The recent number of articles in the popular press concerning loss of intellect among children exposed to chlorpyrifos is important in the case of this pesticide. Although in-home use of chlorpyrifos was restricted in the U. S in 2000, it is widely used in agriculture, and is a serious risk to health and intellect for people working and living in proximity to fields. Detectable levels of chlorpyrifos detected in New York City children, raises the question of exposure via food.
Across the U. S. we learn that students are doing poorly in school, often blaming the teachers and their unions. Are teachers no longer competent to teach or have children been “dumbed-down” by exposure to this neurotoxin?
The State of California is considering restriction on use, but is prepared for strong opposition from the pesticide and big agricultural industries.
Back in the “Dark Ages” – a mere 50 years ago – when I was a medical student and intern at Wayne State University, I rotated through Children’s Hospital in Detroit. It was staffed by some of the most thoughtful and kind physician/professors I have ever met. I attended a clinic named “FLK” otherwise known as Funny Looking Kid clinic. There we saw children who had abnormal looking faces, abnormal body parts, and, often impaired intelligence. Many of the children required complicated medical care, but I don’t recall much discussion as to why they had these abnormalities that had dramatically cut short their futures and altered the lives of their families.
Realizing you have given birth to a child with birth defects is devastating – not only for the child, but for the family, and for society in general. If the child survives infancy, it means being “different” and having to cope with disability, and with having to learn alternative ways to function. For many families, it means 24/7 care of a child who can never live independently. For society the costs can be enormous – surgery (often multiple), medications, social services, special education, special equipment, then alternative living arrangements, if and when family cannot care for their child, now grown to a non-functional adult.
Although the neurotoxicity of pesticides has been known for decades, recently, several national magazines, have named the pesticide, chlorpyrifos (Dursban/ Lorsban), as an agent causing loss of intelligence, as well as birth defects and structural brain damage.
Dr. James Hamblin’s article in March 2014 issue of The Atlantic, titled “The Toxins that Threaten Our Brains.” listed 12 commonly used chemicals, including chlorpyrifos, which is marketed as Dursban and Lorsban. The exposures described in the Atlantic articles were urban, so we do not know exactly how widespread this epidemic is, especially if we do not include agricultural areas such as in California, Hawaii and the mid-West.
That same month, The Nation published articles by Susan Freinkel “Poisoned Politics” and Lee Fang “Warning Signs” who reported adverse effects from exposure to Dursban and Lorsban.
Dr. Hamblin’s article generously cites Drs. Philip Landrigan of Mt. Sinai in New York City and Philippe Grandjean of Harvard that a “’silent pandemic’ of toxins has been damaging the brains of unborn children.”
Dr. Landrigan chaired a 1998 meeting of the Collegium Ramazzini International Scientific Conference, held in Carpi, Italy. In attendance was Dr. Grandjean, whose research found “Methylmercury as a hazard to brain development.” Dr. Richard Jackson, from the U. S. CDC was also in attendance, as well as U.S. governmental and university members.
At that Collegium Ramazzini International Scientific Conference, on October 25, 1998, I presented definitive data in my paper: “Chlorpyrifos (Dursban) exposure and birth defects: report of 15 incidents, evaluation of 8 cases, theory of action, and medical and social aspects.” This presentation followed my earlier publications beginning in 1994 wherein I reported damage to the unborn from the same pesticide.
The Ramazzini organization sent my paper to the European Journal of Oncology for publication. Since my paper reported birth defects, not cancer, the paper has received little notice, but the attendees, including the EPA, have known of the findings for 16 years.
Currently a new battle is occurring in Hawaii over the use of pesticides, especially by Dow AgroSciences, DuPont Pioneer, BASF Plant Science, and Syngenta on the island of Kauai where giant seed companies develop Genetically Modified Organisms (GMOs) and other specialized seeds. The pesticides used there include alachlor, atrazine, chlorpyrifos, methomyl, metalochlor, permethrin and paraquat. The author, Paul Koberstein from Cascadia Times estimates that annually, more than 2000 pounds of chlorpyrifos are used per acre per year on Kauai, compared to less than 0.025 averages for the U. S. Mainland.
In addition to Hawaii, areas in California include workers and families from the Imperial Valley and other intensive agricultural areas where pesticide use is extensive. Using the Koberstein data, annual use of chlorpyrifos in California is approximately 1500 pounds/ acre.
Neurological Damage: Before and After Birth
Birth defects arise as a result of two mechanisms – damage to a gene, prior to fertilization, or damage to the growing cells of the fetus after life in the womb has begun. Differing from genetic damage, such as occurs in Down syndrome or Trisomy-21, the latter damage results from exposure of the developing fetus to agents called teratogens. For many years Mongolism was the name applied to children with growth delays, similar facial and hand features and intellectual deficits.
Chlorpyrifos is a unique pesticide. It is a combination of an organophosphate and a trichlorinatedpyridinol (TCP.) TCP is not only the feedstock used in the manufacture of chlorpyrifos, but also a contaminant in the product, and a metabolic breakdown product that is known to cause central nervous system abnormalities (hydrocephaly and dilated brain ventricles), and other abnormalities (cleft palate, skull and vertebral abnormalities) in fetuses as reported by Dow Chemical Co.
In March 1995, I was asked to fly to Arkansas to see a child whose mother had been exposed to the pesticide Dursban (chlorpyrifos) early in the pregnancy of her daughter.
Mrs. S had been working in a bank when in mid-March, 1991, she noticed a man spraying the baseboards behind the station where she worked as a teller. She said she asked the man if was okay to be in the area since she was pregnant, and she said the man told her it was “perfectly safe. She said the spraying had occurred around 4 PM, and that she worked at the bank until 6:30 PM, and when she went home that evening she had nausea and a” bit of headache.” She said she retuned to work the next day, felt nausea, but worked most of the day. An electrical fire at the drive-in window followed the pesticide event, and a technician used of a fogger that sprayed a “citrus-like” chemical that was intended to deodorize the smoke odor. Mrs. S. said she worked at the bank until about April of that year, and then worked at a credit union until her daughter was born in September.
When Mrs. S. was about five months pregnant she had an ultrasound, which showed that her baby had enlarged ventricles in her brain. Further examination revealed absence of the septum pellucidum, a central portion of her brain. Mrs. S. had additional follow up at a university center as well as with her own physician that showed normal amniocentesis and normal chromosomes.
Both Mr. & Mrs. S. said that caring for the daughter A. has been a severe financial and emotional drain, sometimes requiring them to be up 72 hours to try to soothe A’s crying. A. had surgery to repair her cleft lip when she was six months old, and repair of her cleft palate and left eyelid when she was a year old.
Both cleft lip and palate can now be repaired (in areas with skilled surgeon, and insurance or other funds) but until they are, the child has difficulty feeding and risks poor nutrition, upper respiratory and lung problems as a result of aspiration of food.
Additional diagnostic procedures indicated that A has a cleft left eye (failure of her eye to fuse during development), and she cannot blink her eye or move the left side of her face.
A was unable to sit up on her own by the time she was a year old, had to have food pureed until she was two, then her parents realized that when A neared her 4th birthday, she could not hear, when they began a program of sign language with the aid of a speech therapist.
A’s brother B. was born two years later, and is well, sleeping thought the night when he was two weeks of age.
I was given a tour of the bank where Ms. S worked by its’ Senior Vice-President, and to minimize stress to A, I examined her in the office and presence of her pediatrician. I also accompanied her parents to their home where I could observe A. at her home.
A was a small-boned child who walked with a wide-based, unsteady gait and who made audible sounds, but no language content. Her head was enlarged with hydrocephaly and a small bruise due to a recent, commonly occurring fall.
Her abnormalities included the following, and were characteristic of findings in other children:
low-set, tapering ears, wide-spaced nipples, and frequent infections. This litany is not to horrify readers, but to bring to attention the burdens imposed upon this child, her parents, and society as a whole. I evaluated seven more children, two families each having two children with similar, but more severe medical conditions.
With the exception of child #1, the seven children were profoundly retarded, were diapered, could not speak, and required feeding.
I first met C & D in 1996, along with their parents and handsome, healthy older brother, at their attractive home on the West Coast. Both D (a girl) and C (a boy) were lying flat, diapered, mouths open, fists clenched, staring into space, and being fed by bottle. Even today, looking at the photographs reminds me what an enormous burden was dealt to that family.
Ultimately I evaluated eight children, and identified seven more, reported by Dow Chemical Co., the manufacturer, to EPA on November 2, 1994, with reporting delays of as long as seven years from when the corporation first learned of them. I obtained the reports via a Freedom of Information request (FOI) from EPA. The reports were labeled with the revealing name: “DERBI” – or – “Dow Elanco Research Business Index.”
When I saw seven more children, all of who looked like siblings, (much as Trisomy-21 or Down Syndrome children do) it became clear to me, that the cause was linked to Dursban, the pre-natal exposure common to each.
Among the Dursban-exposed children, all 8 had both brain and palate abnormalities, seven had widespread nipples and growth retardation, six had low vision or blindness and six had genital abnormalities, five had brain atrophy and external ear abnormalities, four children had absence of the corpus collosum that is the critical connection between the two hemispheres of the brain. Chromosomal studies were normal in all 8 families. All families reported stress and enormous financial burden to care for their children.
In addition to the children with birth defects, I also evaluated a number of families and a group of adults who had been exposed at their work site. Of the workers, all 12 complained of headache, and three of dizziness. Eight had findings of central nervous system damage, and six had peripheral nervous system damage. The patients reported upper respiratory and chest symptoms, as well as nausea, vomiting, diarrhea, and four had incontinence. The families also reported abnormalities and deaths in their household pets.
In February 1996, my deposition in the first case was taken by three groups of attorneys representing the defendants, two principally defending Dow Elanco. I was questioned for three 8-hour days. Ultimately a list of 565 exhibits was accumulated that included over 10,000 pages of materials that I supplied and relied upon for my opinion. These materials included Dow documents and correspondence, EPA documents, legal depositions, basic embryology, biochemistry and toxicology of chlorpyrifos, medical records of other exposed children, patents, books, articles, etc, etc.
Chlorpyrifos was designed to be neurotoxic in action. It is an interesting pesticide, in that it has not only an organophosphate portion, but also it has three chlorine atoms attached to a pyridinol ring. This ring is trichloropyridinol (TCP), a significant hazard, because it is fat-soluble, and persistent, up to 18 years as claimed by Dow Chemical Co. TCP also forms the body of trichlophenoxyacetic acid, part of Agent Orange, also linked to birth defects and cancer. In a war that ended in 1975, Agent Orange continues as a risk to the Vietnamese, and to military troops that were stationed there.
According to multiple Dow documents, TCP is the feedstock for production of chlopryrifos, a contaminant in the product, and a metabolic breakdown product. TCP has been demonstrated to cause central nervous system anomalies (hydrocephaly and dilated brain ventricles) as well as cleft palate, skull and vertebral abnormalities in the fetus at doses nontoxic to the mother, similar to the defects seen in affected children.
That TCP caused birth defects was known by Dow in 1987, but not reported to EPA until five years later in 1992. TCP is used to manufacture chlorpyrifos, and as such, comes under regulation of Section 8(e) of the Toxic Substances Control Act (TSCA), rather than the Federal Insecticide, Fungicide and Rodenticide Control Act (FIFRA.) Though there was regulatory difference, TSCA states very clearly “any person who manufactures, processes or distributed in commerce a chemical substance or mixture, or who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injure to heath or the environment, shall immediately inform the Administrator of such information. From 1976 to 1982, I was a member of a 16 person Advisory Committee to the EPA for TSCA, Chairman of the Risk-Benefit Assessment Group from 1977 to 1979, and a member of the Carcinogen Policy Sub-group from 1977 to 1981. It was clear that risks and benefits do no accrue to the same party. In the case of chlorpyrifos, the risks are to the unaware public, and the benefits to the corporation.
The Legal System is Not the Same as the Justice System
Bernard P. Whetstone was a well-established attorney who handled the initial birth defects case in Little Rock, Arkansas, and was aware of another case in that state. Mr. Whetstone was a “Southern Gentleman” with a soft drawl who had earned both a bachelor and doctorate of jurisprudence, and started practice in 1934. In 1995, he was worked with Davidson and Associates until he retired in 1999 at age 86. Mr. Whetstone died in 2001.
I was required to appear In Court in Little Rock, where Judge Eisley ruled that I was not qualified. Hard to believe that 10,000 pages of documents is not adequate, but that opinion was softened because he ruled that all the plaintiff’s experts were not qualified. Another physician/ toxicology expert and I evaluated additional patients (adults) who developed multiple adverse effects, including central nervous system damage, so Dow, employing the Eisley decision, argued successfully in other court jurisdictions that we were not qualified to give an opinion.
The main Dow law firm was Barnes and Thornburg from Indianapolis, where DowElanco, the co-manufacturer Eli Lilly is located. Eli Lilly is a manufacturer of both pharmaceuticals and pesticides. Barnes & Thornburg has over 500 attorneys in 12 cities and appeared to be very well staffed and funded.
A recent news release noted that William W. Wales, who spent more than 30 years in the legal department of The Dow Chemical Company and Dow AgroSciences LLC, had joined Barnes & Thornburg LLP’s Indianapolis office as a partner in the firm’s litigation and corporate departments. “Bill’s depth and breadth of experience in a variety of matters will be a tremendous asset to many of our clients who are dealing with similar issues,” said Joseph G. Eaton, Vice Chair of the firm’s Litigation Department and Co-Chair of the Toxic Tort Practice Group. Joseph Eaton is one of the attorneys who took my extensive deposition. They were the most aggressive law firm I had ever encountered, and I have testified in more than 700 depositions and/or court appearances.
In defense of their product, the Dow attorneys argued that there were no reports of levels of pesticides used or existing levels – a questionable tactic, since the corporation has never suggested or requested that such records be obtained.
Although the EPA stopped home use of Dursban in 2000, Lorsban is widely used in agriculture, on ornamentals, and places where women, the unborn and children are exposed. For many, this exposure is without their knowledge or consent. How is this allowed to happen?
Is it successful advertising, recommendations from country and state agricultural agents, an inept or politically adept EPA such as when on September 11, 2001, the then administrator of the U.S. Environmental Protection Agency and former governor of New Jersey Christie Whitman said on September 13, 2001, “EPA is greatly relieved to have learned that there appears to be no significant levels of asbestos dust in the air in New York City.” A week
Whitman said: “Given the scope of the tragedy from last week, I am glad to reassure the people of New York and Washington, DC that their air is safe to breathe and their water is safe to drink.”
In 2008, the U. S. EPA named Dow as an Energy Star Partner of the Year for excellence in energy management and reductions in greenhouse gas emissions.
Dow’s fleet of skilled lawyers have managed to save Dow from liability, when they achieved a reversal of a $925 million judgment for the contamination of the area around Rocky Flats, the Colorado facility that produced plutonium triggers for hydrogen bombs. And, a lawsuit filed by Vietnamese, damaged by Agent Orange against Dow and Monsanto was dismissed.
Dow is a multinational corporation and the third largest chemical manufacturer in the world, with earnings more than $57 billion in 2013. In addition to the manufacture of insecticides, herbicides, fungicides, and genetically modified seeds, Dow also manufactures multiple plastics, polystyrene, polyurethane, synthetic rubber, biphenyl-A as well as many other chemicals.
What are the chances that the use of Lorsban will be curtailed in the agricultural areas of Hawaii, California and elsewhere? Given what we know of the financial strength of the Dow Corporation, the weakness of the EPA, and our paid-for Congress, it does not look promising.
The Burden of Brain Damage
If the top corporate officials were required to care for one of these severely brain-damaged children for a week, would it change their minds about the ethics of manufacturing chlorpyrifos and corporate profits?
There is not a teacher who can teach brain-damaged children to read and do math, which raises the larger question being proposed: are children’s lack of learning due to poor teachers, or to subtle brain damage? If children are being damaged to various degrees, profoundly in the situation of the 15 children sited in my research, to “mild” learning and/or behavioral problems, ranging from decreased IQ, Asperbergers, hyperactivity, autism, etc., how much is attributable to exposure to pesticides such as Dursban/ Lorsban? If we blame poor teaching, and teachers’ unions, but don’t stop the use of brain-damaging pesticides, where does that leave our U.S. society as a source of creativity and intellect in this world?
Note: All of my chlorpyrifos/ Dursban documents have been accepted and will be archived at the National Library of Medicine, along with my other scientific, medical and legal research.
Janette D. Sherman, M. D. is the author of Life’s Delicate Balance: Causes and Prevention of Breast Cancer and Chemical Exposure and Disease, and is a specialist in internal medicine and toxicology. She edited the book Chernobyl: Consequences of the Catastrophe for People and Nature, written by A. V. Yablokov, V. B., Nesterenko and A. V. Nesterenko, published by the New York Academy of Sciences in 2009. Her primary interest is the prevention of illness through public education. She can be reached at: firstname.lastname@example.org www.janettesherman.com
The ongoing saga between Argentina and the vulture funds continues after a U.S court rejects Argentina’s appeal to allow the country to pay its creditors.
A United States appeals court has dismissed the Argentine appeal of an order directing Bank of New York Mellon to hold on to US$539 million dollars that Argentina deposited to pay its bondholders.
The appeals court said that it lacked jurisdiction over the appeal as an earlier ruling by U.S. District Judge Thomas Griesa was a clarification rather than modification of his earlier rulings on the matter.
In Griesa’s original ruling, the judge ruled that Argentina deposit with Bank of New York Mellon to pay bondholders who had renegotiated their debt with Argentina was “illegal,” and ordered the bank to hold on to the funds.
No progress has been made in talks between the country and hedge-fund holdouts, led by Elliott Management and Aurelius Capital Management.
Griesa has also scheduled another hearing on December 2 to weigh arguments over whether Citigroup Inc (C.N) should be allowed to process an expected interest payment by Argentina on bonds issued under its local laws following its 2002 default.
The hearing comes less than a month before an interest payment by Argentina on the bonds is due on December 31.
The hold outs, commonly referred to as vulture funds, had previously rejected all Argentina’s past restructuring offers on the country’s debt, most of which was incurred under Argentina’s military dictatorships and neoliberal governments. Ninety-two percent of creditors accepted the offer, and Argentina has been taking steps to continue to pay them back in spite of Judge Griesa’s ruling.
American aircraft-manufacturing giant Boeing has ended a 35-year break in business with Iran, supplying the country’s national flag carrier with a cargo of aircraft-related items.
But the sale did not include spare parts for Iranian aircraft as promised by Washington following last year’s nuclear deal between Iran and six world powers.
“During the third quarter of 2014, we sold aircraft manuals, drawings, and navigation charts and data to Iran Air,” Boeing said in its quarterly report on Wednesday.
This is the first time that the American company has sold safety items to Iran Air since the 1979 Islamic Revolution.
The business deal brought Boeing USD 120,000 in revenue, the report added.
The sales came after the US Treasury Department issued a license in April that allowed Boeing to provide “spare parts that are for safety purposes” to Iran for a “limited period of time.”
Boeing said the plane parts were purchased “consistent with guidance from the US government in connection with ongoing negotiations.”
Boeing, which is still banned from selling new aircraft to the Islamic Republic, said that it could sell more plane parts to Iran Air in the future.
“We may engage in additional sales pursuant to this license,” it added.
In February, two major US aerospace manufacturers, Boeing and General Electric, applied for export licenses in order to sell airliner parts to Iran following an interim nuclear agreement between Tehran and the P5+1 group of world powers in November 2013.
Under the deal dubbed the Geneva Joint Plan of Action, the six countries – the US, France, Britain, Russia, China and Germany – undertook to provide Iran with some sanctions relief in exchange for Tehran agreeing to limit certain aspects of its nuclear activities.
In the past decade, Iran has witnessed several major air accidents blamed on its aging aircraft due to the US sanctions that prevent Iran from buying aircraft spare parts.
Across the political and media elite in Australia, a silence has descended on the memory of the great, reforming prime minister Gough Whitlam, who has died. His achievements are recognised, if grudgingly, his mistakes noted in false sorrow. But a critical reason for his extraordinary political demise will, they hope, be buried with him.
Australia briefly became an independent state during the Whitlam years, 1972-75. An American commentator wrote that no country had “reversed its posture in international affairs so totally without going through a domestic revolution”. Whitlam ended his nation’s colonial servility. He abolished Royal patronage, moved Australia towards the Non-Aligned Movement, supported “zones of peace” and opposed nuclear weapons testing.
Although not regarded as on the left of the Labor Party, Whitlam was a maverick social democrat of principle, pride and propriety. He believed that a foreign power should not control his country’s resources and dictate its economic and foreign policies. He proposed to “buy back the farm”. In drafting the first Aboriginal lands rights legislation, his government raised the ghost of the greatest land grab in human history, Britain’s colonisation of Australia, and the question of who owned the island-continent’s vast natural wealth.
Latin Americans will recognise the audacity and danger of this “breaking free” in a country whose establishment was welded to great, external power. Australians had served every British imperial adventure since the Boxer rebellion was crushed in China. In the 1960s, Australia pleaded to join the US in its invasion of Vietnam, then provided “black teams” to be run by the CIA. US diplomatic cables published last year by WikiLeaks disclose the names of leading figures in both main parties, including a future prime minister and foreign minister, as Washington’s informants during the Whitlam years.
Whitlam knew the risk he was taking. The day after his election, he ordered that his staff should not be “vetted or harassed” by the Australian security organisation, ASIO – then, as now, tied to Anglo-American intelligence. When his ministers publicly condemned the US bombing of Vietnam as “corrupt and barbaric”, a CIA station officer in Saigon said: “We were told the Australians might as well be regarded as North Vietnamese collaborators.”
Whitlam demanded to know if and why the CIA was running a spy base at Pine Gap near Alice Springs, a giant vacuum cleaner which, as Edward Snowden revealed recently, allows the US to spy on everyone. “Try to screw us or bounce us,” the prime minister warned the US ambassador, “[and Pine Gap] will become a matter of contention”.
Victor Marchetti, the CIA officer who had helped set up Pine Gap, later told me, “This threat to close Pine Gap caused apoplexy in the White House. … a kind of Chile [coup] was set in motion.”
Pine Gap’s top-secret messages were de-coded by a CIA contractor, TRW. One of the de-coders was Christopher Boyce, a young man troubled by the “deception and betrayal of an ally”. Boyce revealed that the CIA had infiltrated the Australian political and trade union elite and referred to the Governor-General of Australia, Sir John Kerr, as “our man Kerr”.
Kerr was not only the Queen’s man, he had long-standing ties to Anglo-American intelligence. He was an enthusiastic member of the Australian Association for Cultural Freedom, described by Jonathan Kwitny of the Wall Street Journal in his book, ‘The Crimes of Patriots‘, as, “an elite, invitation-only group… exposed in Congress as being founded, funded and generally run by the CIA”. The CIA “paid for Kerr’s travel, built his prestige… Kerr continued to go to the CIA for money”.
When Whitlam was re-elected for a second term, in 1974, the White House sent Marshall Green to Canberra as ambassador. Green was an imperious, sinister figure who worked in the shadows of America’s “deep state”. Known as the “coupmaster”, he had played a central role in the 1965 coup against President Sukarno in Indonesia – which cost up to a million lives. One of his first speeches in Australia was to the Australian Institute of Directors – described by an alarmed member of the audience as “an incitement to the country’s business leaders to rise against the government”.
The Americans and British worked together. In 1975, Whitlam discovered that Britain’s MI6 was operating against his government. “The Brits were actually de-coding secret messages coming into my foreign affairs office,” he said later. One of his ministers, Clyde Cameron, told me, “We knew MI6 was bugging Cabinet meetings for the Americans.” In the 1980s, senior CIA officers revealed that the “Whitlam problem” had been discussed “with urgency” by the CIA’s director, William Colby, and the head of MI6, Sir Maurice Oldfield. A deputy director of the CIA said: “Kerr did what he was told to do.”
On 10 November, 1975, Whitlam was shown a top secret telex message sourced to Theodore Shackley, the notorious head of the CIA’s East Asia Division, who had helped run the coup against Salvador Allende in Chile two years earlier.
Shackley’s message was read to Whitlam. It said that the prime minister of Australia was a security risk in his own country. The day before, Kerr had visited the headquarters of the Defence Signals Directorate, Australia’s NSA where he was briefed on the “security crisis”.
On 11 November – the day Whitlam was to inform Parliament about the secret CIA presence in Australia – he was summoned by Kerr. Invoking archaic vice-regal “reserve powers”, Kerr sacked the democratically elected prime minister. The “Whitlam problem” was solved, and Australian politics never recovered, nor the nation its true independence.
In honor of Free Speech Week, let’s take a moment to acknowledge the obvious. Free speech is incredibly, almost unbelievably important, especially in a democracy.
It can also be unpleasant, uncomfortable and even downright offensive. Which can make defending it rather awkward at times.
Let’s take a trip back to Boston during this week in 1923:
Beantown’s Democratic machine boss and chief executive is the flamboyant Mayor James Michael Curley, a felon, rake, and hometown hero. As the Boston Globe put it, he “served four terms as mayor, four terms in Congress, one term as governor, and two terms in jail.”
Another popular political force in those days was the Ku Klux Klan. At its height in the 1920s, it effectively ran several states and would stage rallies seeking support in the rapidly urbanizing northern cities, including Boston, where racial and religious tensions were taut.
Mayor Curley—a hero among the city’s Irish-American working class—saw a campaign issue. On October 23, 1923, while calling himself a “stout stickler for freedom of meeting, speech and press,” he banned peaceful Klan meetings in Boston. In response to a letter from the local ACLU condemning the KKK but strongly defending the group’s right to speak and gather, Curley said, “The Klan cannot expect to shelter itself behind the rights it denies and the guaranties it repudiates.”
The argument has some appeal. Why should we tolerate intolerance, especially by a group as objectionable as the Klan? Consider, however, another move against unpopular speech by the good mayor. In 1925, Mayor Curley banned Margaret Sanger—the birth control activist and founder of Planned Parenthood—from speaking in Boston. In doing so, he lashed out against the ACLU and explicitly linked the Sanger ban to his moves against the KKK.
Having banned the Klan, silencing Sanger was just another step down that road. When you put some lawful speech outside the protection of the First Amendment because it is unpopular or even offensive, speech you like will invariably be lumped in as well. The KKK of the 1920s was a horrific thing. But Mayor Curley proved that progressive social reformers could be painted as equally horrific and their speech just as deserving of suppression.
Fortunately, despite the efforts of Curley and many like him, free speech protections grew muscle in the decades to follow. And support for contraception and similar social reforms started to win in the marketplace of ideas, while the Klan ate dust in the bin of history.
The ACLU continues to support free speech for all precisely because of these historical experiences. We understand that our position will allow some speech that is not just unpopular, but possibly deplorable. But our defense of speech regardless of speaker comes down to a simple truth: once you give the government the ability to silence unpopular speech, no one is safe. Once you start playing favorites with the protections of the First Amendment, you put yourself at the mercy of shifting political whims.
Free speech only for some translates directly into free speech for none.
Just in time for Halloween, a real zombie.
Although the Obama Administration cancelled the Yucca Mountain project for disposing high-level radioactive waste (uranium fuel rods) in 2009, the scheme stays amazingly undead.
Last Thursday, the Nuclear Regulatory Commission issued the third in a series of reports in which it declared that the deep, engineered cavern inside the mountain — 90 miles from Las Vegas, Nevada — meet the commission’s ever-changing (Eric Pianin, “Rules changed for Nevada nuclear waste site plan,” Wash. Post, Dec. 12, 2001) requirements.
Still pending are two more reports and a final NRC ruling on the site’s suitability. Actual operation of the dump also requires approval from the Environmental Protection Agency and the departments of Transportation and Energy (DOE). Of course, lawsuits by the State of Nevada and dozens of environmental groups would follow a decision to start burying waste.
In spite of 70 years of head scratching, science and industry have not found a cheap way to “dispose” of high-level radioactive waste. In 2008, the plan was estimated to cost at least $90 billion.
The DOE’s 1999 draft environmental impact statement for Yucca, says that leaving the wastes at 72 US reactor sites in 39 states is just as safe as moving it thousands of miles toward Yucca Mt. — as long as it is repackaged every 100 years. There is no need to rush the opening a dumpsite, except that reactor operators want to free-up storage space for freshly produced waste so they can keep running old reactors.
Yucca Mt. Project Cancelled for Hundreds of Reasons
While Republicans from nuclear-heavy states are pushing to revive the Yucca project and hoping for a November take-over of the Senate, Majority Leader Harry Reid, D-Nev., broadcasts the science-based disqualifiers that prove Yucca unsuitable. Among them are fast flowing water inside the mountain, earthquake faults, lava flows, and the risk of exploding waste canisters — like the one that burst and wrecked the Energy Department’s Waste Isolation Pilot Project in New Mexico last February. Joonhong Ahn, an engineering professor at the U. of Calif., Berkeley, said in an e-mail to ScienceInsider.com, “… there are still numerous hurdles ahead.”
Indeed, the Government Accounting Office concluded in 2001 that 293 unresolved scientific and engineering problems hinder the plan. (“GAO Challenges Plans for Storage of Nuclear Waste,” Wash. Post, Nov. 30, 2001) Responding to the new report, Nevada state officials made the same point. “The NRC licensing board has admitted more than 200 Nevada contentions challenging the safety and environmental impacts of the proposed repository, and Nevada is prepared to aggressively prosecute these challenges. It is not apparent that the [NRC report] specifically addressed these and other safety contentions,” said Bob Halstead, Executive Director of Nevada’s Agency for Nuclear Projects, in a prepared statement.
“For the NRC staff to publically release just this one volume of the 5-volume Safety Evaluation Report outside the proper context of an ongoing licensing proceeding, and in the absence of a complete SER, is unprecedented,” Halsted said. “It creates a false impression that the safety review has been completed. It is difficult to see what reason there could be for such a release except to provide political support and encouragement for Yucca Mountain supporters in Congress and elsewhere.”
This false impression was spectacularly exaggerated by Rep. John Shimkus, R-Mich., who told the New York Times Oct. 17, “[N]uclear waste stored under that mountain … will be safe and secure for at least a million years.”
Nuclear Waste Production is Kept Alive by Yucca Supporters
Yucca Mt. wouldn’t begin to address the country’s vast nuclear waste problem. There already are about 70,000 tons of it stored at reactor sites. This stockpile would fill Yucca to capacity and force the start of a search for Dump No. 2. Waste that must be containerized for a million years is the “animated corpse” that will forever haunt our clean, cheap too-safe-to-meter nuclear power complex.
The Yucca Mt. “mobile Chernobyl” idea — and alternate plans for regional “interim” dumps — also explodes the risks of radiation accidents contaminating waste handlers and the people along transport routes. The DOE’s planning maps show the waste passing through 40 states, 40 Indian Reservations and 100 major cities. In January 2008, former state transportation analyst Fred Dilger caused alarm when he told a Hillary Clinton campaign rally that if waste trains go through Las Vegas, “All of the casinos on the west side of Las Vegas Boulevard would be bathed in gamma radiation.”
The shipments, using as-yet-untested waste casks, would expose between 138 and 161 million Americans to the risks of dangerous levels of radiation and to the consequences of inevitable truck, train and barge accidents. Even the project’s Final Environmental Impact Statement predicts between 150 and 250 rail or truck crashes over the plan’s 25-year span — about 10 crashes every year for 25 years.
That’s an undying prospect scary enough for a million Halloweens.
In New York City, the police are currently investigating hate crimes which occurred when the Israeli basketball team played in the city. At an arena where the team played, a Muslim woman was assaulted for wearing hijab and says she wants justice.
Outside of Brooklyn Borough Hall in New York City, friends and supporters of Nerden Mohsen Kiswani gathered to speak out about the recent incident, and say they want justice for what they call a “cowardly hate crime” perpetrated against her at Barclays Center earlier this month.
Kiswani was attacked by a group of Israeli men as she watched the basketball game. She was targeted because she was wearing hijab. After she was attacked, the police seemed under-interested, and let her attackers escape. Amin Hussein, a Palestinian-American lawyer, said that the atmosphere inside of Barclays Center, with Jewish fans gathering to support the Israeli team, was very frightening.
Kiswani’s attorney, Lamis Deek, pointed out that the ring-leader of the group that assaulted her was Leonard Petlakh, a well known Zionist activist and college professor. At the press conference, it was pointed out that after the incident Leonard Petlakh claimed Palestine protesters had assaulted him, and his allegations were widely circulated in the press. However, the New York City Hate Crimes Task Force determined after investigation that no hate crimes against Petlakh had taken place.
Basketball fans joined with human rights supporters in several U.S. towns to call for a boycott of Israeli sports teams, and to challenge what they call a ‘public relations tour’ by Israeli teams in the U.S. They gathered outside and inside the exhibition games to try to bring attention to the ongoing Israeli military occupation of Palestine.
In Cleveland, Ohio, dozens of protesters chanted and held signs outside the exhibition game last week, and a similar protest took place on Friday in Portland, Oregon.
According to organizers, “These teams represent the injustice and occupation of Palestine. While this team travels freely, Palestinian athletes are denied that same right.
“The Israeli basketball tour is a PR campaign to cover up the horrific massacre of the past summer that killed over 2,100 people in Gaza, including over 500 children. In some cities the games are being used as a fundraiser for the Israeli military. That is the same military that continues to occupy Palestine, kill indiscriminately, and deny Palestinian citizens the right to live freely and with justice.
“The image of the 4 young boys killed by Israeli bombs while playing soccer on the beach is Gaza is forever engraved in our hearts. We won’t let this tour be a smokescreen over the ongoing horror of the occupation of Palestine.
The groups protesting the games say that they are calling for a boycott of Israeli sports teams and events to call for freedom, justice and human dignity for the Palestinian people, who are living under an Israeli military occupation.
In Cleveland, the exhibition game was accompanied by a fundraiser for the Israeli military – the only foreign military that is allowed to hold fundraisers in the U.S., and accept direct contributions from U.S. citizens.
The Cleveland basketball team, the Cavaliers, recently hired as its head coach David Blatt, who came to the job after serving as head coach of Maccabi Tel Aviv (the team featured in the exhibition game). Blatt called the recent Israeli invasion of Gaza that killed over 2,100 people, including 500 children, “Israel’s most justified war”.
The Ohio basketball boycott action follows an ongoing controversy at the University of Illinois, in which a professor who expressed support for Palestinian equal rights on Twitter was denied employment. Recent releases of documents related to the case show a close relationship that could constitute a conflict of interest between members of the university and Zionist leaders in the community. The documents also revealed that the University President lied about the sequence of events in the case.
We’ve filed our reply brief in the appeal of Smith v. Obama, our case challenging the NSA’s mass telephone records collection on behalf of Idaho nurse Anna Smith. The case will be argued before the Ninth Circuit Court of Appeal on December 8, 2014 in Seattle, and the public is welcome to attend.
Another case challenging the telephone records program, Klayman v. Obama, will be argued on November 4 in Washington DC before the DC Circuit and EFF will be participating as an amicus.
The Smith v. Obama case records are all here: but we thought we’d highlight three of the more outrageous arguments the government made, and our responses debunking them.
Mrs. Smith doesn’t think her phone records are any of the government’s business. That’s why, only a few days after the Guardian published a secret order from the Foreign Intelligence Surveillance Court revealing the government’s bulk collection of the telephone records of millions of innocent Americans, she sued. Smith v. Obama challenges the government’s collection of call detail records under Section 215 of the PATRIOT Act. Mrs. Smith is represented by her husband, attorney Peter Smith, along with the ACLU, EFF, and Idaho State Rep. Luke Malek.
The district court said it felt bound to dismiss her claims because of a 1979 Supreme Court case, Smith v. Maryland. That case involved the collection of the phone numbers dialed by a criminal suspect over the course of three days. It’s one of the cornerstones of the so-called “third party doctrine,” the idea that people have no expectation of privacy in information they entrust to others—and it’s outdated to say the least.
The centerpiece of Mrs. Smith’s case is the issue of whether the government’s collection of our telephone records in bulk, and retention of those records for five years, triggers the Fourth Amendment’s warrant requirement. The warrant requirement applies if there is a legitimate and reasonable expectation of privacy in those records. And if the warrant requirement applies, the collection is unconstitutional, since there is no warrant (everyone agrees that the secret FISA Court rulings allowing the bulk collection under Section 215 of the Patriot Act are NOT warrants).
We argue that there is a legitimate and reasonable expectation of privacy violated by the bulk collection of telephone records, because unlike the narrow situation the Supreme Court considered in 1979, they can reveal an incredible amount of sensitive information. For example, in one short-term study of only a few months of telephony metadata from 546 people, researchers at Stanford were able to identify one plausible inference of a subject obtaining an abortion; one subject with a heart condition; one with multiple sclerosis; and the owner of a specific brand of firearm.The government wants the court to simply ignore these differences. Alternately, the government argues that even if there is an expectation of privacy, it is so small compared to the government’s interest that the warrant requirement can be ignored, under something called the “special needs” test (more on that below).
But, as we emphasize our reply brief, this is wrong, in part because we are living in what member of the President’s Review Group Professor Peter Swire calls the “Golden Age of Surveillance.” As we argue: “technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated.”
The Government’s Arguments
So with that background, let’s look at three of the most troubling claims the government makes.
Call Detail Records Don’t Actually Identify People
The government still claims with a straight face that call detail records don’t reveal private information, because they “do not include information about the identities of individuals,” including “the name, address, [or] financial information” of any telephone subscribers.
That’s technically true, of course, but who cares? It’s not like this prevents the government from identifying you in less than a millisecond after it gets your telephone number. Last time we checked, the government did have access to, say, telephone books and the many public online services that can do reverse number lookup. That’s why we point out that: “phone numbers are every bit as identifying as names. Indeed, they are more so: while many people in the country may share the same name, no two phone subscribers share the same number.”
It’s pretty ridiculous for the government to continue to try to convince the court that the absence of the names in calling records represents any real privacy protection for the millions of Americans whose records are collected. It plainly does not.
We Have to Collect Everything for the Program to Work. But We’re Not Collecting Everything.
The government tries to challenge Mrs. Smith’s standing to sue by repeatedly alleging that the call detail records “program has never encompassed all, or even virtually all, call records and does not do so today.” It claims that the case should be dismissed because Mrs. Smith cannot immediately “prove” that her records were included. Of course, that’s not how litigation works. Mrs. Smith has good reason to believe that her records have been included—the government’s own public statements give her good reason. The district court properly rejected this argument, but the government continues to press it on appeal.
The government also seems to be talking out of both sides of its mouth here, since, as we note in our brief:“In explaining the program to Congress and the public…the government has emphasized not only that the program is comprehensive, but that this comprehensiveness is the key to its utility.”
In fact, Robert Litt, General Counsel of the Office of the Director of National Intelligence told Congress: “In order to find the needle that matched up against that number, we needed the haystack, right. That’s what the premise is in this case.” And NSA Deputy Director John Inglis defended the program by saying: “If you’re looking for a needle in the haystack you need the haystack. So you wouldn’t want to check a database that only has one third of the data, and say there’s a one third chance that I know about a terrorist plot, there’s a two thirds chance I missed it because I don’t have that data.”
So to get the case dismissed they want to convince the court that they aren’t really collecting “virtually all” of the telephone records, but their public justifications rely on the fact that they are. So either they are collecting Mrs. Smith’s records, along with every other Verizon Wireless customer—Verizon is the second largest wireless service in the U.S. after all—or they are not very good at meeting their own stated goals. Which is it, government?
And that goes right to the heart of the government’s next argument:
Bulk Telephone Records Collection Isn’t Necessary to Protect Us—But Is Still Allowed Under the “Special-Needs Doctrine”
The government’s fallback argument is that even if the call detail records triggered the Fourth Amendment, a warrant is still not required under a narrow legal precedent called the “special-needs doctrine.” It allows warrantless searches of a few small categories of people who have a reduced privacy expectation, like students in schools or employees who handle dangerous equipment. It also only applies when compliance with probable-cause and warrant requirements would be “impracticable” and the government’s primary goals are not law enforcement.
The first problem here is that the millions of ordinary Americans affected by the government’s bulk collection do not have a reduced expectation of privacy in the records of their telephone calls. The privacy interests here are great, since with a trail of telephone records, the government can learn extremely sensitive information.
The second problem is that no less than the White House itself has said that the government can accomplish its goals without bulk telephone records collection. This has been confirmed by the President’s two hand-picked panels as well as several Congressmembers who have seen the intelligence information. As we point out in our reply brief, the best the government can say about the program is that it “enhances and expedites” certain techniques it uses in its investigations. So getting a warrant isn’t impracticable, it’s just, at most, inconvenient. But as we point out: “If efficiency alone were determinative, the Fourth Amendment’s warrant requirement would have no force at all.”
The special-needs argument is especially concerning because if the courts were to accept it, the special-needs doctrine could become an exception that swallows the Fourth Amendment’s rule against general searches. It could, de facto, create a national security exception to the Constitutional rights enjoyed by ordinary, nonsuspect Americans, something the founders plainly did not do when they created this country in the midst of a national security crisis.
We expect an interesting argument on December 8.
A top commander for the Alaska National Guard was recommended for “other than honorable” discharge earlier this year following an investigation that found he allowed recruiters to sexually assault and harass women.
Lt. Col. Joseph Lawendowski failed to act on multiple complaints of serious misconduct, including rape, against four noncommissioned officers under his command, according to an Army investigation.
The Anchorage Press obtained a copy of the Army Regulation 15-6 report that found Lawendowski, a former pornography company owner and co-founder of an “end times” fundamentalist group, violated the National Guard code of conduct on multiple occasions.
The 46-year-old Lawendowski, who joined the Alaska National Guard in 2003, promoted steroid use by recruiters, used government vehicles for strip club outings, showed up drunk to a sled dog race sponsored by the service, and possibly used government-issued credit cards for improper purchases.
The March 3 report recommended a separate investigation into his possible misuse of funds, including purchases of plane tickets to Dubai and Sweden, items at a luxury children’s store in Paris, and $1,500 and $2,000 bar tabs in Anchorage and Juneau, the newspaper reported.
The report found Lawendowski created a workplace climate of fear and intimidation by allowing four NCOs – identified as Command Sgt. Maj. Clinton Brown, Master Sgt. Jarrett Carson, Master Sgt. John Nieves, and Sgt. 1rst Class Shannon Tallant – to retaliate against soldiers who filed complaints and to feel above the law.
Three of those NCOs – Carson, Nieves, and Tallant – were known to National Guard members as the “Three-Headed Monster” due to their widely known misconduct and abnormally large size, and sworn statements show they had a motto: “What happens in recruiting, stays in recruiting.”
The report found Tallant fraternized with his direct supervisor, Brown, who was a passenger when the recruiter was arrested for drunken driving in March 2011, and investigators found their relationship allowed Tallant to “continue to use his rank and position to abuse junior soldiers as well as prey on young women.”
The recruiters boasted of their close relationships with superior officers, including Maj. Gen. Thomas Katkus, who led the Alaska National Guard until he was forced to resign last month by Republican Gov. Sean Parnell, who took over when former Gov. Sarah Palin stepped down in 2009.
Brigadier Gen. Catherine Jorgensen, the Chief of Staff for the Alaska Army National Guard, was fired earlier this month by the acting commander of the Alaska National Guard but rehired the next day at Parnell’s insistence.
The National Guard Bureau’s Office of Complex Investigations strongly criticized the Alaska National Guard leadership, saying the service mishandled sexual assault cases and widespread unethical behavior by officers.
The OCI report showed Lawendowski had been the subject of multiple criminal investigations for weapons smuggling, rape, and drug trafficking – but none of those criminal investigations resulted in prosecution “due to jurisdictional issues or lack of evidence,” the newspaper reported.
Lawendowski, who formed a corporation — Kodiak Entertainment Group, Inc. – that operated at least seven pornographic websites and then the Christian fundamentalist Berean Watchmen organization, reported directly to Katkus, the OCI report found.
This deviated from the normal chain of command, the newspaper reported, and investigators found that other National Guard members knew Lawendowski was friends and neighbors with Katkus.
Lawendowski was named Deputy Chief of Staff for Operations for Operations and Training in June 2012, but head chaplain Lt. Col. Rick Koch and at least five other active or retired officers have begged Parnell’s office for about a year and a half to investigate him and his associates.
They provided the governor’s office with detailed allegations about fraud and the cover-up of sexual assaults, the newspaper reported.
The chaplain told Parnell’s chief of staff that Lawendowski had improperly spent more than $200,000 and led a command with known ties to illegal drug sales and many sexual assaults – and he said Katkus knew about the allegations.
“As one officer put it, ‘We are now putting criminals in our senior positions,’” Koch said in an email.