Mojo - September 2011

DC District Court Upholds Voting Rights Act

| Wed Sep. 21, 2011 6:00 PM EDT

The US District Court for the District of Columbia has thrown out a challenge to the Voting Rights Act.

The plaintiffs in the case—a coalition of conservative legal groups from Shelby County, Alabama—argued that the VRA is unconstitutional because it has outlived its purpose of guaranteeing minorities the right to vote. According to Section Five of the law, which was extended by Congress in 2006, nine (mostly southern) states must pre-clear changes to their electoral procedures with the Department of Justice. Shelby County argued that the pre-clearance requirement exceeds Congress' enforcement authority and violates the Tenth Amendment.

But Judge John Bates, the George W. Bush appointee who dismissed the case on Wednesday, says otherwise. "Bearing in mind both the historical context and the extensive evidence of recent voting discrimination reflected in that virtually unprecedented legislative record," Bates' opinion reads, "the Court concludes that 'current needs'—the modern existence of intentional racial discrimination in voting—do, in fact, justify Congress's 2006 reauthorization of the preclearance requirement imposed on covered jurisdictions by Section 5."

Election law Expert Rick Hasen makes an important point: If this case comes before the Supreme Court, Bates' opinion stands a fighting chance of winning over swing justice Anthony Kennedy. That's not just because of Bates' solid conservative bonafides. It's also because the opinion is pretty well-written:

[The opinion] also applies a tough standard of review ("congruence and proportionality" rather than "rationality"), an issue on which the…court [has previously] hedged, and still held the law met the tougher standard for demonstrating appropriate congressional power. . . .

Judge Bates seemed to do a very good job dealing with both the current evidence of discrimination in the record (from the 1980s, 1990s and 2000s, as he says) as well as the "Bull Connor is Dead" problem. Many readers will walk away from the opinion thinking that if section 5 disappeared, discrimination based upon race in voting would reappear and grow in covered jurisdictions. (He does a very good job as well connecting private acts of racially polarized voting to specific state action.)

But Hasen also suggests the opinion doesn’t adequately differentiate between the sort of voter discrimination you might see in a state that must pre-clear under Section 5 and another state that isn't subject to the law. In other words, Hasen thinks Bates' argument is a little weak when it comes to fully explaining how conditions in the two kinds of states differ. That could be a source of considerable contention if this case—one of several pending cases challenging Section 5—comes before the Supreme Court.

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Pakistan: bin Laden Bodyguard Back On the Street

| Wed Sep. 21, 2011 3:45 PM EDT
Osama bin Laden escorted by the Black Guard.

Pakistan, being helpful:

Pakistan has freed a senior al Qaeda commander who served as Osama bin Laden's bodyguard, according to a report from the region.

Dr. Amin al Haq, who served as the security coordinator of Osama bin Laden's Black Guard, was recently released by Pakistani authorities, according to a report in the Afghan Islamic Press, a jihadist news organization based in Peshawar. Al Haq was released from Pakistani custody several weeks ago, his family members told the Afghan Islamic Press. According to the report, Pakistani officials released him as his connections to al Qaeda "could not be proved," and he is also "not in good health."

On al Haq's apparently unproveable connection to Al Qaeda, American intelligence would beg to differ. Haq, a physician, was reportedly detained in Lahore by the ISI back in December 2008. He was a member of the Hizb-i Islami Khalis (HIK), one of the key mujahadeen groups that defeated the Soviets during the 1980s. HIK also helped bring bin Laden to Afghanistan after he was ejected from Sudan in 1996. And Haq himself reportedly accompanied bin Laden in his escape from Tora Bora in 2001.

Let's face it: Pakistan's national security bureaucracy has had a pretty rough year, with its intelligence service and military still reeling from the ridicule they've endured (and invited) since the bin Laden raid. Freeing a terrorist is, frankly, unsurprising behavior for such a partner.

But putting bin Laden's bodyguard back on the streets? That takes balls. And, like most things the Pakistani government does—like throwing CIA operatives out following the Raymond Davis affair—it's intended to send yet another petty, potentially deadly message to the US, just one more in a long, pointless list: You can fight your wars here, but don't expect us to be happy about it.

USCIS Reaches 10,000 U-Visa Limit

| Wed Sep. 21, 2011 3:27 PM EDT

Last week I wrote about Rep. Lamar Smith's HALT Act, which would limit the use of the deferred action in immigration cases, thus forcing the Obama administration to deport undocumented victims of domestic violence. A House staffer defending the bill insisted that domestic violence victims would be unaffected since the bill didn't limit U-visas, the special visas available to undocumented crime victims who cooperate with the authorities. According to the staffer, reaching the 10,000 U-visa cap was a "hypothetical" situation no one should worry about.

On Monday, U.S. Citizenship and Immigration Services announced that the 10,000 U Visa cap had been reached: 

U.S. Citizenship and Immigration Services (USCIS), marking a significant milestone in its efforts to provide relief to victims of crimes, has for the second straight year approved 10,000 petitions for U nonimmigrant status, also referred to as the U-visa.

On an annual basis, 10,000 U-visas are set aside for victims of crime who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute crime.

You read that right—far from being a "hypothetical," this is the second year in a row that the U-visa cap has been reached. Unauthorized immigrants who are victims of domestic violence can nevertheless stay in the country if their case is compelling, and many will, thanks to the administration's authority to use deferred action to exercise discretion in deportations. If the HALT Act were in force, those applying for relief now that the cap has been reached would be out of luck. 

There's no minimizing the very real human consequences of Obama deporting more than a million undocumented immigrants, most of whom have no criminal record. But the president's approach amounts to a humane alternative to what Congressional Republicans would do if they could. 

FBI: Okay, Fine, We'll Do Something About That Anti-Muslim Training

| Wed Sep. 21, 2011 1:45 PM EDT

Following the outcry from U.S. Senators and Muslim groups over revelations that the FBI has utilized anti-Muslim materials in counterterrorism training courses, the Bureau has announced it will be conducting a "a comprehensive review of all training and reference materials that relate in any way to religion or culture." A series of stories by Spencer Ackerman at Wired showed that training material portraying Muslims as inherently violent and radical were used by the Bureau. 

The FBI insisted last week that the training in question, which had been offered in March of this year, had been discontinued "because it was inconsistent with FBI standards on this topic." But on Tuesday Ackerman reported that the FBI Official who had offered the training, William Gawthrop, spoke at an FBI-sponsored event where he declared that individual terrorist groups like al Qaeda were "irrelevant" and that "We waste a lot of analytic effort talking about the type of weapon, the timing, the tactics. All of that is irrelevant … if you have an Islamic motivation for actions." Gawthrop instead explained that Islam itself was the problem, utilizing a Star Wars metaphor:

"If you remember Star Wars, that ventilation shaft that goes down to into the depths of the Death Star, they shot a torpedo down there. That’s a critical vulnerability," Gawthrop told his audience. Then he waved a laser pointer at his projected PowerPoint slide, calling attention to the words "Holy Texts" and "Clerics."

"We should be looking at, should be aiming at, these," Gawthrop said.

The FBI issued this statement on Wednesday:

The FBI is currently conducting a comprehensive review of all training and reference materials that relate in any way to religion or culture. Additionally, the FBI will consult with outside experts on the development and use of training materials to best ensure the highest level of quality for new agent training, continuing education for all employees, and any FBI-affiliated training. All training will be consistent with FBI core values, the highest professional standards, and adherence to the Constitution.

If this had been done earlier, the FBI might have avoided some embarrassment. The stakes, of course, are much higher than that. The FBI has vast authority to conduct domestic surveillance, and the kind of Islamophobic cultural illiteracy represented by Gawthrop's training makes it more difficult to locate and identify actual terrorists. It also damages the FBI's ability to form relationships with the American Muslim community, relationships FBI Director Robert Mueller himself has identified as crucial to stopping attacks before they happen. 

How Effective Is The TSA's Behavior Detection Program?

| Wed Sep. 21, 2011 12:50 PM EDT

Department of Homeland Security Secretary Janet Napolitano recently made news when she suggested that the Transportation Security Administration's shift to a more "risk-based" approach would eliminate some of the more frustrating airport security rituals enacted since the 9/11 attacks. Americans, she said, might now be able to keep their shoes going through airport security. But according to the Government Accountability Office, it's still unclear how effective a key part of that approach actually is.

The TSA's Screening of Passengers by Observation Techniques (SPOT) program works by deploying "Behavior Detection Officers" who keep an eye out for passengers displaying nervous or erratic behavior. Instead of pulling grandma out of the line or screening for people based on ethnicity, BDOs are taught to look for certain behavior markers that might indicate a threat. A "validation study" completed in April concluded that SPOT "was more effective than random screening to varying degrees." No terrorists were caught, but the program helped identify thousands of people who had outstanding warrants, were in the country illegally, or had false documents. TSA Director John Pistole said in a speech on September 6 that the TSA was looking into expanding SPOT. 

However, the GAO report notes several technical problems with data-gathering in the study, which made "meaningful analyses" of the information gathered on suspicious behaviors in the program prior to 2010 impossible. TSA fixed those problems, but DHS' validation study included data from before the problem was resolved. The results may also have been biased by the fact that BDOs knew whether individuals were being recommended to them on the basis of SPOT or through random screening. In other words, it wasn't a blind test. 

"It just raises the potential for bias," says Steve Lord, director of homeland security and justice issues at the GAO. "We're not sure how significant it was, but this is something that would need to be studied and evaluated in a subsequent analysis." 

Does that mean the results suggesting SPOT is more effective than random screening are useless? Lord says no. "It certainly answered one question, is it better than random?" Lord says. "But there's some additional work they have to do."

That said, we also have no idea how much more effective than random screening the SPOT program is. According to the GAO report, TSA considers that "sensitive information."

Breitbart Site Says Big Blunder Was "Minor Citation Error"

| Wed Sep. 21, 2011 11:40 AM EDT
Andrew Breitbart.

Earlier this week I wrote about a piece published on Andrew Breitbart's BigGovernment.com that relies so heavily on flawed assertions about a new global-warming study that it's ripe for a retraction. Not only did the piece wrongly attribute an author to the new study, published in Nature in late August, but it also recycled an old quote from that person to promote its claim that the study definitively refuted human-caused climate change. (The study, as I explained in detail, did nothing of the sort.)

Multiple attempts the prior week to reach Breitbart and the writer of the piece, Chriss W. Street, about the erroneous contents had failed to get their attention. But apparently my story (and subsequent posts in The New York Times, Salon and Media Matters) did: An editor's note appeared on the Big Government piece later the same day. Unfortunately, it's more of a wreck than it is rectifying. Breitbart.com's "in-house counsel" Joel Pollak says in the note:

Earlier today, Mother Jones...accused Andrew Breitbart of a "global warming blunder" because the piece below cited Jykri Kauppinen as an author of a Nature study on cosmic rays. The author of the piece, Chriss W. Street, has indicated that Kauppinen is the author of a separate submission to Nature in 2010 that also contests the UN Climate Panel's "consensus" view on the degree to which human activity contributes to global climate change. Street stands by his argument, regardless of the minor citation error that Breitbart's habitual critics on the left have attempted to magnify.

Why Street failed to "indicate" in his piece the true orgin of Kauppinen's comments, and why he passed them off as a conclusion of the study just published in Nature, Pollak doesn't say. Nor does Pollak explain why the piece continues to state, erroneously, that Kauppinen is one of the new study's authors. (Chalk it up, perhaps, to the stuff of "minor citation.") As for Big Government's blatantly wrong claim that the new study debunks overwhelming scientific consensus on humanity's role in climate change, it seems that one was, well, simply too hot for them to touch.

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Iran Frees Jailed MoJo Contributor

| Wed Sep. 21, 2011 11:40 AM EDT
Shane Bauer in Tehran in 2010.

Two American hikers imprisoned by the Iranian regime since 2009 were finally released Wednesday. The prisoners, Joshua Fattal and Mother Jones contributor Shane Bauer, were released on $500,000 bail and turned over to a delegation comprised of Omani and Swiss officials.

After 26 months behind bars, the hikers were freed after an Iranian judge—who had already delayed their release twice—signed a release order, according to the pair's attorney Masoud Shafii. "The natural path has taken its course," Shafii told Reuters. "As I had mentioned before, I was waiting for a signature. This has now happened."

Shortly after the hikers' release was confirmed, the government of Oman announced that the hikers had been handed over to Dr. Salem Al Ismaily, the envoy of Qaboos bin Said, Sultan of Oman. "Dr. Al Ismaily with the hikers are now on their way to Muscat where they will spend a couple of days before heading home," Oman's envoy in Iran said in a statement. Fattal and Bauer's families are waiting to reunite with them in Oman, an unnamed official told CNN, where the two men will likely receive medical examination before returning to the United States.

Here is Reuters' coverage of the news:

The hikers' release comes eight days after Iranian President Mahmoud Ahmadinejad announced that the prisoners would be granted a "unilateral pardon" as a "humanitarian gesture." Fattal and Bauer were released before Ahmadinejad embarks on his annual "media blitz" in advance of his visit to New York and the UN General Assembly.

Bauer, Fattal, and a third hiker, Sarah Shourd, were arrested in July 2009 while hiking along the border between Iran and Iraqi Kurdistan. Theories on how exactly the arrest took place vary. The three Americans may have crossed the border into Iran by accident, but some believe they were abducted by Iranian forces while in northern Iraq. Shourd, who accepted Bauer's marriage proposal while the two were imprisoned, was released in September 2010 after family and supporters forked over $500,000 in bail money. But Fattal and Bauer remained in detention, and last month, the two men were sentenced to eight years in prison on charges of espionage. Prosecutors did not present any credible evidence that the hikers were American spies or government operatives, and President Obama said in a July 2010 statement that "Sarah, Shane, and Josh have never worked for the US Government."

Follow the developing story on Twitter via the hashtag #ssj.

Stat of the Day: Executing the Innocent

| Wed Sep. 21, 2011 10:56 AM EDT
Supporters of Troy Davis rally in Paris.

The state of Georgia is scheduled to execute Troy Davis sometime after 7 p.m. tonight, even though there are serious doubts as to whether he ever committed the crime he was convicted of (seven of the nine witnesses at his trial have since recanted). The debate over capital punishment has picked up noticabely over the last month, with the Davis execution, the Supreme Court's intervention in the case of Texas death row inmate Duane Buck, and Texas Governor Rick Perry's insistence—in the face of overwhelming evidence to the contrary—that the state has never executed an innocent man on his watch. In an editorial today, the New York Times takes the occasion to call for capital punishment to be permanently abolished.

They make a pretty compelling case. But this might not be a fight they can win—at least not for a while. Some death penalty supporters believe that the government is infallible when it comes to doling out capital punishment. But the numbers show that even people who think the state sometimes gets the wrong guy are still likely to support the death penalty. Here's a 2009 Gallup poll, via Grits for Breakfast:

[F]or many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

It's comforting (ish) to think that death penalty supporters just have their heads in the sand, and if they can just be convinced that the system is broken they'll come around to abolition. But that's really not the case; a substantial number of proponents just think a flawed conviction here and there is a small price to pay for justice. Even as folks like the Innocence Project and Pamela Colloff continue to shine a light on the flaws of the system, public support for capital punishment remains pretty high and there's no indication it's in danger of flipping. Here's a handy chart from Pew:

Courtesy of Pew ResearchCourtesy of Pew ResearchWe have a notable decline over the last decade (coinciding with the switch in pollsters) but nothing about this graph screams out that the death penalty is on its last legs, and that it's not just a regression to the mean. This one from Gallup is even more ambiguous:

Courtesy of GallupCourtesy of GallupThe takeaway here is that even with cases like those of Troy Davis and Cameron Todd Willingham, death penalty opponents are going to have a pretty tough time winning converts to their cause. But there's plenty of low-hanging fruit to go after: The Davis prosecution, for instance, was aided by a flawed system of witness idenfitification—one that that the New Jersey Supreme Court recently banned entirely. The Willingham case hinged on a school of arson science that was closer to witchcraft—but a consequence of that is the state was pressured into forming a commission that now has the authority to investigate cases where poor forensic techniques were used.

Update: More numbers from PRRI today. There's also an enthusiasm gap: "Three times as many Americans say they strongly favor the death penalty as say they strongly oppose it (33% vs. 11% respectively)."

Republicans To Fed: Don't Help The Economy—Or Else!

| Wed Sep. 21, 2011 9:56 AM EDT
Speaker John Boehner (R-Ohio) and other top House Republicans give a press conference.

The Republican leadership is warning Federal Reserve officials meeting this week not to do anything to stimulate the economy, despite persistent high unemployment and grim forecasts for economic growth. A letter sent by House Speaker John Boehner (R-Ohio), House Majority Whip Eric Cantor (R-Va.), and Senate Majority Whip Jon Kyl (R-Ariz.) states, "Respectfully, we submit that the board should resist further extraordinary intervention in the U.S. economy, particularly without a clear articulation of the goals of such a policy, direction for success, ample data proving a case for economic action and quantifiable benefits to the American people."

You might remember that Texas Governor Rick Perry made a similar case against monetary stimulus, somewhat less respectively and more honestly back in August. Perry said of Republican Appointed Fed Chairman Ben Bernanke, "If this guy prints more money between now and the election, I dunno what y’all would do to him in Iowa but we would treat him pretty ugly down in Texas. Printing more money to play politics at this particular time in American history is almost treasonous in my opinion."

The letter from the Republican Congressional leadership has everything but the ugly and the frank admission of concern that further stimulus from the Fed might alter their chances for retaking the White House next year. The International Monetary Fund recently downgraded its economic forecast for the U.S. next year, saying growth will be just under two percent. To give you a sense of how that affects Obama's chances, political economist Douglass Hibbs told me in early August that "If the economy catches hold, and we catch those 4 or 5 percent growth rates in a row, Obama will be okay. But he's not going to win big. It's not going to be anything like the McCain defeat."

Republicans have successfully pursued contractionary fiscal policies that will harm the economy in the short term, successfully leveraging the threat of a government shutdown and economic armageddon over the debt ceiling to push the Obama administration to acquiesce to some pretty unfavorable terms. Since the GOP has control of the House, they can block just about any legislative solutions the president might propose. The only thing they can't really control is what the Fed does—which is why they're trying so hard to intimidate them out of doing anything at all.

We're Still at War: Photo of the Day for September 21, 2011

Wed Sep. 21, 2011 5:57 AM EDT

Soldiers from B Battery, 2nd Battalion, 300th Field Artillery, fire their first rocket from an M142 High Moblity Artillery Rocket System after 3 weeks of training at the Camp Guernsey Joint Training Center, in Guernsey, Wyo. The 2-300th transformed from a tube artillery battalion to rockets. US Army photo by Staff Sgt. Kevin Able.