Law

The Maricopa County Sheriff’s Office last night arrested Michael Lacey and Jim Larkin, owners of the Phoenix alternative newspaper New Times, for publishing a story under their bylines which revealed the contents of a grand jury subpoena received by the paper. Revealing the contents of a subpoena is a misdemeanor. Lacey and Larkin, who have long battled with Maricopa County Sheriff Joe Arpaio and County Attorney Andrew Thomas, wrote a story about the subpoena because they considered it an attack on the freedom of the press. The subpoena demanded records relating to all visitors to the New Times website over the last four years, including information about what websites they visited prior to the New Times website (i.e., referral URLs)–essentially, the request is for the complete website logs for the newspaper’s website for the last three years. It also demanded reporters’ notes and any other documents pertaining to stories about Arpaio for the last three years. Lacey and Larkin wrote that they believed their article to violate the law, but they published it as a form of civil disobedience in order to challenge the unconstitutional abuses of Arpaio, Thomas, and prosecutor Dennis Wilenchik. The trigger for the events which led to the subpoena (and the apparent event of interest given the dates in the subpoena) appears to be a New Times article from July 8, 2004 which commented on Arpaio’s commercial real estate investments and ended with Arpaio’s home address, but the paper’s criticism of Arpaio for mismanagement, inmate deaths, and grandstanding in front of TV cameras goes back many years more. Sheriff Joe used to have a dialup Internet account with Primenet, my former employer. At one point one of his assistants, Lisa Allen, contacted Primenet to attempt to get information about a subscriber who had left a critical comment on his website, without a subpoena. We declined to provide such information without a subpoena. UPDATE (October 19, 2007): County Attorney Andrew Thomas has announced that he has dropped the charges against New Times and dismissed special prosecutor Dennis Wilenchik. UPDATE (November 13, 2007): New Times ran an October 25 followup story. UPDATE (October 28, 2008): It has come out that the order for Lacey and Larkin’s arrest was given by Arpaio’s chief deputy David Hendershott, whom Arpaio allowed to retire so he could receive a $43,000/year pension, and hired him back as a civilian at his same $120,000/year salary. Hendershott now makes $177,486/year working for Arpaio. ...

Former Qwest CEO Joseph Nacchio, found guilty of insider trading in April, is claiming in his appeal that part of the reason Qwest stock dropped in value is that the NSA cancelled some lucrative contracts with the company as punishment for its failure to cooperate in illegal warrantless wiretapping (unlike AT&T and Verizon). The Bush administration is pushing for retroactive immunity to be granted to AT&T and Verizon for its participation in these unconstitutional programs by threatening to veto any surveillance bill that doesn’t include such immunity. If the Democrats were smart, they’d go ahead and send him a surveillance bill without the immunity, and then criticize him when he vetoes it for taking action that is going to kill Americans. ...

CIA Director (and former head of the NSA) Gen. Michael Hayden is unhappy with CIA Inspector General John Helgerson’s work uncovering abuses at the CIA, so he’s ordered his own investigation of the IG, including an examination of the office’s confidential files. That’s sure to put a chill on employee cooperation with or reporting of abuses to the IG’s office.

Lynn Brewer is a former Enron employee who claims she was an executive whistleblower, and has turned that into a career as a highly paid motivational speaker and founder of the Integrity Institute. But it turns out that she was never an executive, she worked in a clerical position writing summaries of gas and energy contracts. The document she claims was a memo in which she blew the whistle is a document her boss says she never saw and described an alleged financial transaction which she never would have done any work on. Her former VP, Tony Mends, says that Brewer was sent to the UK to train Enron employees on the use of Factiva, but she never showed up to conduct the training, instead traveling the UK with her fiance. She claims she had to stay outside of London because of a terrorist threat, but nobody else in the Enron office in London was kept from going to work. Greg Farrell at USA Today has done a great job of exposing Brewer’s claims and how she has capitalized on being confused for Sherron Watkins, who really was an Enron executive whistleblower. Brewer’s web page at “Speaker’s Spotlight” shows that she bills herself as “the” Enron whistleblower and is filled with misrepresentations: Lynn Brewer’s notoriety stems from her actions that have dubbed her “the Enron Whistleblower”. Her accomplishments include: Author of Confessions of an Enron Executive: A Whistleblowers Story; Earning a Certification in Business Ethics from Colorado State University; Founder and President of The Integrity Institute, Inc., which assesses and certifies corporate integrity at the request of organizations for the benefit of their stakeholders. Prior to joining Enron, Brewer worked in forensic accounting and spent 18 years as a legal professional in private practice, until she joined Ralston Purina, where she worked in Corporate Development for the General Counsel and Chief Financial Officer. As an executive at Enron, Ms. Brewer was responsible for Risk Management in Energy Operations, the e-Commerce initiatives for Enron’s water subsidiary, and Competitive Intelligence for Enron Broadband Services. Her responsibilities included financial derivatives and the now infamous “off-the-balance sheet” partnerships. During her nearly three-year tenure, she witnessed numerous instances of illegal and corrupt dealings, including bank fraud, espionage, power price manipulation and the gross overstatements to the press, public and financial world. When her attempts to notify those inside Enron of her knowledge failed, she notified the United States government, who refused to return her e-mails and telephone calls. Since leaving Enron, Lynn Brewer has become an internationally recognized speaker providing compelling details into Enron’s rise and fall, leaving audiences shocked when they realize how vulnerable they are to becoming the next Enron. A past nominee for the “Women of Influence” Award, Brewer was selected in 2006 for inclusion in the 25th Silver Anniversary Edition of Who’s Who of American Women for her contributions to society.Notice that she doesn’t give her actual title; her claim of being responsible for risk management as though she headed a risk management group is untrue. Her boss, Mary Solmonson, was a director, not an executive. Another boss, David Gossett, who reported to VP Mends, was also a director, not an executive. I suspect we’ll see more allegations and stories of deception by Brewer coming to light. I’d like to know if there’s any substance to her claim to have experience in the field of forensic accounting prior to working at Enron. Her 18 years experience “as a legal professional in private practice” really means she worked as a paralegal (which was apparently her role at Enron). Here’s an interview transcript where she misrepresents herself from the get-go, answering the question “what was your role at Enron” with: I was recruited about three years before the implosion of Enron, to head up a risk management group inside the legal department, that would brief, for senior management and the board of directors, these off the balance sheet partnerships at the centre of the scandal.She didn’t head up a risk management group. She didn’t brief senior management and the board of directors. She didn’t report on the off balance sheet partnerships at the center of the scandal, she wrote summaries of gas and energy contracts for managers. UPDATE (October 15, 2007): Lynn Brewer was known as EddieLynn Morgan (her maiden name) while she was at Enron, and her name appears in the “Enron corpus” of emails that were made public after the scandal. Studies of the Enron emails have been done to look at the web of interconnections between recipients, which show that EddieLynn Morgan was a very bit player–she is the recipient of a total of four emails in the corpus, and the author of none. ...

Ed Brayton has an entertaining post at Dispatches from the Culture Wars about the lawsuit against Oral Roberts University and Oral’s son Richard Roberts by several former ORU faculty: The allegations are contained in a lawsuit filed Tuesday by three former professors. They sued ORU and Roberts, alleging they were wrongfully dismissed after reporting the school’s involvement in a local political race. Richard Roberts, according to the suit, asked a professor in 2005 to use his students and university resources to aid a county commissioner’s bid for Tulsa mayor. Such involvement would violate state and federal law because of the university’s nonprofit status. Up to 50 students are alleged to have worked on the campaign. ...

In today’s New York Times: When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency. ...

In an interview with Beliefnet, Arizona Sen. John McCain said that the U.S. Constitution establishes a Christian nation: A recent poll found that 55 percent of Americans believe the U.S. Constitution establishes a Christian nation. What do you think? I would probably have to say yes, that the Constitution established the United States of America as a Christian nation. But I say that in the broadest sense. The lady that holds her lamp beside the golden door doesn’t say, “I only welcome Christians.” We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.Apparently he, like Rep. Ron Paul, missed the fact that the only reference to God in the U.S. Constitution is the reference to the “year of our Lord” in the date. The Constitutional Convention voted not to open with prayers, Article VI says that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” and the First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Constitution establishes a democratic republic with a strong separation of church and state by comparison to other nations. The Bible, by contrast, speaks of theocratic political systems with rule by priests and kings. In 1797, the Senate unanimously ratified and President John Adams signed the Treaty of Tripoli, Article 11 of which began with the words “As the Government of the United States of America is not, in any sense, founded on the Christian religion.” (This treaty was quickly violated by Tripoli, and the renegotiated treaty of 1805 did not contain this article, but the important point is that this language was approved by the entire Senate and the President in 1797.) ...

Jeremy Hall, an atheist soldier stationed in Iraq, attempted to form a meeting of his fellow atheists, after receiving permission to do so from an Army chaplain. That meeting occurred on August 7, and was attended by Hall’s supervisor, Major Freddy J. Welborn, 44, an evangelical Christian who broke up the meeting and threatened to charge Hall with violations of the Uniform Code of Military Justice as well as to block Hall’s reenlistment if the group continued to meet. Hall filed a lawsuit against the Pentagon and Welborn for injunctive relief to prevent such unconstitutional abuses. In response to his lawsuit, Hall has been assaulted by fellow soldiers and threatened on blogs with being killed by friendly fire. (There have been some allegations, not substantiated to my knowledge, that Pat Tillman’s death by friendly fire may have been the result of his outspoken atheism.) Welborn, who was initially misidentified in the lawsuit as Paul Welbourne, was tracked down via his MySpace page, a visual monstrosity which says that he is a member of the “Department of Eternal Affairs,” his primary occupation is “Bible Study,” he has a Bachelor’s Degree from Tennessee Temple University with a major in “Pers. Evangelism” and minor in “Biblical Worldview,” and he attended Tara High School from 1976 to 1983. (In fairness to Welborn, the heading says that the school information is for “MAJ Freddy & HIS Girl,” so the dates probably include “his girl”’s high school career along with his own, rather than indicating that he took seven years to get through high school.) The U.S. military has had a serious problem with Christian evangelicals who don’t understand what freedom of religion means. Earlier this year, the Pentagon Inspector General’s office issued a report that officers who appeared in uniform in a recruiting video for Christian Embassy, a group that promotes Bible studies by senior government officials, violated military rules by doing so. Two years ago, evangelical Christians proselytizing at the Air Force Academy led to a review of the Air Force rule for chaplains which says that there can be no proselytizing those of other religious faiths, but it’s perfectly acceptable to proselytize to “those who are not affiliated." A lawsuit against this evangelizing was thrown out of court last year, but the rule for chaplains with the double standard was revoked. More on the Hall and Christian Embassy cases may be found at the Questionable Authority blog, as well as the links in this post. UPDATE (March 7, 2008): Hall has updated his complaint to include a charge that he has had a promotion blocked because of his unwillingness to “put aside his personal convictions and pray with the troops." UPDATE (July 10, 2008): The government has filed a motion to dismiss (at the last available moment to do so), arguing that Hall lacks standing to sue and did not take advantage of all available remedies within the military to pursue his complaint before suing. UPDATE (April 26, 2008): The New York Times has now covered this story. (About time!) UPDATE (April 28, 2008): Ed Brayton at Dispatches from the Culture Wars asks the question of why Hall had to be transferred out of Iraq for his own safety, rather than the commanding officers telling the troops to leave him alone or be punished. UPDATE (October 18, 2008): Hall has withdrawn his lawsuit on the grounds that he will soon be out of the military and suspects the case will be dismissed for lack of standing once he’s out. A second case filed by Dustin Chalker will continue.

In Red Oak, Iowa: A community college instructor in Red Oak claims he was fired after he told his students that the biblical story of Adam and Eve should not be literally interpreted. Steve Bitterman, 60, said officials at Southwestern Community College sided with a handful of students who threatened legal action over his remarks in a western civilization class Tuesday. He said he was fired Thursday. “I’m just a little bit shocked myself that a college in good standing would back up students who insist that people who have been through college and have a master’s degree, a couple actually, have to teach that there were such things as talking snakes or lose their job,” Bitterman said. … Bitterman said he called the story of Adam and Eve a “fairy tale” in a conversation with a student after the class and was told the students had threatened to see an attorney. He declined to identify any of the students in the class.Even most Christians on the planet don’t think that the Adam and Eve story is literally true, so it’s hard to see why this would even be a controversial statement in a western civilization class. The quotes in the article from the school suggest that Bitterman was fired for something else (a “personnel issue”), but the firing immediately following the class with the student threatening legal action seems to support his account. ...

I’m in the process of reading Akhil Reed Amar’s America’s Constitution: A Biography, and just came to the portion about the 16th Amendment, which instituted a federal income tax. I had already known that the tax was a very low percentage, but I hadn’t realized that only the top 1% of income earners paid any income tax. It would be a nice model to go back to, but not possible without dramatically reducing federal spending–the wealthiest Americans wouldn’t tolerate an extortionate percentage of taxation that would be required on the current level of spending, and given the huge amounts of money that are now a part of political campaigning, nobody gets elected without the support of at least some of the wealthiest Americans. (And those levels of spending are tied together–there’s huge money riding on political campaigns because there’s huge money and power in the hands of the federal government. The only way to reduce the former is to reduce the latter.) Here are the two paragraphs where Amar describes pre-Civil War and post-16th Amendment income taxes in the United States: Prior to the Civil War, at least seven states had adopted income taxes. High exemptions and graduated rates–the basic features of a progressive tax structure–were commonplace in these states. Congress followed this pattern when introducing a federal income tax in the 1860s. For instance, the 1865 federal tax code exempted all persons who made less than $600, taxed income between $600 and $5,000 at 5 percent, and subjected all income above $5,000 to a steeper 10 percent rate. Later federal laws tweaked the specifics but preserved the basic structure, under which more than three-quarters of federal revenue came from the seven wealthiest states: New York (which itself generated more than 30 percent of the total national intake), Massachusetts, Pennsylvania, Ohio, Illinois, New Jersey, and Connecticut. Under the law struck down in Pollock, incomes over $4,000 were taxed at 2 percent, all others were exempt. According to Treasury Department estimates, less than 1 percent of the population had been subject to this levy. … In the first income-tax statute enacted after the new amendment was in place, Congress once again opted for a progressive tax structure that exempted a large swath of low- and middle-income persons and taxed the rest at a sloping rate, beginning at 1 percent for an individual making $3,000 and topping out at 7 percent for income over $500,000. The $3,000 minimum threshold effectively limited the tax to the top 1 percent of the economic order. In 1916 the Supreme Court unanimously upheld the new tax law, expressly rejecting the notion that the “progressive feature” of the tax somehow rendered it unconstitutional. The American People had spoken and–this time, at least–the Court listened.