Hey, Look, Real Tyranny (Almost)!

Words like “tyrant” or “fascist” are thrown around pretty willy-nilly in the modern political climate. Usually they’re just an epithet hurled against someone from the Other Team, regardless of whether the term actually applies (a late and dearly missed local radio host, who would be labeled a “communist” by callers, would sometimes ask them to define the term – they almost never could). When something really tyrannical is in the works it’s worth pointing it out and seeing what put a stop to it.

In December of last year, residents of Paragould, Arkansas (population 26,000), were worried about a spike in crime. In response to citizens’ legitimate concerns, the local police chief announced a plan to address the problem at a town hall meeting (via):

Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

‘[Police are] going to be in SWAT gear and have AR-15s around their neck,’ Stovall said. ‘If you’re out walking, we’re going to stop you, ask why you’re out walking, check for your ID.’

Lest anyone thing particularized suspicion, the hallmark of “reasonableness” under the Fourth Amendment, was involved, Stovall explained that they were going to “do it to everybody” because “[c]riminals don’t like being talked to.”

The Mayor, too, was on board:

[Mike] Gaskill backed Stovall’s proposed actions during Thursday’s town hall.

‘They may not be doing anything but walking their dog,’ he said. ‘But they’re going to have to prove it.’

Unsurprisingly, Stovall did not consult with an attorney before coming up with his plan. What was it that he thought would bring such roving armed patrols within the ambit of the Fourth Amendment?

This fear is what’s given us the reason to do this. Once I have stats and people saying they’re scared, we can do this,’ he said. ‘It allows us to do what we're fixing to do.’

Stovall further elaborated on the stop-and-ID policy Friday morning, claiming the city’s crime statistics alone met the threshold of reasonable suspicion required to lawfully accost a citizen.

‘To ask you for your ID, I have to have a reason,’ he said. ‘Well, I’ve got statistical reasons that say I’ve got a lot of crime right now, which gives me probable cause to ask what you’re doing out. Then when I add that people are scared...then that gives us even more [reason] to ask why are you here and what are you doing in this area.’

In the lawyer biz, we would technically label Stovall’s reasoning “full of shit.” Courts have repeatedly held that, standing alone, being present in a high crime area is not a valid basis for stop under the Fourth Amendment. See, Brown v. Texas, 443 U.S. 47, 52 (1979); United States v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987)(holding that while an area’s reputation as a high crime area may be a factor which can be considered along with other factors, being seen in a high crime area, without more, carries no weight).

So what happens if, say, you’re out walking your dog and don’t have ID handy when the cops find you?

Should an individual not produce identification, Stovall said his officers would not back down. Individuals who do not produce identification when asked could be charged with obstructing a governmental operation, according to Stovall.

‘I’m hoping we don’t run across [any] of that,’ Stovall said. ‘Will there be people who buck us? There may be. But we have a right to be doing what we’re doing. We have a zero-tolerance. We are prepared to throw your hind-end in jail, OK? We’re not going to take a lot of flack.’

Zero tolerance - what could possibly go wrong? Heavily armed cops, juiced up on fear, prowling neighborhoods with a “take no shit” attitude from anyone they encounter. How long would it take before some completely innocent poor soul got gunned down?

If you think this all sounds just a bit like martial law, you’re not wrong. Not that the cops care:

[Stovall] even remained undaunted when comparing his proposed tactics with martial law, explaining that ‘I don’t know that there’s ever been a difference’ between his proposals and martial law.

Unfortunately, as Radley Balko explains, Paragould wasn’t going to break new ground:

Using SWAT teams for routine patrols isn’t uncommon. Fresno did this for several years in the late 1990s and early 2000s. The city sent its Violent Crimes Suppression Unit into poorer neighborhoods and stopped, confronted, questioned, and searched nearly everyone they encountered. ‘It’s a war,’ one SWAT officer told Christian Parenti in a report for The Nation (not available online). Another said, ‘If you’re 21, male, living in one of these neighborhoods, and you're not in our computer, then there's something definitely wrong.’

A 1999 report in the Boston Globe found similar units patrolling the streets of Indianapolis and San Francisco, which the reporter noted gave the communities under siege ‘all the ambiance of the West Bank.’

In a way what happened in Paragould is a microcosm of recent American history. Gripped by fear of something, we as a society are ready to give away liberty for the false sense of security that an increased police presence brings. The fear of drugs leads to the dismantling of the Fourth Amendment. The fear of terrorism leads to the wholesale abandonment of principles about torture, due process, and “just” wars, not to mention airport security theater. Think about when you’re afraid – do you make wise, thoughtful decisions in that frame of mind? Why should large groups of people act any differently?

At least, in the case of Paragould, there appears to be a happy ending. There was a backlash to Stovall’s plan and, almost immediately, the city powers that be began walking back the idea:

‘It is my understanding that if they get a call in an area and they go to an area because of some calls of suspicious activity, they’ll make contact,’ [City Attorney Allen] Warmath said.

Warmath said while he had not directly spoken to Stovall, he understood that the street crimes unit would actually be less confrontational than Stovall let on.

‘If they have a call that there’s some problems in the area, they’re at least going to talk to you,’ he said. ‘Maybe that person walking their dog saw something. It gives them some information and some leads to find out what's going on.’

And, according to at least one source, the entire plan’s been scrapped. If so, kudos to the powers that be for wising up. But even more so, kudos to the people of Paragould who stood up and voiced their objections to their city becoming an occupied territory. Cooler heads prevailed against a rising tide of fear.

It’s easy to give into fear – it is the mind killer, as they say. It’s harder to stand up against it and say, “hey, wait a second, do we really want to go that far?” We owe it to ourselves, and to those around us, to take that second step.

On Judicial Activism

As someone who reads court decisions for a living, and then has to grapple with what they actually say, it always sets my hair on edge when someone complains of “judicial activism.” It’s such a nebulous term as to be pretty much meaningless. Most of the time its used in the press or in political debates it’s just shorthand for “the court reached a result I don’t like.” Figure out which side’s ox is being gorged and you can pretty easily figure out whether the Dems or GOPers will be waiving the judicial activism bloody shirt.

If judicial activism as a concept has any real meaning, it seems to me it has to have more to do with process than normative results. In other words, in reaching the decision it did (whatever that is), did the court go out of its way to make a bigger impact than the case warranted? Think the infamous Citizen’s United decision, which really didn’t need to reach the First Amendment issue (even if the Supreme Court, in my opinion, got that issue right).

I thought about that when the news broke Friday that the D.C. Circuit Court of Appeals had vacated several appointments to the National Labor Relations Board made by President Obama in January 2012. The appointments were made pursuant to the president’s authority to make “recess appointments” while the Senate is out of session, which last only a short amount of time. At the time of the NLRB appointments, the Senate wasn’t doing any real business, but was gaveled to order in pro forma sessions to keep from being in recess.

Such Senate chicanery isn’t a Republican invention:

The current dispute can be traced back to 2007, when Democrats took control of the Senate. Hoping to block Mr. Bush from making any more unilateral appointments, they did not formally recess before going home for Thanksgiving. Instead, they held pro forma sessions, meaning a member came into the nearly empty chamber every third day and banged the gavel. The idea was that the novel tactic would legally break up the long recess into a series of short ones believed to be too brief for recess appointments.

Senate Democrats repeated the move for the rest of the Bush presidency, and Mr. Bush did not challenge it.

Under Mr. Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days. But last January, Mr. Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three labor board members . . .

So the issue facing the D.C. Circuit, in an appeal from a NLRB decision by Pepsi, was whether those appointments violated the Constitution. Given the facts of the case, the court could have stopped after deciding that the Senate’s sessions, whether pro forma or not, weren’t a “recess” and that the Senate, rather than the president, gets to decide when it’s in session. For what it’s worth, I think that’s the right result.

But the court did not stop there and, in fact, the court went much further. Not only did it hold that Obama’s particular appointments were invalid, but rather any appointment made in such a fashion that isn’t made between the actual sessions of Congress – i.e., in the space between one Congress ending and the other beginning – is invalid.

I agree with John Elwood over at Volokh, no den of Obama lackeys, that:

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting ‘pro forma’ sessions. It is also the most thorough judicial discussion of the recess appointment power.

By sweeping so broadly, the D.C. Circuit (in a ruling that conflicts with decisions in three other circuits) called into question a long standing bipartisan practice. As Elwood explains:

Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years.

Furthermore, while there was some controversy about such appointments in the 18th century, by 1823 the Attorney General had concluded that they were all right.

All of this is not to say that the D.C. Circuit, in the end, got it wrong on the broad constitutional issue. I’m hardly an expert in this area of law, so I don’t know. But in going so far and upending long-standing understandings, the court has potentially created some real issues. If the NLRB actions taken with these recess appointments are all now void, what about decisions made by other recess appointments? For that reason, I expect that this decision will not be the last work in the case.

The Constitution limits the jurisdiction of courts to “cases or controversies.” Unlike top courts in some other countries, they cannot offer advisory opinions. Only the particular case before them, and the particular issues it presents, should be resolved. In other words, there’s a good reason for courts to make decisions on as narrow a basis as possible. When they push past that line, it sounds like judicial activism to me, if anything every does.

Throwing the Wrench Well Away from the Machinery of Death

It's not many stories I blog about for three years running, but since this one appears to be at an end, I figured I might as well wrap things up.

You may remember, back in 2011, when I wrote about the odd case of Jason Pleau, who is serving a sentence on a Rhode Island state charge that's set to expire in 2028. The federal government would like to prosecute Pleau as well, but with on charges that could bring the death penalty. The state of Rhode Island does not have the death penalty, but that wouldn't stop the federal government from securing a death verdict themselves.

As a result, the feds submitted a routine request under the Interstate Agreement on Detainers Act for Rhode Island to hand over Pleau so he could be prosecuted in federal court. Rhode Island's governor, Lincoln Chafee, mucked things up a bit by using a rarely (if ever) used clause of the Act to deny the request because the potential federal penalty (death) was harsher than any called for by state law.

The feds ran to a federal court get a writ of habeas corpus ad prosequendum, which is another means to get someone in state custody into federal court. Litigation ensued about whether the feds could resort to such a backdoor method (over which the Rhode Island authorities had little control).

To the surprise of several (myself included), the First Circuit initially sided with Chafee, but in a later en banc proceeding held for the feds and ordered Pleau turned over. Chafee took the case to the Supreme Court, which yesterday denied his request to review the case (without comment or dissent, apparently).

So, in the end, the feds get their man. But will they get their death sentence? It will be interesting to see if they pursue it after all this effort and, if the do, whether a Rhode Island jury will give it to them. We'll see, I guess. It's up to the jurors of Rhode Island to have the final say.

Friday Review: Dare

I suppose this was bound to happen, my recent exploration of the early synth-pop scene and the fact that, generally, I dig it, even though when it was going on I was turning up my nose at it. So, what the hell happened?

For one thing, must as it pains me to admit it in print, I’m getting old. Not ancient, mind you, but cranky enough that I’ve become that person who looks back on the pop culture of their youth with more enthusiasm than it probable merits, particularly when compared with the shit kids lap up today. You know, the ones who need to get off my lawn?

For another, it was only a matter of time before my examination of electronic music moved into a more radio friendly area. I mean, there’s only so much ambience and Tangerine Dreaming on can do, right? It helped that I found this really interesting documentary on the history of the early British synth-pop scene.

One of the bands featured in that doc was The Human League. To be honest, I’d never given them much thought beyond their super-sized hit:

That track is both very representative and quite different from the rest of the album. As explained by main man Phillip Oakley in the liner notes, the song was punched up and refurbished by the producer and engineer after he’d gone home for the day, under orders from the label that “anything that made the record more saleable must be included.” Oakley says, “I hated it and we had a huge row, but, of course, they were right.”

They might have been, in terms of hit potential, but there’s more interesting stuff going on elsewhere, musically. Lest there be any doubt, this album is fully a product of the early 1980s. Every sound on its electronic, save for the vocals. That aesthetic is less successful in the more overtly radio-friendly material, but really works well when things get more sparse and cold. “I Am the Law” (inspired by Judge Dredd, of all things) and the following “Seconds” (which seems to be about murder) really benefit from stripped down arrangements that dwindle, in some instances, to a single synth, a sparse rhythm track, and Oakley’s vocal.

There’s nothing on Dare that’s transcendent. At its best, it’s a surprisingly bleak capsule of a time when new technology was fully embraced for its own sake. At its worst, it’s still a pleasant enough pop record. That’s not such a bad result, in the end, at least viewed through these nostalgic ears.

And, hey, you kids – get off my lawn!

Details
------------
Dare, by The Human League
Released 1981

Tracks:
1. The Things That Dreams Are Made Of (4:14)
2. Open Your Heart (3:53)
3. The Sound of the Crowd (3:56)
4. Darkness (3:56)
5. Do or Die (5:25)
6. Get Carter (1:02)
7. I Am the Law (4:09)
8. Seconds (4:58)
9. Love Action (I Believe In Love) (4:58)
10. Don't You Want Me (3:56)

Players:
Ian Burden (synths)
Jo Callis (synths)
Joanne Catherall (vocals)
Philip Oakey (vocals & synths)
Susanne Sulley (vocals)
Philip Adrian Wright (synths & slides)

with:
Martin Rushent (programming)
Dave Allen (programming)

Innocent Confessions, Japanese Version

Regular readers should know by now that anyone who says “an innocent person would never confess to a crime they didn’t commit” is either ignorant or willfully blind. Research, not to mention numerous exonerations, show that it’s not unheard of for someone in the American criminal justice system to confess to a crime they didn’t commit (here is another recent, local, example). Doesn’t mean every confession is false, but it does mean they can’t simply be taken at face value.

It’s a problem, but at least we can take comfort in knowing it’s not a part of that American exceptionalism we hear about so often. As this BBC report shows, the problem of coerced false confessions is bubbling to the surface in Japan, spurred by an audacious (and unethical) stunt.

It started with threats made on the Internet against various high profile people. The police then sprang into action:

After a police investigation, four people were arrested. Two, including a 19-year-old student, confessed while in custody.

But on 9 October, the real perpetrator sent an email to a lawyer - Yoji Ochiai - and local media, explaining how he or she made those threats by taking control of innocent internet users' computers with a virus.

His or her purpose, as stated in the email to Ochiai, was ‘to expose the police and prosecutors' abomination’.

And in a way, it did.

Ochiai was surprised – not at the false confessions, but by the email itself. As the case of Shoji Sakura, who spent nearly 30 years in prison for a murder he didn’t commit shows, the techniques used to produce his false confession sound familiar to American ears:

When arrested, aged just 20, he was treated like a guilty criminal, he says.

‘They interrogated me day and night, telling me to confess. After five days, I had no mental strength left so I gave up and confessed.’

‘It may be difficult for people to understand, but being denounced repeatedly - it is harder than you think,’ he adds.

But, of course, Japan is not the United States, either in its criminal procedure or its underlying culture. For example, police interrogations take place without being recorded and the person being questioned doesn’t get to have an attorney with them. More than that, however, is this fascinating overlay from a sidebar to the BBC piece, an excerpt from People Who Eat Darkness by Richard Lloyd Parry:

Japanese courts attach great importance to motive. The reasoning and impulses which led to a crime must be proved in a court; they are a crucial factor in determining a convicted criminal's sentence. The who, what, where and when are not enough: a Japanese judge demands to know why. A detective, then, is obliged to get inside his subject's skull - if he fails to do that, he is not considered to have done his job. In reality the only way to do this is by obtaining a confession.

By contrast, motive plays a very small role in American substantive law, so that desire to answer the “why?” question doesn’t have as much force.*

Then there are different cultural considerations that might lead to a false confession in Japan:

Japanese society’s emphasis on shame and consideration towards their family also plays a role.

Sakurai says he was told that his mother suggested he confessed - he doubts this but cannot ask her as she had passed away before he was freed.

The father of the 19-year-old student who confessed to June's cyber threat said in a statement to the media that consideration to the family was what motivated his son to ‘misrepresent the fact and confess’.

For all that’s different, there’s something depressingly familiar as well - the pressure on cops and prosecutors to get a confession (and the resulting conviction), even if it’s complete fiction. One former prosecutor, who was fired after threatening to kill a suspect, explained:

Another thing he regrets - aside from making the death threat - is writing up a confession statement which did not correspond with the truth.

‘After I grilled the suspect for eight hours, I got him to sign this statement even though he didn’t say a single word of it,’ he says.

‘My boss was pressuring me to get his confession so I thought I couldn't go home without it.’

For Ichikawa, it didn't matter if it was true or false as long as he had the confession.

Is Ichikawa an outlier, either in Japan or the United States? Certainly. But imagine how much damage an outlier like that can do to the lives of people whose only crime is being roped into the investigation of a crime they had nothing to do with. When a skilled interrogator pushes as hard as he can, it can lead to horrible results:

Regardless of geography, the criminal justice system, and society in general, needs to recognize the reality of false confessions and do more to prevent them.

* Don’t confuse “motive” with various mental states related to intent or lack thereof. A man who kills his wife intentionally and with malice is guilty of murder, but only manslaughter if he kills in the heat of passion. It makes no difference if the motive for the killing – the wife was sleeping around – is the same.

Seize This!

Roman Officer: Seize him!

Josephus: Ah, seize *this*, honkus!

Comicus: Oh! Don’t ever say that to the cops!

Sound advice, from ancient Rome to modern America. But just because the cops might get pissed if you crack wise with ‘em, doesn’t mean the law will ultimately back them up. Thankfully.

Consider the case of Swartz v. Insogna, decided last week by the Second Circuit Court of Appeals (via).* Just the introduction tells you you’re in for something special:

An irate automobile passenger’s act of ‘giving the finger,’ a gesture of insult known for centuries, to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.

I don’t normally quote footnotes, but the first one provides a little history of the gesture, beginning with Diogenes flipping of Demosthenes (citations omitted):

Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.

As for this case, John Swartz was in a car driven by his wife, Judy. At an intersection, he spied a local cop running radar:

John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof. The Plaintiffs, who were not speeding or committing any other traffic violation, continued to the home of Judy’s son.

Alas, as Comicus points out, you don’t talk to cops that way. The officer, Insogna, pulled in behind the Swartz’s car. After he checked Judy’s paperwork (which was all in order):

John then got out of the car and asked if he could speak to Insogna, saying ‘I’d like to speak to you man to man.’ As he started walking toward Insogna, who was more than 20 feet away, three other officers stepped in front of him. John stopped, walked away from the officers, and said to himself in a voice apparently too low for his words to be understood, ‘I feel like an ass.’ One of the other officers asked John what he had said, and John repeated his remark loud enough to be heard. At that point Defendant Collins said, ‘That does it, you’re under arrest,’ but did not say for what.

The “what” ended up being that favorite squishy misdemeanor of officers everywhere, “disorderly conduct.” The charge was pending for “several years” before it was dismissed.

In the wake of all that, John and Judy sued Insogna (among others) for violating their Fourth Amendment rights by seizing them and arresting John without probable cause. Their suit was dismissed by the district court. But on appeal, taking the facts as asserted by the Swartzes (as the law requires at that point), the Second Circuit disagreed and reversed.

As to the seizure, the court concluded that Insogna lacked reasonable suspicion that criminal activity was afoot when he pulled in behind the Swartzes’ car. John’s flipping him the bird just wasn’t enough to justify the stop. In particular, the court scoffed (in legally appropriate language, of course) at Insogna’s claim that he either thought that John was “trying to get my attention” or, alternately, that he “was concerned for the female driver”:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Likewise, the court concluded that John’s conduct didn’t qualify as “disorderly conduct,” even “under New York’s expansive definition,” thanks to the gesture’s status as “pure speech.” In other words, the First Amendment (although the court never cited it directly) protects your right to flip off the cops. To round out the day, the court found that the Swartz’s malicious prosecution claim shouldn’t have been dismissed, either.

Believe it or not, this case isn’t even unique. As the ACLU lawyer involved in that case puts it:

’The constitution does protect us when we want to express ourselves,’ Mejia said. ‘Even rudely.’

Fuck yeah.

* I can’t find a direct link for the opinion that works reliably. Go here and search for “Swartz” and it’ll pop up.

Friday Review: Dies the Fire

It’s the end of the world as we know it, and I feel . . . bored.

To be fair, Dies the Fire starts off with a bang. Or, rather, a flash, as some unexplained event centered off the east coast of the United States (there’s an entire other series that deals with what happens to Nantucket as a result) occurs rendering anything vaguely electrical – from electric gadgets themselves to gunpowder – inoperative. After “The Change,” as it’s called, life suddenly gets both a lot more simple and a lot more complicated.

That’s particularly true for Mike Havel, one of the book’s two heroes. A pilot, Havel is flying a family to their ranch in a remote part of Idaho when The Change happens. That means the plane crashes, but, in a foreshadowing of things to come, Havel makes the best of a bad situation and everyone on board survives. That small group evolves into a large group of absurdly skilled quasi-mercenaries called The Bearkillers (‘cause Havel kills a bear, naturally), who pretty quickly adapt to the new world.

The other main thread of Dies the Fire involves Juniper, a woman who doubles as Celtic folk singer and Wiccan priestess who is interrupted mid-set by The Change. After navigating the fiery ruins of Corvallis, Oregon (set ablaze by planes falling out of the sky after The Change), she and her friends and fellow Wiccans convene at a Juniper’s cabin in the woods, where they, too, start rebuilding and coping with the new reality as best they can.

Of course, the Bearkillers and Juniper’s clan come together (quite literally, in one instance) and by the end have forged an alliance that will probably bear more fruit later in the series. I don’t really know or care, since Dies the Fire didn’t convince me to continue on with it.

The problem with Dies the Fire doesn’t lie in its setup or characters so much, although both of the main characters have their own annoyances. Juniper, for instance, is constantly spouting words of wisdom in Gaelic, which she then translates for the rest of us, like an Irish fortune cookie. It’s beyond annoying. The real problem is that Stirling setups up this nasty world and then makes it entirely too easy for our heroes to survive.

For example, although there are lots of detailed discussions about how to do things after The Change, including such necessities as feeding yourself, neither group we follow through the book is ever in danger of actually, you know, starving or anything. This isn’t The Road, in which the two main characters struggle to survive on every page. Particularly in Juniper’s neck of the woods, where her clan settles down and builds, life actually sounds pretty good.

That’s partly because nearly every character we meet who is absorbed into the two groups miraculously possesses some skill that makes them particularly suited to surviving after The Change. People pop up who have experience farming, sword fighting, breaking and training horses, and other useful skills. Nobody’s ever useless or in need of the care of others. Sure, there are children around, but after their initial absorption into either group they’re shuffled off into the background.

Which could be all right – The Road is a fairly depressing read, after all – if there was any kind of conflict happening within the clans themselves. Don’t get me wrong. Stirling gives Havel and Juniper plenty to do with regards to conflicts with black-hat wearing outsiders, from roving bands of thugs to “eaters” (of human flesh, of course) to a megalomaniacal history professor (you read that right) who has set himself up as the ruler of Portland. Those sequences are well done and exciting, if a bit predictable by the end.

But there is no kind of conflict within the groups themselves. Nobody ever suggests that Havel might be wrong to keep slogging through the wilderness rather than setting up a more permanent camp (or throwing in with folks they meet along the way). Nobody ever suggests that Juniper is wrong to fight bad guys on behalf of others based on some Wiccan version of karma. Hell, nobody even stirs shit just because they’d rather be in charge! Add to that the near total absence of any minor real life conflicts like petty thefts, sexual jealously, or good ole’ fashioned hate and Stirling’s world looks damned near utopic.

The single exception proves the rule. One of Havel’s recruits is branded as no good from the beginning, since he’s a drunk and a wife beater. After he does what drunk wife beaters do and is punished for it, he betrays the Bearkillers for no particularly good reason and with a just desserts result. Even that attempt at some sort of internal conflict winds up black and white and pointless.

Which is a damned shame, because Stirling obviously put a lot of work into the world he built and the details of how to survive in it. He would have been better off chucking one of the two main story lines in favor of some other group of characters who are having a more difficult go of things. Things might have been more interesting in a city, with multiple factions stacked on top of each other struggling for survival and authority. Alas, that’s not the story Stirling decided to tell.

It’s never a good sign when, two-thirds of the way through the book, a character writes a fictionalized, Tolkien-inspired narrative of events so far and the main character, concerned that future generations will accept it as history, muses that at least it was “ more colorful than the dirty, boring, often nauseating reality.” You know, the “reality” we’ve been reading about thus far? I wouldn’t call it nauseating, but I won’t argue the boring part.

The Details
------------------------
Dies the Fire
By S.M. Stirling
Published 2004

In Which Sepp Blatter Is *Gasp* Wrong

Readers who follow the global politics of soccer know that when FIFA president Sepp Blatter opens his mouth, stupidity often follows. So it’s perhaps not a surprise that when Blatter turns his attention to Major League Soccer and its place in the American sports universe, he got it wrong.

In an interview with Al Jazeera, Blatter said, in response to a question about the development of the game in China and the United States:

The problem in the United States is a little bit different. But don’t forget that soccer — as they call football there — is the most popular game in the youth. It’s not American football or baseball; it is soccer. But there is no very strong professional league. There have just the M.L.S. But they have not these professional leagues that are recognized by the American society.

It is a question of time. I thought, when we had the World Cup in 1994. … But we are now in 2012 — it’s been 18 years — it should have been done now. But they are still struggling.

Look, nobody’s going to mistake MLS from the English Premier League or Spain’s La Liga. Nor even for the NBA, NFL, or Major League Baseball. But it’s snuck up on pro hockey in the United States and, really, given that the league’s not old enough to drink yet, things are going pretty well. As the New York Times Goal blog puts it:

Perhaps Blatter forgets that Roma, like Rome, was not built in a day. Or that it’s been a while since anyone speculated whether M.L.S. would return the following spring. Or that more than half of the league’s 19 teams now play in new soccer-specific stadiums, and that a half-dozen cities are bidding to host the league’s 20th franchise.

In addition, the league’s gone from buying time from ESPN to get games on television to being paid for the honor. Hell, there was even a bit of a bidding war the last time around, with NBC swooping in to take the rights held by Fox Soccer Channel. Certainly, there’s more to do – my team DC United is basically in stadium limbo right now – but things are headed in the right direction.

Keep in mind, the NFL was founded in 1920, the NBA in 1946, and Major League Baseball dates back to at least 1876. MLS isn’t just a newcomer, it’s an infant by comparison.

So, Blatter’s completely wrong in this instance. In other news, water is wet.

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:

Music

• Authobahn (1974)
• Clockwork Angels (2012)
• Diving Bell (2010/2012)
• King of Number 33 (2011)
• The Long Division (2012)
• The Sole Inhabitant (2006)
• Sounds That Can't Be Made (2012)
• Storia O Leggenda (1977)
• Le voyage dans la lune (2012)
• Short Takes, Part 1 (featuring Mars Hollow, Moon Safari, Aranis, Mahogany Frog, and Mike Keneally) & Part 2 (featuring Steve Hogarth & Richard Barbieri, Big Big Train, Anglagard and echolyn)

Movies & TV

• The Apostle (1997)
• Biutiful (2010)
• Destination Moon (1950)
• Mad Men (Season One) (2007)
• Red State (2011)
• Senna (2011)
• Super 8 (2011)
• Tabloid (2010)
• Take Shelter (2011)

Books

• Clockwork Angels (2012)
• The Confession (2010)
• Hyperion & The Fall of Hyperion (1989, 1990)
• The Martian Chronicles (1950)
• Palimpsest (2009)
• Redshirts (2012)
• Slavery By Another Name (2009)
• Thunderstruck (2006)

See ya' in 2013!

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):

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:

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:

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 TheWrap.com 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?!

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.

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.”

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

Tracks:
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)

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

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)

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.

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

Check Your Calendars

Yes, friends, if you’ll look to your monthly time keeping tool of choice, you’ll see that it’s almost November. In addition to the thankful end of the interminable election campaign, that also means it’s time for . . .

That’s right, November is National Novel Writing Month, or NaNoWriMo, during which intrepid souls like myself attempt to produce a novel (or at least the first 50,000 words of it). This will be the fifth year I’ve taken part.

Which means that, like last year, Feeding the Silence will essentially go dark for the month. Focusing on the novel writing last year got me to the NaNo goal of 50,000 words, even though the project cratered shortly thereafter. As it happens, the idea I was working on last year was really more of a short story thing than a novel. I still need to go back and salvage the good parts.

Ironically, this year is flipped around, with my NaNo project being something I originally tried to flesh out as a short story. I think it will work much better in a longer format, so we’ll see.

What’s it about? Let’s just say it plays on the idea that, historically, many West Virginia elections have involved the participation of the dearly departed. But that’s just the underlying idea – we’ll see how it all pans out.

Wish me luck and I’ll see y’all in December!

Couldn’t Happen to a Worse Person

I try not to get caught up in other people’s misfortunes – schadenfreude isn’t very attractive – but I’ll make a special case for Nancy Grace. Regular readers know I have a special spot in my heart for the loud-mouthed cable news legal “analyst.” It does that spot some good to know she’s getting sued for libel (via TalkLeft):

A day before his parole hearing, Michael Skakel filed a defamation lawsuit against CNN television host Nancy Grace alleging that she made false statements on her show about evidence in the 1975 murder case for which he has been sentenced.

* * *

In the segment, ‘Kennedy Cousin Asks Judge for Shorter Jail Time,’ Grace asks [Tru-TV host Beth] Karas if Skakel was masturbating in a tree near [murder victim Martha] Moxley's window. Karas responds: ‘His DNA was found.’

But apparently that’s not true. So, have fun with that one, Nancy!

Karmic juiciness aside, the case does raise an interesting issue, at least in my tiny mind. Skakel is a convicted murder, after all. Whatever doubts there may be about his factual guilt, he’s guilty in the eyes of the law. Given that the entire point of a defamation claim is that the plaintiff’s reputation has been sullied by the false statement, can a convicted murderer be defamed? Particularly for something related to his conviction?

With the caveat that I’m far from an expert in the area, the answer doesn’t appear to be all that clear. Courteously, the Connecticut judiciary has put its model jury instructions online to help get the lay of the law.

Start with the generic instruction on defamation, which sets forth three elements:

To establish a case of defamation, the plaintiff must prove the following:

1. the defendant published a defamatory statement to a third person;

2. the defamatory statement identified the plaintiff to a third person; and

3. the plaintiff's reputation suffered injury as a result of the statement.

Likewise, the instruction specifically for libel requires the plaintiff to prove that “the publication caused harm to the plaintiff.” So injury to reputation appears to be a key part of the case.

But not so fast – Connecticut law also provides for per se versions of both libel and slander.* To quote the libel instruction:

Certain written defamatory statements are considered to be so harmful in and of themselves that the person to whom they relate is entitled to recover general damages for injury to reputation, without proving that any special or actual damages were caused by the statements. These defamatory statements are called libel per se. Libel per se is a type of libel in which the defamatory meaning is apparent on the face of the statement.

When the defamatory words are libel per se, the law conclusively presumes that there is injury to the plaintiff's reputation. The plaintiff is not required to prove that (his/her) reputation was damaged.

The instructions go through various categories of per se defamations, with the slander categories more wide open than the libel ones. Whether public masturbation falls into those categories, I can’t say (it doesn’t at first glance). If it doesn’t, Skakel will have to prove that Grace’s blunder damaged a reputation already diminished (if not destroyed) by a murder conviction. That might be a tough sell to a jury, or even a judge. It will be interesting to see how Skakel’s lawyers play things.

It will also be interesting to see how Grace and company defend their “honor.” Here’s hoping they can’t.

* Libel is written defamation, slander is spoken defamation. I’m not really sure under which branch a TV program falls.