December 28, 2012

Friday Review Year In Review

As with last year, here's an easy to navigate list of Feeding the Silence's accidental regular feature, the Friday Reviews.  Sorted helpfully by review type, just because I'm that kind of guy:


Movies & TV


See ya' in 2013!

December 21, 2012

Friday Review: 2012 Short Takes (Part 2)

As with last week . . .

Not the Weapon But the Hand, by Steve Hogarth & Richard Barbieri: If there was ever an album that was just as advertised on the cover, this it. Take the ambient and electronic confections of Barbieri’s two excellent studio albums, add words and breathy vocals from Steve Hogarth, as heard on his solo album and countless Marillion tracks, and here you are. Judging by the results, it’s amazing somebody hadn’t thought to throw these two together like this before. It’s generally a chilled out, laid back album (with some nice guitar accents from Dave Gregory – see below), but it cranks up and throbs away in spots. A really good listen and, ultimately, more interesting that the new Marillion album (to my ears, anyway).

English Electric, Volume One, by Big Big Train: I’ve had a weird relationship with Big Big Train’s last LP, The Underfall Yard. It was heavily hyped in “best of the year” lists, but it didn’t knock me over. What it’s done, after many a listen, is sort of work its way under my skin. I can’t say I love it, but I keep wanting to listen to it. That counts for something. English Electric, Volume One (a second is due in 2013) is starting out the same way. This one’s an effort of a proper band (that includes Dave Gregory of XTC and former Spock’s Beard man Nick D’Virgilio), although there’s an awful lot of extra hand brought in to flesh things out. This one does have something that the last album lacked – a genuine, cant’ get it out of my head earworm. “Judas Unrepentant” is the story of a frustrated artist who seeks revenge on the world by becoming a master forger. Since it’ll keep me going back to English Electric again and again, I figure the rest will worm its way in, eventually.

Viljars Oga, by Anglagard: One of the first of the third-wave symphonic prog bands of the 1990s, Anglagard’s first two albums (they disbanded in 1996) sounded like the came out of a time warp from the 1970s, plunked down in the middle of the Swedish countryside by means more mystical than mechanical. Which is not to say they aren’t wonderful – they are – it’s just that they couldn’t charitably be described as breaking any new ground. Given that history, it’s no surprise that the band’s third album picks up where the second left off, albeit ?? years after the fact. Given them immense credit – they sound like a call back from the past, yet do it without sounding at all derivative of the bands of that era. It’s just classic, brooding, epic symphonic prog.

echolyn, by echolyn: An echolyn album is like a fine wine – it needs time to age properly. Via the drip drab updates on the band’s mailing list, it seems like the new album had been in works for decades, even if it’s only been sven years since their last opus, The End Is Beautiful. That album really grabbed you from the get go and didn’t let go. The new one (self titled, as was their 1991 debut – confusing, ain’t it?) isn’t that direct. But after many engaged listens it’s really gotten underneath my skin. This band somehow manages to build complex, layered tracks that are melodic and powerful all at the same time. Layers get pulled away upon each listen. The end result is a brilliant record. Hear for yourself with “Past Gravity” performed live in the studio (with special guest Francis Dunnery):

December 18, 2012

How Not to Promote Your Book

Hopefully, at some point, I’ll get to the point where I have a novel completely finished, polished, and ready to be published. Then will come the time to promote it, which I’m sure will be hell. How does one bring attention to their work in the 21st Century? History shows us that presidential assassination is no way to promote the sales of your book. Now my colleagues over at the Ninth Circuit Blog have helpfully pointed out another unacceptable means of promotion.

In the wake of 9/11, Mark Keyser wrote a book about the dangers of anthrax called Anthrax: Shock and Awe Terror. Unable to find a publisher, he went the DIY route, putting together a CD with his book on it. That’s when things got weird. As the Ninth Circuit explained:
In an attempt to secure publicity for the book, Keyser mailed a package to the Sacramento News & Review in 2007. The package contained a letter, a CD containing Keyser’s book, and a small spray can with a label stating ‘ANTHRAX’ and displaying a biohazard symbol. The package prompted employees to call 911 and to evacuate the building, and numerous emergency agencies responded.
It worked, after a fashion. The incident got the attention of the FBI, which sent agents to talk to Keyser and explain to him the trouble it all caused and told him not to do it again. Keyser agreed that he wouldn’t.

But you know where this is going, right?
The next year, Keyser sent out approximately 120 packages to various news outlets, elected officials, and businesses. The materials sent to news outlets and elected officials were placed in business envelopes. They contained a CD printed with a picture of Colin Powell, the book title, and Keyser’s name. The CD contained over half of the contents of Keyser’s book. He attached a white sugar packet to the front of the CD with the sugar markings covered by a label stating ‘Anthrax’ in large letters, ‘Sample’ in smaller letters, and an orange and black biohazard symbol.

The materials sent to businesses were placed in purple greeting card envelopes. They contained a card with the same Colin Powell picture and ‘Anthrax’ sugar packet on the front and a short blurb about the book inside. The card directed recipients to visit a website to learn more about the book.
This time, Keyser was charged criminally as a result of packages sent to a California Congressman, a McDonald’s, and a Starbucks. He was convicted on five counts and sentenced to 51 months in prison. His convictions stood on appeal, although the court vacated his sentence due to a miscalculation of the Sentencing Guidelines.

Keyser’s most novel argument was that his promotional scheme was protected by the First Amendment. The court disagreed, finding that the mailings constituted true threats and that Keyser at least knew they could be interpreted that way:
We also conclude, after reviewing the record as a whole, that Keyser had the requisite subjective intent to threaten when he mailed the packages to McDonald’s and Starbucks. At trial, Keyser testified that he was not trying to scare the people who received his packages and letters, and that he did not want people to believe the packets actually contained anthrax. However, he did agree at trial that he knew that some people ‘might at least briefly be concerned that maybe this is real anthrax.’ He also stated that he intended the packets to be ‘provocative’ and wanted people to have ‘a reaction’ and be ‘concerned about the danger we’re in.’ He testified that he was not trying to cause a panic, but agreed that attracting attention to the book ‘was definitely worth it even if people were frightened.’

One of the agents who interviewed Keyser after his arrest testified that Keyser said, ‘Well, I did want it to cause concern. I wanted to cause a buzz.’ Keyser also told him that ‘[h]e wanted people to believe they had received a sample of Anthrax; that they wanted him [sic] to have the visceral reaction to seeing it so it would drive his message home.’ The same agent reported that Keyser expressed that he expected the FBI to contact him after he sent out his 2008 mailings.
He was certainly right on that score. Regardless of what sentence Keyser ultimately receives on remand, one would think he might have learned his lesson at this point. But as the Ninth Circuit Blog points out:
Quoting Protestant reform leader Martin Luther, Keyser refused to recant: ‘I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.’
Presumably the sequel to Anthrax: Shock and Awe Terror will be nailed to a set of big wooden doors somewhere. That would not be the worst promotional idea I have ever seen:

December 14, 2012

Friday Review: 2012 Short Takes (Part 1)

Since there’s been so much new music that came out this year, and we’re quickly running out of Fridays (!), here’s the first of a two-part wrap up of some of the other interesting new music I haven’t had a chance to write about this year.

Live, by Mars Hollow and The Gettysburg Address, by Moon Safari: Both of these albums were recorded as ROSFest 2011, which is why I got them, since I was there in the flesh to see these two bands perform. Both of the performances are excellent (as they were in the flesh), but the end products come across very differently. Neither album contains either band’s entire set (although the Moon Safari is a double), but the Moon Safari album is pieced together so it sounds like a seamless performance, complete with between song patter and such. On the Mars Hollow album, by contrast, each tune fades in and out and stands apart from the others. It could have been taken from many performances, not just one. It makes for a less satisfying listen, but both albums are worth having.

Made In Belgium, by Aranis: Perhaps more than any other band in the RIO/avant prog ghetto, Aranis straddles the line between rock and modern chamber music. That’s even more true on their latest release, given that only one of the 12 tracks on it is written by a band member. The rest are by a host of other Belgian (as the title suggests) composers, including Daniel Denis of Univers Zero and Roger Triguax of Present. Is it rock? Who knows – and who cares, it certainly does rock. These nearly all acoustic tracks (Trey Gunn guests on one track – gotta’ plug the Warr Guitar in, I imagine) are propulsive, intense, and fascinating. Not for everybody, but if you want to hear something different (even from a proggy standpoint), you can’t do much better.

Senna, by Mahogany Frog: I love this band. I picked up their last album, Do5, in advance of their performance at ProgDay. It kicked my ass. Aforesaid performance at ProgDay kicked my ass even harder. Could a new album possibly keep up the ass kicking streak? Better believe it. If anything, Senna (an homage to the man?) captures the thrill of their live set better than their previous efforts. Songs build organically, a heady mix of rock, psychedelica, jazz, and electronica. The results are some of the most beautiful cacophony you’ll ever hear. Don’t believe me? Check it out free at Soundcloud.

Wing Beat Fantastic, by Mike Keneally: I’m not a huge fan of XTC, but when I heard that Keneally was working on album of songs co-written by Andy Partridge, I was all for it. For all Mike’s eccentricity and formidable musical flights of fancy, he can write a mean little pop tune. But calling the material on this album “little pop tunes” doesn’t do it justice. Mike took the bones sketched out together with Partridge (who only contributes a couple of drum loops musically) and fleshed them out (Mike added some self-penned instrumental bridges and one full track of his own). In typical Keneally fashion, the resulting tunes are dense, multi-layered little gems. If this were a just world, he’d be famous for them:

December 12, 2012

Zero Dark Bullshit?

Do you have to see a movie before you can judge it? I don’t mean on a “thumbs up/thumbs down” kind of level. I’m talking about on a moral level, deciding about whether the message of the movie is worth condemning. Do you have to see Birth of a Nation to know it’s profoundly racist? Do you have to see Triumph of the Will to know it’s a blinkered piece of propaganda?

Zero Dark Thirty, the new film about the hunt of Osama bin Laden, from director Kathryn Bigelow and writer Mark Boal (the team behind Oscar winner The Hurt Locker), is raising that issue. Specifically, the films brutal depiction of the torture of terrorists by CIA operatives is causing some folks to wonder if it’s an apologetic for the torture. The debate’s been simmering since the film’s gotten into the thick of the awards season, showing up on numerous “best of” lists for the year (it doesn’t officially open outside of NY and Los Angeles until January 11).

Blowback began in the New York Times, where Frank Bruni commented that:
I’m betting that Dick Cheney will love the new movie ‘Zero Dark Thirty.’
That’s because:
‘Enhanced interrogation techniques’ like waterboarding are presented as crucial to that search [for bin Laden].

* * *

And by the movie’s account, it produces information vital to the pursuit of the world’s most wanted man. No waterboarding, no Bin Laden: that’s what ‘Zero Dark Thirty’ appears to suggest. And the intelligence agents involved in torture seem not so much relieved as challenged by Obama’s edict that it stop. Their quest for leads just got that much more difficult.
Glenn Greenwald picked up on Bruni’s criticism. Although he explicitly noted that he hasn’t seen the film and was only working off of reactions to it, he writes:
With its release imminent, the film is now garnering a pile of top awards and virtually uniform rave reviews. What makes this so remarkable is that, by most accounts, the film glorifies torture by claiming - falsely - that waterboarding and other forms of coercive interrogation tactics were crucial, even indispensable in finding bin Laden.
And as Greenwald catalogs, his reaction is not unique:
Other reactions to the commentary from film reviewers from those who haven't yet seen the film was offered yesterday by NYU Journalism Professor Jay Rosen (‘WTF is Kathryn Bigelow doing inserting torture into her film, Zero Dark Thirty, if it wasn't used to get Bin Laden?’); Mother Jones' Adam Serwer (‘The critical acclaim Zero Dark Thirty is already receiving suggests that it may do what Karl Rove could not have done with all the money in the world: embed in the popular imagination the efficacy, even the necessity, of torture’); The Daily Beast’s Andrew Sullivan (‘Bigelow constructs a movie upon a grotesque lie’); and The Daily Beast’s Michael Tomasky (‘Can I just say that I am equally bothered, and indeed even more bothered, by the fact that the movie opens with 9-11’).
It is true, as Adam Serwer over at Mother Jones recounts that numerous sources have established that the information that led to bin Laden’s eventual demise was not procured by torture. So if a film that’s tagline is “The Greatest Manhunt In History” and which the director claims was made using “almost a journalistic approach,” getting such a fact wrong is pretty inexcusable.

But is that really what the film shows? After all, Greenwald and many others haven’t actually seen it. Are film critics so swayed by the technical aspects to check their morality at the door?* Consider this take from Spencer Ackerman at Wired:
Kathryn Bigelow’s new film about the decade-long manhunt for Osama bin Laden begins with an unsparing, nauseating and frighteningly realistic look at how the CIA tortured many people and reaped very little intelligence. Never before has a movie grappled with post-9/11 torture the way Zero Dark Thirty does. The torture on display in the film occurs at the intersection of ignorance and brutality, while the vast, vast majority of the intelligence work that actually does lead to bin Laden’s downfall occurs after the torture has ended.
He goes on to describe what happens on screen in some detail:
These are not ‘enhanced interrogation techniques,’ as apologists for the abuse have called it. There is little interrogation presented in Zero Dark Thirty. There is a shouted question, followed by brutality. At one point, ‘Maya,’ a stand-in for the dedicated CIA agents who actually succeeded at hunting bin Laden, points out that one abused detainee couldn’t possibly have the information the agents are demanding of him. The closest the movie comes to presenting a case for the utility of torture is by presenting the name of a key bin Laden courier, Abu Ahmed al-Kuwaiti, as resulting from an interrogation not shown on screen. But — spoiler alert — the CIA ultimately comes to learn that it misunderstood the context of who that courier was and what he actually looked like. All that happens over five years after the torture program initiated. Meanwhile, the real intelligence work begins when a CIA agent bribes a Kuwaiti with a yellow Lamborghini for the phone number of the courier’s mother, and through extensive surveillance, like a police procedural, the manhunt rolls to its climax. If this is the case for the utility of torture, it’s a weak case — nested within a strong case for the inhumanity of it.
Likewise, Emily Bazelon at Slate suggests things are a bit more nuanced:
The movie thus doesn’t show a vicious act of torture leading straight to a game-changing piece of intelligence, or even a unique piece. After all, the interrogation of Amar takes place in 2004; Bin Laden remained free for seven more years. And yet it’s Amar’s information that feels crucial, because it’s presented as the root of Maya’s obsession with this particular lead. This is the way in which the movie credits torture: It suggests that the tenacious agent who led the hunt wouldn’t have been moved to do so without this piece of information given up by a detainee who’d been tortured.

Is this actually what happened? It’s hard to say for sure.
And, for what it’s worth:
Boal told that despite the gruesome torture scenes, viewers who come away thinking torture was the pivotal tactic in nabbing bin Laden, rather than one method used in a decade-long hunt, are ‘misreading the film.’
I can’t say whether either Ackerman’s or Bazelon’s impressions are accurate – I haven’t seen the movie yet, of course – but neither can Greenwald and others who haven’t seen the movie say it isn’t. Context matters, particularly when you separate the work itself from how it’s either promoted or described shorthand. From the advertising, one might expect the focus of Zero Dark Thirty to be on the raid itself and the time period just before when it was planned and the intelligence gathered to support it. But perhaps the movie tells a broader story, one in which the national urge for revenge took some ugly and dead end turns before it turned out the way it did. Maybe it’s a metaphoric examination of the entire war on terror, in which we gain the ultimate prize (bin Laden in a watery grave), but at tremendous cost? Who can tell without actually seeing it.

I saw some similar criticisms, in reverse, of Argo, Ben Affleck’s slick depiction of the rescue of a small group of Americans who escaped the embassy in Tehran in 1979. People argued it didn’t go far enough into the background of the Iranian revolution or that it didn’t deal enough with the hostages who didn’t make it out of the embassy. But that’s not what the movie was about. It was about a specific event that occurred against the backdrop of those events. It was never supposed to be a long form examination of the Iranian revolution.

Which is just to say, you really need to see the movie before you decide its morally horrific. Is there some reason to think that critics, who have actually seen it, just check their moral compasses at the door? Or is the film perhaps more nuanced and subtle than Bruni, et. al., are giving it credit for? Who knows? I suppose we common folk will need to wait until January to find out.

In the end, it’s best to judge for yourself.

* Who do they think they are, lawyers?!

December 11, 2012

Every War Has Unintended Consequences

The latest popular cause amongst drug warriors is the abuse of prescription drugs, particularly powerful pain killers like oxycodone. Resources have shifted to prosecuting those who sell pills and more vigorous regulatory schemes have sprung up around the legitimate distribution of them. This is having some impact, as the use of prescription drugs in some areas is decreasing.

But is it really a success, or are these initiatives just forcing a change in the behavior of users? As with any war, were the drug warriors prepared for this kind of unintended consequence (via):
As efforts to crack down on the abuse of prescription drugs have worked, a new problem has emerged, with addicts who can no longer get their fix by popping pills turning to the old-fashioned street drug heroin, health and law enforcement officials say.

The trend shows up in local arrests, drug seizures and overdose deaths. Drug dealers are finding new markets in the suburbs, where teenagers once got their stash from local drugstores or their parents’ medicine cabinets, some experts say.

‘The kids who got addicted to prescription pills are flipping to heroin, and, as a result, these kids are dropping like flies,’ said Mike Gimbel, a longtime drug counselor in Baltimore County who now works at University of Maryland St. Joseph Medical Center.
It’s not just increased criminal crackdowns producing that kind of shift. As the New York Times reported last year, when pill makers reformulated their products to make them harder to use illicitly (i.e., crush and snort/shoot), users turned elsewhere:
Michael Capece had been snorting OxyContin for five years when a new version of the drug, intended to deter such abuse, hit the market last summer. The reformulated pills are harder to crush, turning instead into a gummy substance that cannot be easily snorted, injected or chewed.

Instructed by his dealer, Mr. Capece, 21, tried microwaving one of the new pills, then sniffing up the burnt remains. Other addicts have tried to defeat the new formula by freezing, baking or soaking the pills in solvents ranging from soda to acetone. Many are ending up frustrated.

* * *

Purdue Pharma, the maker of OxyContin, may have succeeded for now in reducing illicit demand for its reformulated drug. But in several dozen interviews over the last few months, drug abuse experts, law enforcement officials and addicts said the reformulation had only driven up interest for other narcotics.
In the words of one treatment specialist, rather than stopping, users shifted
to what appears to be a more economical high, which is heroin. 
It’s like a game of pharmacological Whack-a-Mole.

Ultimately the problem isn’t that oxycodone is worse than heroin is worse than cocaine or what have you. The problem is that the War on (Some People’s) Drugs is a war a human nature and one that fundamentally cannot be won.

Years ago I saw an HBO documentary about methamphetamine, back before it was the momentary focus of the drug warriors. It was about a group of people somewhere in the Midwest (I want to say Missouri, but I might be wrong) who were users and minor dealers, selling to fund their own habits. At first, they appear like the pathetic junkies of popular conception, shiftless and no good for anything but getting high. But the more you pay attention to the world around them, depressed and filled with a vacuum of opportunity, it becomes clear why they seek solace in drugs. It’s not pathetic that they want a better life, it’s pathetic that, we fail to provide them any better ways of finding it.

If the war can’t be won, why are we still fighting it? It’s not as if the war on mind altering substances never had any unintended consequences:
Instead of resurrecting from the pit a body politic of newly risen saints, Prohibition guaranteed the health and welfare of society’s avowed enemies. The organized-crime syndicates established on the delivery of bootleg whiskey evolved into multinational trade associations commanding the respect that comes with revenues estimated at $2 billion per annum. In 1930 alone, Al Capone’s ill-gotten gains amounted to $100 million.

So again with the war that America has been waging for the last 100 years against the use of drugs deemed to be illegal. The war cannot be won, but in the meantime, at a cost of $20 billion a year, it facilitates the transformation of what was once a freedom-loving republic into a freedom-fearing national security state.
One of the problems with declaring “war” on something is that it’s hard, if not impossible, to admit defeat and move on. Too much invested, too much time, too much money (too many lives, in some cases). But holding out for things to turn around when they won’t only prolongs the misery. As I’ve said before, sometimes the only winning move is deciding to stop the fighting.

December 7, 2012

Friday Review: Sounds That Can’t Be Made

I’ve mentioned more than once that 2012 has been an exceptional year for new music in the prog world, with stunning releases from Rush and 3rDegree, among others. Even now, in December, I’ve got a fresh stack of discs that includes 2012 releases from Anglagard, Aranis, Big Big Train, and Mahogany Frog. It’s been a good year. However, it was inevitable that a much anticipated release would come down the pike that didn’t live up to that high standard.

But it sucks that that inevitability was the new Marillion album.

Don’t get me wrong – Sounds That Can’t Be Made is a pretty good record. Admittedly, I’m a fanboy, so even bad Marillion album (I’m looking at you, Holidays in Eden) ranks pretty high compared to the rest of the world. But it’s not amongst their best work and, in 2012, that means it’s pretty far down the table.

The title track is a pretty good example of why the album isn’t doing much for me. It isn’t until about 2/3rds of the way in (the “aurora borealis” section) that it really kicks from “meh” to interesting. But by that point, you’re not really engaged with the song anymore. Most of the tracks on the album have moments of brilliance, but they’re buried in puddles of mediocrity. That’s particularly true of the two epics, “Gaza” and “Montreal,” in which the connective material between sections just doesn’t hold up.

In fact, it’s the shorter tracks that come closest to success. “Power,” which was one of two tracks debuted during the band’s US tour this past summer, works pretty well, as does “Invisible Ink.” Neither of them are fantastic, but they’re both solid. Similarly, closer “The Sky Above the Rain” builds organically to a lovely conclusion, although it takes its sweet time getting there.

“Gaza,” as you might imagine from the title, has been the controversial song off the album amongst the fan base. Personally, I think Hogarth’s position that it’s a humanitarian song, not a political one, gets it right. It’s not really about the geopolitical situation, it’s about the realities of life on the ground. In that way, it’s a bit like “Easter,” which he once introduced as being dedicated to “everybody in the world caught up in a war in which they want no part.” Given that, I wish the lyrics were better and a little less on the nose. Were it a five-minute tune, that’s one thing. Over an old-fashioned album side, it quickly becomes a bludgeoning.

I generally classify songs on an album as falling into one of three categories. First, there’s the standout tracks, the ones that make you reach for the CD and put it on in the first place. Second, there’s those tracks that are good, but not great, and don’t demand to be heard, but if you’re putting the album on anyway, what the hell. They’re average and ordinary. Finally, there’s the tracks that get skipped more times than not. Sadly, none of the tracks on Sounds That Can’t Be Made fall into the first category. None of them fall into the last one either, thankfully, but if there are two words I don’t associate with Marillion it’s “average” or “oridinary.”

Sounds That Can't Be Made, by Marillion
Released 2012

1. Gaza (17:31)
2. Sounds That Can't Be Made (7:11)
3. Pour My Love (5:59)
4. Power (6:07)
5. Montreal (14:00)
6. Invisible Ink (5:44)
7. Lucky Man (6:54)
8. The Sky Above The Rain (10:34)

Steve Hogarth (vocals, keys, percussion)
Mark Kelly )keyboards)
Pete Trewavas (bass, backing vocals)
Steve Rothery (guitars)
Ian Mosley (drums)

December 6, 2012

And Now, A Quiz

Assume you are walking down the street, minding your own business. Coming the other way, or at least on some sort of intercept course, is a police officer. He’s not running or shouting or doing anything exceptional. He walks up to you and says, “hey, pal, can I talk to you for a minute?”

Let’s assume further that you’re in no mood to talk. You’ve had a long day at work and just want to head home and crack open a beer. Or you just had a fight with your girlfriend and you just want to head home and crack open a beer. Or, perhaps, those pre-election poll numbers weren’t so biased after all and you just want to head home, crack open a beer, and dream of 2016. Regardless, you don’t want to deal with anybody on the way home, much less a cop.

So what do you do? More to the point, what do you think you have to do? Can you ignore the cop? Can you say, “sorry, officer, I’m in no mood to talk” and go about your way? Or do you have to stop and talk?

I’m guessing most people figure they have to stop and talk. After all, when a cop asks you to do something, it’s backed up with the authority of the state. He’s got the gun, the night stick, and the handcuffs, after all. Although practically that might be the case, legally it’s not. When it comes to the Fourth Amendment’s protection against unreasonable seizures, the Fourth Circuit explains*:
[t]his guarantee does not extend to all police-citizen encounters. Rather, as the Supreme Court has instructed, ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ Police-citizen encounters that are consensual require no justification, but those that are not consensual impose a detention on a citizen and so must be supported by an officer's reasonable, articulable suspicion.

As a general matter, law enforcement officers do not effectuate a detention or seizure ‘merely by approaching individuals on the street or in other public places and putting questions to them.’ But, an officer’s authority to initiate an encounter with a citizen rather than detain him is ‘no greater than[ ] the authority of an ordinary citizen to approach another on the street and ask questions.’
Which, of course, begs the question – is any encounter with a cop really “consensual”? Over at Slate’s new crime blog, Justin Peters looks at the issue and generally concludes that there isn’t:
The idea of a consensual encounter is a nice one, conjuring an image of lovers sneaking away for some mutually fulfilling afternoon delight. But, in reality, a police officer who pursues a ‘consensual’ conversation is often just looking to screw you. As Janice Nadler and J.D. Trout note in their fascinating paper ‘The Language of Consent in Police Encounters,’ many consensual engagements are pretexts for less-consensual behavior. ‘The police officer’s main purpose is to get information about what the person is doing, and get permission to do something else, like search their person, house, car, bags, etc.,’ they write.
So it’s bad enough that officers use the consensual loophole as a way to get into (theoretically) more regulated encounters with the populace. But at least they’ve got a good eye for suspicious folks, right? I mean, if people aren’t doing anything wrong, what do they have to hide?
Most people who are stopped by the cops aren’t doing anything illegal. In New York City, for example, the NYPD’s stop-and-frisk policy specifies that cops are only allowed to stop someone if, just like in Florida, they have an articulable suspicion that he or she is involved in criminal activity. But of the 685,724 police stops initiated in 2011, 605,328 of them found absolutely nothing. That’s almost a 90 percent whiff rate. Either the NYPD is staffed by a bunch of Mr. Magoos, or the police are violating the rules of the stop-and-frisk program pretty egregiously. But it’s hard for a citizen to challenge an improper stop and frisk, because any his-word-against-yours system favors the guy with the gun and the badge.
Courts assume, quite incorrectly in my experience, that everyone knows the law and knows their rights. Squishy concepts like whether someone is free to leave police questioning (which determines whether Miranda warnings are given) are examined using a “reasonable person” standard that’s closer to a “reasonable lawyer” (or “reasonable judge”) standard. Most people, when faced with the inherent authority of a police officer, will do whatever he says.

The law needs to catch up with reality when it deals with real world application of Constitutional principles. Reexamining the legal fiction of “consensual” encounters with police would be a good place to start.

*US v. Jones, 687 F.3d 293, 298-299 (4th Cir. 2012)(citations omitted)

December 5, 2012

While I Was Away

So, a few things have transpired since I went away to write my little book this year. The biggest, of course, is the election, which is finally behind us, at least until the Iowa caucuses start up in a few minutes. Here’s a few stories that caught my eye while I was away:

Citizen’s United's OK After All
I’ve never been a fan of the left’s freak out over Citizens United. I continue to believe that most of the people who got so worked up about it didn’t really know what the law at issue actually did. Regardless, in the wake of the election, it looks like liberal organizations made pretty good use of the decision, after all:
This may be one of the major takeaways of the 2012 campaign: When liberals learned to stop worrying and love Citizens United, they benefited from it more than the conservatives who supported the decision.
That’s not completely fair, since one of the two groups mentioned in the article, the AFL-CIO, supported the winning side in Citizens United via its amicus brief. Still, it does show that, even if Citizens United meant metric tons of additional money got pumped into the election, spending that money on advertising didn’t have much impact. The groups discussed in the article used PAC money to fund on-the-ground get out the vote operations, which provided much more bang for the bucks.

Rules for Thee, But Not for Me
One of the thing that kept me from voting for Obama this year is his fondness for an expanded drone war that knows know particular bounds, either geographically or legally. Apparently, someone in the administration must be bothered by it, too, but only to the extent that some other president may get to enjoy the same lack of oversight as Obama. Hence:
Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.
But, of course, now that the election’s over and there’s no fear that this particular machinery of death will fall into Romney’s hands, progress has slowed and the project:
will now be finished at a more leisurely pace, the official said.
Brilliant. If you’re wielding power that you’d be squeamish about someone else wielding, you should probably think twice about wielding it in the first place.

But I Thought People Found Jesus In Prison?
I’m all for creative sentencing in criminal cases, particularly for first offenders and juveniles. Even someone who takes a life, as an Oklahoma teen did when he crashed the truck he and another teen were riding in, ejecting the other and killing him, sometimes there’s room for mercy. But is there ever room for an unconstitutional coercion? Amazing enough, Oklahoma District Court Judge Mike Norman sees nothing wrong with giving said teen a suspended sentence, contingent on his attending church services for the next ten years.

The problem isn’t so much in this case – the defendant agreed to the deal and was already a regular attendee of an approved church (which begs the question . . .). So there will be no appeal for a higher court to decide if it’s inappropriate (the ACLU is trying an ethics complaint against the judge, however). But what about the next case, which involves a defendant that’s either not religious or doesn’t belong to Norman’s flavor of choice? What’s the option for an atheist, agnostic, Muslim, or Hindu? Therein lies the problem. Norman’s creative sentence gets the force of the state behind a religious institution, which is what the First Amendment is designed to guard against.

December 4, 2012

The Narrow Margin

I’ve done NaNoWriMo* five times now. The goal of NaNo, of course, is to produce 50,000 words in a month, either as a complete novel or as the sizeable beginning of one. In prior years when I’ve won, I came to December knowing that, while NaNo was over, the draft wasn’t. One pushed on to over 85,000 words, another to 135,000 (another still crashed and burned shortly after NaNo ended).

Going into NaNo this year I knew it would be a bit different. My project for this year, Moore Hollow, began as a short story idea that quickly spiraled into something bigger. I figured it would be complete at about the 50,000 word mark, but didn’t quite realize how close it was going to be:

. . . by 306 words! And that came only after I went back and punched up a scene with a little more detail. I actually considered calling it complete just shy of the 50,000 mark. It still would have been a novel, for SFWA purposes (which makes 40,000 the Rubicon), but I’m glad I went back. I think that scene works better now.

So what is Moore Hollow about, anyway? It’s about a British investigative journalist, fallen on hard times, with family ties to West Virginia. He heads down into the coal fields to investigate a story about a local election in the early part of the 20th Century in which, well let’s just say, some strange things occurred. What he finds out and, more importantly, what he does with that information, is the heart of the book.

Is it any good? Hard to say. I should have a better idea when I whip through the second draft early in 2013.

* AKA National Novel Writing Month