Monday, January 31, 2011

Immigration legislation may be moving toward some front burners

This from

Legislators Ready to Act on Immigration

As the new Congress gears up for what is forecasted to be a disappointing year in immigration reform, many state legislative leaders are making plans to fight illegal immigration on the state line. Even though President Obama has promised to overhaul several untouched immigration laws, Republicans are dissatisfied and continue to look for ways to enforce border control and confront illegal immigration. It's plausible that up to seven states may try to pass Arizona-like (S.B. 1070) immigration laws in 2011 despite the bill's ongoing litigation with the U.S. Department of Justice. All seven states, Nebraska, Oklahoma, Pennsylvania, Tennessee, South Carolina, Georgia and Mississippi, carry heavy support from a combination of largely republican legislators and governors. Additionally, a controversial initiative expected to be announced in Washington this week is the joint effort amongst state lawmakers to challenge the 14th Amendment and deny birthright citizenship to children born of illegal immigrants.

More on immigration and citizenship:

Forum on Education Abroad: Crisis in Egypt Blog

Crisis in Egypt

The Forum has heard from a number of member institutions regarding the crisis in Egypt and its impact on current and planned education abroad programs. Members should feel free to contact the Forum offices to share information and/or seek advice. The Forum will share information regarding what steps institutions and organizations are taking regarding their programs. The Forum keeps any information that it receives about programs strictly confidential, and will share information about actions that programs are taking without revealing the names of the programs, unless the institution or organization has given the Forum permission to do so.

Additionally, to share information and comment on how the crisis is impacting your institution’s programs, visit the Forum Blog: Crisis in Egypt

A special session has been scheduled during the Lunchtime Conversations at the Forum Conference to discuss education abroad programs in the Middle East and North Africa.

The Forum on Education Abroad

Dickinson College • PO Box 1773 • Carlisle, PA 17013

(ph) 717-245-1031 • (f) 717-245-1677 •

Don't retreat... Regurgitate

This in today's Washington Post:

Palin is not walking back 'retreat, reload' catchphrase, says aide
By Emi Kolawole

Former Alaska governor Sarah Palin's aide Rebecca Mansour is firing back after the Reno Gazette-Journal reported that, instead of her usual catchphrase "don't retreat, reload" Palin said to a Nevada audience "don't retreat, stand tall."

The Post's Chris Cillizza and Aaron Blake report that, in a tweet, Mansour wrote that Palin had used her original wording:

Yesterday in Reno Gov. Palin did say her trademark line "Don't retreat, reload."

Palin's speech Sunday night to the Safari Club in Reno was closed to the press, but Reno Gazette-Journal reporter David Jacobs writes that her words could "occasionally be heard" through the door, and that he overheard Palin use the phrase "don't retreat, stand tall."

Kind of reminds me of some ridiculous old movies (Probably on Sarah's top ten list):

The Criminal Complaint against Jared Loughner

United States District Court, D. Arizona.
Jared Lee LOUGHNER DOB: xx/xx/1988; United States Citizen.
No. 11-0035M.
January 9, 2011.

Criminal Complaint

Complaint for violation of Title 18 United States Code § 351(c); Title 18 United States Code §§ 1114 and 1111; and Title 18 United States Code §§ 1114 and 1113



On or about January 8,2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, did attempt to kill Gabrielle Giffords, a Member of Congress; in violation of Title 18, United States Code Section 351(c).


On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, did unlawfully kill Gabriel Zimmerman, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties; in violation of Title 18, United States Code, Sections 1114 and 1111.


On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, did unlawfully kill John M. Roll, a United States District Court Judge for the District of Arizona, an employee of the United States who was engaged in performance of official duties; in violation of Title 18, United States Code, Sections 1114 and 1111.


On or about January 8,2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, did, with intent to kill, attempt to kill Pamela Simon, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties; in violation of Title 18, United States Code, Sections 1114 and 1113.


On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, did, with intent to kill, attempt to kill Ron Barber, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties; in violation of Title 18, United States Code, Sections 1114 and 1113.



Being duly sworn, I declare that the foregoing is true and correct to the best of my knowledge.






Sworn to before me and subscribed in my presence.




January 9, 2011

1) See Fed. R. Crim. P. 1 and 3

COMPLAINT REVIEWED by United States Attorney Dennis K. Burke ??


Your affiant, Tony M. Taylor Jr., Special Agent of the Federal Bureau of Investigation (FBI), being duly sworn, deposes and says:

1) I have been a Special Agent (SA) of the Federal Bureau of Investigation since November, 1997. I am currently assigned to investigations involving violent crimes and other violations of federal law. I make this affidavit in support of a complaint against JARED LEE LOUGHNER for violations of Count 1, Attempted Assassination of a Member of Congress; in violation of Title 18, United States Code Section 351(c); Counts 2 and 3, Killing of an Officer and Employee of the United States, in violation of Title 18, United States Code, Sections 1114 and 1111; and Counts 4 and 5, Attempted Killing of an Officer and Employee of the United States, in violation of Title 18, United States Code, Sections 1114 and 1113.

2) On or about January 8, 2011, in Tucson, Arizona, Congresswoman Gabrielle Giffords hosted a pre-announced event entitled “Congress on Your Corner,” at a Safeway store at 7170 N. Oracle Road. Congresswoman Giffords represents the Eighth Congressional District in Southern Arizona. The office of Congresswoman Giffords had publicized the event in advance, including by e-mail and telephonic announcements. Your affiant states that Congresswoman Giffords' staff at the event included Gabriel Zimmerman, Ron Barber, and Pamela Simon, who are employees of the United States, all of whom attended to assist Congresswoman Giffords in her official duties. On January 9, 2011, your affiant spoke with U.S. Marshal David Gonzales, who stated that the Honorable John M. Roll, Chief Judge of the United States District Court for the District of Arizona, had worked with Congresswoman Giffords within the last several months to resolve issues related to the volume of cases filed in the District of Arizona. Judge Roll was notified about Congresswoman Giffords' event telephonically on or about January 7, 2011. Having spoken to Pia Carusone, the Chief of Staff for Congresswoman Giffords in Washington D.C., U.S. Marshal Gonzales reports that Ron Barber, a staff person for Congresswoman Giffords who was present at the event, stated that Judge Roll attended the event and sought to speak to Congresswoman Giffords, and spoke with Mr. Barber about issues related to the volume of federal cases in the District of Arizona; Judge Roll expressed his appreciation to Mr. Barber for the help and support that Congresswoman Giffords had given. Your affiant reviewed a digital surveillance video depicting the events at the Safeway; in the video, Judge Roll is seen speaking for several minutes with Mr. Barber.

3) Based on my review of the video and other investigation, your affiant states that at approximately 10:11 a.m. on January 8, 2011, JARED LEE LOUGHNER shot Member of Congress Gabrielle Giffords; Gabriel Zimmerman, a member of Congresswoman Giffords' staff; the Honorable John M. Roll, Chief Judge of the United States District Court for the District of Arizona; Pamela Simon, a member of Congresswoman Giffords' staff; and Ron Barber, a member of Congresswoman Giffords' staff, as well as approximately 14 additional individuals. Both Pamela Simon and Ron Barber were shot and seriously wounded by LOUGHNER. After being shot by LOUGHNER, Gabriel Zimmerman and Judge Roll died from their injuries, and Congresswoman Giffords was critically injured. In addition to the many wounded, the other victims killed by LOUGHNER were Phyllis Schneck, Dorothy Morris, Dorwan Stoddard, and Christine Green.

4) LOUGHNER was apprehended at the scene after bystanders tackled and disarmed him. At the scene, law enforcement recovered the handgun used by LOUGHNER, a Glock semi-automatic pistol. The Bureau of Alcohol, Tobacco and Firearms (ATF) has determined that LOUGHNER purchased the Glock pistol, serial number PWL 699, on or about November 30, 2010, from Sportsman's Warehouse in Tucson. In addition to the investigation conducted by ATF, LOUGHNER's purchase of the weapon was corroborated by store receipts and video, among other evidence.

5) On January 8, 2011, a search warrant was executed at 7741 N. Soledad Avenue in Tucson, Arizona, where LOUGHNER resides. Some of the evidence seized from that location included a letter in a safe, addressed to “Mr. Jared Loughney” at 7741 N. Soledad Avenue, from Congresswoman Giffords, on Congressional stationary, dated August 30, 2007, thanking him for attending a “Congress on your Corner” event at the Foothills Mall in Tucson. Also recovered in the safe was an envelope with handwriting on the envelope stating “I planned ahead,” and “My assassination” and the name “Giffords,” along with what appears to be LOUGHNER's signature.

6) Based on the foregoing information, there is probable cause to believe that, in the District of Arizona, on or about January 8, 2011, JARED LEE LOUGHNER: 1) did attempt to kill Gabrielle Giffords, a Member of Congress, in violation of Title 18, United States Code Section 351 (c); 2) did unlawfully kill Gabriel Zimmerman, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties, in violation of Title 18, United States Code, Sections 1114 and 1111; 3) did unlawfully kill John M. Roll, a United States District Court Judge for the District of Arizona, an employee of the United States who was engaged in performance of official duties, in violation of Title 18, United States Code, Sections 1114 and 1111; 4) did, with intent to kill, attempt to kill Pamela Simon, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties, in violation of Title 18, United States Code, Sections 1114 and 1113; and 5) did, with intent to kill, attempt to kill Ron Barber, an employee of the United States who was engaged in performance of official duties and who was assisting Member of Congress Gabrielle Giffords while she was engaged in performance of official duties, in violation of Title 18, United States Code, Sections 1114 and 11 13.


TONY M. TAYLOR, JR., Special Agent

Federal Bureau of Investigation

Subscribed and sworn to before this 9th day of January, 2011.



United States Magistrate Judge

District of Arizona

More on federal criminal trials:

The Arrest Warrant against Jared Loughner

United States District Court, D. Arizona.
Jared Lee LOUGHNER, Defendant.
No. 11-0035-M.
January 10, 2011.

Arrest Warrant

To: Any authorized law enforcement officer

YOU ARE COMMANDED to arrest and bring before a United States magistrate judge without unnecessary delay ( name of person to be arrested) Jared Lee Loughner who is accused of an offense or violation based on the following document filed with the court:

[ ] Indictment [ ] Superseding Indictment [ ] Information [ ] Superseding Information X Complaint

[ ] Probation Violation Petition [ ] Supervised Release Violation Petition [ ]]] Violation Notice [ ] Order of the Court

This offense is briefly described as follows:

1) Did attempt to kill Gabrielle Giffords, a member of Congress, in violation of Title 18, U.S.C. §351(c)

2) Did unlawfully kill Gabriel Zimmerman, an employee of the United States who was engaged in performance of official duties, i?? violation of Title 18 U.S.C. §1114 and 1111

3 Did lawfully kill John M. Roll, a United States District Court Judge for the District of Arizona, an employee of the United States was engaged in performance of official duties, in violation of Title 18 U.S.C. §1 14 and 1111

4) did, with intent to kill, attempt to kill Pamela Simon, an employee of the United States who was engaged in performance of offi?? duties, in violation of Title 18 U.S.C. 1114 and 1113; and

5) did, with intent to kill, attempt to kill Ron Barber, an employee of the United States who was engaged in performance of official duties, in violation of Title 18, U.S.C. §1 1 14 and 1113

Date: Jan 9, 2011


Issuing officer's signature

City and state: Phoenix, Arizona

Michelle H. Burns, U.S. Magistrate Judge

Printed name and title

More on federal criminal law:

The Indictment Against Jared Loughner

United States District Court, D. Arizona.
United States of America, Plaintiff,
Jared Lee LOUGHNER, Defendant.
No. CR11 - 0187TUC LAB.
January 19, 2011.


Dennis K. Burke, United States Attorney, District of Arizona, Wallace H. Kleindienst, Beverly K. Anderson, Christina M. Cabanillas, Mary Sue Feldmeier, Assistant U.S. Attorneys, United States Courthouse, 405 W. Congress St., Suite 4800, Tucson, Arizona 85701, Telephone: (520) 620-7300,,, Christina.Cabanillas,, Attorneys for Plaintiff.


18 U.S.C. § 351(c)

18 U.S.C. § 1114

18 U.S.C. § 1113

(Attempted Assassination of a Member of Congress; Attempted Murder of A Federal Employee)



On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, with the intent to kill, attempted to kill Gabrielle D. Giffords, a member of Congress.

In violation of Title 18, United States Code, Section 351(c).


On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, with the intent to kill, attempted to kill Ronald S. Barber, an employee of the United States, while Ronald S. Barber was engaged in and on account of the performance of his official duties, and while he was assisting Gabrielle D. Giffords, an officer and employee of the United States, to wit: a member of Congress, who was engaged in or on account of the performance of her official duties.

In violation of Title 18, United States Code, Sections 1114 and 1113.


On or about January 8, 2011, at or near Tucson, in the District of Arizona, the defendant, JARED LEE LOUGHNER, with the intent to kill, attempted to kill Pamela K. Simon, an employee of the United States, while Pamela K. Simon was engaged in and on account of the performance of her official duties, and while she was assisting Gabrielle D. Giffords, an officer and employee of the United States, to wit: a member of Congress, who was engaged in or on account of the performance of her official duties.

In violation of Title 18, United States Code, Sections 1114 and 1113.


United States Attorney

District of Arizona



Assistant United States Attorney

More on criminal procedure in the federal courts:

Hundreds of American Students Lie Low in Cairo

From the Chronicle of Higher Education:

By Ursula Lindsey and Aisha Labi


Universities in Egypt were closed on Sunday and American institutions with students in the country were monitoring their safety while making arrangements to get them home, as antigovernment protests and sporadic outbreaks of violence continued in the capital and other cities. With airlines observing a 4 p.m.-to-8 a.m. curfew imposed by the Egyptian government, however, thousands of people trying to leave were stranded at the international airport here....

More about modern Egypt:

Sunday, January 30, 2011

The issue of "Incitement": from Haymarket to Sarah Palin

I'm working on a law review article on the issue of incitement. This issue has come to the forefront of debate because of Al-Alawaki's alleged influence on the Fort Hood shooter and a number of recent wannabe terrorists, as well as Sarah Palin's "Don't retreat... reload" message and the gunsights on COngresswoman Giffords and others. I presented a rough draft of my paper to university colleagues, one of whom commented,"You are trying to draw a hard line in the water." He kindly allowed me to borrow this phrase to include in my title. Here are excerpts from the draft article as it stands now. Your comments are welcomed:

Hard Lines in the Water: Incitement from Haymarket to Sarah Palin*
By James Ottavio Castagnera**
I. Introduction
In 1859, John Stuart Mill observed, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.” 1
In the century and a half since this was written, American law has struggled to draw a distinction between speech that is protected by the First Amendment of the U.S. Constitution and speech which constitutes what is commonly called the crime of incitement.
This article considers the question across a range of difficult cases, beginning with the Haymarket Riot of 1887 to the recent flurry over the possible impact of Sarah Palin’s “targeting” of Congresswoman Giffords on her would-be-assassin’s act.

II. The Anarchists, 1848 – 1914 and the Haymarket Riot (1887)
Between 1894 and 1914, self-proclaimed “anarchists” succeeded in assassinating six Western heads of state:
1. President Carnot of France, 1894
2. Premier Carnovas of Spain, 1897
3. Empress Elizabeth of Austria, 1898
4. King Humbert of Italy, 1900
5. President McKinley of the U.S., 1901
6. Premier Canalejas of Spain, 19122
“Their deaths were the gestures of desperate or deluded men to call attention to the Anarchist idea…. The Idea was [the] hero…. It had its theorists ad thinkers, men of intellect, sincere and earnest, who loved humanity. It also had its tools, the little men whom misfortune or despair or the anger, degradation and hopelessness of poverty made susceptible to the Idea…. These became the assassins.”3
The most salient feature of the Anarchist movement for our purposes is this: “Between the two groups there was no contact.”4 Although the phrase was decades away from being coined, the Anarchist movement is a classic example of “Leaderless Resistance.”
“Leaderless Resistance”
“Leaderless resistance (or phantom cell structure) is a political resistance strategy in which small, independent groups (covert cells) challenge an established adversary such as a government. Leaderless resistance can encompass anything from non-violent disruption and civil disobedience to bombings, assassinations and other violent agitation. Leaderless cells lack bidirectional, vertical command links and operate without hierarchal command.” 5
The term "Leaderless Resistance" was popularized by the white supremacist Louis Beam, who published an essay on Leaderless Resistance in 1983 and again in 1992. Beam advocated Leaderless Resistance as a technique for fighting an incumbent government using self-organizing clandestine cells; he attributed the strategy to Col. Ulius Loius Amoss, allegedly a U.S. intelligence officer who was fearful that Communists were about to seize control of the U.S. in the early 1960s.
In his essay, Beam argued that traditional liberation armies employing pyramid-style organization are "extremely dangerous for the participants when it is utilized in a resistance movement against state tyranny":
"Especially is this so in technologically advanced societies where electronic surveillance can often penetrate the structure revealing its chain of command. Experience has revealed over and over again that anti-state, political organizations utilizing this method of command and control are easy prey for government infiltration, entrapment, and destruction of the personnel involved. This has been seen repeatedly in the United States where pro-government infiltrators or agent provocateurs weasel their way into patriotic groups and destroy them from within."
A more workable approach, argued Beam, is to convince like-minded individuals to form independent cells that will commit acts of sabotage or terrorism without coordination from above, and while minimizing communication with other cells:
"The so-called "phantom cell" mode of organization, developed by Col. Amoss, or Leaderless Resistance, is based upon the cell organization but does not have any central control or direction. In the Leaderless Resistance concept, cells operate independently of each other, but they do not report to a central headquarters or top chief, as do the communist cells ...
[P]articipants in a program of Leaderless Resistance through phantom cell organization must know exactly what they are doing and how to do it. This is by no means as impractical as it appears, because it is certainly true that in any movement, all persons involved have the same general outlook, are acquainted with the same philosophy, and generally react to given situations in similar ways. As the entire purpose of Leaderless Resistance is to defeat the enemy by whatever means possible, all members of phantom cells will tend to react to objective events in the same way, usually through tactics of resistance and sabotage."
Despite exhorting the adoption of a resistance without a leader, it is likely that Beam was advocating Leaderless Resistance in an attempt to cement his position as a leader and thinker in the white separatist movement. Indeed, Leaderless Resistance is taken by some to be a technique of splitting an organization into an above-ground wing that primarily deals in propaganda, and an underground wing that actually carries out terrorist attacks.6

Anarchism was a perfect candidate for “Leaderless Resistance,” given that its proponents and adherents assuaged all organizing efforts and organized movements, even the kindred philosophy of Socialism.
Roots and Cycles of Anarchism
Anarchism’s formative years followed Europe’s revolutionary year of 1848. Its intellectual parents were Pierre Proudhon of France7 and Michael Bakunin.8 The Paris Commune of 1871 seemed momentarily to promise the Utopia predicted by these two theorists of Anarchy. However, the commune flamed brightly and was doused. According to Bakunin, “We reckoned without the masses who did not want to be roused to passion for their own freedom. This passion being absent what good did it do us to have been right theoretically? We were powerless.”9
The assassination of Czar Alexander II, who ironically had liberated Russia’s serfs, in 1881 and the furious repression that followed effectively squelched the Anarchist movement for nearly a decade in Europe.10
In America, the 1880s were shaken by an incident of similar significance. The 1886 Haymarket Riot in Chicago was climaxed by a dynamite bomb that killed eight policemen. The Anarchist daily newspaper Die Arbeiter-Zeitung had previously screamed, “A pound of dynamite is worth a bushel of bullets.”11 Though no one every knew who threw the bomb, the paper’s editor, August Spies, and seven other Anarchists were arrested, tried, convicted of murder and sentenced to die. Spies responded to the sentence, “Let the world know that in 1886 in the state of Illinois eight men were sentenced to death because they believed in a better future!”12
The convictions were appealed all the way up the judicial ladder to the U.S. Supreme Court, where the defendants sought a Writ of Error, contending that they had been denied the privilege of a trial by an impartial jury in violation of the Constitution’s 14th Amendment. Reviewing the voir dire of several challenged jurors in some detail, the high court brushed aside this contention, along with others involving search & seizure and self-incrimination. The court’s opinion, penned by Chief Justice Waite,
“Being of opinion, therefore, that the federal questions presented by the counsel for the petitioners, and which they say they desire to argue, are not involved in the determination of the case as it appears on the face of the record, we deny the writ. Petition for writ of error is dismissed.”13
Of greatest interest here is the fact that the defendants’ attorneys grounded their appeal on the Fourth, Fifth and Sixth Amendments, as applied to the states via the 14th.14 The First Amendment apparently played no part in the appeal. Three of the condemned had their sentences commuted to life in prison, one committed suicide in his cell, and the remaining four were hanged.
Since the bomb thrower was never identified, how was it that the First Amendment’s free speech, free association and free press rights failed to shield the defendants from criminal liability for the Haymarket deaths, despite the fact that only three of them were even actually present when the bomb exploded? The website of the Clerk of the Cook County (IL) Circuit Court, where the case was tried, explains, “Judge Joseph E. Gary firmly held that the defendants had caused the bombing by speaking and writing their ideas publicly. He appointed bailiff Henry L. Ryce to select a jury which was hardly impartial. One juror was even related to a bomb victim. Defense objections by attorney Captain William P. Black were denied, and the trial commenced June 21. No defendants ever were connected to the bomb or to the numerous weapons displayed in open court by states attorney Julius Grinnell. Yet on August 20 the jury found all eight men guilty and set the death penalty for seven (Neebe received a prison sentence). Receiving the case on appeal, the Illinois Supreme Court in September 1887 admitted that the trial had not been fair but still upheld the guilty verdict.”15
The Illinois Supreme Court grounded its affirmation of the convictions on the legal principle, “Any act done by party to conspiracy, in furtherance of and naturally flowing from common design, is act of each and all of conspirators, (1) even though conspirator who did act cannot be identified; or (2) though defendant may have been absent; or (3) though act charged may not have been arranged for; or (4) was unauthorized in point of time, place, occasion, or instruments; or (5) was not anticipated, if conspirators either did or ought to have anticipated result, although they did not contemplate means.”16
To apply this rule to the defendants, the court first found, “The evidence against the defendants showed that, for a number of years, there had existed in Chicago a branch of a society variously known as the ‘International Association of Workingmen;’ the ‘International Arbeiter Association;’ the ‘International,’ or the ‘I. A. A.’ The platform of this society advocated the destruction of the existing social order, with its laws and institutions; and the common division of property. It charged that the government, the law, the schools, the churches, and the press were in the pay and under the control of the capitalists, who would never concede the laborers' demands unless compelled by force. It advocated a conflict of a violent, revolutionary character, and urged the laborers to organize and arm for the purpose of rebellion.”17
The newspapers, speeches, and pamphlets produced by the defendants were not forms of protected speech or press in the justices’ eyes. Rather, they were the causal nexus between the defendants’ mens rea (guilty minds) and the Haymarket murders. “During 1838-86 the defendants were unceasing in their dissemination of revolutionary literature. They persistently advised the workingmen to arm themselves for a conflict with the capitalists, police, and militia. They gave the most complete instructions for the manufacture and use of pernicious and destructive weapons. They were proved to have been in possession of specimens of the weapons themselves. They manufactured and experimented with explosives. They advocated through the press and by speech, in public and in private, the doctrines which they held, and the methods by which they proposed to carry them into effect.”18
Though it would be another three decades before Justice Oliver Wendell Holmes would famously echo John Stuart Mill, when he wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force,”19 this is the essence of the Illinois Supreme Court’s view. While the court acknowledged, but failed to remedy, irregularities in the trial of the case, and appropriately might have been taken to task for this (though, as we’ve seen, the U.S. Supreme Court declined to do so), its opinion appears to be on solid legal ground where the causal nexus is concerned. The Haymarket convictions --- at least in this author’s view --- represent an early instance of when the shield of “Leaderless Resistance” was stripped away and the advocates of violent action were held responsible for the deaths which, quite foreseeably, resulted… as they undeniably desired.


IV. The Global War on Terror, 2001-2010 and the Al-Alwaki Case (2010)
The 9/11 attacks, as everyone knows, were swiftly answered by the Bush Administration, which promptly invaded Afghanistan and soon had Al Qaeda and its Taliban hosts on the run. The administration and the military have come under criticism for failing to kill or capture Osama bin Laden and his chief lieutenants, when they apparently were corned in Tora Bora.23
In the spring of 2003, the Afghan incursion was followed by the invasion of Iraq. This action was the catalyst for anti-war protests at the time and, as it became clear that the Bush Administration and/or the CIA either misapprehended or prevaricated the presence of weapons of mass destruction in Iraq, criticism of the war became more widespread and caustic. As the conflict dragged on, costing more American lives and treasure, the drumbeat of blame intensified. Its crescendo probably was attained with the publication by celebrity-attorney Vincent Bugliosi’s 2008 diatribe, The Prosecution of George W. Bush for Murder.24
The purpose here is not to enter the debate about either the motives or the wisdom behind the Bush Administration’s twin decisions to open fronts in the Global War on Terror in Afghanistan and Iraq. Our interest here is limited to the results. It has been said that bin Laden hoped that the 9/11 attacks would lure the U.S. into a Soviet-style debacle in Afghanistan, and in October 2003 in a videotape broadcast by Al Jazeera, he exulted, “I am rejoicing in the fact that America has become embroiled in the quagmires of the Tigris and Euphrates. Bush thought that Iraq and its oil would be easy prey, and now here he is, stuck in dire straits, by the grace of God Almighty. Here is America today, screaming at the top of its voice as it falls apart in front of the world.”25
Undeniably, the two-front war has dragged into the new decade. As we look to the tenth anniversary of 9/11, it is unlikely in the extreme that U.S. forces will be extricated from either Iraq or Afghanistan. But does this stark reality indicate failure? I think not… for several reasons.
Duration of Conflict and Its (Intended and Unintended) Outcomes
Small wars can last a very long time. And, indeed, they test the tenacity of the combatants. America is no stranger to such protracted conflicts. One thinks immediately of the Vietnam War. But there were others, now largely overlooked:
• The Philippine War, 1899-1902
• The occupation of Haiti, 1915-1934
• The occupation of the Dominical Republic, 1916-1924
• The Nicaraguan insurgency, 1926-1933
• Involvement in China, 1901-194126
Not only is length of the U.S. deployment not necessarily any indicia of defeat. Additionally, one must assess not only the achievement, or lack thereof, of the stated goals. We must consider all outcomes, whether or not expressly stated or intended at the time that the incursion was undertaken. Thus, for example, it has been suggested that a highly significant result of the Korean Conflict was the development of Japanese industrial might, a key factor in making that defeated and occupied nation a self-sustaining, Democratic counterweight to the Peoples Republic of China.27
Revisionists have gone so far as to suggest that the Vietnam War (1959-1975) was in the long pull a positive economic influence on East Asia.28 It also has been pointed out that Colin Powell and others of his generation of American military minds applied lessons learned the hard way in Vietnam to subsequent U.S. military doctrine, the pay off coming in the First Gulf War.29
Applying a similar line of thinking to the two-front Global War on Terror, one must immediately note that in the nearly ten years since 9/11 there has been no repetition of that attack upon American soil (unless one considers the Fort Hood shootings of last year, discussed in Part IV, to be the exception to this statement). Proving a causal connection between the two-front war and the dearth of successful terrorist activities in the U.S. is probably an impossible task. However, observers have noted Al Qaeda’s role in current Afghan hostilities has diminished significantly,30 suggesting successful disruption of the organization’s continued vitality as an organized force for international terrorism. Similarly, in drawing jihadists into its killing fields, the war in Iraq may have siphoned off operatives, who might otherwise have acted against the U.S. closer to home.
Though the U.S. is by no stretch on the verge of extrication from either of the two fronts, evidence is accumulating that the Global War on Terror has begun a metamorphosis into a new phase.
[W]hether or not Plan A works in Afghanistan, we will still need a Plan B to fight the long war being waged by what Obama calls "violent extremists" -- sworn enemies of the West who see themselves as "jihadis," warriors commanded by the Koran to fight non-Muslims until all submit to Islamic law and Islamic rule.
News bulletin: There is a Plan B -- and it's already being implemented. As The New York Times reports, the Obama administration is now fighting a "shadow war against al Qaeda and its allies."
The Times continues: "In roughly a dozen countries -- from the deserts of North Africa, to the mountains of Pakistan, to former Soviet republics crippled by ethnic and religious strife -- the United States has significantly increased military and intelligence operations, pursuing the enemy using robotic drones and commando teams, paying contractors to spy and training local operatives to chase terrorists."31

Recent events in the U.S. suggest to this author that the two-front war plus this so-called “Plan B” have combined to disrupt the al Qaeda organization sufficiently, such as to compel a reversion to the tactic of “Leaderless Resistance,” not unlike the Anarchist movement, as outlined in Part I of this paper.
The Fort Hood Shootings (2009)
On November 5, 2009 a lone gunman opened fire in the crowded Soldier Readiness Center at Fort Hood, where deploying soldiers were receiving vaccines. The gunman wore a combat uniform and shouted “Allahu Akbar” – or, “God is greatest” – as he fired rapidly at unarmed, startled soldiers. Within ten minutes, thirteen were dead and more than thirty injured. SWAT-team markswoman Kimberly Munley managed to shoot the lone gunman in the chest; he was handcuffed as he fell unconscious from the wound that, although not fatal, paralyzed him from the chest down. The gunman was quickly identified as U.S. Army Major Nidal Malik Hasan.
Hasan, a devout Muslim and a psychiatrist at Fort Hood, had been deeply distressed about his deployment to Afghanistan, scheduled for November 28th, because he believed, “You're not supposed to have alliances with Jews or Christian or others, and if you are killed in the military fighting against Muslims, you will go to hell.”32 Over the previous five years, Hasan had begun to openly oppose the wars because of his religion.
What was unclear in this case, however, was whether or not Hasan expected to wake up in a martyr’s paradise rather than a hospital bed. Considering the fact that Hasan gave away most of his possessions, including his furniture and copies of the Koran, on the morning of the shooting, it seems doubtful that he planned on surviving that fateful day. Whether or not he considered himself a religious martyr, however, was unclear. Was the shooting simply yet another case of workplace violence? Or of mental illness manifesting itself, unfortunately but arbitrarily, in the workplace? Or did Hasan feel backed into a corner, convinced he could not avoid deployment and equally unable to bring himself to fight fellow Muslims in Afghanistan? Or were Hasan’s actions part of some larger conspiracy or operation? Specifically, were they an act of terrorism? And to that point, does it make any difference in terms of how we deal with such incidents prospectively?
Hasan was born on September 8, 1970 in Virginia to Palestinian parents who had emigrated from the West Bank in the 1960s.33 Hasan’s parents ran small businesses – a convenience store and two restaurants – which Hasan and his two brothers helped with until they left home for college and professional schools. Hasan was not a devout Muslim growing up, and so immediately after graduating high school, against the wishes of his parents, Hasan enlisted in the United States Army ROTC while attending Virginia Tech. According to a cousin, Hasan stated, “I was born and raised here, I’m going to do my duty to my country.”34 An aunt also said that the military “was his life.” In 1995, Hasan graduated from college with a bachelor’s degree in biochemistry and went on to receive training as a doctor at the Uniformed Services University of Health Sciences in Bethesda, Maryland.
Hasan’s uncle described him as “a gentle, quiet, deeply sensitive man,” even going so far as to describe a pet bird that Hasan had once owned, and which he fed by placing the bird in his mouth and offering it masticated food. When the bird died, Hasan apparently mourned it for months. One might think this anecdote explains his attraction to psychiatry. However, Hasan’s decision to become a shrink, rather than a surgeon, was prompted by an incident wherein he fainted while observing childbirth during medical training. He completed his residency in psychiatry at the Walter Reed Army Medical Center, where counseling and extra supervision were required for Hasan because he had some unexplained “difficulties,” according to training director Dr. Thomas Grieger.
In 2001, Hasan began attending the Dar al-Hijrah mosque in the Falls Church area – a mosque also attended at the same time by two September 11 hijackers, Nawaf al-Hazmi and Hani Hanjour, and by Ahmed Omar Ali, a man convicted of providing material support to al-Qaeda and conspiring to assassinate President George W. Bush. At the time, the mosque’s imam was Anwar al-Awlaki, an Islamic lecturer and spiritual leader with ties to al-Qaeda.
Hasan clearly revered al-Awlaki’s teachings, and he sent al-Awlaki as many as twenty emails from December 2008 forward. In his emails, Hasan asked al-Awlaki when jihad is appropriate, and if it was acceptable to kill innocents in a suicide attack. He also wrote that he couldn’t wait to join al-Awlaki in the afterlife. In the months before the shooting Hasan discussed how to transfer funds abroad without coming to the attention of law authorities. A counter-terrorism specialist reviewed the emails at the time and proclaimed them innocuous. The emails were viewed as “general questions about spiritual guidance with regard to conflicts between Islam and military service… judged to be consistent with legitimate mental health research about Muslims in the armed services.”35
However, Hasan had been an active anti-war presence on the Internet for years before his conversations with al-Awlaki. In one Internet posting titled “Martyrdom in Islam Versus Suicide Bombing,” Hasan compared a suicide bomber to a soldier who jumps on a grenade to save the lives of fellow officers in that both were sacrificing their lives “for a more noble cause.”36 This and other postings, however, were not definitively tied to Hasan at the time. After the Fort Hood shooting, al-Awlaki commended Hasan’s actions on his website, encouraging Muslims serving in the military to “follow in the footsteps of men like Nidal”:
Nidal Hassan is a hero. He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.... Any decent Muslim cannot live, understanding properly his duties towards his Creator and his fellow Muslims, and yet serve as a US soldier. The U.S. is leading the war against terrorism, which in reality is a war against Islam....

Nidal opened fire on soldiers who were on their way to be deployed to Iraq and Afghanistan. How can there be any dispute about the virtue of what he has done? In fact the only way a Muslim could Islamically justify serving as a soldier in the US army is if his intention is to follow the footsteps of men like Nidal.

The heroic act of brother Nidal also shows the dilemma of the Muslim American community.... The Muslim organizations in America came out in a pitiful chorus condemning Nidal’s operation.

The fact that fighting against the US army is an Islamic duty today cannot be disputed. No scholar with a grain of Islamic knowledge can defy the clear-cut proofs that Muslims today have the right—rather the duty—to fight against American tyranny. Nidal has killed soldiers who were about to be deployed to Iraq and Afghanistan in order to kill Muslims. The American Muslims who condemned his actions have committed treason against the Muslim Ummah and have fallen into hypocrisy...37

Some investigators believe that Hasan’s conversations with Al-Awlaki were what prompted Hasan’s actions on November 5, 2009. If so, then Hasan is a classic case of Leaderless Resistance.
Though some believe the Fort Hood shooting to be the “first international terror attack on American soil since 9/11,”38 Hasan’s defense is gearing up to paint the attack as a spontaneous act, the desperate actions of a mentally ill man.39 Despite Hasan’s contact with al-Awlaki prior to the attack, an FBI investigators found that Hasan had apparently acted alone, without outside help or direct orders from al-Awlaki or anyone else to commit the attack on Fort Hood.40 However, investigators stressed that those were preliminary findings from the early stages of the investigation, which is ongoing.
However, the trial itself could go in any number of directions, and right now it is impossible to say how much will be revealed.
Our definition of terrorism may be changing, though, and Hasan may or may not become a part of a shifting definition:
"I used to argue it was only terrorism if it were part of some identifiable, organized conspiracy," says Bruce Hoffman, a terrorism expert at Georgetown University. But Hoffman has changed his definition, he says, because "this new strategy of al-Qaeda is to empower and motivate individuals to commit acts of violence completely outside any terrorist chain of command." Every month this year, he notes, there has been a terrorist event — either an act committed or one broken up before it could be carried out. "The nature of terrorism is changing, and Major Hasan may be an example of that," Hoffman argues. "Even if he turns out to have had no political motive, this is a sea change."

If "leaderless resistance" is the wave of the future, it may be less lethal but harder to fight; there are fewer clues to collect and less chatter to hear, even as information about means and methods is so much more widely dispersed. It is more like spontaneous combustion than someone from the outside lighting a match. Senator Joe Lieberman's Homeland Security Committee warned of this threat in a report last year. "The emergence of these self-generated violent Islamist extremists who are radicalized online presents a challenge," the report concluded, "because lone wolves are less likely to come to the attention of law enforcement." At least until they start shooting.

It might help if there were at least agreement on what constitutes terrorism; one government study found 109 different definitions. As far as the FBI is concerned, it counts as terrorism if you commit a crime that endangers another person or is violent with a broader intent to intimidate, influence or change policy or opinion. If Hasan shot people because of indigestion, worker conflict or plain insanity without a larger goal of intimidation or coercion, it was probably just a crime. If, on the other hand, his crime was motivated by more than madness — say, a desire to protest U.S. foreign policy — it was effectively terrorism.

So what are we to make of the free agents who might have never sworn allegiance to a band of jihadist brothers or plotted a conspiracy of violence, just watched some YouTube videos or downloaded some sermons and came away with visions of carnage dancing in their heads? "We have to be careful not to let our definition of terrorism become too broad," said former Homeland Security Secretary Michael Chertoff last year. "Particularly when we get to the individual lone wolf, then it really does become hard to distinguish between the person who killed the students at Virginia Tech and the person who might do the same thing simply because they read something on the Internet about bin Laden and that happened to appeal to their psychology." Once everything is terrorism, he warned, then nothing is. But while the motivations of the Virginia Tech gunman seemed perversely personal, Hasan had spent years telling anyone who would listen that the U.S. war effort in Iraq and Afghanistan was immoral.41

Anwar al-Awlaki and the Second Phase of the Global War on Terror
Al-Awlaki was born April 22, 1971 in Las Cruces, New Mexico. He is a dual citizen of the U.S. and Yemen. If he had a resume, it might identify him as an Islamic lecturer, spiritual leader, and former imam, who has inspired Islamic terrorists against the West. According to U.S. officials, he is a “senior talent recruiter and motivator,” who has also become “operational” as a planner and trainer, "for al-Qaeda and all of its franchises".42 The U.S. Under Secretary of the Treasury for Terrorism and Financial Intelligence warned that al-Awlaki "is extraordinarily dangerous, committed to carrying out deadly attacks on Americans and others worldwide".43 With a blog, a Facebook page, and many YouTube videos, he has been described as the "bin Laden of the Internet".44
Al-Awlaki's sermons were attended by three of the 9/11 hijackers. He reportedly met privately with two of them in San Diego. One moved from there to Falls Church, Virginia, as al-Awlaki moved. Investigators suspect al-Awlaki may have known about the 9/11 attacks in advance.45 In 2009, he was promoted to the rank of "regional commander" within al-Qaeda, according to U.S. officials.46
As noted above, his sermons were also attended by accused Fort Hood shooter Nidal Malik Hasan. U.S. intelligence intercepted at least 18 emails between Hasan and al-Awlaki in the months prior to the Fort Hood shooting, including one in which Hasan wrote: "I can't wait to join you [in the afterlife]." After the shooting, al-Awlaki praised Hasan's actions. In addition, "Christmas Day bomber" Umar Farouk Abdulmutallab said al-Awlaki was one of his al-Qaeda trainers, who met with him and was involved in planning or preparing his attack, and provided religious justification for it, according to U.S. officials. In March 2010, al‑Awlaki said in a videotape that jihad against America was binding upon every able Muslim.
Shortly after the Fort Hood shootings, news sources revealed that the rogue cleric had escaped to Yemin, apparently due to police incompetence. According to ABC News, “A felony arrest warrant for radical Islamic cleric Anwar al Awlaki was rescinded in 2002 a day before he was intercepted as a terror suspect at New York's JFK airport, forcing authorities to release him, according to sources familiar with the case. The warrant was cancelled by the U.S. Attorney's Office in Denver, even though Awlaki was on a terror watch list, and even though the office's supervising prosecutor for terror cases -- who has now been appointed by the Obama administration as the U.S. Attorney in Denver -- had been fully briefed on Awlaki's alleged terror ties, according to investigators.”47
As Awlaki’s connections to other would-be terrorists, such as 2010’s Times Square Bomber, became increasingly apparent, the Obama administration placed him on its “targeting shooting” list.48 This in turn led to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights on August 30, 2010.49
Al-Awlaki may be an American citizen and he may be an Imam. But he is also a figure connected by evidence to a whole series of recent terrorist attempts upon the U.S. and Europe. These failed strikes include:
• The Christmas Day Bomber: Al-Awlaki and Umar Farouk Abdulmutallab, the al-Qaeda attempted bomber of Northwest Airlines Flight 253 on December 25, 2009, had contacts according to assorted sources. In January 2010, CNN reported that U.S. "security sources" said that there is concrete evidence that al-Awlaki was Abdulmutallab's recruiter and one of his trainers, and met with him prior to the attack.52 In February 2010, al-Awlaki admitted in an interview published in al-Jazeera that he taught and corresponded with Abdulmutallab, but denied having ordered the attack.53
• The Fall 2010 Cargo-Plane Bomb Plot: A British newspaper, The Telegraph, reported that U.S. and British counter-terrorism officials believe that al-Awlaki was behind the cargo-plane bombs that were sent from Yemen to Chicago in October 2010.54 U.S. Ambassador to Yemen Gerald Feierstein said flatly, "al-Awlaki was behind the two ... bombs.”55
And, of course, there is Alwaki’s alleged connection to the Times Square, as noted in Part V.
The outcome of the ACL’s action on Awlaki’s behalf may have critical implications for the second phase of the Global War on Terror. If the organization and Awlaki’s father as first friend persist, it may require the Supreme Court, as with the Guantanamo detainees, to tell us what are the constitutional limits of phase two tactics.

Buy my books at

Will Loughner get the death penalty?

Today;s LA Times says "No":

Of 182 federal death penalty prosecutions approved by Washington since 1988, 60 defendants are on death row, and only three — including Oklahoma City bomber Timothy McVeigh — were executed, according to Kevin McNally, director of the Federal Death Penalty Resource Counsel Project, which tracks capital cases. None of the 60 are even close to a date with the executioner.

Other defendants with profiles as high or higher than Loughner — the Unabomber, the Olympics bomber, even Zacarias Moussaoui, the so-called 20th hijacker in the Sept. 11 attacks — were all spared death and given life in prison.

More on the death penalty in America:

Why so many Americans like Sarah

This morning's Doonesbury cartoon is right on the money:

"Self-esteem-enhanced but talent-deprived."

This may very well be the new "typical" American type. I read a survey last fall which found that, while our kids are behind in math, science, and so much more, the one thing they lead the children of the world in: self-esteem. This plus an over-developed sense of entitlement.

Yes, indeed, Sarah IS the new American of the 21st century. No wonder so many love her.

PS --- If in this surrealistic environment you need a larger dose of sanity:

Post 9/11, Eyes Everywhere... but Bathrooms Remain Somewhat Sacred

This from today's

The Law of Decoy Cameras in Restrooms

Via the Legal As She Is Spoke blog, I see that patrons of the bathroom in the Circle K convenience store in Yuba County, Calif., are not happy about a surveillance camera aimed straight at the toilet area.

Customers such as Robert Donaldson told CBS13 that they were shocked to emerge from the stall to see an electronic eye pointed right at them. Donaldson fears he will end up seeing his trip to the bathroom on YouTube someday. Circle K, however, says the camera is merely a decoy ... [MORE]

Sphere: Related Content
Posted by Bruce Carton on January 28, 2011 at 05:05 PM | Permalink | Comments (0)

American courts unquestionably take a very dim view of cameras in restrooms, as the following case, decided by the appeals division of the New York Supreme (trial) Court in December demonstrates:

Supreme Court, Appellate Division, Second Department, New York.
Natalia SAWICKA, et al., respondents,
Pete CATENA, et al., appellants.

Dec. 14, 2010.

Background: Female former employees of plumbing and heating company brought action against their former employer, seeking to recover damages for intentional infliction of emotional distress and constructive discharge. The Supreme Court, Kings County, Partnow, J., upon jury verdict on issue of liability finding employer at fault, entered judgment in favor of employees and against employer. Employer appealed.

Holdings: The Supreme Court, Appellate Division, held that:
(1) employer's conduct was unquestionably outrageous and extreme and caused employees' emotional distress, and
(2) employer deliberately made employees' working conditions so intolerable that reasonable person in employees' position would have felt compelled to resign, as supported constructive discharge claim.


West Headnotes

[1] KeyCite Citing References for this Headnote

115 Damages
115III Grounds and Subjects of Compensatory Damages
115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses
115III(A)2 Mental Suffering and Emotional Distress
115k57.50 Labor and Employment
115k57.55 k. Sex and gender. Most Cited Cases

Male employer's conduct in installing video camera in workplace restroom in order to surreptitiously view and record female employees while they used restroom was conduct which was unquestionably outrageous and extreme, and caused employees' emotional distress, as required for employees to sustain claim for intentional infliction of emotional distress against employer.

[2] KeyCite Citing References for this Headnote

115 Damages
115III Grounds and Subjects of Compensatory Damages
115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses
115III(A)2 Mental Suffering and Emotional Distress
115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage
115k57.21 k. Elements in general. Most Cited Cases

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

[3] KeyCite Citing References for this Headnote

78 Civil Rights
78II Employment Practices
78k1123 k. Constructive discharge. Most Cited Cases

Employer deliberately made female employees' working conditions so intolerable, by installing video camera in restroom, that reasonable person in employees' position would have felt compelled to resign, as supported employees' constructive discharge claim.

*666 Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), for appellants.

Michael G. O'Neill, New York, N.Y., for respondents.


In an action, inter alia, to recover damages for intentional infliction of emotional distress and constructive discharge, the defendants appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), dated June 29, 2009, which, upon a jury verdict on the issue of liability finding them at fault, upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter of law, and upon a jury verdict on the issue of damages finding that the plaintiff Natalia Sawicka sustained damages in the principal sum of $100,000 and was entitled to punitive damages in the principal sum of $250,000, and that the plaintiff Agnieszka Bednarczyk-Kaluta sustained damages in the principal sum of $150,000 and was entitled to punitive damages in the principal sum of $250,000, is in favor of the plaintiff Natalia Sawicka and against them in the principal sum of $350,000, and is in favor of the plaintiff Agnieszka Bednarczyk-Kaluta and against them in the principal sum of $400,000.

ORDERED that the judgment is affirmed, with costs.

The plaintiffs Natalia Sawicka and Agnieszka Bednarczyk-Kaluta (hereinafter Kaluta) alleged, inter alia, that they were employed by the defendant Avanti Plumbing & Heating, Inc. (hereinafter Avanti), that the defendant Pete Catena was the owner and principal agent of Avanti, and that Catena installed a video camera in Avanti's restroom taping the plaintiffs' use of the restroom. The plaintiffs commenced this action against Avanti and Catena to recover damages for, inter alia, intentional infliction of emotional distress and constructive discharge.

The Supreme Court properly denied the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law. Affording the plaintiffs every favorable inference from the evidence submitted, there was a rational process by which the jury could find in favor of the plaintiffs ( see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).

[1] [2] “ ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress' ” ( Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699, quoting Restatement [Second] of Torts § 46[1]; see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86). Here, Catena's conduct in installing a video camera in a workplace restroom in order to surreptitiously view and record the plaintiffs while they used the restroom is conduct which is unquestionably outrageous and extreme ( see generally Dana v. Oak Park Marina, 230 A.D.2d 204, 208-209, 660 N.Y.S.2d 906; see also Adams v. Oak Park Marina, 261 A.D.2d 903, 904, 689 N.Y.S.2d 828; Salamone v. Oak Park Marina, 259 A.D.2d 987, 988, 688 N.Y.S.2d 362). The evidence was sufficient, as a matter of law, to establish that this caused the plaintiffs severe emotional distress ( see Hering v. Lighthouse 2001, LLC, 21 A.D.3d 449, 451, 799 N.Y.S.2d 825; see also Plunkett v. NYU Downtown Hosp., 21 A.D.3d 1022, 1023, 801 N.Y.S.2d 354; Garcia v. Lawrence Hosp., 5 A.D.3d 227, 228, 773 N.Y.S.2d 59; Massaro v. O'Shea Funeral Home, 292 A.D.2d 349, 351, 738 N.Y.S.2d 384).

[3] The plaintiffs' claims that they were subjected to a hostile work environment, based on sex, which led to their constructive discharge, were supported by evidence that Catena deliberately made their working conditions so intolerable by installing a video camera in the restroom, that a reasonable person in their position would have felt compelled to resign ( see *668 Matter of Eastport Assoc., Inc. v. New York State Div. of Human Rights, 71 A.D.3d 890, 897 N.Y.S.2d 177; Matter of Hilal v. New York State Div. of Human Rights, 57 A.D.3d 898, 899, 869 N.Y.S.2d 613).

The defendants' remaining contentions are either unpreserved for appellate review or without merit.

N.Y.A.D. 2 Dept.,2010.
Sawicka v. Catena
912 N.Y.S.2d 666, 2010 N.Y. Slip Op. 09246

More on surveillance here:

Saturday, January 29, 2011

A Plea for Moderation and Unity from The Peace Alliance

In the wake of the tragic Arizona Shootings, our nation realized that violent partisan rhetoric must be stopped in order to prevent similar tragedies, and with your help we took action. Want to keep working to find common ground for a healthy American politics?

Sign the No Labels Declaration:

Dear Supporter,

Together, we collected 2,416 signatures and sent 7,248 letters to our Members of Congress, to encourage them to sit united. Thank you for helping make this happen!

Our work, combined with the innovative leadership of Third Way (the DC think tank that suggested this idea) and Senator Mark Udall, paid off manifold.

It was so inspiring to watch the State of the Union on Tuesday and to see the Republicans and Democrats sitting interspersed and side by side. I felt so hopeful to see Senator Coburn (R-OK) next to Senator Schumer (D-NY), and Youth PROMISE Act Author Rep. Bobby Scott (D-VA) next to Republican Majority Leader Eric Cantor.

Watching our leaders sit together felt like a good model for what our nation's leaders could and should be doing more of, being not just civil and respectful, but sharing the responsibility to govern.

And people across America loved it. A CNN/ORC poll found that 72 percent of Americans prefer bipartisan seating, and only 22 percent prefer traditional seating. The enthusiasm was reflected in the press, with excited commentators and journalists musing on possible “dates,” and “a Prom Night” on Capitol Hill. A light-hearted energy spread across the Capitol, as Member of Congress after Member of Congress hopped onto the Bipartisan seating bandwagon, like kids urgent to get in on the party.

Indeed this was a small victory, and yet a victory nevertheless. This musical chairs experience, for a brief moment, demonstrated our shared yearning for a sense of unity and community.

During the address, President Obama envisioned an education system that uplifts the capacity of America's young people, the opportunities for peace and prosperity, and the importance of re-organizing our government for the 21st century.

To fulfill this vision we need to dig deeper into our commitment to collaborate, and encourage our leaders to see past the labels of partisanship.

As President Obama stated, "What comes of this moment will be determined not by whether we can sit together tonight, but whether we can work together tomorrow."

Excited about carrying on this work to transcend the boundaries of political parties? Consider signing the No Labels Declaration, which concludes: “We must put our labels aside, and put the issues and what’s best for the nation first. A promising future awaits us.”

Click here to sign the No Labels Declaration

Aaron Voldman

What Loughner was reading before the shootings

Everyone from TIME magazine to John Q Public seems to believe that Loughner is crazy. But how crazy is a guy who researchers political assassinations, lethal injection and solitary confinement in the days before he pulls the trigger? Sources are reporting that the man who shot Congresswoman Giffords surfed the net for information on just those subjects before he acted.

Section 4.01 of the Model Penal Code provides this definition of insanity as a defense to a crime: "A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law."

Let me suggest that a guy who studies political assassinations, lethal injection and solitary confinement appreciated perfectly the wrongfulness of what he intended to do.

In a recent case --- Clark v. Arizona, 548 US 735 (2006) --- the U.S. Supreme Court held:

Arizona's Mott rule, allowing admission of testimony of professional psychologist or psychiatrist about a defendant's diminished capacity due to mental disease or defect for its bearing on insanity defense, but precluding use of such evidence to negate mens rea element of a crime, did not violate due process; Arizona was free to chose its standard of legal insanity and place burden of persuasion on defendant claiming incapacity, and rule served to avoid confusion and misunderstanding on part of jurors. U.S.C.A. Const.Amend. 14.

Under Arizona's Mott rule, blessed in 2006 by the Supremes, Loughner's lawyers would be allowed to argue diminished capacity and present expert testimony to support their contention. But, at best, this would probably go only to whether Loughner gets life in prison (solitary confinement?) or the death penalty (lethal injection?).

The Washington Post reported, "[P]rosecutors hope to use the information they have found on Loughner's computer, along with notes seized in his home, to indicate that he wasn't insane and knew right from wrong. They have turned over to the defense the information they obtained from the computer, as well as discs containing about 250 interviews conducted by investigators, according to the newspaper.

Read more:

This guy is weird. But is he crazy? It doesn't look that way to me... not so far.

For more on the insanity defense:

Is the hole in the donut or in this woman's head?

Sarah Palin certainly seems to like her donuts. Witness this recent comment:

She then wrote that "in a recent interview I mentioned analogies that could relate to solutions to our economic challenges, including the difference between a communist government's 'Sputnik' and the private sector's 'Spudnut.'"

Her reference is to a donut shop she spotlighted on Fox News.

Hey, I'm all for free enterprise. And Clinton, too, liked his donuts. But Sputnik and Spudnut in the same sentence?!

Palin went on to say:

"I listen to that Sputnik talk over and over again and I think we don't need another one of those. You know what we need is a Spudnut moment," Palin said. "The Spudnut shop in Richland, Washington, it's a bakery, it's a coffee shop that's so successful, 60-some years, generation to generation, a family-owned business, not looking for government to bail them out, to make their decisions for them. It's just hard-working, patriotic Americans in this shop. We need more Spudnut moments in America."

Sorry, Sarah, but I don't think that America is going to recoup its former dominance in the global economy one donut shop at a time. Nor do I think that we are going to put much of a hole in the 9% unemployment rate one donut shop at a time either.

Try reading a little Thomas Friedman:

Sarah Palin discovers Sputnik

As usual, Palin, commenting on Obama's State of the Union address, got her history bass-ackwards once again.

I wonder if as a little girl she was able to see Sputnik, as well as Russia, from her window.

For those of you too young to remember the reference:

I'm no fan of Sarah's, but this is hitting below the belt

"30 Rock" star calls Sarah Palin "good masturbation material."

On the other hand, you be the judge:

And not ignore female readers of this blog, here's her son-in-law:

This scares me more than Osama

Sarah Palin's Battle Hymn:

In case you have an interest in the real, rather than the bolderized version:

A look back at the arts in pre-Nazi Germany

From "The Week in Germany":

Germany was at the center of world culture in the 1920s. Yet the unprecedented flowering of the arts that took place at the time in Berlin in particular was abruptly arrested by the 1933 rise to power of a Nazi dictatorship that attempted to fill every single nook and cranny of German society - including its cultural output - with its insane fascist ideals.
Cinema's exiles
Sensing a very real threat to their creative freedom, artists and intellectuals repulsed by this rigid new societal straitjacket were among the first to flee the German-speaking world.
While Bertolt Brecht went into self-imposed European exile, Thomas Mann, Marlene Dietrich, Fritz Lang and Billy Wilder went to Hollywood. The Berlin-born Dietrich, already established as an international celebrity by then, helped her fellow entertainers from Germany and Austria, many of whom were Jewish, settle in and seek work in Hollywood. A 2009 PBS documentary series, Cinema's Exiles: From Hitler to Hollywood, highlighted their influence on the American film industry, notably the birth of the Film Noir genre.
Nostalgia redux
The creative vacuum they left behind was initially hard to fill in postwar Germany, which had to rebuild itself from the ruins of violent conflict stone by stone before people had enough spare time and resources to return to such lighthearted pursuits as film or theater.
Beyond the innocent historic Sissi romance series starring a doe-eyed Romy Schneider and a few nostalgic yet corny Heimat movies, West German cinema of the 1950s did not leave much of a mark on the international film scene.
Trying (not) to toe the party line
Meanwhile, in Soviet-occupied East Berlin, the publicly owned DEFA Film studios began producing black-and-white dramas that now stand as testimonials to how far filmmakers could go in a communist dictatorship. Although critiquing the regime directly was not an option, some subtly "controversial" films, such as Rainer Simon's Till Eulenspiegel (1974), became cultural touchstones in the former East Germany.
The savior of German film
Enter Rainer Werner Fassbinder, the Bavarian-born wunderkind of postwar German cinema, an inspired workaholic who made 50 films in 13 years. His untimely death at age 37 in 1982 left a deep gash in the German film industry from which some critics claim it did not fully recover until the turn of the millenium, when a new generation of directors - Tom Tykwer, Fatih Akin, Florian Henckel von Donnersmarck - finally picked up where Fassbinder had left off.
To state this point too stridently, however, would be to deny the genius of Wim Wenders, Werner Herzog, Michael Verhoeven and other German filmmakers who made memorable - and award-winning - movies in the late 20th century.
Tackling tough topics
Verhoeven, perhaps more than any other postwar German director, has taken on the darkest recesses of Germany's Nazi era past. His critically acclaimed films are testimonials to the horrors of war and the Holocaust.
German President Chrisitan Wulff on International Holocaust Remembrance Day (January 27) became the first German head of state to speak at the annual ceremony marking the liberation of Auschwitz. His presence, along with survivors of the Shoah who accompanied him on his trip to Poland, served to underscore Germany's commitment to its historic responsibility.
A man for all movies
Bernd Eichinger's commitment to film, in turn, has served to preserve crucial chapters in his country's past in a manner accessible to widespread international audiences. A prolific producer at the helm of Munich-based Constantin Film, Eichinger died on January 24 at 61 in Los Angeles. Echoing the cinematically obsessed Fassbinder, he once reportedly described himself as "addicted to films".
From Das Boot (1981), to Nowhere in Africa (2001), the 2003 Oscar-winner for best foreign film, to Downfall (2004), for which he received an Oscar nomination as a screenwriter, to The Baader Meinhof Complex (2008), Eichinger is credited with putting German film back on the international map and widely regarded as the most important German producer of his generation.
He is also credited with helping to launch the international careers of German filmmakers like director Wolfgang Peterson and the renowned cinematographer Michael Ballhaus, who worked with Fassbinder. Luckily for them they were not fleeing a repressive dictatorship like their predecessors in the 1930s and '40s when they went to Hollywood. They were simply going west to make movies.
Charting a course for German cinema
Fassbinder was Germany's incomparable postwar cinematic mastermind, a director whose movies have stood the test of time and entered the cannon of classic German cinema.
Eichinger, who also had his hand in a few Hollywood blockbusters, will meanwhile go down in history as the man who helped German film make its mark at a time when many worried it had nowhere left to go.
Karen Carstens
Editor, The Week in Germany