Anthropologists Adopt New Language Against Secret Research

February 19, 2009

By David Glenn (The Chronicle)[1]

In the latest outgrowth of the debate over military sponsorship of social science, members of the American Anthropological Association have voted to strengthen language in their code of ethics against research conducted in secret.

Among other things, the new amendments declare that clandestine fieldwork constitutes “a clear violation of research ethics” and that anthropologists “should not withhold research results from research participants when those results are shared with others.”

The amendments were endorsed in a mail ballot by a vote of 87 percent to 13 percent. (The turnout rate was 16 percent.) The association announced the results on Wednesday.

The ethics code carries no formal weight, and the association has no mechanism for adjudicating charges of misconduct. But the code is widely discussed in graduate courses, and some anthropologists say that it embodies a powerful set of norms.

The code represents “a sense of our collective judgment,” said Dena K. Plemmons, a research scientist at the University of California at San Diego and the chair of the association’s Committee on Ethics, during a conference call with reporters on Wednesday. “We assume that it gives us a guiding framework for our practice.”

The new ethics-code revisions stem from a two-year-old debate about whether—and under what conditions—anthropologists should cooperate with projects sponsored by intelligence agencies or the military. Several government programs are at issue, but the most visible one is the U.S. Army’s Human Terrain System, in which social scientists give on-the-ground advice to military units in Afghanistan and Iraq (The Chronicle, November 30, 2007).

Officials at the Department of Defense have maintained that the research generated by social scientists in the Human Terrain System will be open and unclassified, except in limited cases in which data must be temporarily withheld for reasons of operational security. They have also said that the social scientists are always candid with Afghani and Iraqi citizens about their dual roles as researchers and military personnel.

If those assertions are true, then it appears that anthropologists could participate in the Human Terrain program without technically violating the new ethics rules.

But even if the Human Terrain teams’ reports are unclassified, it seems unlikely that the Afghani and Iraqi citizens who interact with the teams could realistically obtain those reports. As a recently leaked program handbook makes clear, many of the teams’ reports take the form of oral briefings and PowerPoint presentations for brigade commanders.

Lingering Concerns

During a discussion of the Human Terrain program at the anthropology association’s 2007 meeting, Terence Turner, a professor emeritus at Cornell University, called for a strict ban on secret research. The association had added such a ban to its ethics code in 1971, in the wake of revelations about American social scientists’ clandestine counterinsurgency work in Thailand and elsewhere. But the ban was lifted during the 1980s.

The newly approved amendments are not as strong as the 1971 language, and Mr. Turner says he is not fully happy with them. “The new text of the AAA Ethics Code goes some way, but not all the way, toward satisfying the concerns I raised in my 2007 resolution,” he wrote in an e-mail message to The Chronicle on Wednesday.

Mr. Turner’s resolution was aimed primarily at social scientists who work with the Human Terrain System and similar programs. But strong anti-secrecy rules would also call into question the work of a much larger group of anthropologists who conduct proprietary research for corporations and nonprofit organizations.

Officials at the National Association for the Practice of Anthropology, which promotes nonacademic anthropology, did not reply to a request for comment on Wednesday. That association opposed Mr. Turner’s 2007 motion, but its president gave a qualified endorsement to the weaker language that was approved this week.

Mr. Turner is not happy that the code’s epilogue still includes language that suggests that anthropologists who are also members of other organizations might legitimately choose to follow the other organizations’ rules instead of the anthropology association’s code.

That passage “opens a hole wide enough to drive a Humvee through,” Mr. Turner says.

Mr. Turner will have plenty of additional chances to push for revisions. Ms. Plemmons’s committee recently began a wholesale review of the ethics code—a process that is expected to take two years. The anthropology association is also collecting material for an ethics casebook for scholars who work with the military.

'Accessory' to State

Scholars took up broader questions about the military and social science during a symposium that was Webcast on Wednesday afternoon from Brown University’s Watson Institute for International Studies.

“What happens to universities and to disciplines when military funding becomes larger rather than smaller?” asked Catherine Lutz, a professor of anthropology and international studies at Brown.

She said that anthropologists should look skeptically at how fields like physics and communication studies have been shaped by Pentagon money. “We’re not simply helping the state when we take military funding,” she said. “We are in fact restructuring and reshaping our discipline as an accessory to various kinds of state projects.”

But David Kennedy, Brown’s vice president for international affairs, urged scholars not to categorically reject collaboration with the Pentagon. He noted that military personnel themselves have played crucial roles in exposing abuses at the Abu Ghraib prison and in similar recent scandals.

Scholars should keep such complexities in mind, Mr. Kennedy said, rather than simply deciding that “the taint of militarization” can be avoided if they refuse to accept money from the Defense Department.

Program Modifications

The Human Terrain program, meanwhile, has been through a difficult period. Three social scientists in the program have been killed since last May, including Michael V. Bhatia, a young international-relations scholar (The Chronicle, July 4, 2008).

Last week, Wired and the freelance writer John Stanton reported that the program’s structure had abruptly changed. Civilians in the program will now be government employees rather than contractors. Among other things, the change reportedly means that social scientists on the ground in Afghanistan and Iraq could see pay cuts of more than 60 percent.

Officials in the program did not reply to a request for comment on Wednesday.

Thanks to David Glenn and The Chronicle for covering this document. Reprint rights remain with the aforementioned.

Afghanistan: Slipping out of control

February 19, 2009

By Kim Sengupta (The Independent)^[1]

The 'surge', with the extra US forces in Afghanistan expected to rise to 30,000, was required to 'stabilise a deteriorating situation' said Barack Obama

A grim picture of spiralling violence and a disintegrating society has emerged in Afghanistan in a confidential Nato report, just as Barack Obama vowed to send 17,000 extra American troops to the country in an attempt to stem a tide of insurgency.

Direct attacks on the increasingly precarious Afghan government more than doubled last year, while there was a 50 per cent increase in kidnappings and assassinations. Fatalities among Western forces, including British, went up by 35 per cent while the civilian death toll climbed by 46 per cent, more than the UN had estimated. Violent attacks were up by a third and roadside bombings, the most lethal source of Western casualties, by a quarter. There was also a 67 per cent rise in attacks on aircraft from the ground, a source of concern to Nato which depends hugely on air power in the conflict.

The document, prepared by the Pentagon on behalf of the US-led International Security Assistance Force (Isaf) in Afghanistan and seen by The Independent, also reveal how swathes of the country have slipped out of the control of President Hamid Karzai’s government. According to a poll taken towards the end of last year, a third of the population stated that the Taliban had more influence in their locality.

The growing unpopularity of Mr Karzai, along with accusations of corruption against figures associated with his government, has led the new US administration to repeatedly warn the Afghan President he will lose Washington’s support in the coming national elections unless there are drastic changes. The military “surge”, say US officials, must be accompanied by significant improvement in governance with Mr Obama describing the Karzai government of being “detached” from what was going on in his own country.

Mr Obama acknowledged that the reinforcements, with the total numbers of extra forces expected to rise to 30,000, had been sent because “urgent and swift action” was required “to stabilise a deteriorating situation … in which the Taliban is resurgent in Afghanistan and al-Qa’ida threatens America from its safe haven along the Pakistani border.”

Mr Karzai was informed of the new deployments in a telephone call on Tuesday. The Afghan leader had complained publicly at the weekend that he had not heard from the US leader since the inauguration almost a month ago.

The new US administration had indicated that it was prepared to talk to Iran about the Afghan situation and yesterday, Italy, which assumes the presidency of the G8 this year, said that Tehran would be invited to participate in a summit on Afghanistan. The Italian Foreign Minister Franco Frattini said: “We want to consider how to involve Iran, not whether to involve Iran.”

Nato has accused the Iranian regime of allowing weapons to be smuggled into Afghanistan while drugs go in the other direction, with some of the profits pumped back in to funding the insurgency. The UN’s International Narcotics Control Board said in its annual report that due to overproduction of opium there has been a rise in the production of cannabis in Afghanistan. Many provinces which had been declared by the Afghan government and Nato to be free of poppy cultivation have switched to cannabis. The report stated: “The lack of security in Afghanistan has severely hampered government efforts to eradicate illicit opium poppy; a total of 78 persons involved in the eradication efforts lost their lives in 2008, a six-fold increase over the previous year. The increase in illicit cultivation of cannabis in Afghanistan is also a worrying development.”

Meanwhile, eight years after “liberation” and the fall of the Taliban, many Afghan people still lack basic amenities. Across the country 38 per cent of the population did not have access to medical facilities with the figure rising to 44 per cent in rural areas.

The Taliban has also carried out a violent campaign against education for children in many parts of the country, claiming it was being used for Western indoctrination, and targeting girls’ schools in particular as being against Islam. The Nato report states that “access to schools for both girls and boys varies across the country and is tightly linked to security. Degree of access to girls’ schools is also an ethno-geographic factor”.

Whereas 74 per cent of Uzbek, 73 per cent of Tajik and 72 per cent of Hazara girls are in a position to receive an education, it falls to 44 per cent among the Pashtuns and, in the conservative deep south of the country, in provinces like Helmand where British troops are based, no more than 24 per cent attend schools.

Thanks to Kim Sengupta and The Independent for covering this document. Reprint rights remain with the aforementioned.

UN group to probe poll chaos deaths

February 9, 2009

By Lucas Barasa (Daily Nation)

Even as the country grapples with formation of a tribunal to try poll violence suspects, a high-level team from the UN headquarters has arrived in the country to investigate killings during the chaos.

The fact-finding mission of the UN Special Rapporteur on extra-judicial executions will also look into the killings of members of the Mungiki sect allegedly by police and those by the military in Mt Elgon.

Interested

According to Kenya National Commission on Human Rights vice-chairman Omar Hassan, the advance team jetted into the country on Sunday for the mission that will last from February 16 to February 26.

The UN Special Rapporteur on extra-judicial executions, Prof Philip Alston, is expected in the country on February 16.

“He (special rapporteur) is particularly interested in alleged extra-judicial killings during the post-election violence, in Mt Elgon and of Mungiki suspects,” Mr Hassan told the Nation in an exclusive interview in Nairobi, on Monday.

The special rapporteur carries out fact-finding missions with the consent of the Government concerned. He is an independent and impartial investigator, and reports his findings publicly to the UN Human Rights Council and the UN General Assembly.

Mr Hassan said the special rapporteur would meet key government officials as well as civil society organisations.

He also hopes to meet with victims and witnesses, politicians and security officers.

An NGO forum will be held on February 16 “so that Kenyan civil society can brief the Special Rapporteur on the issue of killings in Kenya”.

Describing the UN mission as a first major breakthrough and fundamental step forward in investigations into rampant extra-judicial killings in the country, Mr Hassan regretted that it had taken the government more than a year to allow the team to come.

First seen in the Daily Nation. Thanks to the Lucas Barasa and the Daily Nation for covering these documents.

Demonstrators accuse police over disappearance of kin

February 8, 2009

By Ramadhan Rajab & Cyrus Ombati (The Standard)[1]

Angry demonstrators who accused police over the disappearance of their relatives blocked part of the Nakuru-Nairobi highway.

About 100 demonstrators on Sunday claimed police had arrested their kin over accusations that they were followers of the Mungiki sect. They carried banners and demanded an explanation over their missing relatives. Police were forced to use teargas canisters to disperse the group.

Speaking to The Standard, Ms Susan Njeri, 65, said she had lost three family members in unclear circumstances. She said on December 26, her son George Kariuki, 30, who owned a phone repair kiosk in Mwiki, Nairobi, was picked up by people she suspected to be policemen and until now she has not seen him. She said Kariuki’s father, Mr Peter Njenga had been following the matter.

"He went to see police in Ruiru, but we have not seen him too," Susan said.

Mr Kamau Kang’ara, director of Oscar Foundation, who led the demonstration, was arrested and later released when local MP Peter Mwathi intervened. Kang’ara claimed tens of youth branded Mungiki had disappeared.

"We have compiled a list of those believed to have been killed by police," he said.

Kiambu OCPD Jay Munyambu, who led the anti-riot police, invited the protestors to his office to discuss the matter. He promised to investigate the allegations.

First seen in The Standard. Thanks to the Ramadhan Rajab, Cyrus Ombati and The Standard for covering these documents.

Wikileaks releases NATO report on civilian deaths

February 16, 2009

WIKILEAKS PRESS RELEASE

For Immediate Release.

Wikileaks releases NATO report on civilian deaths

A confidential NATO report from January reveals that civilian deaths from the war in Afghanistan have increased by 46% over the past year.

The 12 page report was authenticated and released in full today by Wikileaks.

The report highlights huge increases on attacks aimed at Coalition forces, including a 27 % increase in IED attacks, a 40%. rise in rifle and rocket fire and an increase in surface to air fire of 67%.The report shows a dramatic escalation of the war and civil disorder. Coalition deaths increased by 35%, assassinations and kidnappings by 50% and attacks on the Kabul based Government of Hamid Karzai also more than doubled, rising a massive 119%.

According to the report, outside of the capital Kabul only one in two families had access to even the most basic health care, and only one in two children had access to a school.

The disclosure follows the unrelated arrest of Colonel Owen McNally earlier this month for passing older civilian death toll figures to Human Rights Watch analyst and former BBC radio reporter Rachel Reid. Human Rights Watch published a report based around that data, which covered 2006-2007, last September.^[1]

The London Times, stated that American military officials were "seething" over the leaks.

A UK Ministry of Defence source reportedly told the Daily Mail:

"What McNally passed on will not cost lives in the sense that it doesn't give specific military details. But the whole point of defeating the Taliban is winning hearts and minds and stopping the population joining their cause. If they think we're lying to them, it could become a very dangerous place. This has caused a diplomatic row and the Americans are not happy at all."^[2]

Wikileaks legal spokesperson Jay Lim stated "We deplore the arrest of Colonel McNally for revealing civilian death figures. It is clear that Col. McNally's actions are of the highest moral calibre. His example has encouraged others to step forward."

NATO is not likely to find Wikileaks' source so readily. The site uses state of the art anonymization technologies, and the identity of its sources are protected under the Swedish Press Freedom Act.^[3]

In January Wikileaks quashed a South African Government investigation after warning it would seek to have the prosecutors charged and extradited to face trial before Swedish courts

Tax Gap: Rare glimpse into offshore world of big money and low taxes

February 13, 2009

By Tax gap reporting team (The Guardian)[1]

One of the more fascinating sets of records disclosed by Rudolf Elmer is, he says, the confidential investor list of an offshore fund run by the Carlyle Group.

This prominent private equity operation in Washington DC counts presidents and prime ministers among its advisers, and Elmer's list opens the door to a rarely seen offshore world of big money and low taxes.

Carlyle sources did not challenge the authenticity of the list when we showed it them. They emphasised instead that all their activities in the Caymans were perfectly legal and normal.

The fund bought and sold shares in US start-up firms from its offices in Washington DC. But an offshore paper entity in the Caymans, TCG Ventures Ltd, was nominally running the show.

TCG's correspondence was administered by Swiss bank officials actually living on the islands, in return for a fee. This helped the foreign investors to minimise their tax bills and protected them from the American courts.

US tax authorities accepted this legal fiction, although the set of rules which allowed it has since been changed.

Carlyle emphasises that the American tax authorities lost nothing from this arrangement. What seems clear, however, is that such an offshore structure makes it in effect a voluntary matter for some foreign investors to disclose their profits to tax authorities in their home countries.

The fund, Carlyle Venture Partners, put together 67 wealthy companies and individuals to invest approximately $230m.

According to the documents, investors included the Saudi prince Talal bin Abdul-Aziz ($1m); two companies advised by Prinz Michael von und zu Liechtenstein ($7m); the late Akram Ojjeh, who earned a fortune brokering arms deals in the Middle East ($2m); the Kuwaiti state's sovereign wealth fund ($10m); and London-based Saudi companies linked to the Bin Laden family construction group ($2m).

There are American names on the list. Felix Smolka, a hotelier in Boca Raton, Florida, was listed as the contact point for two anonymous entities who tipped in $1m each, Durant Trading LC and Milestone Development Corporation. Smolka told the Guardian that both were offshore companies which he did not own: he was merely an "investment adviser" to one and a "contact" for the other.

The list of investors also includes anonymous companies and trusts from Panama, Liechtenstein, the British Virgin Islands and the Channel Islands, each with its own secrecy laws that conceal the real owners.

In an extreme example of offshore "layering", one person invested his Carlyle Group $1m into the Caymans through an anonymous company in Panama. The contact name given to Carlyle transpires in turn to be merely that of a firm of administrators in Liechtenstein, most notoriously secretive of all havens.

The Caymans host more than 9,000 private equity funds and about 80% of the world's hedge funds.

First seen in The Guardian. Thanks to the Tax gap reporting team and The Guardian for covering these documents.

Tax Gap: Isles of plenty

February 13, 2009

By Tax gap reporting team (The Guardian)[1]

A Caribbean paradise ... operated in secret. A top Swiss banker turned whistleblower says he has the evidence

A hoard of banking files from the Caymans – one of the most secretive British tax havens – are being supplied to the US authorities by a whistleblower who claims they detail worldwide tax avoidance.

The Cayman Islands – Caribbean territories under ultimate UK control – are currently the target of reformers. Alastair Darling was yesterday challenged in the Commons over allegations that UK banks have been using the Caymans for massive tax avoidance schemes. Barack Obama, before he reached the White House, was one of the senators who singled out the islands as a blot on the US fiscal landscape which ought to be investigated.

The whistleblower's documents have been seen by the Guardian. They record the names and transactions of hundreds of companies, trusts, funds and wealthy individuals - information protected by local and Swiss secrecy laws.

Some of the paperwork concerns legal tax avoidance structures. Other files are alleged to point to potential illegal tax evasion by individuals around the globe.

The thousands of pages come from Rudolf Elmer, chief operating officer for the Julius Baer Swiss bank office in Grand Cayman until he was sacked in December 2002. Elmer, 53, and the bank have been involved in a long dispute. The bank accused him of forging documents and making violent threats. Elmer has accused the bank of hiring private investigators to harass him.

Elmer says his documents include all the back-up data held on Julius Baer's computer server in the Caymans at the time he was sacked, including accounts, correspondence, memos and resolutions dealing with 114 trusts, 80 companies, 60 funds and 1,330 individuals.

The bank says Elmer inappropriately obtained some documents as part of "a misguided campaign" against them. They reject his allegations as baseless and say their activities complied with all applicable laws and regulations.

In September 2005 the Swiss authorities held Elmer in custody for 30 days. They have indicated that they intend to charge him with breaking Swiss bank secrecy laws and with sending threatening messages to two Julius Baer officials.

Last year Elmer posted some documents on the Wikileaks website, which specialises in material from whistleblowers. Julius Baer got the site closed down for alleged breach of confidence, but Wikileaks had the California court order overturned on appeal.

The legal action drew the attention of the US Internal Revenue Service, who contacted Elmer. He is co-operating with the IRS, and with financial specialists in the office of Robert Morgenthau, the district attorney of New York; and with the powerful sub-committee on investigations chaired by Senator Carl Levin, which has a track record of probing offshore havens.

Elmer's disclosures follow the emergence of similar whistleblowers. One recently testified in the United States against the Swiss bank UBS, and another sold British and European authorities the contents of computer files from Liechtenstein bank LGT.

Elmer says his interest is in the network of tax havens. "People don't know how the system works. They may hear of some case, but the big picture always disappears into bank secrecy, professional secrecy with lawyers and accountants, and tax secrecy. But they need to know that this is a system which undermines our society, our democracy." He has lodged copies of files with Jack Blum, a veteran lawyer in Washington DC and an outspoken critic of the behaviour of tax havens.

Blum told the Guardian: "What Elmer is doing is extremely valuable in the process of educating people of the need for major reform. This is a system for enabling a certain class of people to avoid their societal duty, which is to pay tax."

We found and interviewed Elmer, now 53, at his new home on the Indian Ocean island of Mauritius. He used to be a part-time captain in the Swiss army, and is an accountant and auditor by training, and a lover of ballroom dancing.

He told us that originally, in 1987, he was proud to join the Zurich headquarters of Julius Baer, one of Switzerland's oldest and most respected private banks, handling some $38bn of assets, mostly for wealthy individuals.

But Julius Baer told the Guardian that Elmer had inappropriately retained documents when he was sacked by them in December 2002. They said many "were altered to create a distorted fact pattern or supplemented by forged documents".

Elmer responded to us that he had changed the titles of files to make them more easy to identify and also wrote spoof letters to tax authorities, for example purporting to be from penitent taxpayers confessing their evasion. He said he had not distorted or altered the contents of any internal document.

The bank suggested that since Elmer had forged spoof letters, they would be surprised if we placed any reliance on information from him. We invited them to identify any document referred to which they regarded as forged. They did not.

The documents include details of numerous trusts in which wealthy people have placed capital. This allows them lawfully to avoid paying tax on profits, because legally it belongs to the trust. In the same way, the capital can pass to heirs free of inheritance tax.

The trust itself pays no tax, as a Caymans resident. The trustees can distribute money to the trust's beneficiaries but it is essential the trustees exercise their own control over the trust's assets. If not, the assets become once more the property of the person who sets up the trust- and may be taxed.

The paperwork now being handed to US authorities appears to include several cases where wealthy individuals sought to use trust money as though it were their own. When we put these cases to the bank, they told us they did not consider it appropriate to discuss the affairs of their clients through the media.

Some documents refer to a Greek shipowner who placed $26.5m into a trust. Payments appear to be being made in and out without the knowledge of the trustees. The shipowner is said to have written letters referring to the trust as though it were a personal bank account. "The trust appears to be funding the settler's [founder's] shipping business," said one memo. Another speaks of "a risk that the structure could be regarded as a sham".

The Guardian emailed a summary of the documents to the shipping owner, who made no comment.

In other cases, the documents refer to:

• A memo by one Caymans financier, who did not leave a message on the answer machine of a UK client "in case the tapes are seized by the authorities".

• A memo about the affairs of a UK stockbroker whose trust was bluntly said to contain "undeclared money".

• Fears among Julius Baer staff that "we are rubber-stamping investment instructions" in relation to trusts set up by a London-based South American financier.

• Suspicions a German businessman sold a yacht which belonged to his trust and pocketed some of the cash for himself.

One file supplied to US authorities records concerns over a trust called Moonstone, opened on the instructions of the law firm of Dr Thomas Baer, former president of the Julius Baer bank, in the name of a man named Schuler. Caymans staff did not have a passport for Schuler and no way of knowing who he was. Nor were they able to verify where the money had come from. Dr Baer told us he could not discuss a case where documents might have been supplied by a criminal source and that he was bound by lawyer's confidentiality.

He added that Swiss banks were not allowed to open accounts without complying with "know your customer" rules; and that the leaked documents did not reveal what information was available to the bank in Switzerland, nor whether the required information was finally supplied to the Julius Baer Trust Company in the Caymans.

Other Elmer files refer to an alleged trust opened by a Mexican police chief accused of colluding with drug dealers; a Brazilian politician accused of corruption; and a trust allegedly established by Canadian businessman David Radler, now better known as the partner in fraud of former Daily Telegraph proprietor Conrad Black.

In respect of all of the contents of the files, Julius Baer told the Guardian: "All of the activities of our group companies and of the investment vehicles which you have referred to, including associated fee flows and interdependencies, are in full compliance with applicable laws and regulations. These activities are transparent to the regulatory and other governmental agencies in the jurisdictions in which they operate, to their respective external auditors and, with respect to investment vehicles, to investors in such vehicles."

Tax rate: 0%

Lawyers and accountants make up a tenth of the 52,000 population of the Cayman Islands, which are English-speaking, politically stable, in the US time zone, and with zero taxes. This British Overseas Territory with palm trees and luxury hotels, measuring less than 100 square miles, is the fifth largest financial centre on the planet. Tax Justice Network campaigners estimate that tax havens collectively hold more than $11.5 trillion. Some comes from tax avoidance. Each year the US may lose a total of about $100bn in potential taxes, France about $50bn, Germany $30bn, the UK between $20bn and $80bn - and the developing world loses up to $800bn in stolen capital. But in the Caymans, a prison sentence awaits anyone who discloses bank information.

First seen in The Guardian. Thank to the Tax gap reporting team and The Guardian for covering these documents.

Report: new Fairness Doctrine would face high legal hurdle

February 12, 2009

By Matthew Lasar (Ars Technica)[1]

Talk of reviving the Fairness Doctrine raises hackles on both sides of the aisle for different reasons. Any attempt to revive it would face an uphill battle in the courts, a Congressional research report says.

Is Congress going to introduce a bill calling for the restoration of the Fairness Doctrine? Dark predictions continue to emanate from various experts auguring an attempt to revive it. But according to the Library of Congress' Thomas guide on Congressional action, the only active Fairness Doctrine-related bills in the House and Senate would bar the FCC from ever bringing the policy back again.

Some lawmaker out there is obviously interested in the Doctrine, though, because the Congressional Research Service has recently published an analysis (PDF) of the regulation's history and prospects, one that recently showed up on Wikileaks. What does it conclude? Its main findings can't be encouraging to pro-Fairness Doctrine schemers lurking around the corridors of Capitol Hill.

"Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional challenge," the study warns. "Whether a newly instituted Fairness Doctrine would survive constitutional scrutiny remains an open question." One thing is for sure—wherever you stand on this controversial question, this report is one of the best summaries of the issue available on the Web.

Let's be reasonable

To recap: the FCC enforced the Fairness Doctrine from 1949 until abandoning it in 1987. It required broadcasters to devote a "reasonable portion" of airtime to "controversial issues of public importance" and to offer access to "the expression of contrasting viewpoints held by responsible elements with respect to the controversial issues presented."

This mission, despite its theoretical virtues, put the government in charge of regulating the political content of license holders. Broadcasters hated it. The Reagan administration's FCC bumped the policy off. Congress tried to reinstate the Doctrine twice, but Reagan and the first Bush vetoed their bills.

As the CRS report notes, in February of 2005, a small gaggle of House Democrats took a stab at trying to bring something like the Fairness Doctrine back. Their proposed law got nowhere. Over the next two years they didn't try again, despite restoring slim majorities in Congress.

But Republicans had a ball with the controversy, repeatedly submitting bills banning the FCC from reviving the Doctrine. These didn't get anywhere either. In an effort to calm everybody down, then FCC Chair Kevin Martin publicly promised not to enforce the policy. Neither of the agency's Democrats objected to this. But the GOP was on a roll. It finally got a rider attached to an appropriations bill preventing Martin or his successors from bringing back Fairness, at least until the budget for fiscal year 2009 is passed or March 6 arrives, whichever comes sooner. That is where we stand now, with, as noted, several bills pending to extend the ban indefinitely.

The CRS reports' main question can be inflammatorily summarized as follows: if Congressional Democrats were moronic enough to sidetrack themselves in this crisis moment by actually attempting to reintroduce the Fairness Doctrine, and if by some miracle they managed to get such a bill past Republicans, who, despite all their protestations, would probably love to see the Democrats try, would the law survive a legal challenge that reached the United States Supreme Court?

Here's how the report sees the issue:

Does Red Lion still matter?

As Fairness Doctrine history fanatics know, in 1969 the Supreme Court declared the policy constitutional. In the Red Lion case—a dispute between a radio station and a journalist who demanded his right to respond to an attack—the Supremes ruled that the FCC had statutory authority to implement the doctrine. It also ruled that because of the "scarcity" of broadcast frequencies, the First Amendment right of listeners to hear many viewpoints over the public airwaves outweighed the rights of the license holders themselves.

But by the mid-1980s, the Commission was ready to dump the doctrine. In short, the FCC argued that, with the onset of cable and other technologies, the scarcity concept no longer held the same weight it had two decades earlier. The agency also noted broadcasters who told the Commission that they avoided tackling certain issues for fear of Fairness Doctrine lawsuits.

When an appeals court ruled that Congress had never specifically codified the Fairness Doctrine per se, the FCC made its move—in 1987 it declined to enforce the policy in response to a complaint. "The principal function of the First Amendment has been to protect the free marketplace of ideas by precluding government intrusion," the Commission declared.

If Congress restored the Fairness Doctrine, a court challenge would doubtless focus on First Amendment questions, the CRS study says. "The Fairness Doctrine is a content-based restriction on speech because it requires a government agent, the FCC, to examine the speech of private actors and to make subjective judgments regarding the fairness of the speech," it explains. And in Miami Herald Publishing v. Tornillo (1974), the Supreme Court nuked a Florida law that applied the Fairness Doctrine to newspapers.

"It seems, therefore, that if the Supreme Court were to apply strict scrutiny to the Fairness Doctrine the doctrine would be struck down," the CRS survey concludes. But nota bene that we're talking about "strict scrutiny" here. The question is whether the Big Nine (or at least five of them) would go for a less strict standing—still finding merit in the scarcity concept. In fact, the high court has repeatedly reaffirmed the ideas that broadcast licenses are scarce or unique—the second most famously in its 1978 Pacifica v. FCC indecency decision.

Tailor me narrow

So it's possible that the Supremes could opt for "intermediate scrutiny," the CRS analysis says, based on the following logic:

unlike other regulations on broadcaster speech that have been struck down, the Fairness Doctrine requires that speech be answered with more speech. This aspect of the doctrine has been cited approvingly by the Supreme Court. The Fairness Doctrine does not single out any one point of view as objectionable or off-limits. Instead, it requires that all significant points of view on issues of public importance receive broadcast time. This is a tenet at the core of the First Amendment, and it could be argued that the doctrine achieved its goal of raising the level of debate on the broadcast airwaves, despite the FCC’s findings in the 1980s.

Were the Supreme Court to follow this logic and uphold the Fairness Doctrine yet again, it would probably require the policy to be "narrowly tailored"—that is, enforced on a case-by-case basis, CRS predicts. But other, less flexible systems might also be approved. None of this, however, would apply to satellite and cable providers, who do not hold licenses to the public airwaves and therefore, like newspapers, enjoy strict First Amendment protection.

This is all conjecture, of course. The real legal debate would be launched by some member of the House or Senate submitting a bill calling upon the FCC to start enforcing the Fairness Doctrine again. Is that going to happen? Hopefully not. But one must always be mindful of Einstein's famous distinction between genius and stupidity. "Genius," he noted, "has its limits."

Thanks to Ars Technica and Matthew Lasar for covering this topic. Copyright remains with the aforementioned.

Thousands of Congressional Reports Now Available Online

February 10, 2009

By Brian Krebs (WashingtonPost.com) [1]

Open government groups scored a small but potentially decisive victory this week in a long-running battle to win publication of thousands of secret reports that Congress uses to fashion new laws.

Each year, with the help of more than $100 million in funding from Congress, the Congressional Research Service (CRS) produces thousands of reports on legislative policy issues ranging from farm subsidies to weapons sales. While the reports are neither copyrighted nor classified, their release has been solely at the discretion of lawmakers.

But on Monday, Wikileaks.org, an online clearinghouse for leaked documents, published thousands of previously unreleased CRS reports. At the same time, the group says it is on track to receive a steady stream of new reports, which it plans to feed to open government groups and directly to consumers via its Web site.

Wikileaks spokesman Daniel Schmitt said the documents were obtained through the congressional intranet several weeks ago, and that the group plans to continue publishing the reports as long as their confidential source keeps providing them.

"These documents belong in the public domain because they represent an essential part of policymaking and they are produced with taxpayer dollars," Schmitt said. The Wikileaks Web site was temporarily unavailable for several hours on Monday as nearly five million visitors tried to download the massive 2 GB archive. Schmitt called the public response unprecedented, noting that the documents attracted more visitors than during Wikileak's last headline grabbing stunt: The publication of e-mails and images seized by a hacker who broke into the Yahoo! e-mail account of then-Republican vice presidential candidate Sarah Palin.

CRS spokesperson Janine D'Addario said funding legislation from Congress specifically restricts CRS from making the reports directly available to the public.

"One of the concerns is that publication directly to the public has the potential to impair communications between members of Congress and their constituents," D'Addario said. "Because we work for Congress, we don't want to be placed in a situation where we're speaking directly to those constitutens."

Steven Aftergood, who maintains a blog about government secrecy related to intelligence and national security policy for the Federation of American Scientists, said the CRS has long maintained that its analysts work for members of Congress and should not be interacting with the general public.

"It's sort of a turf-based desire to keep CRS at the disposal of members of Congress, which is completely bogus," Aftergood said. "The CRS in what it does is very similar to the General Accountability Office. Both are congressional offices that work at the direction of Congress, and yet GAO manages to publish new reports on its site every day without any detrimental effect."

Aftergood said the reports range in quality from the banal to some of the best analysis available.

"While 90 percent of the reports are probably mediocre, at their best they are very good," Aftergood said. "One I published on our Web site today about technologies for detecting nuclear weapons is literally the best treatment of the subject I've seen."

Ari Schwartz, vice president of the Center for Democracy & Technology, said while the CRS reports are even-handed to a fault, CRS has nonetheless sought to distance itself from potentially divisive policy battles.

Often used by lobbyists and industry analysts as indicators of what's next on Capitol Hill, the CRS reports also can be politically explosive. Reports questioning the constitutionality of the Bush administration's warrantless wiretapping program have been seized upon by media outlets and lawmakers alike.

"In one sense, they're afraid of becoming a political agency, because the more public these reports get, the more politicized they may become," Schwartz said.

CDT maintains OpenCRS.com, to date the largest repository of CRS reports. Schwartz said the 6,780 reports released by Wikileaks should help to fill in most of the gaps in its archive of missing CRS reports going back several years.

Schwartz said Wikileaks has agreed to feed OpenCRS.com's document collection with all newly released CRS reports it receives.

In years past, several lawmakers have tried unsuccessfully to garner support for making the CRS reports directly available to citizens online. One such proponent, Sen. Joseph Lieberman (D-Conn.), praised the action by Wikileaks, saying he hopes to work with the Senate Rules Committee "to create a comprehensive and officially-sanctions system for releasing CRS reports to the public."

"I have long argued that CRS reports should be made more widely available to the public, in part because they are produced at public expense and because broad dissemination supports the goal of greater government transparency," Lieberman said. "Wikileaks's recent action demonstrates the futility of any effort to limit distribution of those reports."

The secrecy of the reports has created a bootleg market for the documents. Gallery Watch, owned by the Capitol Hill newspaper Roll Call, has sold the CRS reports for years. Gallery Watch declined to comment for this story.

Gallery Watch receives its feed of CRS reports from Walt Seager, 70, a former trade magazine journalist based in Damascus, Md., who for 25 years has mined the Hill for them.

For his part, Seager is unconcerned about the mass publication of CRS documents and said he welcomes the challenge.

"I don't think it will be a complete archive, and I don't think they'll have the timeliness and value-added material that we can bring," Seager said. "Life is pretty boring without some competition."

First appeared in WashingtonPost.com. Thanks to Brian Krebs and WashingtonPost.com for covering this issue. Copyright remains with Washington Post.

Parts for 'dirty bomb' found in slain US man's home

February 10, 2009
Agency says radioactive materials recovered in home of man allegedly slain by his wife.

By Walter Griffin (Bangor Daily News)[1]

BELFAST, Maine — James G. Cummings, who police say was shot to death by his wife two months ago, allegedly had a cache of radioactive materials in his home suitable for building a “dirty bomb.”

According to an FBI field intelligence report from the Washington Regional Threat and Analysis Center posted online by WikiLeaks, an organization that posts leaked documents, an investigation into the case revealed that radioactive materials were removed from Cummings’ home after his shooting death on Dec. 9.

The report posted on the WikiLeaks Web site states that “On 9 December 2008, radiological dispersal device components and literature, and radioactive materials, were discovered at the Maine residence of an identified deceased [person] James Cummings.”

Click here to view the full report. The section referring to Cummings can be read [on page 11].

It says that four 1-gallon containers of 35 percent hydrogen peroxide, uranium, thorium, lithium metal, thermite, aluminum powder, beryllium, boron, black iron oxide and magnesium ribbon were found in the home.

Also found was literature on how to build “dirty bombs” and information about cesium-137, strontium-90 and cobalt-60, radioactive materials. The FBI report also stated there was evidence linking James Cummings to white supremacist groups. This would seem to confirm observations by local tradesmen who worked at the Cummings home that he was an ardent admirer of Adolf Hitler and had a collection of Nazi memorabilia around the house, including a prominently displayed flag with swastika. Cummings claimed to have pieces of Hitler’s personal silverware and place settings, painter Mike Robbins said a few days after the shooting.

An application for membership in the National Socialist Movement filled out by Cummings also was found in the residence, according to the report. Cummings’ wife, Amber B. Cummings, 31, told investigators that her husband spoke of “dirty bombs,” according to the report, and mixed chemicals in her kitchen sink. She allegedly told police that Cummings subjected her to years of mental, physical and sexual abuse. She also said that Cummings was “very upset” when Barack Obama was elected president.

A “dirty bomb” is a type of “radiological dispersal device” that combines a conventional explosive such as dynamite with radioactive material, according to the U.S. Nuclear Regulatory Commission’s Web site. “Most RDDs would not release enough radiation to kill people or cause severe illness,” the NRC says, adding that “a dirty bomb is in no way similar to a nuclear weapon” because its effects occur in a very limited area compared to a nuclear explosion.

The report noted that “uranium, thorium, cesium-137, stontium-90 and cobalt-60 are radioactive isotopes and 35 percent hydrogen peroxide is a necessary precursor for the manufacture of peroxide-based explosives. Lithium metal, thermite and aluminum are materials used to sensitize and amplify the effects of explosives.”

The report stated that the uranium component was bought online from a U.S. company that was identified in the investigation, but not in the report.

John Donnelley, an agent at the FBI’s Boston office, declined Tuesday to comment on the report. Donnelley said some FBI reports are provided to law enforcement agencies and sometimes get released to media outlets.

“I wouldn’t be prepared to speak on that,” Donnelley said. “I have no comment.”

The Washington Regional Threat and Analysis Center is an intelligence gathering office affiliated with Washington, D.C., law enforcement. Telephone and e-mail messages left with the center Tuesday were not returned.

State police have identified Amber Cummings as the person who shot James Cummings. The couple’s 9-year-old daughter was present the morning of the shooting in what police have described as a domestic violence homicide.

Amber Cummings, who is staying in the Belfast area, has not been charged in the case, although the Waldo County grand jury currently meeting in Belfast could take up the matter during its session this week. While state police have acknowledged that the 29-year-old Cummings was killed by a gunshot, the results of the autopsy have been impounded, as have the search warrants executed at Cummings’ High Street home following the shooting. Authorities spent days searching the home, according to neighbors.

Lt. Gary Wright, who heads up the Maine State Police Criminal Investigation Division team working the case, declined to comment on any aspects of the case when contacted Tuesday.

“We’re not going to comment on anything,” Wright said Tuesday evening. “It’s an open homicide investigation and we’re not going to comment. That’s our standard policy.”

Stephen McCausland, spokesman for the Maine Department of Public Safety, also had no comment on the report. “This is an active, open homicide investigation,” he said Tuesday evening, “and as a result, it’s inappropriate to get into confirming or denying aspects of that.”

Maine Deputy Attorney General William Stokes also declined to comment on the report Tuesday.

David Farmer, spokesman for Gov. John Baldacci, said Tuesday that it was inappropriate for the governor to comment on an open investigation. When asked about the copy of the field report sent to him by the Bangor Daily News, he said, “At this point, I have been unable to confirm the authenticity of the documents you sent to us.”

A spokesman for U.S. Sen. Susan Collins’ staff said there was no one able to comment on the report Tuesday night.

Telephone messages left with the U.S. Department of Homeland Security were not returned Tuesday evening. Robbins, who worked on the house for a month last summer, described Cummings as an angry person who was verbally abusive to his wife. He said Cummings apparently was independently wealthy and did not work. Robbins said Cummings talked incessantly about his love of guns and his fascination for Hitler. He said Cummings repeatedly berated his wife about home-schooling their daughter. He said Cummings had a controlling personality and wanted to know his wife and child’s every move.

Cummings grew up in California and lived in Texas before moving to Maine in August 2007. Although Robbins said Cummings told him he made his money in Texas real estate, it appears that the actual source of his wealth was a trust fund established by his father, a prominent landowner in the Northern California city of Fort Bragg. An Internet search of the James B. Cummings Trust indicated that it has an annual income of $10 million.

The FBI field intelligence report was apparently first reported on by unattributable.com, an online magazine which covers and blogs on current events.

BDN writer Dawn Gagnon in Bangor contributed to this report.

Thanks to BDN and the authors for covering this document. Copyright remains with the aforementioned.