.

Democratic blogger Linda Kellen Biegel was at the turkey pardon and didn’t believe Palin was unaware of what was happening. "Give me a break! There is NO WAY she couldn’t have known!" Biegel wrote on her blog, Celtic Diva’s Blue Oasis.

MSNBC’s host David Shuster, substituting for Keith Olbermann on "Countdown," said on his show Thursday night that "governor Palin’s office is now telling our NBC news desk that a photographer asked her if she wanted that as a backdrop and she replied ‘no worries.’ " KTUU’s MacDonald said he’s not aware of that.

Palin spokesman McAllister said she may have said that before the slaughter started, but not after it began.

[Thanks, The Anchorage Daily News]

I’m so overjoyed I’m incapable of commenting!

Cheney, Gonzales indicted for alleged prisoner abuse

(CNN) – Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.

The indictment stems from Cheney’s investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.

Democratic state Sen. Eddie Lucio Jr. also is charged in the indictment.

Michael R. Cowen, an attorney for Lucio, issued a statement calling Guerra a "one man circus."

"In the March 2008 Democratic Primary, 70 percent of the Willacy County voters elected to remove Juan Guerra as Willacy County District Attorney," Cowen said. "Now, with only a few weeks left in his term, Mr. Guerra has again chosen to misuse his position in an attempt to seek revenge on those who he sees as political enemies."

Cheney spokeswoman Megan Mitchell said, "The vice president has not received an indictment."

Willacy is near the United States-Mexico border.

[Thanks, CNN]

The ‘Big Three’, General Motors, Ford and Chrysler, have spent billions of dollars in the past few years betting that the American public doesn’t really want fuel efficiency.

That sounds like a harsh statement, but look at the facts:

1. The Hummer
2. Any Denali
3. Chevy Suburban
4. Ford Expedition
5. Cadillac Escalade
6. No electric car
7. Average MPG by manufacturer.

• Daimler-Chrysler: 24.7 mpg
• Ford: 29.9 mpg
• General Motors: 31.9 mpg
• Toyota: 38.5 mpg
• Honda: 39.6 mpg

The ‘Big Three’ have spent billions and billions to ensure our dependence on foreign oil.  Billions and billions to promote excesses in fuel consumption.  They could have learned, they could have done something.  But they CHOSE not to.

The following article lists 7 Key Questions.  But, CNN has missed one.  Question #8, what’s the payback?  Do you plan to take my hard earned tax dollar and simply continue the way that you have?

Here’s my thoughts:

1. Any bailout will be paid back in full with prime interest rates applied.  And you’ve only got 5 years to do it.
2. The bailed out car manufacturer will have an electric car for sale, nationwide, for model year 2010.  And there must be guarantees of sufficient stock on hand.
3. The bailed out car manufacturer will have a ‘Smart Car’ vehicle for sale, nationwide, for model year 2010.  And there must be guarantees of sufficient stock on hand.
4. Force closure of 50% of your dealerships.  Just stop selling cars to some of the lower producing dealers.

Without 100% compliance you don’t get the money, and if you renege then you get closed down with all assets sold to pay the debt.

Also, read Campbell Brown’s take on the bailout HERE.

Detroit bailout: 7 key questions

As Congress takes a look at whether to help the struggling U.S. automakers, here is what you need to know about what’s at stake for the Big Three.

By Chris Isidore,CNNMoney.com senior writer

Last Updated: November 18, 2008: 9:32 AM ET

NEW YORK (CNNMoney.com) — Congress is set to begin a heated debate on whether Detroit’s Big Three automakers — General Motors, Ford Motor and Chrysler LLC — will be next in line for a federal bailout.

Democratic leaders in Congress are in favor of some kind of help, as is President-elect Obama. But the Bush administration has balked on proposals to let the automakers tap the $700 billion Wall Street bailout approved in October.

Many leading Congressional Republicans have suggested that a better option is bankruptcy, enabling the Big Three to restructure and ultimately emerge as leaner and viable businesses.

How this debate plays out could determine whether this important industry survives — and in what form. Here are some quick answers to seven key questions about the crisis.

What do the automakers want?

The automakers are asking for about $25 billion in loans to help them survive until 2010. Advocates for a bailout argue that if the Big Three can hang on until then, they’ll be in position to be competitive long-term.

That’s because billions of dollars in annual savings won in the 2007 labor agreement with the United Auto Workers union kick in that year, including shifting the responsibility for retirees’ health care costs to union-controlled trust funds.

What’s more, it’s likely that car sales will pick up again by 2010 and that plant closings between now and then will bring the Big Three’s capacity in line with this demand.

How many jobs are at stake?

GM (GM, Fortune 500) has about 120,000 U.S. employees. Ford (F, Fortune 500) has about 80,000 and closely-held Chrysler LLC has about 66,000.

In addition, the three automakers have about 14,000 U.S. dealerships that between them employ another 740,000 workers.

The suppliers used by the Big Three also employ an estimated 610,000 people.

Add that up and you have more than 1.6 million jobs tied to the auto industry.

What happens if there’s no bailout?

GM risks running out of money later this year or early in 2009 without a bailout.

GM burned through $6.9 billion during the third quarter, leaving it with only $16 billion on hand as of Sept. 30. But it needs $11 billion to $14 billion to continue normal operations.

Ford and Chrysler have more cash relative to their needs, mostly from money they borrowed prior to the current credit crunch.

But each of those automakers could also run out of cash during 2009 without federal assistance.

What happens if an automaker goes bankrupt?

There are two types of corporate bankruptcy under U.S. law.

Chapter 11 allows a company to continue to operate as it sheds debts and contracts it can not afford.

In Chapter 7 bankruptcy, the company goes out of business fairly rapidly as its assets are sold off to try to satisfy its creditors.

What are advantages of an automaker going into bankruptcy?

Some argue that bankruptcy judges will be able to force the automakers to shed brands and dealerships as well as get the Big Three out of labor contracts they can not afford.

Other U.S. industries, such as steel companies and airlines, have used bankruptcy in the past to return to profitability without putting federal dollars at risk.

What are the arguments against a Chapter 11 bankruptcy?

Given the current credit crunch, many experts question whether automakers would be able to get necessary financing from lenders to help them during the reorganization process.

There are also doubts whether consumers would buy new vehicles from a bankrupt automaker due to concerns over their resale value and warranty. In effect, an automaker that files for Chapter 11 could eventually wind up going out of business anyway.

What are some of the other broader economic impacts if an automaker goes out of business?

Nearly 2 million Americans get their health insurance directly from one of the Big Three automakers. Most of them would lose that coverage if their company goes out of business. A failure of one of the Big Three could also cause a string of bankruptcies among suppliers.

And beyond the job losses at the automakers, dealerships and suppliers, media companies that generate a lot of revenue from auto advertising as well as retailers in towns where plants are located could also have to cut many jobs. The Center for Automotive Research, a Michigan think tank that supports the bailout, estimates that between 1.4 million and 1.7 million jobs indirectly tied to the Big Three would be lost in the first year following widespread auto failures.

[Thanks, CNNMoney]

CNN is reporting that the controversial Senate race between convicted Republican incumbent Ted Stevens and Democratic challenger Mark Begich is still up for grabs.  At last count, Begich was leading Stevens by a margin of 1,022 votes.

But will that be enough to ensure victory?  Apparently, in Alaska there is a 15 day grace period, the longest in the nation, for the arrival of absentee ballots mailed outside of the US.  Could there be enough votes to straggle in to let the ethically challenged Stevens gain victory over Begich?

Remember just how far reaching these results are.  If Stevens wins, Palin could demand his resignation and hold a special election on which she would figure prominently on the ballot.  the book-buring witch could end up in Washington after all, rather than in Hollywood where she belongs.

Alaska, Minnesota set for key steps in unresolved Senate races

• Story Highlights
• U.S. Senate races in Alaska, Minnesota still too close to call
• Wednesday is deadline for Alaska officials to receive absentee ballots
• Minnesota officials mull status of rejected ballots for recount
• Georgia will have runoff election on December 2

(CNN) — Officials in Alaska, one of three states yet to certify winners in the November 4 U.S. Senate races, say they hope to have nearly all ballots counted on Tuesday.

And officials in Minnesota, home of one of the other unresolved races, intend to rule Tuesday whether certain rejected absentee ballots should be considered in a recount scheduled to start Wednesday.

In the Alaska race between embattled Republican Sen. Ted Stevens and Democratic challenger Mark Begich, about 24,000 ballots remained to be counted on Tuesday, said the state’s elections director, Gail Fenumiai.

However, it’s possible a few straggling absentee votes might come in Wednesday in time to be added to the tallies.

The race drew national attention, especially after Stevens was convicted in October of filing false statements on Senate financial disclosure forms. In early returns in the days after the election, Stevens — the Senate’s longest serving Republican — held a narrow lead over Begich, who is mayor of Anchorage.

But Begich took a slim lead last week as officials sorted some 90,000 additional votes — nearly a third of all ballots cast in the state. Those votes included about 60,000 absentee ballots, 9,500 early votes and another 20,000 "questioned" or provisional ballots being checking for validity.

By Friday, when vote counting was stopped for the weekend, Begich had 47.37 percent of votes counted; Stevens had 47.02 percent. The two were separated by 1,022 votes out of more than 290,000 cast, according to the Alaska Division of Elections Web site.

Alaska allows up to 15 days, longer than any other state, after Election Day for absentee ballots to arrive and be counted if they were postmarked by Election Day and mailed from outside the United States. Absentee ballots mailed inside the United States are accepted up to 10 days after the election.

Election officials said that schedule was adopted in consideration of Alaska’s sprawling geography, sparse population and sometimes spotty mail service in remote areas.

"Wednesday is the last day we will accept absentee ballots, but we really don’t expect many to come in," Fenumiai said Monday.

In Minnesota, vote totals last week showed Republican Sen. Norm Coleman 206 votes ahead of his Democratic challenger, Al Franken.

On Tuesday, the secretary of state’s canvassing board is scheduled to hear a request by Franken’s campaign that certain already-rejected absentee ballots be counted during a statewide hand recount scheduled to start Wednesday.

Asked what the campaign plans to do if the board decides it will not count rejected ballots, Franken spokeswoman Colleen Murray said the campaign hasn’t ruled out anything, including asking for a postponement of the recount.

Georgia is the other state with a Senate race yet to be resolved. Republican Sen. Saxby Chambliss will face Democrat Jim Martin in a December 2 runoff.

[Thanks, CNN]

I have been telling friends and family that once Ted Stevens was elected, Governor Palin was going to convince him to step down and hold a special election putting herself on the ballot.  That would satisfy the pundits who are calling for Ted’s resignation and satisfy the burning yearning in Sarah’s soul to become one of the Washington elite.

I may have spoken too soon.  The thing I didn’t count on was the Alaskan voters doing the right thing in the face of Mr. Stevens lying and ethical behavior.  For the above scenario to actually take place Stevens would have to win the election and that doesn’t seem likely.

Sarah had mentioned in her ‘interview’ earlier this week that she would keep an eye out for doors which her god might open for her.  Seems to me that this door has been slammed in her face.

Begich takes lead in latest vote count

SENATE RACE: Anchorage mayor swings from 3,000-vote deficit to 814-vote advantage.

By SEAN COCKERHAM and KYLE HOPKINS
scockerham@adn.com

Published: November 13th, 2008 01:20 AM
Last Modified: November 13th, 2008 01:56 AM

Mark Begich made a dramatic comeback Wednesday to overtake 40-year incumbent Ted Stevens for the lead in Alaska’s U.S. Senate race.

Begich, who was losing after election night, now leads Stevens by 814 votes — 132,196 to 131,382 — with the state still to count roughly 40,000 more ballots over the next week.

The state Division of Elections tallied about 60,000 absentee, early and questioned ballots from around the state on Wednesday. The ballots broke heavily in the Democrat’s favor, erasing the 3,000-vote lead the Republican Stevens held after election night Nov. 4.

Stevens is trying to become the first person ever elected to the U.S. Senate after a being found guilty of felony crimes. A Washington, D.C., jury found him guilty a week before the election of lying about gifts on his financial disclosure forms.

The state still needs to count at least 15,000 questioned ballots and an estimated 25,000 absentees. With all the absentee votes coming in, this will be one of the biggest turnouts, if not the biggest in terms of ballots cast, the state has ever seen. That’s despite questions in the media and on blogs about why turnout appeared low on Election Day.

Most regional elections headquarters will count their remaining ballots on Friday. But the most populous region, based in Anchorage, won’t count its ballots until either Monday or Wednesday, state elections chief Gail Fenumiai said.

Begich pushed hard in the campaign for people to vote early, a factor both Democrats and Republicans said contributed to his surge. More than 9,000 of those early ballots weren’t counted until Wednesday to give the state time to double check and make sure people didn’t vote early and then come back and vote on Election Day as well.

Candidates push early voting as a strategy to take away the potential their supporters won’t get around to it Election Day.

The absentee votes counted Wednesday were those that made it in to state officials before Election Day. Many of those might have been cast before Stevens came back to Alaska from his trial in Washington, D.C. Republican strategists credited Stevens’ homecoming, which was followed by rallies and advertisements where he blasted the verdict, as playing a key role in winning back support of voters.

Neither candidate was around Wednesday night as the drama unfolded. Begich was on vacation with his family "at an undisclosed location" and not available on Wednesday night to comment, his campaign staff said. Begich, who is the mayor of Anchorage, also did not return a message left on his cell phone.

Begich will be appearing on national liberal talk shows today to discuss the election. He will be on "The Ed Schultz Show" on radio and "The Rachel Maddow Show" on MSNBC.

Stevens is back in Washington, D.C., where it was well past midnight when the final returns came in. His campaign spokesman said there would be no comment on the turnaround.

Republican Party of Alaska Chairman Randy Ruedrich wasn’t giving up hope for Stevens, saying Begich’s advantage could lessen as the state finishes counting the early votes.

He said remaining mail-in absentee votes "should be much more favorable to Republicans" than the ones counted so far.

But state Democratic Party spokeswoman Bethany Lesser said Begich workers are cautiously optimistic the lead would hold. She noted that the election district based in Nome, which covers Northern and Western Alaska, has not counted any of its absentee ballots yet. Begich beat Stevens in that area on Election Day, just as he did throughout Bush Alaska, a traditional Stevens stronghold that relies on federal appropriations.

Begich also won the voting on all four of Alaska’s military installations on Election Day. That makes the Begich campaign optimistic about overseas absentee ballots from service members.

The state didn’t have a breakdown Wednesday night of where the remaining ballots come from.

Anchorage pollsters Ivan Moore and David Dittman, who had predicted a Begich victory before the election, both said Wednesday night they believe the Democrat would pull it off.

"I think it’s all over at this point," said Moore, who often works for Democrats but didn’t poll for either candidate in this race.

He said mail-in absentee ballots don’t favor Republicans as much as they used to. They historically tended to be from people out of town on business or other reasons, Moore said, adding that they were generally wealthier and more Republican than other voters, he said.

But now a wider variety of people vote absentee, he said. Also, Moore said, questioned ballots tend to favor Democrats, and are often people who have recently moved and might be single, less established, without as much money.

Dittman, who polled for Stevens during the campaign and tends to work for Republicans, also predicted Begich’s lead would widen, but not drastically, as the remaining votes are counted.

While Stevens’ era in the Senate is in danger of ending, another longtime Alaska Republican is returning to Washington, D.C. Alaska Republican Rep. Don Young maintained his solid lead over Democratic challenger Ethan Berkowitz after Wednesday’s count. Berkowitz made some headway but Young still led by more than 15,000 votes.

[Thanks, Anchorage Daily News]

After 4 years of slow growth in the Alaskan standardized testing system, students this year are showing the results of life under Palin.  With test scores plummeting across the board, I guess it’s ‘All Children Left Behind’ for Sarah’s state.

It’s as important as ever that Alaska has the socialized welfare program where the citizens get kickbacks from the oil industry.  When the Alaskan students can’t compete in the future workplace, they will at least have a small income to pay the heating bills.

Forget that those dollars come from gas taxes and gas profits and are basically coming out of your pocket.  That’s not important, right?

Test scores decline in Anchorage schools

ANNUAL REPORT: Poor test results in ‘three R’s’ come after four years of gains.

By MEGAN HOLLAND
mholland@adn.com

Published: November 10th, 2008 10:22 PM
Last Modified: November 10th, 2008 11:12 PM

Reading, writing and math scores for Anchorage public school students showed nearly across-the-board declines last year, according to the district’s annual report card.

The recently released data showed that Anchorage schools did not make progress toward meeting the education standards set by the state in 2003.

But while test scores are down slightly, the district did make a dent in its dropout rate by keeping more kids in school.

The report shows how students are doing in a variety of ways, including achievement differences between ethnic groups, whether the same students improved year to year, and how different high schools compare. The results of the Standards Based Assessment tests taken by students in grades three through 10 are also tabulated. On those tests, students and schools in almost all subject areas and grade levels lost ground.

Among the findings in the report:

• In Anchorage, 81 percent of students in grades three through 10 were proficient in reading and writing. That’s down one percentage point from the year before.

• Math showed a deeper dip, from 76 percent proficiency in the 2006-2007 academic year to 73 percent proficiency last year.

• The same student’s proficiency levels one year to the next generally eroded.

• Fewer 10th-graders passed the high school exit exam, a test required for a diploma that students first take in the 10th grade, then repeat in the 11th or 12th grades until they pass.

• The public high schools showed a wide range of graduation rates.

The slipping grades come on the heels of four years of improved scores.

"We were disappointed with the slight downward trend but we’re going to work really, really hard in every school to get the trend reversed and move back up again," said School District Superintendent Carol Comeau.

The annual report was developed to measure the district’s academic achievements year to year by giving students in each grade the same tests, year after year. Every public school in the state has something similar, measuring its students with the same statewide tests.

Alaska statewide results on reading, writing and math were also slightly down last year after several years of improvement, according to the state Department of Education and Early Development.

IS CHANGE NEEDED?

School administrators caution against overreacting to a one-year drop in numbers.

"The scores did dip slightly last year, no question about it, and that does concern us," said Anchorage assistant superintendent Rhonda Gardner. "It would be inappropriate for us to change dramatically something we have been doing and having great success with … based on one year’s data."

If the next report card shows eroding grades again, then the district will need to take a hard look at what needs to be fixed, Gardner said.

In the meantime, the district is taking some steps. Superintendent Comeau has asked every school to write an action plan. Math tutors have been sent into high schools to help teachers learn how to teach better. And the district is working with English teachers to help kids on grammar and punctuation — two areas of writing that they think kids need to improve.

The math and writing numbers have been an area of concern for the district for several years, administrators say.

While 79 percent of third-graders passed proficiency tests for math last year, only 66 percent of 10th-graders did.

Mike Henry, director of high school education, said the math tutors will work with teachers to help identify where kids are falling short.

WHERE SCORES IMPROVED

In one encouraging finding, the district’s dropout rate went from 5.1 percent to 4.2 percent. The rate measures the percentage of students who leave school and don’t go to another school or school program. Henry attributes some of the decrease to better accounting methods — keeping track of kids who previously got lost in the system and were counted as dropouts when they really weren’t — and also increased intervention methods by high school administrators and teachers.

Ninth-graders also performed slightly better on reading, writing and math. Henry and Comeau attribute it to strong efforts by high school teachers to ease kids into high school through programs like the "freshman houses" that separate the first-year high schoolers from the upperclassmen to create a more personal, less intimidating school experience.

[Thanks, Anchorage Daily News]

Am I the only one who sees the irony in this article published in the Politico web site?  Two years ago, when McCain decided to run yet again for president, Palin was still trying to live down having been Mayor of Wasilla in her bid for the Governors office.

Status quo is one thing, but being the cause of the GOP failure as a virtual unknown is another.  Sarah, it’s time to fade back into the woodwork.

And yes, to answer your question, we would LOVE to see your real medical records, not a note scrawled in purple crayon on a cocktail napkin by a family friend.  Or, maybe some less invasive DNA testing, how’s that for a compromise?

Palin: GOP ticket was too ‘status quo’

By ANDY BARR | 11/10/08 11:19 AM EST

Alaska Gov. Sarah Palin said Sunday that she and running mate John McCain lost because the Republican ticket “represented too much of the status quo.”
In an interview with the Anchorage Daily News posted on the paper’s site Monday morning, Palin pointed a finger at the Bush administration for souring the GOP brand, adding that it was “amazing” that the McCain campaign did as well as it did.

“I think the Republican ticket represented too much of the status quo, too much of what had gone on in these last eight years, that Americans were kind of shaking their heads like going, wait a minute, how did we run up a $10 trillion debt in a Republican administration? How have there been blunders with war strategy under a Republican administration?” Palin said.

“If we’re talking change, we want to get far away from what it was that the present administration represented, and that is to a great degree what the Republican Party at the time had been representing. So people desiring change, I think, went as far from the administration that is presently seated as they could. It’s amazing that we did as well as we did.”

Looking back on the race, the Alaska governor said that she was “frustrated” by misinformation spread about her, especially related to her family.

“Some of the goofy things, like who was Trig’s mom. Well, I’m Trig’s mom, and do you want to see my medical records to prove that? And banning books. That was a ridiculous thing also that could have so easily been corrected just by a reporter taking an extra step and not basing a report on gossip or speculation,” Palin said.

“Just looking into the record. It was reported that I tried to ban Harry Potter when it hadn’t even been written when I was the mayor. So, gosh, we have so many examples, I mean every day, especially the first few weeks, every day something that was thrown out there.”

After railing against earmarks and congressional spending on the campaign trail, Palin promised “fewer earmark requests” for projects “that can help on a national front, not just on a state front.”

Asked about running for the Republican nomination in 2012, the Alaska governor seemed cool to the prospect, pointing out that current polling showing favorable prospects in a potential GOP primary field are likely to shift.

“Look how fickle poll numbers are,” Palin said. “Look where I’ve gone, up and down, up and down, even in the state of Alaska the last couple of months. We can’t pay attention to those numbers.”

[Thanks, Politico]

In a startling news story, the US Secret Service has laid the blame for the spike in death threats against then presidential candidate Barack Obama right on Sarah Palin’s doorstep.

While we’re all agreed that Sarah Palin was the cause behind the spectacular fiery crash of the Republican presidential campaign this summer, it’s interesting to note how Palin’s attempt at defaming the Obama campaign essentially did just the opposite.

While I’ve already commented on Palin and the hate-mongering, I’m still wondering if there are any legal repercussions she should be watchful for.

Maybe we should just allow Sarah and her husband to realize their greatest dream.  Let’s let the socialist state of Alaska to secede from the union and forever remove Palin as a threat to our Presidency or the Republican National Committee.

Sarah Palin blamed by the US Secret Service over death threats against Barack Obama

Sarah Palin’s attacks on Barack Obama’s patriotism provoked a spike in death threats against the future president, Secret Service agents revealed during the final weeks of the campaign.

By Tim Shipman in Washington
Last Updated: 8:38AM GMT 10 Nov 2008

The Republican vice presidential candidate attracted criticism for accusing Mr Obama of "palling around with terrorists", citing his association with the sixties radical William Ayers.

The attacks provoked a near lynch mob atmosphere at her rallies, with supporters yelling "terrorist" and "kill him" until the McCain campaign ordered her to tone down the rhetoric.

But it has now emerged that her demagogic tone may have unintentionally encouraged white supremacists to go even further.

The Secret Service warned the Obama family in mid October that they had seen a dramatic increase in the number of threats against the Democratic candidate, coinciding with Mrs Palin’s attacks.

Michelle Obama, the future First Lady, was so upset that she turned to her friend and campaign adviser Valerie Jarrett and said: "Why would they try to make people hate us?"

The revelations, contained in a Newsweek history of the campaign, are likely to further damage Mrs Palin’s credentials as a future presidential candidate. She is already a frontrunner, with Louisiana Governor Bobby Jindal, to take on Mr Obama in four years time.

Details of the spike in threats to Mr Obama come as a report last week by security and intelligence analysts Stratfor, warned that he is a high risk target for racist gunmen. It concluded: "Two plots to assassinate Obama were broken up during the campaign season, and several more remain under investigation. We would expect federal authorities to uncover many more plots to attack the president that have been hatched by white supremacist ideologues."

Irate John McCain aides, who blame Mrs Palin for losing the election, claim Mrs Palin took it upon herself to question Mr Obama’s patriotism, before the line of attack had been cleared by Mr McCain.

That claim is part of a campaign of targeted leaks designed to torpedo her ambitions, with claims that she did not know that Africawas a continent rather than a country.

The advisers have branded her a "diva" and a "whack job" and claimed that she did not know which other countries are in the North American Free Trade Area, (Canada and Mexico). They say she spent more than $150,000 on designer clothes, including $40,000 on her husband Todd and that she refused to prepare for the disastrous series of interviews with CBS’s Katie Couric.

In a bid to salvage her reputation Mrs Palin came out firing in an interview with CNN, dismissing the anonymous leakers in unpresidential language as "jerks" who had taken "questions or comments I made in debate prep out of context."

She said: "I consider it cowardly. It’s not true. That’s cruel, it’s mean-spirited, it’s immature, it’s unprofessional and those guys are jerks if they came away taking things out of context and then tried to spread something on national news that’s not fair and not right."

She was not asked about her incendiary rhetoric against Mr Obama. But she did deny the spending spree claims, saying the clothes in question had been returned to the Republican National Committee. "Those are the RNC’s clothes, they’re not my clothes. I asked for anything more than maybe a diet Dr Pepper once in a while. These are false allegations."

Speaking as she returned to her native Alaska, Mrs Palin claimed to be baffled by what she claims was sexism on the national stage. "Here in Alaska that double standard isn’t applied because these guys know that Alaskan women are pretty tough, on a par with the men in terms of being outdoors, working hard," she said.

"They’re commercial fishermen, they’re pilots, they’re working up on the North slopein the oil fields. You see equality in Alaska. I think that was a bit of as surprise on the national level."

[Thanks, Telegraph UK]

Sarah Palin has apparently ‘forgotten’ to return all of the clothes that were purchased for her and her family when she became John McCain’s running mate. The clothing, in an attempt to make her presentable to the masses, was purchased at such upscale stores as Neiman Marcus, Saks Fifth Avenue, Macy’s; and at the luxury retailer Barneys New York.

The designer clothing, valued in excess of $150,000, was obviously not enough lipstick on the sow, McCain and his campaign showed a steady and terminal decline in the polls once Palin opened her mouth and started spewing NeoCon crap to the masses.  And we all know what the final results were; Barack with 364 Electoral College Votes and McCain with a paltry 163.

I’m just curious to know if anyone has bothered to called around to the various hotels where Palin stayed and ask if they are missing any towels or bathrobes.  Oh, right, Sarah can’t be bothered wearing a bathrobe.

GOP tries to sort out Palin’s donor-funded duds

By SHARON THEIMER – 1 day ago

WASHINGTON (AP) — Republican Party lawyers are still trying to determine exactly what clothing was purchased for Alaska Gov. Sarah Palin, what was returned and what has become of the rest.

And they are discussing with Palin, who’s back in Alaska, whether what’s left of the tens of thousands of dollars worth of designer clothing and accessories purchased for her on the campaign trail will go to charity, back to stores or be paid for by Palin, a McCain-Palin campaign official said Friday, speaking on condition of anonymity because the campaign hadn’t authorized comment.

The sorting should be completed in the next four or five days, the campaign official said, declining to say whether the RNC was sending anyone to Alaska to help take inventory.

The RNC spent at least $150,000 on designer clothing, accessories and beauty services for Palin after she became John McCain’s running mate in September. The spending included $75,062 at Neiman Marcus in Minneapolis; $49,425 at Saks Fifth Avenue; $9,447 at Macy’s; and $789 at the luxury retailer Barneys New York. Some of the purchases were for Palin family members, such as $4,902 spent at upscale men’s clothier Atelier and $92 at Pacifier, a Minneapolis baby boutique.

The McCain-Palin campaign said about a third of the clothing was returned immediately because it was the wrong size, or for other reasons. However, other purchases were apparently made after that, the campaign official said.

The spending drew a complaint against Palin and the RNC by a Washington government watchdog group. Citizens for Responsibility and Ethics in Washington filed a complaint with the Federal Election Commission accusing Palin and the GOP of violating a federal ban on the use of campaign funds for personal expenses such as clothing.

The RNC didn’t respond to repeated requests by The Associated Press for comment Friday.

It’s routine for candidates to get professional hair and makeup services at campaign expense before they go on camera, but Palin’s shopping spree at GOP donors’ expense is unusual. It contrasted with the down-to-earth "hockey mom" image that Palin sought to craft and gave the campaign unwanted publicity in the form of newspaper headlines, Internet chatter and comedians’ jokes.

FEC spokesman Bob Biersack declined to comment on the spending beyond confirming that the commission has received CREW’s complaint.

Palin and the campaign have characterized the purchases as legitimate campaign expenses and said there was never any plan for Palin to keep the items.

[Thanks, Google News]

A Harvard law professor has filed a counterclaim in the case of Sony BMG Music Entertainment, et al. v. Joel Tenenbaum.  The counterclaim insists that the suit originally filed against Mr. Tenenbaum was illegal and unconstitutional.

Harvard Law School professor Charles Nesson insists that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is a criminal statute and the application of that law in a civil court is unconstitutional.

It’s about time someone took the RIAA to task.  Their sanctimonious attitude while screwing those least able to afford it is morally unconscionable.  But as long as they fight the changing face of music creation and distribution, they are doomed.  Rather than spend these millions on lawyers, why don’t you spend them on creating an electronic distribution method that works and pays the artist?

Lawyers claim RIAA lawsuits are unconstitutional
Harvard professor says law is criminal statute, cannot be applied in civil cases

by Rebecca Woolington | News reporter
PUBLISHED ON 11/7/08 IN News

As the Recording Industry Association of America continues to file lawsuits against thousands of people, a growing number of lawyers are rising up to fight what they consider illegal tactics of the association.

Harvard Law School professor Charles Nesson filed a counterclaim against the RIAA last week on behalf of Joel Tenenbaum, a Massachusetts man being sued by the association for copyright infringement. The counterclaim alleges that the association’s lawsuits against possible copyright infringers are unconstitutional.

Nesson, who is representing Tenenbaum pro bono, said charges are brought against possible copyright infringers under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. The law, Nesson said, is essentially a criminal statute, and it is unconstitutional to apply the law in a civil case, which the RIAA is doing.

Matt C. Sanchez, one of the four students in Nesson’s Internet law class who are helping him with the case, said a distinction exists between damages in a civil case and damages in a criminal case.

"Damages in civil cases are about if you hurt someone, you make them whole," he said. "But the RIAA is using litigation to say ‘if you do this you are going to be punished.’"

According to Nesson, criminal law – not civil law – is about punishment, and the record companies are seeking to punish Tenenbaum.

"The lawsuit is completely criminal in nature," Nesson said. "The damages are completely out of proportion to any actual harm that was caused."

Nnamdi Okike, who is also one of Nesson’s students involved in the case, said when the record companies file suits for copyright infringement, they can chose to seek either actual damages or statutory damages.

In civil cases, Okike said, plaintiffs typically seek actual damages, which is only the dollar amount the infringed product is worth. Statutory damages under copyright law, Okike said, range from $750 to $30,000 per copyrighted work for an inadvertent infringement, and up to $150,000 per copyrighted work for a willful infringement.

If Tenenbaum’s alleged acts are found to be willful, he could face statutory damages of more than $1 million, according to a motion Nesson filed.

Sanchez said because songs are available for 99 cents on iTunes and other legal music downloading sites, the loss per song that record companies face is likely between 10 and 60 cents.

"The amount of damages can go very, very high, to a point where the numbers are very disproportional to the actual damages," Okike said.

Because of the discrepancy between the amount of damages sought and the amount of actual damage suffered, Okike said using the statute in a civil case is unconstitutional according to due process.

"These suits represent an abuse of judicial process," Sanchez said. "The RIAA is going into litigation saying, ‘…We want to scare people, so that no one ever file-shares or illegally downloads anything again.’"

Sanchez said because of the RIAA’s intentions to scare students and other individuals out of illegally downloading, the record companies are not interested in giving individuals a fair trial. Sanchez alleges that the companies are trying to hit Tenenbaum, who is being sued for infringement of seven songs, with a multimillion dollar suit to serve as an example to illegal downloaders everywhere.
Nesson also documented the motivation behind the RIAA’s litigation process in a motion to the court.

"The plaintiffs and the RIAA are seeking to punish (Tenenbaum) beyond any rational measure of the damage he allegedly caused," Nesson wrote in the motion. "They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."

Lory Lybeck, an attorney for the Seattle law firm Lybeck Murphy, said if the civil lawsuit hinges on a criminal offense, the defendants should be allowed constitutional rights of criminals, such as the right to a trial in front of a jury or the right to a court-appointed attorney.

Lybeck was the attorney in last year’s high profile case against the RIAA in which a Portland woman was found innocent of the infringement charges. Lybeck also said he helped five University students who were originally subpoenaed by the RIAA avoid the charges because of what Lybeck referred to as their "obvious innocence."

Okike said many people are forced to settle with the record companies because they are not offered the same benefits that criminal defendants are offered. What is unfortunate, Okike said, is many of these individuals would have a chance to win in court if they could afford to hire attorneys.

Sanchez said the issues being raised boil down to a matter of fairness. "Regardless of the merits of filesharing, a defendant must have a fair trial and a fair penalty," he said.

Sanchez said one of the reasons why defendants could have a chance to win in court is because of the record companies’ inability to prove infringement actually occurred. Sanchez said two types of copyright infringement exist: reproduction and distribution.

Reproduction, Sanchez said, is the act of copying a copyrighted work. Distribution is the act of illegally distributing a copyrighted work to others.
When the record companies are suing because files were available on peer-to-peer networks, they are suing for distribution, Sanchez said. But he also noted that the courts are currently debating whether making a file available is a violation of copyright law.

The discrepancy exists, Sanchez said, because the record companies can only prove if files were made available for others to download the copyrighted work. Given available technology, Sanchez said the record companies cannot prove if someone actually distributed the copyrighted work.

The problem with the "making it available" claim, Lybeck said, is that people can fail to have the file sharing feature on their computer disabled and can be sued as a result. Lybeck explained that such inadvertent file sharing is not a violation of copyright law because the distribution cannot be proven.

Lybeck said that during the past five years, many problems have existed within the RIAA’s litigation processes. Because their process is so sweeping, he said, there is a lot of room for error in their information-gathering techniques.

Lybeck explained that originally, the RIAA subpoenaed the University for information about 22 students, but because of issues such as two students being assigned to one residence hall room, the RIAA changed the subpoena and asked for personal information of 17 students.

Lybeck said he sees Nesson’s work as a positive movement to examine and crack down on the RIAA’s techniques.

Okike said he hopes the work on the Tenenbaum case sheds light on the RIAA’s aggressive and abusive judicial processes.

"We are optimistic and we are looking forward to changing the tide of how record companies go about this," he said.

[Thanks, Oregon Daily Emerald]

Ready to follow in the footsteps of the great American Presidents like Washington, Jefferson, Lincoln, and FDR, Barack Obama was elected to the highest office in the land yesterday in what I will call a landslide victory.

Sweeping the polls in at least 26 states, Barack far exceeded the 270 electoral votes needed to ensure the presidency.  With final counts required in a number of states, the current total of 338 votes is still enough to tell that nasty GOP to piss off!

It will be interesting to review the Wikipedia Historical rankings of United States Presidents a year from now.  Today that page has got both Bush presidencies at the bottom.  Daddy Bush coming in at 41st and Baby Bush as dead last.  I wonder where Barack will be?  Not last, that’s for sure.

From the LA Times.

Barack Obama wins presidency, making history

The Democrat breaks the ultimate U.S. racial barrier with his defeat of Republican John McCain.

By Mark Z. Barabak
November 05, 2008

Barack Obama, the son of a father from Kenya and a white mother from Kansas, was elected the nation’s 44th president Tuesday, breaking the ultimate racial barrier to become the first African American to claim the country’s highest office.

A nation that was founded by slave owners and seared by civil war and generations of racial strife delivered a smashing electoral college victory to the 47-year-old first-term senator from Illinois, who forged a broad, multiracial, multiethnic coalition. His victory was a leap in the march toward equality: When Obama was born, people with his skin color could not even vote in parts of America, and many were killed for trying.

Obama was winning in every state his party carried four years ago, including Pennsylvania, which McCain had worked vigorously to pry from the Democratic column. Obama was also making significant inroads into Republican turf, carrying Ohio and Virginia, the latter voting Democratic for the first time in more than 40 years. He was also winning the swing states of New Hampshire, Iowa and New Mexico, which backed President Bush in 2004.

The major TV networks and the Associated Press called the race for Obama within minutes of the polls closing, sparking a raucous celebration in Chicago, where hundreds of thousands of celebrants gathered in Grant Park along the city’s waterfront.

Giant video screens at the scene were tuned to CNN. Each time the network projected a state as an Obama win, the crowd erupted in cheers. The battleground states produced the loudest roars – first Pennsylvania, then New Hampshire, then Ohio, then, finally, victory.

Moments later, the Obama campaign announced that McCain had called the president-elect to concede.

Voters also handed Obama a fortified congressional majority, as Democrats picked up several seats in the Senate and in the House. The party knocked off at least two GOP incumbents, including North Carolina Sen. Elizabeth Dole.

McCain, burdened by his party’s toxic image, prevailed in a band of states that comprise a shrinking Republican base, mainly in the South, the Plains and parts of the interior West.

In winning the White House, Obama to a large degree remade the electorate: About one in 10 of those casting ballots Tuesday were doing so for the first time. Though that number was about the same as four years ago, most of the newcomers were under age 30, about a fifth were black and a fifth were Latino. That was greater than their share of the overall population, and those groups voted overwhelmingly for Obama.

Overall, he won large majorities of women, black and Latino voters. Although he lost among white voters, Obama narrowed the margin significantly from 2004.

For most voters, the sagging economy was the topmost concern – a dynamic that played strongly to the Democrat’s favor. Six in 10 voters said the economy was the most important issue facing the nation, according to exit polls – far more than cited energy, Iraq, terrorism or healthcare.

Voters flocked to the polls in record numbers Tuesday, continuing a pattern of electoral exuberance that started in the primary season. There were scattered voting problems reported throughout the day, including long lines, malfunctioning voting machines and mislaid ballots.

But there was nothing like Florida’s infamous “butterfly ballot” fiasco, which sent the 2000 presidential contest into several weeks of overtime before the U.S. Supreme Court stepped in to settle the race.

Mostly, there was patience, good cheer, and for many, pride in taking part in a slice of history, whatever the result; had he won, McCain’s running mate, Alaska Gov. Sarah Palin, would have been the first woman to serve as vice president.

Lines began forming across the country before the sun had risen, with queues starting at 4 a.m. in New York City. The outcome across most of the Democratic-leaning Northeast was never in doubt, but many felt it was their responsibility – and privilege – to vote.

“I needed to cast my own ballot today, not just because it’s my duty as a citizen but because for once it feels like it counts,” said Eric Schwartz, 36, a computer specialist on New York’s Upper West Side. “It’s a more global feeling. Like I needed to make a mark on a day when things matter. Today, everyone matters.”

In Arlington, Va., Takia Williams, 25 and African-American, wrestled with her frustrated 2-year-old, who wanted to play on the slide in the back seat of their car. But nothing could dampen Williams’ spirits after casting a ballot for Obama. “I couldn’t wait to vote,” she said.

Obama will be one of the youngest presidents in American history, the first born outside the continental United States (in Hawaii) and only the third to move directly from the U.S. Senate to the White House.

He burst on the national political scene just over four years ago, with an electrifying keynote address to the Democratic National Convention in Boston. Obama’s soaring speech previewed themes he would reprise in his presidential bid, including a call to end the partisanship symbolized by a country divided into Republican red and Democratic blue.

Months after that address, Obama won his U.S. Senate seat, and there was immediate talk of a run for president. The speculation, however, vastly understated the challenge facing Obama, who by his own admission entered the crowded Democratic field as a decided underdog. His victory over New York Sen. Hillary Rodham Clinton after a long, contentious primary season was in itself one of the great political upsets of all time.

Contrary to the wisdom at the time, the battle did not sap but rather strengthened Obama. He built campaign organizations in traditionally Republican states, like Nevada, North Carolina, Colorado and Indiana, that came into play in the fall thanks to the groundwork laid in the spring.

Obama also became a better, more substantive candidate and a much stronger debater, which served him well in his three matchups with McCain. Obama’s unflappable performance on stage and steady response to the Wall Street meltdown helped allay voter concerns about his judgment, maturity and readiness to assume office, undercutting what was perhaps McCain’s strongest argument against the freshman lawmaker.

For all the wild celebration in Chicago, there were quieter moments that captured the full weight of history.

Former U.N. Ambassador Andrew Young, a veteran of protests in Selma, Birmingham and other racial flash-points, was among hundreds of black Atlantans who crowded the pews for an election-watch party at the Rev. Martin Luther King’s Ebenezer Baptist Church. When CNN called the state of Pennsylvania, an early harbinger, Young pulled out a handkerchief and dabbed away tears

mark.barabak@latimes.com

Barabak is a Times staff writer.

Times staff writers Richard Faussett in Atlanta, Johanna Neuman in Washington and Maeve Reston in Phoenix contributed to this report.

[Thanks, LA Times]