Civil Liberties

Groups push for federal immigration reform

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By Megan Rawlins

Michael Tsui grew up in San Francisco. The youngest child of a single mother, he went to public schools, worked hard, did well and, at 21 years old, he’s now a computer-engineering student at San Jose State University.

The young man looks, sounds and acts like any other American college student working towards graduation and worrying about job prospects. Except Tsui isn’t worried he won’t find a job in his chosen field and location; he’s worried that he can’t work legally and might be deported.

Tsui is an undocumented immigrant, brought here from Hong Kong at the age of five by his mother along with two older siblings on tourist visas. His tourist visa was transferred to a student visa, but when that expired, Tsui entered the nebulous and shadowy world of the undocumented.

And he is the kind of person that civil liberties and immigrant rights groups are trying to help with their campaign to reform federal immigration laws, which was launched last week in San Francisco.

SF allowed to join federal challenge to Prop. 8

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By C. Nellie Nelson

U.S. District Court Judge Vaughn Walker has ruled that San Francisco will be added as a co-plaintiff in the federal court challenge to Proposition 8.

“Judge Walker found we were situated differently. We were the only party to put forth the societal and governmental costs of marriage discrimination. The city has a perspective that private parties and even the state do not bring,” City Attorney Dennis Herrera told the Guardian. “In painstaking detail we put forth costs incurred by the Department of Public Health. Tax consequences. Budget consequences.”

But Judge Walker ruled against naming other anti-Prop. 8 legal groups American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights as parties. He ruled that the Campaign for California Families, which seeks to uphold Prop. 8, could not be a party in the case either. The LGBT law blog lawdork.net summarizes Walker’s decisions, “In short, this has moved the LGBT legal organizations to the periphery of a very prominent and potentially landmark case.”

The struggle continues

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>rebeccab@sfbg.com


Video of May 26’s anti-Prop 8 rally. Video by Rebecca Bowe. For more videos from that day, click here.

An estimated 10,000 people turned out in San Francisco May 26 for a day of rallies and marches staged in reaction to the California Supreme Court’s decision to uphold Proposition 8, the voter-approved measure passed in November 2008 that outlawed same-sex marriage in California. Expressing anger and frustration with the news, same-sex couples and advocates for marriage equality nonetheless vowed to push ahead with a new fight to overturn Prop. 8 at the ballot.

"Today’s court decision means we have to go back to the ballot," Abdi Soltani, executive director of the Northern California chapter of the American Civil Liberties Union, told a crowd gathered outside San Francisco City Hall. "The issue is not whether we go back to the ballot. The key question for us to tackle now is what we have to do in order to win at the ballot. That’s the difficult work that is ahead for all of us."

It was an emotional day for same-sex couples. Protesters took to the streets in permitted and spontaneous marches, and 200 arrests were made after a sit-in was staged at Van Ness and Grove streets around midday.

"It’s a sad day to be a Californian, as far as I’m concerned. I’m embarrassed," Castro District resident Hank Doonan, standing arm in arm with his partner Michael Talty, told the Guardian. Talty displayed his engagement ring. "We’re still getting married, and it doesn’t matter," he asserted with a note of defiance. "But we’re really sad today."

Molly McKay, media director for nationwide same-sex marriage advocacy group Marriage Equality USA, appeared at the San Francisco rally in a wedding dress. "I’m sorry we have to keep fighting the same battle," she told the Guardian later. "But I’m proud of all the people who turned out."

Law vs. Justice

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steve@sfbg.com

City Attorney Dennis Herrera relishes his reputation as a crusading reformer. For several years, his official Web site prominently displayed the phrase "Activism defines SF City Attorney’s Office," linked to a laudatory 2004 Los Angeles Times article with that headline.

"Doing what we can do to ensure civil rights for everyone is not something we are going to back away from," was the quote from that piece Herrera chose to highlight on his homepage, referring to his work on marriage equality. The article also praises the City Attorney’s Office practice of proactively filing cases to protect public health and the environment and to expand consumer rights.

But more recently the City Attorney’s Office also has aggressively pushed cases that create troubling precedents for civil rights and prevent law enforcement officials from being held accountable for false arrests, abusive behavior, mistreatment of detainees, and even allegedly framing innocent people for murder.

Three particular cases, which have been the subject of past stories by the Guardian, reveal unacceptable official conduct — yet each was aggressively challenged using the virtually unlimited resources of the City Attorney’s Office. In fact, Herrera’s team pushed these cases to the point of potentially establishing troubling precedents that could apply throughout the country.

Attorney Peter Keane, who teaches ethics at Golden Gate University School of Law and used to evaluate police conduct cases as a member of the Police Commission, said city attorneys sometimes find themselves trapped between their dual obligations to promote the public good and vigorously defend their clients. "Therein lies the problem, and it’s a problem that can’t be easily reconciled," he told us.

"A lawyer’s obligation is to give total loyalty to a client within ethical limits," Keane said, noting his respect for Herrera. But in police misconduct cases, Keane said, "it is desirable public policy to have police engage in ethical conduct and not do anything to abuse citizens."

RODEL RODIS VS. SF


Attorney Rodel Rodis is a prominent Filipino activist, newspaper columnist, and until this year was a longtime elected member of the City College of San Francisco Board of Trustees. So it never made much sense that he would knowingly try to pass a counterfeit $100 bill at his neighborhood Walgreens in 2003 (see "Real money, false arrest," 7/9/08).

Nonetheless, the store clerk was unfamiliar with an older bill Rodis used to pay for a purchase and called police, who immediately placed Rodis in handcuffs. When police couldn’t conclusively determine whether the bill was real, they dragged Rodis out of the store, placed him in a patrol car out front, and took him in for questioning while they tested the bill.

There was no need to arrest him, as subsequent San Francisco Police Department orders clarified. They could simply have taken his name and the bill and allowed him to retrieve it later. After all, mere possession of a counterfeit bill doesn’t indicate criminal intent.

The police finally determined that the bill was real and released Rodis from his handcuffs and police custody. Rodis was outraged by his treatment, and sued. He insisted that the case was about the civil rights principle and not the money — indeed, he says he offered to settle with the city for a mere $15,000.

"I told my lawyer that I didn’t want a precedent that would hurt civil liberties," Rodis told the Guardian.

To his surprise, however, the City Attorney’s Office aggressively appealed rulings in Rodis’ favor all the way up to the U.S. Supreme Court, which found that the officers enjoyed immunity and ordered reconsideration by the Ninth Circuit Court of Appeals. Last month the Ninth Circuit ruled in the city’s favor, thus expanding protections for police officers.

Rodis can now name cases from around the country, all with egregious police misconduct, that cite his case as support. "Even with that kind of abuse, people can no longer sue because of my case," Rodis said.

Herrera disputes the precedent-setting nature of the case, saying the facts of each case are different. "We’re defending them in accordance with the state of the law as it stands today," Herrera said, arguing that officers in the Rodis case acted reasonably, even if they got it wrong. "We look at each case on its facts and its merits."

Herrera said he agrees with Keane that it’s often a difficult balancing act to promote policies that protect San Francisco citizens from abuse while defending city officials accused of that abuse. But ultimately, he said, "I have the ethical obligation to defend the interests of the City and County of San Francisco."

While it may be easy to criticize those who bring lawsuits seeking public funds, Rodis says it is these very cases that set the limits on police behavior and accountability. As he observed, "The difference between police in a democracy and a dictatorship is not the potential for abuse, but the liability for abuse."

MARY BULL VS. SF


In the run-up to the U.S. invasion of Iraq in 2003, there were months of antiwar protests resulting in thousands of arrests in San Francisco. Activist Mary Bull was arrested in November 2002. Bull said she was forcibly and illegally strip-searched and left naked in a cold cell for 14 hours.

San Francisco’s policy at the time — which called for strip-searching almost all inmates — was already a shaky legal ground. Years earlier Bull had won a sizable settlement against Sacramento County because she and other activists were strip-searched after being arrested for protesting a logging plan, a legal outcome that led most California counties to change their strip-search policies.

So Bull filed a lawsuit against San Francisco in 2003. The San Francisco Chronicle ran front page story in September 2003 highlighting Bull’s ordeal and another case of a woman arrested on minor charges being strip-searched, prompting all the major mayoral candidates at the time, including Gavin Newsom, to call for reform. Sheriff Michael Hennessey later modified jail policies on strip searches, conforming it to existing case law.

But the City Attorney’s Office has continued to fight Bull’s case, appealing two rulings in favor of Bull, pushing the case to the full Ninth Circuit Court of Appeals (from which a ruling is expected soon) and threatening to appeal an unfavorable ruling all the way to the U.S. Supreme Court.

"It’s pretty outrageous and humiliating to strip-search someone brought to jail on minor charges," Bull’s attorney Mark Merin told the Guardian. "If they win, they establish a bad precedent."

Herrera said the case is about inmate safety and that his office must follow case law and pursue reasonable settlements (neither side would say how much money Bull is seeking). "We do it well and we do it with a sense of justice at its core," Herrera said.

Yet Merin said the city’s actions fly in the face of established law: "In the Bull case, he’s trying to get 25 years of precedent reversed."

Merlin noted that "the problem is not with the city, it’s with the U.S. Supreme Court." In other words, by pushing cases to a right-leaning court, the city could be driving legal precedents that directly contradict its own stated policies.

"It would be nice if this city was in a different league, but they look at it like any defense firm: take it to the mat, yield no quarter" he added.

JOHN TENNISON VS. SF


For the Guardian, and for all the attorneys involved, this was a once-in-a-lifetime case. In 1990, Hunters Point residents John J. Tennison and Antoine Goff were convicted of the 1989 gang-related murder of Roderick Shannon and later given sentences of 25 years to life.

Jeff Adachi, Tennison’s attorney and now the city’s elected public defender, was shocked by a verdict that was based almost solely on the constantly mutating testimony of two young girls, ages 12 and 14, who were joyriding in a stolen car, so he continued to gather evidence.

Eventually Adachi discovered that police inspectors Earl Sanders and Napoleon Hendrix and prosecutor George Butterworth had withheld key exculpatory evidence in the case, including damaging polygraph tests on the key witnesses, other eyewitness testimony fingering a man named Lovinsky Ricard, and even a taped confession in which Ricard admitted to the murder.

After writer A.C. Thompson and the Guardian published a cover story on the case (see "The Hardest Time," 1/17/01), it was picked up pro bono by attorneys Ethan Balogh and Elliot Peters of the high-powered firm Keker & Van Nest LLP, who unearthed even more evidence that the men had been framed, including a sworn statement by one of the two key prosecution witnesses recanting her testimony and saying city officials had coached her to lie.

In 2003, federal Judge Claudia Wilken agreed to hear Tennison’s case and ruled that the prosecution team had illegally buried five different pieces of exculpatory evidence, any one of which "could have caused the result of Tennison’s new trial motion and of his trial to have been different."

She ordered Tennison immediately freed after 13 years in prison. The district attorney at the time, Terrence Hallinan, not only agreed and decided not to retry Tennison, he proactively sought the release of Goff, who was freed a few weeks later.

"The only case you can make is that this was an intentional suppression of evidence that led to the conviction of any innocent man," Adachi told the Guardian in 2003 (see "Innocent!" 9/3/03). In the article, Hallinan said "I don’t just believe this was an improper conviction; I believe Tennison is an innocent man."

But the pair has had a harder time winning compensation for their lost years. State judges denied their request, relying on the initial jury verdict, so they sued San Francisco in 2003, alleging that the prosecution team intentionally deprived them of their basic rights.

"What happened to these guys was a horrible miscarriage of justice," Balogh said.

The City Attorney’s Office has aggressively fought the case, arguing that the prosecution team enjoys blanket immunity. The courts haven’t agreed with that contention at any level, although the city spent the last two years taking it all the way to the Ninth Circuit, which largely exonerated Butterworth. The case is now set for a full trial in federal district court in September.

"They are unwilling to admit they made a mistake," Elliot said. "They are doing everything not to face up to their responsibility to these two guys."

The lawyers said both Herrera and District Attorney Kamala Harris had an obligation to look into what happened in these cases, to punish official wrongdoing, and to try to bring the actual murderer to justice. Instead the case is still open, and the man who confessed has never been seriously pursued.

Harris spokesperson Erica Derryck said the Ninth Circuit and an internal investigation cleared Butterworth "of any wrongdoing," although she didn’t address Guardian questions about what Harris has done to close the case or address its shortcomings.

In fact, the lawyers say they’re surprised that the city is so aggressively pushing a case that could ultimately go very badly for the city, particularly given the mounting lawyers’ fees.

"When we filed the case, we never thought we’d be here today," Balogh said. "They had a bad hand and instead of folding it and trying to pursue justice in this case, they doubled down."

Herrera doesn’t see it that way, instead making a lawyerly argument about what the prosecution team knew and when. "Our belief is there is no evidence that Sanders and Hendrix had information early on that they suppressed," Herrera said. "Based on the facts, I don’t think they, Hendrix and Sanders, violated the law. But that’s a totally different issue than whether they were innocent…. It’s not our role to retry the innocence or guilt of Tennison and Goff."

Herrera said he’s limited by the specific facts of this case and the relevant laws. "If the Board of Supervisors wants to do a grant of public funds [to Tennison and Goff], someone can legislate that. But that’s not my job," Herrera said.

As far as settling the case in the interests of justice or avoiding a precedent that protects police even when they frame someone for murder, he also said it isn’t that simple. Keane also agreed it wouldn’t be ethical to settle a case to avoid bad precedents.

"I’m always willing to talk settlement," Herrera said. "This is not an office that makes rash decisions about the cases it chooses to try or settle."

Deputy City Attorney Scott Wiener is the point person on most police misconduct cases, including the Rodis and Tennison cases, as well as another current case in which Officer Sean Frost hit a subdued suspect, Chen Ming, in the face with his baton, breaking his jaw and knocking out 10 teeth.

Wiener, who is running for the District 8 seat on the Board of Supervisors and is expected to get backing from the San Francisco Police Officers Association, recently told the Chronicle that Frost "did not do anything wrong." Contacted by the Guardian, Wiener stood by that statement and his record on police cases, but said, "I consider myself to be fair-minded." He also denied having a strong pro-police bias.

Yet those involved with these cases say they go far beyond the zeal of one deputy or the need to safeguard the public treasury. They say that a city like San Francisco needs to put its resources into the service of its values.

"It raises the broader question of what is the city attorney’s mandate? Is it fiscal limitation regardless of the truth?" Balogh said. "Dennis Herrera has had a very aggressive policy in defending police officers."

Herrera says he is proud of his record as the city attorney, and before that, as president of the Police Commission. "I believe in police accountability and have made that a big part of what I’ve done throughout my career."

When protesters become ‘terrorists’

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› rebeccab@sfbg.com

When does passionate protest become a terrorist threat? Is it when activists choose to target someone’s house, or when the subject of the protest feels scared? Why single out animal rights activists for special treatment? And if the definition of terrorism is expanded for them, what group is next in these turbulent times?

These are the questions being raised by the federal prosecution of four local animal rights activists. Joseph Buddenberg, Maryam Khajavi, Nathan Pope, and Adriana Stumpo pleaded not guilty March 19 to charges of using threats and violence to interfere with University of California animal researchers, in violation of the Animal Enterprise Terrorism Act (AETA).

A coalition of civil liberties defense groups have come to their defense, arguing that the law is unconstitutional and that the activists were merely exercising their freedoms of speech and assembly.

AETA specifically protects research institutions, pharmaceutical companies, and other businesses that use animals from individuals who "interfere with" their operations. Anyone using threats, vandalism, property damage, trespassing, harassment, or intimidation to cause someone connected with an animal enterprise to have "reasonable fear of death or bodily injury" can be tried under the law. But critics say the statute is over-broad, arguing that legal activity like boycotts can be construed as a form of interfering with a business’ operations.

"In its abstract form, and now with these arrests, the AETA is a full frontal assault by the U.S. government on the First Amendment," says San Francisco-based attorney Ben Rosenfeld, a member of the National Lawyers Guild. "Everybody, whether they identify with animal rights causes or not, ought to be very alarmed."

According to an FBI affidavit filed by special agent Lisa Shaffer, the activists took part in actions targeting UC researchers who conduct experiments on animals. They didn’t free caged animals, torch laboratories, or slash tires. Instead the defendants were caught picketing, chanting, and creating flyers. And while the complaint cites an alleged assault, it never states that any of the four defendants was responsible. Yet they each face up to five years in prison.

In October 2007, the complaint alleges, the defendants joined a group of protesters outside a UC researcher’s home in El Cerrito where they marched, chanted things like "vivisectors go to hell!" and rang the doorbell. The second incident took place in January 2008, when a group of about a dozen people "wearing bandanas over their nose and mouth" allegedly drove to a number of researchers’ homes in the East Bay. They "marched, chanted, and chalked defamatory comments on the public sidewalks in front of the residences."

The complaint says UC researchers felt harassed, intimidated, and terrified. Heidi Boghosian, executive director of the National Lawyers Guild in New York City, says AETA is flawed in that prosecutions are based on the targets’ reactions, not the protesters’ intent. "Basing prosecutions on the subjective feelings of individuals to whom no harm was inflicted undermines the foundation of criminal law, which punishes those who commit crimes with the intent to do so," Boghosian told us. "Demonstrating — even noisy, angry demonstrating that may be uncomfortable to others — is still protected under the First Amendment."

During the third incident, six bandana-clad protesters allegedly approached the home of a UC Santa Cruz researcher. Her husband heard banging on the glass pane of the door, opened it, and then "struggled with one individual and was hit with a dark, firm object," according to the complaint. The protesters dispersed, and one allegedly yelled, "We’re gonna get you!" Santa Cruz police later seized a vehicle belonging to one of the activists. Bandanas found inside the car were later sampled for DNA, linking them with three of the defendants.

The complaint doesn’t indicate whether any of the four defendants struck the researcher’s husband or yelled a threat. But that hardly matters. "Another flaw of the AETA is its ‘course of conduct’ language," Boghosian said. "If one protester commits a single unlawful act at a protest … but five others were present, all may be charged with engaging in a course of conduct that interferes or attempts to interfere with the operations of an animal enterprise."

Finally, the FBI charges that in July 2008, a stack of flyers listing the home addresses of two UC professors under the headline "murderers and torturers" was discovered at a Santa Cruz cafe. The FBI tapped security camera footage and Internet use logs to link three of the defendants to the stack of flyers.

Several days after the flyers were discovered, a firebombing took place at one of those researchers’ homes — but the federal complaint doesn’t mention it. When asked if there might be a connection, FBI special agent Joseph Shadler told the Guardian that the complaint speaks for itself.

Several civil liberties groups have been wary of AETA since it was enacted. "The law is so overly broad and so vague that no one knows what’s legal and illegal," Odette Wilkins, who is pushing for a repeal of the bill through her organization, the Maryland-based Equal Justice Alliance, told us. "The USA Patriot Act makes it very, very clear what terrorism is. It’s anything that causes mass destruction … or places the entire civilian population in fear. I don’t see how people exercising their First Amendment rights … rises to the level of terrorism. It’s ludicrous."

FBI special agent Schadler sees it differently. "As far as the distinction between free speech protected by the Constitution and what we would consider terrorism, whenever somebody’s purpose is to cause fear to get their point across, that’s terrorism," he told the Guardian. "The definition of terrorism is using threat of violence, or violence, to accomplish a political means. And the threat of violence — when you are actually going out and threatening to hurt people, or causing people to believe that they’re going to be hurt, or actually hurting them to get your movement or your political voice heard — then you are committing terrorism."

Lauren Regan, executive director of the Eugene, Ore.-based Civil Liberties Defense Center, helped create Coalition to Abolish the AETA. "We were working on putting together a civil lawsuit simply challenging the constitutionality of the law when the criminal indictments happened," she explained.

Regan has been on the case since a previous law, the Animal Enterprise Protection Act, was in place. That statute was upgraded to the AETA in 2006 in the wake of aggressive tactics employed by a radical animal rights group, Stop Huntingdon Animal Cruelty (SHAC). "Many felt [the AEPA] was also unnecessary," she told us. "Because there are already statutes for burglary, theft, vandalism, arson [etc]. Any of the crimes that could have fallen within the AEPA were already federal and state crimes."

Sen. Dianne Feinstein cosponsored AETA along with Sen. James Inhofe (R-Okla.), saying it would "ensure that eco-terrorists do not impede important medical progress in California." Before the bill passed, Rep. Dennis Kucinich (D-Ohio) voiced the lone complaint against it. "I am not for anyone … damaging another person’s property or person. But I am for protecting the First Amendment and not creating a special class of violations for a specific type of protest."

No one else was persuaded. The bill was bundled with other legislation deemed to be noncontroversial then passed by voice vote. The American Civil Liberties Union didn’t oppose it after an amendment was added guaranteeing that it wouldn’t restrict First Amendment rights. The ACLU declined to comment for this story.

Regan says broadening the definition of terrorism can stifle important campaigns. She points to the example of a widely publicized video released by the Humane Society last year that showed disturbing footage of downed cows at a beef processing facility. Though it spurred one of the largest beef recalls in history (and saved school kids from consuming an unsafe meat product), the cameraperson could be tried as a terrorist under the AETA, Regan says, because it was necessary to trespass to shoot the film.

She also criticizes the FBI’s excessive use of paid informants. "This has happened across the country — if someone posts a vegan potluck, the FBI is showing up to see who’s there and what they’re doing," she says. Between 1993 and 2003, the FBI’s counterterrorism division increased 224 percent, according to its Web site.

While advocates are quick to point out that there are no documented deaths associated with animal rights activism, the movement has a history of employing firebombs, threatening phone calls, and other creepy tactics in pressing to end animal cruelty — a trend that led to the passage of the domestic terrorism bill.

"The AETA has backfired, causing an increase in underground activism," says Los Angeles-based activist Jerry Vlasak, whose inflammatory language against animal researchers was quoted extensively during the 2006 Congressional hearing on AETA. Vlasak is a media contact for the North American Animal Liberation Press Office, which operates a Web site featuring anonymous "communiqués" sent in by clandestine activists. In a posting dated March 6, a group called the Animal Liberation Brigade takes credit for burning the car of a Los Angeles primate researcher. "We will come for you when you least expect it and do a lot more damanage [sic] than to your property," the message reads. "Where ever you go and what ever you do we’ll be watching you as long as you continue to do your disgusting experiments on monkeys. And a special message for the FBI, the more legit activists you fuck with the more it inspires us since wer’re [sic] the people whom you least suspect and when we hit we hit hard."

Will Potter, a Washington, D.C.journalist who runs a Web site called Green Is The New Red, testified before Congress prior to the passage of the AETA, arguing that the law would not deter underground activists. Instead he predicts it will have a chilling effect on protests staged in broad daylight. "This legislation will … risk painting legal activity and nonviolent civil disobedience with the same broad brush as illegal activists," he said.

That, says Rosenfeld, is precisely what’s happened. "The whole underpinning of a democratic society is that it’s rights-based, and government power is limited and checked by law," he says. "Here we have a complete perversion of that process. The government gives itself this over-broad, sweeping power to go after anyone it wants and then seeks to reassure people that it will only use those laws against the real bad guys."

Freeing the press

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Norwin S. Yoffie Career Achievement Award

ROBERT PORTERFIELD


Bob Porterfield is a shit-disturber, an old-fashioned investigative reporter who has no favorites, no sacred cows, and no fear of offending anyone. Since his first story — a profile of a YMCA social program published in Eugene, Ore.’s The Register-Guard in 1959, when he was 15 — Porterfield has had ink in his veins. He’s shared two Pulitzer Prizes (first for an Anchorage Daily News report on the Teamsters Union in 1975 and then for a series on the Massachusetts Bay Transportation Authority for The Boston Globe), won more than two dozen other prizes and worked on a long list of major investigative projects.

He has become something of an expert in computer-assisted reporting and information systems — but is still a down-to-earth guy who never forgot the value of traditional, hands-on digging. Back in 1986, he was on a team at Newsday looking into the federal Synfuels Corp., a scandal-plagued agency that was shut down in the wake of his stories.

"I remember once we were looking for property records on a Synfuels Corp. project linked to [former CIA Director) Bill Casey," he told me. "I wound up going down to Plymouth, N.C., (population 4,000), and I found this musty old office with two older women sitting there, knitting. There was no index book, nothing computerized. But when I explained what I was looking for, one of the women remembered the parcel of land I was talking about and pulled out the exact documents for me."

Porterfield has devoted a tremendous amount of time to teaching and mentoring, showing young reporters how to use public records to find stories. "I’m glad to see [President Obama’s] new directive on openness, but I hope it trickles down to the independent agencies," he said. "Because there’s been way, way too much secrecy." (Tim Redmond)

Beverly Kees Educator Award

ALAN GIBSON


Alan Gibson is reclaiming the Founding Fathers from conservatives with

his recent book Understanding the Founding: The Crucial Questions (University Press of Kansas, 2007). It examines the progressive ideals that guided early American political thought.

"The Founding Fathers are often captured by conservatives," Gibson told the Guardian. "But there is no clear line of legacy. It is much more complex than that. Conservative restoration politics are dangerous and not historically accurate."

As an undergraduate, Gibson cultivated an interest in issues of separation of church and state, which led to doctoral studies on James Madison, the namesake of the Society of Professional Journalists’ annual Freedom of Information awards. "Madison was the most progressive of all [the Founding Fathers] when it comes to freedom of the press," Gibson said. "He helped develop the idea that American government should be responsive to public opinion, and the role of newspapers was to make sure that an authentic public opinion was set forth." Gibson, a political science professor at California State University-Chico, lectures at various colleges across the country. Understanding the Founding will be published in paperback later this year. (Laura Peach)

Professional Journalists

MARJIE LUNDSTROM


Journalists often get alarming tips about practices within Child Protective Services (CPS) agencies, but it has always been a nearly impossible task to overcome privacy protections and get even basic information about how CPS handles reports of child abuse or neglect.

"It’s a difficult agency to write about, for some good reasons," Sacramento Bee reporter Marjie Lundstrom, who set out in 2007 to investigate complaints about Sacramento’s CPS, told the Guardian. "They operate in such a vacuum with very little public scrutiny."

She had started to piece together some information from coroner’s records and other public documents when Senate Bill 39 went into effect in January 2008, "and it was just amazing what it opened up."

The bill reveals CPS files in cases where the child has died, allowing Lundstrom to expose the negligence of CPS workers in responding to abuse reports, even those from doctors. "I do feel like what we were able to show, because of the law, where workers made flagrant mistakes that costs kids their lives," she said.

But many CPS records are still secret. Next, after writing several stories about CPS that sparked a grand jury investigation, Lundstrom intends to expose problems within the internal accountability procedures at CPS. (Steven T. Jones)

HILARY COSTA AND JOHN SIMERMAN


When the news broke last September that 15-year-old Jazzmin Davis had been murdered by her aunt after suffering months of abuse and neglect in her Antioch home, Bay Area News Group reporters Hilary Costa and John Simerman submitted a public records request about the girl’s case history with the San Francisco Human Services Agency.

The city denied the request for nearly two months, using a privacy claim. Undeterred, the journalists took the step of testing out Senate Bill 39, a relatively new piece of legislation that mandates public disclosure of findings and information about children who have died of abuse or neglect. A judge eventually ordered that the records be released.

Although highly redacted, the nearly 700-page paper trail told the girl’s story in the form of hand-written notes, report cards, medical records, caseworker visits, and other detailed documents. The records led to a package of stories that exposed a series of failures and violations of state regulations by an HSA social worker, raising questions about agency practices and spurring a review of hundreds of other foster care cases.

"This story’s been so important to me," Costa told the Guardian. "It felt like somebody owed it to Jazzmin to find out what happened to her." (Rebecca Bowe)

Interactive Media

AUTUMN CRUZ AND MITCHELL BROOKS


Sacramento Bee photographer Autumn Cruz had been covering the trial of three-year-old K.C. Balbuena’s murder for several months when she came up with the concept of creating an interactive online courtroom. With the help of Bee graphic journalist Mitchell Brooks, Cruz made public the essential pieces of evidence and information to those outside the courtroom doors.

Viewers can take a virtual tour of the exhibits and documents, along with video and audio statements and interrogations. "As a journalist, you’re fighting every day for your right to information," Cruz told the Guardian.

Although Balbuena’s mother and roommate were found guilty of the murder in early 2008, Cruz laments her inability to bring back the child she grew to know so intimately only after his life was cut short. "I think my bringing his plight to the public will hopefully prevent similar things from happening to other children." (Joe Sciareillo)

Citizen

BERT ROBINSON


Journalist Bert Robinson is a longtime journalist who now serves as assistant managing editor for the San Jose Mercury News. But he’s being honored for his work as a citizen serving on San Jose’s Sunshine Reform Task Force.

"We set out on our sunshine ordinance adventure a few years ago. We found we were faring worse in court, and we couldn’t afford increased court costs," Robinson, a member of the California First Amendment Coalition, told the Guardian.

The project received political endorsements across the spectrum, but the initiative has had problems with the city council’s Rules Committee, controlled by San Jose Mayor Chuck Reed, who has supported sunshine in the past.

"We achieved progress with public meeting requirements, but when you get into public records, city staff argue that rules are ‘too cumbersome’ … They say all sorts of things might happen if they become public, [which is] entirely hypothetical," Robinson said.

Task Force work that was slated to last six months has now dragged on for two years. "The city process grinds you down," Robinson said. But he says he’s committed to seeing it through. (Ben Terrall)

Legal Counsel

JAMES EWERT


James Ewert, an attorney with the California Newspaper Publishers Association, has long battled what he calls widespread secrecy in government. So in 2004, he played an instrumental role in providing greater public access to government meetings and records, resulting in the passage that November of Proposition 59, the Sunshine Amendment of California’s constitution.

Most recently Ewert helped Sen. Leland Yee (D-San Francisco) with legislation protecting teachers from retribution from administrators when they defend the First Amendment rights of journalism students. Next Ewert hopes to allow greater scrutiny of public/press partnerships and how tax dollars are used in labor negotiations by the public university systems.

Ewert says the public’s right to know is still severely hampered by public safety concerns, including restrictions on journalists’ rights to interview prisoners and obtain information about police officers. But luckily for the public, Ewert is still on the job. (Andrew Shaw)

Student Journalists — High School

REDWOOD BARK


Before April 2008, Drew Ross had never had to defend the existence of the Eureka High School Redwood Bark, where he was the editor. But after arriving on campus one Monday morning to find that former principal Robert Steffen had removed 450 copies of a 20-page color edition of the paper, Ross and his staff fought back.

Steffen claimed that the nude, dream-like drawing by artist Natalie Gonzalez had ushered in a handful of complaints from students and parents. Steffen justified the action by saying he was "stomping out the flames before they became a forest fire."

"We told him we wanted to hold onto the paper but he recycled them," Ross told the Guardian. "We don’t make the paper for it to be thrown away. And we lost a lot of advertising on this."

Ross complained about censorship and got help from the Student Press Law Center and the American Civil Liberties Union. By the next day, the censorship story went front page at newspapers and Internet sites all over the country. Eventually Steffen not only sent out a public apology, he paid for the next 20-page color edition.

"We are now armed with knowledge of our rights," Ross said. "And the community knows the Redwood Bark has rights." (Deia de Brito)

SHASTA HIGH SCHOOL’S THE VOLCANO


Shasta High School student Amanda Cope speaks passionately about freedom of speech after her brush with censorship, telling the Guardian, "We are preserving the validity of the Constitution. Free speech is a protection, a safety, that lets us function normally without fear."

Cope was editor-in-chief of the Shasta High School student paper, The Volcano, when a controversy flared over the paper’s end-of-year issue, which featured a front-page image of a student burning an American flag. Shasta High principal Milan Woollard was already considering shutting down The Volcano when the issue came out and publicly stated: "This cements that decision."

But following a maelstrom of objection from Cope and the rest of The Volcano staff in what looked like a form of censorship in schools, the school district reversed its decision. "I think a lot of students feel they are marginalized in society. They’re teenagers. They don’t have many rights and they feel like they’re squished by adults and people in general," Cope said. "The student paper becomes an outlet for those feelings, and a way for students to explore their world." (Juliette Tang)

THE SCOTS EXPRESS


Last November, the principal of Carlmont High School in Belmont shut down the student paper, The Scots Express. School officials claimed that the paper lacked adequate faculty oversight after it published a satirical article about the writer’s sex appeal.

Editor-in-chief Alex Zhang fought back against what he saw as censorship and rejected school officials’ justifications. "I just wanted my paper back," he told the Guardian.

In response to the uproar over what many saw as a muzzling of the press, the Sequoia Union High School District began training Carlmont staff on First Amendment rights and mandated an overhaul of the school’s freedom of speech policy. The district is planning an expansion of its journalism programs in the school curriculum and a partnership with the San Francisco Peninsula Press Club.

Zhang is working on relaunching the publication in late March under the faculty oversight of English teacher Raphael Kauffmann. "You can’t have a democracy without freedom of information," Zhang said. "And I’m proud to be one of those young journalists who care about the freedom of information." (Joe Sciarrillo)

Advocacy

KATHI AUSTIN


As the Guardian chronicled in a cover story last year ("Hunting the lord of war," June 23, 2008), San Francisco-based human rights investigator Kathi Austin has spent almost two decades tracking down and exposing those who have made a business out of human rights violations.

Most recently, Austin helped bring the notorious Viktor Bout, a Russian entrepreneur accused of illegally trafficking weapons to brutal regimes from Colombia to the Congo.

"A human rights violation is considered a violation that is carried out by a state actor," Austin told the Guardian. "We were trying to change the whole field of human rights to philosophically say we should be going after these private perpetrators as well."

Thanks largely to Austin’s work, Bout was arrested in Thailand in March 2008 and will likely face criminal charges in the United States. Despite working in treacherous places like Angola and Rwanda, doing meticulous and time-consuming research, Austin said her approach is simple: "What’s wrong and who’s doing it?"

Her patience and persistent pursuit of international justice have led Austin to positions at the U.N., the World Bank, the Center for Human Rights, and the Council on Foreign Relations, to name a few. A Paramount picture featuring Angelina Jolie as Austin is reportedly in production — a fittingly karmic return of celebrity for someone who has worked so long under the public radar. (Breena Kerr)

Electronic access

MAPLIGHT.ORG


Once upon a time, before 2005, the only way to connect the dots between the dollars contributed to politicians and the special access and favorable laws they subsequently granted to contributors was to wade through reams of campaign finance filings. While everyone knew that money talked, few knew just how much campaign cash was dictating public policy.

But now, thanks to MAPlight.org, a Berkeley nonprofit that uses sophisticated analytical tools to produce visually pleasing, easy-to-use charts, there is now a fun, simple way to follow the money.

MAPlight began by putting up data connected to the pro-consumer bill informally known as the Car Buyer’s Bill of Rights. "The data showed that car dealers gave twice as much to Sacramento legislators who voted to kill the bill than to those who voted to pass it," executive director David Newman recalled.

Next, MAPlight pioneered the combination of campaign dollars and politicians’ votes when it launched its U.S. Congress site in May 2007. Most recently its research showed that House members who voted for the $700 billion financial bailout bill received 50 percent more money from the financial services industry than those who voted against it.

Newman plans to expand to all 50 states. "Wherever there is journalism to be done, MAPlight can provide support and help promote openness and transparency in government." (Sarah Phelan)


The Northern California Chapter of the Society of Professional Journalists hosts its annual James Madison Awards dinner March 18 in the New Delhi Restaurant, 160 Ellis St., SF. The no-host reception begins at 5:50 p.m. followed by dinner and the awards programs at 6:30 p.m. Tickets are $50 for SPJ members and $70 for non-members. For reservations or information, contact Freedom of Information Committee chair David Greene at (510) 208-7744 or dgreene@thefirstamendment.org or visit www.spjchapters.org/norcal.

Lethal force

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Editors note: This story ran Dec. 12, 1992

The autumn air was crisp and clear in Hayward on the night the kid called Glasstop took a shotgun blast in the back of the head and died for the theft of a $60 radio.

It was just before 8 p.m., on Sunday, Nov. 15. The lights were on in the parking lot outside the Hayward BART station, where a six-car southbound train had arrived a few minutes earlier. About 50 passengers had gotten off, and some were still straggling into cars or waiting around for the next AC Transit bus.

Glasstop, a 19-year-old warehouse worker from Union City whose legal name was Jerrold Cornelius Hall, had ridden the train from Bayfair, one stop north, along with John Henry Owens, a 20-year-old unemployed custodian who lived in Oakland. The two young African American men were standing at the bus stop, not far from the station entrance, when Officer Fred Crabtree pulled into the parking lot in a BART police cruiser.

Crabtree was a white 16-year veteran of the transit police agency and a member of its elite Canine Corps. His partner was a highly trained German shepherd imported from a special obedience school in Germany. The dog trotted at Crabtree’s side as he approached Owens and Hall. The officer carried a loaded 12-gauge pump-action shotgun.

Crabtree was responding to a report of an armed robbery: Halfway between Bayfair and Hayward, a passenger had told the train operator that two black men had taken his Walkman personal stereo. The passenger said one of the robbers had a gun and described what they looked like; the trainman passed on the message, and the BART dispatcher passed it on again. Owens and Hall matched the third-hand description that came over Crabtree’s radio.

Within a matter of minutes, Hall was lying in a pool of his own blood, Owens was in handcuffs, and the parking lot was a mass of sirens and flashing red lights. Hall was pronounced dead shortly after midnight at Eden Hospital; Owens is still in the Alameda County jail. The police never turned up a gun.

And the man who reported the robbery disappeared without leaving his name.

That’s about all BART officials will say about the incident. They’ve clamped on a lid of secrecy that defies most normal local police procedures and violates the California Public Records Act. The San Francisco newspapers have almost entirely ignored the shooting, and there’s been little reaction from the East Bay community.

But an extensive Bay Guardian investigation has turned up a long list of troubling questions about the death of Jerrold Hall – and a long list of serious problems in an agency that has some of the most sweeping police powers in California, and some of the least civilian oversight.

Our investigation, based on a dozen interviews, a review of public records, and more than 50 pages of unreleased internal documents from the BART police and other local authorities, shows:

Officer Crabtree violated one of the most basic rules of modern law enforcement – and his own department’s written policy – when he fired a warning shot toward the suspect, potentially endangering the lives of passersby in the busy urban area. The nine .33-caliber pellets from that shotgun cartridge wound up in the side of a tree, about 4-1/2 feet above the ground.

BART’s own internal documents contradict the official claim that Hall was attacking or threatening Crabtree at the time of the shooting. Statements filed by several witnesses, and at least two BART police officers, suggest that Hall was more than 10 feet from the officer when the shots were fired, and was walking away. Medical records obtained by the Bay Guardian show that he was shot in the back of the head.

The shooting appears to violate nearly every modern police standard on the use of deadly force. In fact, the latest BART Police Operational Directive, dated July 22, 1987, states that guns may be fired only to prevent a suspect from killing or wounding another person, or to stop a suspected felon who is presumed to be armed and dangerous from fleeing and escaping arrest. But BART internal documents and other records obtained by the Bay Guardian provide little evidence to suggest that Hall fit either category.

Nevertheless, on Dec. 4, a BART Firearms Review Board, consisting entirely of BART police officers appointed by the chief, determined that the “use of lethal force in this instance was justified.” BART officials refuse to release the report or comment further on the findings.

The fact that Crabtree fired a gun to subdue Hall seems to undermine one of BART’s central reasons for the use of trained attack dogs. The dogs, BART officials say, are supposed to support officers in situations just like the one in question – to intimidate, and if necessary, pursue and immobilize a suspect when other backup isn’t available, and to attack immediately if an officer is under assault. Some law-enforcement experts, and many civil-rights advocates, question the use of dogs for that purpose – but all those contacted by the Bay Guardian agreed it was rather curious that Crabtree’s canine partner sat out this whole bloody incident.

Officer Crabtree is on administrative leave, with pay, pending the final outcome of an internal investigation. Owens is still facing robbery charges, despite the lack of a victim willing to testify against him. A preliminary hearing is scheduled for this week.

But the problems with the BART police go far beyond the arrest of John Owens and the death of Jerrold Hall. In fact, the Bay Guardian has learned:

BART’s Internal Affairs Division, which reviews citizen complaints against BART police officers, has investigated 162 cases in the past five years, 39 of them involving excessive use of force – and not a single charge was sustained. Law-enforcement observers say that’s an astonishing statistic, one that casts severe doubt on the department’s ability to control police abuse.

“I’ve never heard of any department with a rate of zero sustained complaints,” said John Crew, director of the American Civil Liberties Union Police Practices Project. “I can’t believe that none of those people had a single valid case.”

The BART Police Department has a written procedure for civilians filing complaints. A 1991 directive signed by Chief Harold Taylor states that every department employee should accept complaints by mail, by phone, or in person, and refer them to the watch commander or the Internal Affairs Division. But there’s nothing posted in any BART train or station to tell the public about the complaint process, no procedure for appealing a Police Department decision to a civilian review agency, and not much visible effort to inform BART employees about how to handle complaints.

The BART police use dogs for purposes inconsistent with many modern law-enforcement guidelines. Most local police agencies employ canines primarily to sniff out bombs and narcotics, or to search for dangerous suspects hidden in dark, confined areas. Berkeley has banned police dogs altogether. The BART police dogs are not trained to sniff out bombs or drugs, and are rarely involved in searches; the officers use the animals as standard backup, to intimidate and apprehend suspects in even fairly routine arrests.

The elected BART Board of Directors has demonstrated virtually no effective control over the BART police, and most board members don’t seem to know or care what their armed employees are doing with those badges, dogs, and guns.

None of the board members contacted by the Bay Guardian could even guess how many citizen complaints had been filed against the BART police since 1988, or what the outcome of the cases had been. None could explain the complaint procedure, or identify the person responsible for supervising internal investigations. Most didn’t know how the police chief was hired, or to whom he reported; some board members didn’t even know his name.

Several years ago, I asked Art Shartsis, a downtown lawyer who was then the BART Board president, if he knew who ran the BART police. His answer was unusually blunt, but entirely typical of the attitude board members show toward the force.

“I don’t know,” he told me. “I guess we must have a chief.”

A DAY AT THE MALL

Jerrold Hall was the son of Alameda Fire Department Captain Cornelius Hall, a retired Navy Reserve officer who lives with his wife, Rose and two other sons in a comfortable middle-class home in suburban Union City. Both of Jerrold’s brothers are in college, earning top grades; his aunt is the first black woman ever to serve on the Board of Trustees of Auburn University.

Jerrold, who graduated from high school in 1991 and was living with his parents, “had some problems, like a lot of kids these days,” his father told me. “But we hoped he’d outgrow them. He was a good kid, never into guns or killing or any of that sort of thing.”

On Sunday, Nov. 15, at about 2 in the afternoon, Hall met Owens at the Eastmont Mall in Oakland. According to a sworn statement Owens gave to the police, the two drank a few beers and part of a small bottle of E&J Brandy. Early in the evening, Hill invited Owens to his home, and they left the mall on an AC Transit bus to catch a BART train for Union City.

According to Owens and several other witnesses, Owens and Hill encountered a black man in his late 30s on board the train, and the man asked them if they wanted to buy one of the Walkmans he was carrying in a bag. When first questioned by police, at about 1:35 a.m., Owens said he declined the offer, went to another train car “where more girls were,” and met up with Hall again a few minutes later. At about 4:30 a.m., he made another statement, acknowledging that he was present when the friend he called “Glasstop” told the would-be salesman, “give me your Walkman.”

Several other witnesses on the train agreed that Hall had confronted the man, and walked away with a bag. None, including Owens, saw a gun.

However, the victim of what the BART police still call an “armed robbery” called the train operator on the intercom and said two men with a gun had stolen his Walkman. The operator, who never saw Hall or Owens, reported the incident, and it was relayed to BART police, who instructed the trainman to stop in Hayward, and, after a brief delay, to open the train doors. Hall and Owens left with about 50 others; according to the station attendant, they jumped the emergency gate and walked into the parking lot.

The police were able to find several eyewitnesses to the alleged robbery; however, other than Owens and Crabtree, who was the only police officer on the scene at the time, the internal report does not identify a single witness who actually saw the shooting.

An official Dec. 7 statement, written by BART Police Chief Harold Taylor at the request of the Bay Guardian and reviewed by BART’s legal department, notes that “witnesses disagreed as to the precise sequence of the next events.”

The internal BART police documents obtained by the Bay Guardian contain no formal statement or direct quotation from Crabtree; he apparently filed no written report. The reports were all prepared by other officers, who arrived at the scene after the shooting.

According to those reports, filed shortly after the incident, Crabtree approached Hall and Owens, who were standing near a bench in the parking lot’s bus-stop area, and ordered them to lie on the ground with their hands over their heads. Owens complied; Hall did not.

Hall, the reports state, “confronted and challenged Officer Crabtree, attempting to take Officer Crabtree’s shotgun from him at one point.” There is no mention of what the dog, who was trained to bite anyone who attacked Officer Crabtree, was doing at the time. BART officials refuse to elaborate, saying the incident is still under investigation.

However, one Bay Area dog trainer, who has trained police dogs, said it’s highly unlikely that a German shepherd of the sort imported by the BART police (see sidebar) would fail to respond in such a situation. “Dogs are very loyal and protective,” the trainer, who asked not to be identified, told the Bay Guardian. “These dogs are carefully bred and taught to attack anyone who physically endangers their human handler. Sometimes they overreact; they very rarely underreact.”

TO TAKE A LIFE

Owens told the police he “did not see the cop and Glasstop get into any physical fighting. They did not touch. They were just arguing.” After a few moments, Owens said, “Glasstop walked over to me and said we could go. So we started to walk away.”

Whatever the nature of the confrontation between Hall and Officer Crabtree, the police report and witness statements leave very little doubt that it ended with Hall walking away – and, as the internal police report states, “with Officer Crabtree retaining the shotgun.”

It’s also clear that some time, perhaps as much a minute or two, passed between the initial clash and the shooting – more than enough time for Hall and Owens to start walking away. During that period, the documents suggest, the passenger who had initially reported the robbery – and had not made any contact yet with police – suddenly ran out into the parking lot, pointed toward Hall and Owens and shouted, “That’s them.” Then the passenger fled.

Crabtree then ordered the two young men to halt again – and at that point, the statements get very fuzzy.

According to the official statement released Dec. 7 by BART, Crabtree “summoned his canine, but Hall resisted the dog.” A medical report filed by Alameda County emergency technicians who examined Hall after the shooting includes no mention of any dog bites or wounds of any sort other than those caused by the shotgun. A copy of the report, which has not been released, was obtained by the Bay Guardian.

Crabtree, the official BART statement continues, “fired a warning shot at a nearby tree. Hall continued to move toward the other suspect, and at one point turned and assumed a position which concealed his hands.”

The internal police report, however, states that Owens was the one who was “failing to keep his hands in view,” and who, in what the report described as “an effort to get rid of the evidence [Walkman],” put his hands into his pants pockets. At that point, the report states, Crabtree “used deadly force on suspect Hall.”

Owens said he responded immediately to the second command to halt, but that Hall kept walking away. When Owens heard the shots, he turned around, “and my partner was lying face down…. Then I heard all the cops coming with sirens.”

In fact, within a matter of minutes, at least three more BART police cars and a backup unit from the Hayward Police Department had arrived on the scene. Even if Hall, who by all accounts was walking, not running, had been attempting to “flee,” it’s unlikely he would have been able to get far.

And after an extensive search of the train, the tracks, the station, the parking lot, and everything else in the vicinity, the BART police acknowledge they were unable to find a gun.

Although the BART police initially insisted that Hall had been shot in the chest, and most of the news reports carried that statement unchallenged, even BART now admits that the shot struck the young man in the back of his head. His father, Cornelius Hall, never had any doubt.

“I’m a trained emergency medical technician,” he told the Bay Guardian. “I was in the hospital room when the nurse was washing down the body. I know what an entrance wound looks like, and my son was shot in the back.”

In Modern Police Firearms, a textbook on law-enforcement procedures, Professor Allen P. Bristow of California State University, Los Angeles, writes that deadly force should be used to stop a fleeing felon only when “he cannot be contained or captured” through other means. Further, Bristow notes, an officer considering deadly force should ask the following question:

“Is the crime this suspect is committing, or are the consequences of his possible escape, serious enough to justify my taking his life or endangering the lives of bystanders?”

The San Francisco Police Department guidelines on deadly force embody some of that same philosophy. “Officers shall exhaust all other reasonable means of apprehension and control before resorting to the use of firearms,” the Aug. 24, 1984, policy states. Officers are allowed to shoot at a dangerous, fleeing felony suspect “only after all other reasonable means of apprehension and control have been exhausted.”

San Francisco, like almost every other police agency in the Bay Area, and most in the country, strictly prohibits warning shots. So does BART: “Discharging of firearms [is] not allowable as a warning,” BART’s official weapons policy states.

The BART police are a bit more lenient than San Francisco on the use of deadly force to stop fleeing suspects. The officer must only believe that “the suspect is likely to continue to threaten death or serious bodily harm to another human being,” according to BART’s July 22, 1987, operational directive. Yet the directive also states that a firearm may not be used “when the officer has reason to believe … that the discharge may endanger the lives of passersby, or other persons not involved in the crime, and the officer’s life, or that of another person, is not in imminent danger.”

THE OPEN RANGE

Armed guards have patrolled BART trains and stations since the agency started running trains about 30 years ago. At first, they were simply known as “BART Security”; the officers had the authority to carry weapons and arrest suspects, but under state law, they weren’t members of a real police department. For the most part, that limited their authority to the confines of BART property.

In 1976, the state Legislature granted BART the authority to run a police department with jurisdiction and authority second only to the California Highway Patrol. BART officers now have full police powers, not only on their own turf, but in every one of the 58 California counties.

The department, headquartered near the Lake Merritt BART station, currently employs 151 sworn officers and nine dogs (see sidebar Page TK). An undisclosed number work undercover, in plain clothes, riding the trains and looking for crimes that range from fare evasion, “eating,” and “expectoration,” to assault, robbery, and rape. By far the most common crime, according to a BART police statistical breakdown for 1992, is “vagrancy”: 4,227 separate instances were reported by BART officers in the first 10 months of the year.

The BART Police Department has a $12 million annual budget, a fleet of patrol cars, and its own communications system. Officers earn salaries that Chief Taylor calls “competitive” with other departments in the Bay Area.

And at a time when California law-enforcement agencies are coming under increasingly strict civilian control, the BART police operate with nothing more than token oversight.

Chief Taylor reports to no commission, mayor, or city council. The department is administered by BART’s assistant general manager for public safety, who reports to the general manager, who reports to the board. BART spokesperson Michael Healy said the board plays no role in hiring or firing a chief, much less in disciplining police officers.

Former BART Board member Arlo Hale Smith said that in his term of office, the BART police chief rarely showed up for board meetings. “Even when we had something to discuss about the department – usually a labor-contract issue – the assistant general manager would come,” Smith explained.

Citizen complaints against the BART police are handled by the Internal Affairs Department, which is not a separate agency, as it is in many police departments, but a branch of the Detective Division, Taylor told the Bay Guardian.

That, some critics say, may explain why BART has the lowest possible rate of sustained complaints against its police officers. “There’s a very good reason for civilian agencies to handle complaints against the police,” said the ACLU’s John Crew. “People who have been abused by the police have a hard time trusting the same police department to do an honest investigation.”

Cornelius Hall, who is no stranger to government bureaucracy, said he ran into a stone wall when he tried to get some basic information about his son’s death from BART. “They wouldn’t even give me the police report,” he told the Bay Guardian. “The only way I can find out what happened to my son is to hire a lawyer and have it subpoenaed.”

Crew said he finds the situation “chilling.” He said he saw a “complete dearth” of civilian oversight in the BART administrative structure. “There’s no opportunity for meaningful public input, for hearings, for discussion of issues,” he continued.

“It’s not an acceptable situation. But under the circumstances, the members of the BART Board have an increased responsibility to ask questions and keep on top of their police department’s practices.”

In the case of Jerrold Hall, at least, that doesn’t seem to be happening. The shooting hasn’t been on the agenda for any board meeting since Nov. 15, and board members say they haven’t received any information about it from BART management.

And unlike Cornelius Hall, they haven’t even bothered to ask.

TO TELL THE TRUTH

The day after a BART police officer shot Jerrold Hall in the back of the head, transit agency spokesperson Mike Healy told reporters that Hall had been shot in the chest.

Not true.

Healy also told reporters that Hall had attacked Officer Fred Crabtree, and continued to attack him after Crabtree fired a warning shot.

Not true.

And Healy said that the warning shot was fired “over Hall’s head.”

Not true, either.

Healy freely referred to an alleged “armed robbery,” but he didn’t tell reporters that BART police had searched the entire area and never found a gun. He didn’t say that the alleged robbery victim had vanished without a trace, either.

So the public got a one-sided – and, as it turns out, largely inaccurate – picture of the incident. The press, taking Healy’s information at face value, portrayed Jerrold Hall as a violent, gun-wielding punk, shot in the act of attacking a cop.

“In some ways,” says Hall’s father, Cornelius, “that’s the saddest part of all.”

And while Healy finally put out a statement Dec. 7 acknowledging that some of his previous comments were in error, he did so only after a three-week barrage of questions from the Bay Guardian – and he never issued a word of apology to the Hall family.

It’s hard to blame Healy for the initial round of misinformation: In the heat of a bloody battle, the truth is often obscured. But Healy clearly knew, or could have known, within a few days after the incident that his official press statements had been wrong – that, for example, the medical reports showed Hall had been shot from behind. He could have called the reporters who were covering the story and let them know, or issued a new press release with updated information.

He could have tried to rescue some of what was left of the dead 19 year old’s personal reputation – and salvaged a bit of his own in the process. Instead, he fell back on the old BART strategy: When in doubt, stonewall. Then duck for cover, and hope it will all go away.

The BART Police Department may be the least-responsive law-enforcement agency I’ve seen since the discovery of the shredding machine in the White House basement. There is no press officer. The watch commanders, lieutenants, and captains refer all press calls to Chief Harold Taylor, who won’t come to the phone; his secretary refers the calls to the BART Public Affairs Office.

When I first called Healy Nov. 16 to ask about the shooting, he told me he hadn’t seen a police report, and didn’t know if one existed. He also said he didn’t know what the citizen complaint procedure was for the BART police, and had no idea if it was in writing. I filed a formal request for those and other records Nov. 17; under the Public Records Act, I had a legal right to a response within 10 days.

I let it slide to 15 days (holidays and all), then started calling Healy’s office. He was too busy to come to the phone at first, but after I harassed him for several hours, he told me that Chief Harold Taylor was handling my request, and that I should call him directly. Taylor wouldn’t come to the phone at all: He had an assistant tell me that Public Affairs was handling the request, and that I should call Mike Healy.

I spent another day trying again to reach Healy, who finally told me he wanted to set up an interview with Taylor – for Dec. 4, 17 days after I’d sent in a request for information most police agencies would probably have provided in less than an hour.

Chief Taylor showed up for the interview with a BART lawyer, who promised that the chief would fax me a statement of the facts of the shooting sometime later that afternoon. The brief, incomplete statement finally arrived three days later, around 3:30 p.m. Dec. 7, 21 days after my initial request. And BART officials still won’t release the full police report.

If I were a suspicious reporter, I’d wonder what they were trying to hide.

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Deputy dog

In Philadelphia, the Inquirer revealed several years ago, police dogs attacked 358 people in the course of 33 months, leaving many of them scarred or maimed for life. In Los Angeles, the Times recently reported, the local K-9 Corps recorded more than a thousand bites in three years. In Washington, D.C., and Baltimore, trained German shepherds tore into a total of 375 legs, arms, and torsos in the course of their law-enforcement work.

In the past 10 years, canine corps scandals have tarnished the reputations of police departments all over the country and have cost taxpayers millions of dollars in lawsuits.

In Berkeley, however, police dogs have been banned since the early 1970s, when a City Council member named Ron Dellums responded to the brutal use of dogs against blacks in the South with a resolution abolishing the local canine corps. In San Francisco, dogs handle only a few very limited tasks.

But since 1990, the BART Police Canine Corps has been expanding into the sort of work that created such extensive problems in other American cities – a use for dogs that critics say has little justification.

“There are two basic rationales for using police dogs,” explained Richard Avenzino, director of the San Francisco SPCA, whose agency has worked with the local Police Department canine program. “One is for sniffing out explosives or narcotics. The other is for searches, mainly in enclosed spaces, where the dog’s sense of smell can aid in finding a hidden human suspect.

“But there’s also a perception that a snarling dog can intimidate people, which creates a lot more potential for trouble.”

The first BART Police canine corps dates back to the early 1970s. But the BART Board disbanded the program in 1975, after a police dog on a train in Philadelphia barked at BART Director John Glenn.

In 1990, Police Chief Harold Taylor restored four dogs to the force, saying they would be “a strong statement of police presence,” would deter violent crime, and could be used to help clear homeless people from trains and stations. In an interview last week, Taylor said the dogs, which now number nine, are used “to back up officers, in all their law-enforcement duties.”

The dogs, imported German shepherds, are bred and undergo Schützhund training at a special school in Germany, where they learn to attack on command. “The dogs only [understand] German,” explained Deputy Chief Kevin Sharp. “The officers learn to issue their commands in that language.”

Sharp said none of the BART dogs are trained to sniff out bombs or drugs and that they aren’t often needed for searches. In normal situations, he said, the dogs stay in the police car, with the window open, while the officer approaches a suspect. “They’re trained to jump out and attack without any command if they see that the officer is under assault,” he added.

ACLU Police Practices lawyer John Crew found that description alarming. “In other words,” he said, “we have dogs deciding on their own when to use what amounts to lethal force. That’s not a very good idea.”

Avenzino said the training methods used for such dogs “are, to put it mildly, controversial. A dog will do anything to please its owner; if you teach it to attack on command, it’s like loading a gun. In my opinion, it’s very dangerous.”

Jim Chanin, a Berkeley lawyer who has filed several lawsuits over attacks by police dogs, said he sees no good reason for BART to have a canine corps. “The problem is that these dogs are just trained to attack,” he explained. “You can’t use them to search for some kid lost in the BART tunnel.

“If there’s something the BART police do on a regular basis that requires the use of dogs, I certainly can’t see what it is.”

Chief Taylor told the Bay Guardian that dogs provide much less expensive backup than additional sworn officers. Berkeley Police Lt. Tom Grant said he agrees, to a point: “But then you have to pay out those big legal settlements if one of the dogs does something wrong.”

Reviving radicalism

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› news@sfbg.com

As the country’s economic, environmental, and political systems teeter on the brink of collapse, several Bay Area groups are reviving calls for radical solutions. And some are drawing parallels to the spirited political activity of 40 years ago.

“In my opinion, 1968 was the beginning of a process, an awakening of the questioning of social movements,” Andrej Grubacic, a globalization lecturer at ZMedia Institute and the University of San Francisco, told the Guardian.

The Great Rehearsal was a week of events from Sept. 17-25 that centered on the many protests, actions, and events of the 1960s and ’70s that are paralleled today. The event alluded to an ongoing struggle for alternatives to the failing institutions that are hurting the average American.

“Neoliberalism is this sort of clinching of the system. It is the last gasp of a dying system,” Katherine Wallerstein, executive director of the nonprofit Global Commons, told us. Wallerstein believes that deregulation is to blame for many of our economic woes, such as the housing crisis, job loss, and a volatile market.

Other recent events such as the Radical Women conference in San Francisco have highlighted the systemic causes of our economic turmoil, saying we should bail out people not banks, cancel student debt, and end home foreclosures. They went on to suggest that the bailout was just a form of jubilee for the rich.

Radical Women member Linda Averill announced at the conference that “if unions don’t take the offense now, we’re going to lose it all.” She went on to advocate mobilizing the labor movement, stating that we must band together against those sustaining the system. Other revolutionaries went even further, calling to abolish the capitalist system. RW member Toni Mendicino said the system of profit is inherently greedy and that reguutf8g it isn’t enough — we must get rid of it.

The Student Environmental Action Coalition (SEAC) is a radical student-run organization focused on solving global climate change. Many of the initiatives taken by SEAC deal with less mainstream environmental concerns, including combating coal power and promoting clean water. These previously ignored problems are pumping new life into the environmental movement. Brian Kelly, former Students for a Democratic Society organizer who now does organizing work for SEAC, told us, “The problem is the fucked-up system. (We need to) carve out a decent life through an alternative to capitalism.”

John Cronan, an organizer for the radical union Industrial Workers of the World, advocates Participatory Economics (Parecon) as an alternative to capitalism. He highlighted Parecon’s values as a solidarity-based system that abolishes the market and replaces it with participatory planning. Parecon, he says, will take into account the social costs that goods and services create; something commonly ignored in today’s capitalist system, a system many claim perpetuates the environmental crisis.

“Climate change is highlighting the system flaws,” Kelly said. He went on to place the environment and climate change as the highest priority in the upcoming presidential election, proposing green technology as the answer to the economic turmoil and global climate change taking place. The Power Vote program, he told us, supports the investment in green technologies by politicians and citizens.

The Community Environmental Legal Defense Fund (CELDF) has pushed local governments in many rural farming communities to create ordinances claiming nature as an entity that should have more political and legal prominence than property. These ordinances aim to curb pollution and provide communities with a safeguard against corporate influence.

Through similar efforts, grassroots organizations have managed to stop 59 coal-fired power plants in 2007 by persuading courts not to grant permits for the plants. This is one of many steps to contest the environmental degradation taking place.

“I believe we have reached the stage where it is time for civil disobedience,” said Al Gore, calling for people to rise up against the construction of new coal plants, speaking at the Clinton Global Initiative in March.

Gore’s call to action has prompted many activists to battle corporations and self-interested government. “The current economic and political systems are out of whack with human and democratic values,” Kelly said. “The system is exposing itself.” According to many, the system is shifting dangerously close to totalitarianism.

There’s even been a resurgence of the old Cointelpro (Counter Intelligence Program), an FBI-run spying and political sabotage program that was responsible for the arrests of 13 Black Panthers in 1973 in connection with the 1971 murder of a San Francisco police officer. The men were subjected to torture techniques similar to those used at Guantánamo Bay and Abu Ghraib.

The 13 Panthers were acquitted for lack of evidence and the case was closed. However, in 2005, with the help of the USA Patriot Act, the case was reopened and eight of the Panthers were re-arrested. John Bowman, one of the detained, announced to the press, “The same people who tried to kill me in 1973 are the same people who are here today trying to destroy me.” Former Panther Richard Brown warned audiences at the Great Rehearsal that the Patriot Act has given the government the ability to profile any ethnic group or organization, past and present, as terrorists.

“The Patriot Act was passed in the name of protecting us and our democracy. But it limits us,” Cronan said. Groups like New SDS have incorporated working against the Patriot Act through their antiwar work, and the American Civil Liberties Union (ACLU) has consistently battled against the act.

Even the Communists are back. Earlier this month, the Revolutionary Communist Party held a demonstration in San Francisco, telling the small crowd, “The world today cries out for radical, fundamental change.”

Many radical groups see opportunity in the current moment. Grubacic told us that, “The future belongs to the ones creating it in the present.” *

 

Project Censored

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› amanda@sfbg.com

The daily dispatches and nightly newscasts of the mainstream media regularly cover terrorism, but rarely discuss how the fear of attacks is used to manipulate the public and set policy. That’s the common thread of many unreported stories last year, according to an analysis by Project Censored.

Since 1976, Sonoma State University has released an annual survey of the top 25 stories the mainstream media failed to report or reported poorly. Culled from worldwide alternative news sources, vetted by students and faculty, and ranked by judges, the stories were not necessarily overtly censored. But their controversial subjects, challenges to the status quo, or general under-the-radar subject matter might have kept them from the front pages. Project Censored recounts them, accompanied by media analysis, in a book of the same name published annually by Seven Stories Press.

"This year, war and civil liberties stood out," Peter Phillips, project director since 1996, said of the top stories. "They’re closely related and part of the War on Terror that has been the dominant theme of Project Censored for seven years, since 9/11."

Whether it’s preventing what one piece of legislation calls "homegrown terrorism" by federally funding the study of radicalism, using vague concerns about security to quietly expand NAFTA, or refusing to count the number of Iraqi civilians killed in the war, the threat of terrorism is being used to silence people and expand power.

"The war on terror is a sort of mind terror," said Nancy Snow, one of the project’s 24 judges and an associate professor of public diplomacy at the Newhouse School of Public Communications at Syracuse University. Snow — who has taught classes on war, media, and propaganda — elaborated: "You can’t declare war on terror. It’s a tactic used by groups to gain publicity and it will remain with us. But it’s unlikely that [the number of terrorist acts] will spike. It spikes in the minds of people."

She pointed out that the number of terrorist attacks has dropped worldwide since 2003. Some use the absence of fresh attacks as evidence that the so-called war on terror is working. But a RAND Corporation study for the Department of Defense released in August said the war on terror hasn’t effectively undermined Al Qaeda. It suggested the phrase be replaced with the less loaded term "counterterrorism."

Both Phillips and Snow agree that comprehensive, contextual reporting is missing from most of the coverage. "That’s one of my criticisms of the media," Snow said. "They spotlight issues and don’t look at the entire landscape."

This year the landscape of Project Censored itself is expanding. After talking with educators who bemoan the ongoing decline of news quality and want to help, Phillips launched the Truth Emergency Project, in which Sonoma State partners with 23 other universities. All will host classes for students to search out untold stories, vet them for accuracy, and submit them for consideration to Project Censored.

"There’s a renaissance of independent media," Phillips said. He thinks bloggers and citizen journalists are filling crucial roles left vacant by staff cutbacks throughout the mainstream media. And, he said, it’s time for universities, educators, and media experts to step in and help. "It’s not just reforming the media, but supporting them in as many ways as they need, like validating stories by fact-checking."

The Truth Emergency Project will also host a news service that aggregates the top 12 independent media sources and posts them on one page. "So you can get an RSS feed from all the major independent news sources we trust," he said. Discerning newshounds can find reporting from the BBC, Democracy Now!, and Inter Press Service (IPS) in one spot. "The whole criteria," he said, "is no corporate media."

Carl Jensen, who started Project Censored in 1976, said the expansion is a new and necessary phase. "It answers the question I was always challenged with: how do you know this is the truth? Having 24 campuses reviewing all the stories and raising questions really provides a good answer. These stories will be vetted more than Sarah Palin."

Phillips said he hopes to expand to 100 schools within the year, and would like the project to bring more attention to the dire need for public support for high quality news reporting. "I think it’s going to require government subsidies and nonprofit organizations doing community media projects," he said. "It’s more than just reforming at the FCC level. It’s building independent media from the ground up."

Phillips likens it to the boom in microbrewed beer and the spread of independently-owned pubs: "If we can have a renaissance in beer-making, following established purity standards, then we can do it with our media, too." But for now, we have Project Censored, whose top 10 underreported stories for 2008 are:

1. HOW MANY IRAQIS HAVE DIED?


Nobody knows exactly how many lives the Iraq War has claimed. But even more astounding is that so few journalists have mentioned the issue or cited the top estimate: 1.2 million.

During August and September 2007, Opinion Research Business, a British polling group, surveyed 2,414 adults in 15 of 18 Iraqi provinces and found that more than 20 percent had experienced at least one war-related death since March 2003. Using common statistical study methods, it determined that as many as 1.2 million people had been killed since the war began.

The US military, claiming it keeps no count, still employs civilian death data as a marker of progress. For example, in a Sept. 10, 2007, report to Congress, Gen. David Petraeus said, "Civilian deaths of all categories, less natural causes, have also declined considerably, by over 45 percent Iraq-wide since the height of the sectarian violence in December."

But whose number was he using? Estimates range wildly and are based on a variety of sources, including hospital, morgue, and media reports, as well as in-person surveys.

In October 2006, the British medical journal Lancet published a Johns Hopkins University study vetted by four independent sources that counted 655,000 dead, based on interviews with 1,849 households. It updated a similar study from 2004 that counted 100,000 dead. The Associated Press called it "controversial."

The AP began its own count in 2005 and by 2006 said that at least 37,547 Iraqis had lost their lives due to war-related violence, but called it a minimum estimate at best and didn’t include insurgent deaths.

Iraq Body Count, a group of US and UK citizens who aggregate numbers from media reports on civilian deaths, puts the figure between 87,000 and 95,000. In January 2008, the World Health Organization and the Iraqi government did door-to-door surveys of nearly 10,000 households and put the number of dead at 151,000.

The 1.2 million figure is out there, too, which is higher than the Rwandan genocide death toll and closing in on the 1.7 million who perished in Cambodia’s killing fields. It raises questions about the real number of deaths from US aerial bombings and house raids, and challenges the common assumption that this is a war in which Iraqis are killing Iraqis.

Justifying the higher number, Michael Schwartz, writing on the blog AfterDowningStreet.org, pointed to a fact reported by the Brookings Institute that US troops have, over the past four years, conducted about 100 house raids a day — a number that has recently increased with assistance from Iraqi soldiers.

Brutality during these house searches has been documented by returning soldiers, Iraqi civilians, and independent journalists (See #9 below). Schwartz suggests the aggressive "element of surprise" tactics employed by soldiers is likely resulting in several thousands of deaths a day that either go unreported or are categorized as insurgent casualties.

The spin is having its intended effect: a February 2007 AP poll showed Americans gave a median estimate of 9,890 Iraqi deaths as a result of the war, a number far below that cited in any credible study.

Sources: "Is the United States killing 10,000 Iraqis every month? Or is it more?" Michael Schwartz, After Downing Street.org, July 6, 2007; "Iraq death toll rivals Rwanda Genocide, Cambodian killing fields," Joshua Holland, AlterNet, Sept. 17, 2007; "Iraq conflict has killed a million: survey," Luke Baker, Reuters, Jan. 30, 2008; "Iraq: Not our country to return to," Maki al-Nazzal and Dahr Jamail, Inter Press Service, March 3, 2008.

2. NAFTA ON STEROIDS


Coupling the perennial issue of security with Wall Street’s measures of prosperity, the leaders of the three North American nations convened the Security and Prosperity Partnership. The White House–led initiative — launched at a March 23, 2005, meeting of President Bush, Mexico’s then-president Vicente Fox, and Canadian Prime Minister Paul Martin — joins beefed-up commerce with coordinated military operations to promote what it calls "borderless unity."

Critics call it "NAFTA on steroids." However, unlike NAFTA, the SPP was formed in secret, without public input.

"The SPP is not a law, or a treaty, or even a signed agreement," Laura Carlsen wrote in a report for the Center for International Policy. "All these would require public debate and participation of Congress, both of which the SPP has scrupulously avoided."

Instead the SPP has a special workgroup: the North American Competitiveness Council. It’s a coalition of private companies that are, according to the SPP Web site, "adding high-level business input [that] will assist governments in enhancing North America’s competitive position and engage the private sector as partners in finding solutions."

The NACC includes the Chevron Corporation, Ford Motor Company, General Electric, Lockheed Martin Corporation, Merck & Co. Inc., New York Life Insurance Co., Procter & Gamble Co., and Wal-Mart Stores, Inc.

"Where are the environmental council, the labor council, and the citizen’s council in this process?" Carlsen asked.

A look at NAFTA’s unpopularity among citizens in all three nations is evidence of why its expansion would need to be disguised. "It’s a scheme to create a borderless North American Union under US control without barriers to trade and capital flows for corporate giants, mainly US ones," wrote Steven Lendman in Global Research. "It’s also to insure America gets free and unlimited access to Canadian and Mexican resources, mainly oil, and in the case of Canada, water as well."

Sources: "Deep Integration," Laura Carlsen, Center for International Policy, May 30, 2007; "The Militarization and Annexation of North America," Stephen Lendman, Global Research, July 19, 2007; "The North American Union," Constance Fogal, Global Research, Aug. 2, 2007.

3. INFRAGARD GUARDS ITSELF


The FBI and Department of Homeland Security have effectively deputized 23,000 members of the business community, asking them to tip off the feds in exchange for preferential treatment in the event of a crisis. "The members of this rapidly growing group, called InfraGard, receive secret warnings of terrorist threats before the public does — and, at least on one occasion, before elected officials," Matthew Rothschild wrote in the March 2008 issue of The Progressive.

InfraGard was created in 1996 in Cleveland as part of an FBI probe into cyberthreats. Yet after 9/11, membership jumped from 1,700 to more than 23,000, and now includes 350 of the nation’s Fortune 500 companies. Members typically have a stake in one of several crucial infrastructure industries, including agriculture, banking, defense, energy, food, telecommunications, law enforcement, and transportation. The group’s 86 chapters coordinate with 56 FBI field offices nationwide.

While FBI Director Robert Mueller has said he considers this segment of the private sector "the first line of defense," the American Civil Liberties Union issued a grave warning about the potential for abuse. "There is evidence that InfraGard may be closer to a corporate TIPS program, turning private-sector corporations — some of which may be in a position to observe the activities of millions of individual customers — into surrogate eyes and ears for the FBI," it cautioned in an August 2004 report.

"The FBI should not be creating a privileged class of Americans who get special treatment," Jay Stanley, public education director of the ACLU’s technology and liberty program, told Rothschild.

And they are privileged: a DHS spokesperson told Rothschild that InfraGard members receive special training and readiness exercises. They’re also privy to protected information that is usually shielded from disclosure under the trade secrets provision of the Freedom of Information Act.

The information they have may be of critical importance to the general public, but first it goes to the privileged membership — sometimes before it’s released to elected officials. As Rothschild related in his story, on Nov. 1, 2001, the FBI sent an alert to InfraGard members about a potential threat to bridges in California. Barry Davis, who worked for Morgan Stanley, received the information and relayed it to his brother Gray, then governor of California, who released it to the public.

Steve Maviglio, Davis’s press secretary at the time, told Rothschild, "The governor got a lot of grief for releasing the information. In his defense, he said, ‘I was on the phone with my brother, who is an investment banker. And if he knows, why shouldn’t the public know?’<0x2009>"

Source: "The FBI deputizes business," Matthew Rothschild, The Progressive, Feb. 7, 2008.

4. ILEA: TRAINING GROUND FOR ILLEGAL WARS?


The School of the Americas earned an unsavory reputation in Latin America after many graduates of the Fort Benning, Ga., facility turned into counterinsurgency death squad leaders. So the International Law Enforcement Academy recently installed by the Unites States in El Salvador — which looks, acts, and smells like the SOA — is also drawing scorn.

The school, which opened in June 2005 before the Salvadoran National Assembly approved it, has a satellite operation in Peru and is funded with $3.6 million from the US Treasury and staffed with instructors from the DEA, ICE, and FBI. It’s tasked with training 1,500 police officers, judges, prosecutors, and other law enforcement agents in counterterrorism techniques per year. It’s stated purpose is to make Latin America "safe for foreign investment" by "providing regional security and economic stability and combating crime."

ILEAs aren’t new, but past schools located in Hungary, Thailand, Botswana, and Roswell, N.M., haven’t been terribly controversial. Yet Salvadoran human rights organizers take issue with the fact that, in true SOA fashion, the ILEA releases neither information about its curriculum nor a list of students and graduates. Additionally, the way the school slipped into existence without public oversight has raised ire.

As Wes Enzinna noted in a North American Congress on Latin America report, when the US decided it wanted a training ground in Latin America, El Salvador was not the first choice. In 2002 US officials selected Costa Rica as host — a country that doesn’t even have an army. The local government signed on and the plan made headlines. But when citizens learned about it, they revolted and demanded the government change the agreement. The US bailed for a more discreet second attempt in El Salvador.

"Members of the US Congress were not briefed about the academy, nor was the main opposition party in El Salvador, the Farabundo Martí-National Liberation Front (FMLN)," Enzinna wrote. "But once the news media reported that the two countries had signed an official agreement in September, activists in El Salvador demanded to see the text of the document." Though they tried to garner enough opposition to kill the agreement, the National Assembly narrowly ratified it.

Now, after more than three years in operation, critics point out that Salvadoran police, who account for 25 percent of the graduates, have become more violent. A May 2007 report by Tutela Legal implicated Salvadoran National Police (PNC) officers in eight death squad–style assassinations in 2006.

El Salvador’s ILEA recently received another $2 million in US funding through the congressionally approved Mérida Initiative — but still refuses to adopt a more transparent curriculum and administration, despite partnering with a well-known human rights leader. Enzinna’s FOIA requests for course materials were rejected by the government, so no one knows exactly what the school is teaching, or to whom.

Sources: "Exporting US ‘Criminal Justice’ to Latin America," "Community in Solidarity with the people of El Salvador," Upside Down World, June 14, 2007; "Another SOA?" Wes Enzinna, NACLA Report on the Americas, March/April 2008; "ILEA funding approved by Salvadoran right wing legislators," CISPES, March 15, 2007; "Is George Bush restarting Latin America’s ‘dirty wars?’<0x2009>" Benjamin Dangl, AlterNet, Aug. 31, 2007.

5. SEIZING PROTEST


Protesting war could get you into big trouble, according to a critical read of two executive orders recently signed by President Bush. The first, issued July 17, 2007, and titled, "Blocking property of certain persons who threaten stabilization efforts in Iraq," allows the feds to seize assets from anyone who "directly or indirectly" poses a risk to the US war in Iraq. And, citing the modern technological ease of transferring funds and assets, the order states that no prior notice is necessary before the raid.

On Aug. 1, Bush signed another order, similar but directed toward anyone undermining the "sovereignty of Lebanon or its democratic processes and institutions." In this case, the Secretary of the Treasury can seize the assets of anyone perceived as posing a risk of violence, as well as the assets of their spouses and dependents, and bans them from receiving any humanitarian aid.

Critics say the orders bypass the right to due process and the vague language makes manipulation and abuse possible. Protesting the war could be perceived as undermining or threatening US efforts in Iraq. "This is so sweeping, it’s staggering," said Bruce Fein, a former Reagan administration official in the Justice Department who editorialized against it in the Washington Times. "It expands beyond terrorism, beyond seeking to use violence or the threat of violence to cower or intimidate a population."

Sources: "Bush executive order: Criminalizing the antiwar movement," Michel Chossudovsky, Global Research, July 2007; "Bush’s executive order even worse than the one on Iraq," Matthew Rothschild, The Progressive, Aug. 2007.

6. RADICALS = TERRORISTS


On Oct. 23, 2007, the House of Representatives overwhelmingly passed — by a vote of 404-6 — the "Violent Radicalization and Homegrown Terrorism Prevention Act," designed to root out the causes of radicalization in Americans.

With an estimated four-year cost of $22 million, the act establishes a 10-member National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism, as well as a university-based Center of Excellence "to examine the social, criminal, political, psychological, and economic roots of domestic terrorism," according to a press release from the bill’s author, Rep. Jane Harman (D-Los Angeles).

During debate on the bill, Harman said, "Free speech, espousing even very radical beliefs, is protected by our Constitution. But violent behavior is not."

Jessica Lee, writing in the Indypendent, a newspaper put out by the New York Independent Media Center, pointed out that in a later press release Harman stated: "the National Commission [will] propose to both Congress and [Department of Homeland Security Secretary Michael] Chertoff initiatives to intercede before radicalized individuals turn violent."

Which could be when they’re speaking, writing, and organizing in ways that are protected by the First Amendment. This redefines civil disobedience as terrorism, say civil rights experts, and the wording is too vague. For example, the definition of "violent radicalization" is "the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change."

"What is an extremist belief system? Who defines this? These are broad definitions that encompass so much…. It is criminalizing thought and ideology," said Alejandro Queral, executive director of the Northwest Constitutional Rights Center in Portland, Ore.

Though the ACLU recommended some changes that were adopted, it continued to criticize the bill. Harman, in a response letter, said free speech is still free and stood by the need to curb ideologically-based violence.

The story didn’t make it onto the CNN ticker, but enough independent sources reported on it that the equivalent Senate Bill 1959 has since stalled. After introducing the bill, Sen. Susan Collins (R-Me.), later joined forces with Sen. Joe Lieberman (I-Conn.) on a report criticizing the Internet as a tool for violent Islamic extremism.

Despite an outcry from civil liberties groups, days after the report was released Lieberman demanded that YouTube remove a number of Islamist propaganda videos. YouTube canned some that broke their rules regarding violence and hate speech, but resisted censoring others. The ensuing battle caught the attention of the New York Times, and on May 25 it editorialized against Lieberman and S 1959.

Sources: "Bringing the war on terrorism home," Jessica Lee, Indypendent, Nov. 16, 2007; "Examining the Homegrown Terrorism Prevention Act," Lindsay Beyerstein, In These Times, Nov. 2007; "The Violent Radicalization Homegrown Terrorism Prevention Act of 2007," Matt Renner, Truthout, Nov. 20, 2007

7. SLAVERY’S RUNNER-UP


Every year, about 121,000 people legally enter the United States to work with H-2 visas, a program legislators are touting as part of future immigration reform. But Rep. Charles Rangel (D-N.Y.) called this guest worker program "the closest thing I’ve ever seen to slavery."

The Southern Poverty Law Center likened it to "modern day indentured servitude." They interviewed thousands of guest workers and reviewed legal cases for a report released in March 2007, in which authors Mary Bauer and Sarah Reynolds wrote, "Unlike US citizens, guest workers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who ‘import’ them. If guest workers complain about abuses, they face deportation, blacklisting, or other retaliation."

When visas expire, workers must leave the country, hardly making this the path to permanent citizenship legislators are looking for. The H-2 program mimics the controversial bracero program, established through a joint agreement between Mexico and the United States in 1942 that brought 4.5 million workers over the border during the 22 years it was in effect.

Many legal protections were written into the program, but in most cases they existed only on paper in a language unreadable to employees. In 1964 the program was shuttered amid scores of human rights abuses and complaints that it undermined petitions for higher wages from US workers. Soon after, United Farm Workers organized, which César Chávez said would have been impossible if the bracero program still existed.

Years later, it essentially still does. The H-2A program, which accounted for 32,000 agricultural workers in 2005, has many of the same protections — and many of the same abuses. Even worse is the H-2B program, used by 89,000 non-agricultural workers annually. Created by the Immigration Reform and Control Act of 1986, none of the safeguards of the H-2A visa are legally required for H-2B workers.

Still, Mexicans are literally lining up for H-2B status, the stark details of which were reported by Felicia Mello in The Nation. Furthermore, thousands of illegal immigrants are employed throughout the country, providing cheap, unprotected labor and further undermining the scant provisions of the laws. Labor contractors who connect immigrants with employers are stuffing their pockets with cash, while the workers return home with very little money.

The Southern Poverty Law Center outlined a list of comprehensive changes needed in the program, concluding, "For too long, our country has benefited from the labor provided by guest workers but has failed to provide a fair system that respects their human rights and upholds the most basic values of our democracy. The time has come for Congress to overhaul our shamefully abusive guest worker system."

Sources: "Close to Slavery," Mary Bauer and Sarah Reynolds, Southern Poverty Law Center, March 2007; "Coming to America," Felicia Mello, The Nation, June 25, 2007; "Trafficking racket," Chidanand Rajghatta, Times of India, March 10, 2008.

8. BUSH CHANGES THE RULES


The Bush administration’s Office of Legal Counsel in the Department of Justice has been issuing classified legal opinions about surveillance for years. As a member of the Senate Intelligence Committee, Sen. Sheldon Whitehouse (D-R.I.) had access to the DOJ opinions on presidential power and had three declassified to show how the judicial branch has, in a bizarre and chilling way, assisted President Bush in circumventing its own power.

According to the three memos:

"There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it";

"The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II," and

"The Department of Justice is bound by the President’s legal determinations."

Or, as Whitehouse rephrased in a Dec. 7, 2007, Senate speech: "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them. I get to determine what my own powers are. The Department of Justice doesn’t tell me what the law is. I tell the Department of Justice what the law is."

The issue arose within the context of the Protect America Act, which expands government surveillance powers and gives telecom companies legal immunity for helping. Whitehouse called it "a second-rate piece of legislation passed in a stampede in August at the behest of the Bush administration."

He pointed out that the act does not prohibit spying on Americans overseas — with the exception of an executive order that permits surveillance only of Americans whom the Attorney General determines to be "agents of a foreign power."

"In other words, the only thing standing between Americans traveling overseas and government wiretap is an executive order," Whitehouse said in an April 12 speech. "An order this president, under the first legal theory I cited, claims he has no legal obligation to obey."

Whitehouse, a former US Attorney, legal counsel to Rhode Island’s governor, and Rhode Island Attorney General who took office in 2006, went on to point out that Marbury vs. Madison, written by Chief Justice John Marshall in 1803, established that it is "emphatically the province and duty of the judicial department to say what the law is."

Sources: "In FISA Speech, Whitehouse sharply criticizes Bush Administration’s assertion of executive power," Sheldon Whitehouse, Dec. 7, 2007; "Down the Rabbit Hole," Marcy Wheeler, The Guardian (UK), Dec. 26, 2007.

9. SOLDIERS SPEAK OUT


Hearing soldiers recount their war experiences is the closest many people come to understanding the real horror, pain, and confusion of combat. One would think that might make compelling copy or powerful footage for a news outlet. But in March, when more than 300 veterans from the wars in Iraq and Afghanistan convened for four days of public testimony on the war, they were largely ignored by the media.

Winter Soldier was designed to give soldiers a public forum to air some of the atrocities they witnessed. Originally convened by Vietnam Vets Against the War in January 1971, more than 100 Vietnam veterans and 16 civilians described their war experiences, including rapes, torture, brutalities, and killing of non-combatants. The testimony was entered into the Congressional Record, filmed, and shown at the Cannes Film Festival.

Iraq Veterans Against the War hosted the 2008 reprise of the 1971 hearings. Aaron Glantz, writing in One World, recalled testimony from former Marine Cpl. Jason Washburn, who said, "his commanders encouraged lawless behavior. ‘We were encouraged to bring ‘drop weapons,’ or shovels. In case we accidentally shot a civilian, we could drop the weapon on the body and pretend they were an insurgent.’<0x2009>"

An investigation by Chris Hedges and Laila Al-Arian in The Nation that included interviews with 50 Iraq war veterans also revealed an overwhelming lack of training and resources, and a general disregard for the traditional rules of war.

Though most major news outlets sent staff to cover New York’s Fashion Week, few made it to Silver Spring, Md. for the Winter Soldier hearings. Fortunately, KPFA and Pacifica Radio broadcast the testimonies live and, in an update to the story, said they were "deluged with phone calls, e-mails, and blog posts from service members, veterans, and military families thanking us for breaking a cultural norm of silence about the reality of war." Testimonies can still be heard at www.ivaw.org.

Sources: "Winter Soldier: Iraq & Afghanistan eyewitness accounts of the occupation," Iraq Veterans Against the War, March 13-16, 2008; "War comes home," Aaron Glantz, Aimee Allison, and Esther Manilla, Pacifica Radio, March 14-16, 2008; "US Soldiers testify about war crimes," Aaron Glantz, One World, March 19, 2008; "The Other War," Chris Hedges and Laila Al-Arian, The Nation, July 30, 2007.

10. APA HELPS CIA TORTURE


Psychologists have been assisting the CIA and US military with interrogation and torture of Guantánamo detainees — which the American Psychological Association has said is fine, despite objections from many of its 148,000 members.

A 10-member APA task force convened on the divisive issue in July 2005 and found that assistance from psychologists was making the interrogations safe and the group deferred to US standards on torture over international human-rights organizations’ definitions.

The task force was criticized by APA members for deliberating in secret, and later it was revealed that six of the 10 participants had ties to the armed services. Not only that, but as Katherine Eban reported in Vanity Fair, "Psychologists, working in secrecy, had actually designed the tactics and trained interrogators in them while on contract to the CIA."

In particular, psychologists James Mitchell and Bruce Jessen, neither of whom are APA members, honed a classified military training program known as SERE [Survival, Evasion, Resistance, Escape] that teaches soldiers how to tough out torture if captured by enemies. "Mitchell and Jessen reverse-engineered the tactics inflicted on SERE trainees for use on detainees in the global war on terror," Eban wrote.

And, as Mark Benjamin noted in a Salon article, employing SERE training — which is designed to replicate torture tactics that don’t abide by Geneva Convention standards — refutes past administration assertions that current CIA torture techniques are safe and legal. "Soldiers undergoing SERE training are subject to forced nudity, stress positions, lengthy isolation, sleep deprivation, sexual humiliation, exhaustion from exercise, and the use of water to create a sensation of suffocation," Benjamin wrote.

Eban’s story outlined how SERE tactics were spun as "science" despite a lack of data and the critique that building rapport works better than blows to the head. Specifically, he said, it’s been misreported that CIA torture techniques got Al Qaeda operative Abu Zubaydah to talk, when it was actually FBI rapport-building. In spite of this, SERE techniques became standards in interrogation manuals that eventually made their way to US officers guarding Abu Ghraib.

Ongoing uproar within the APA resulted in a petition to make an official policy limiting psychologists’ involvement in interrogations. On Sept. 17, a majority of 15,000 voting members approved a resolution stating that psychologists may not work in settings where "persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights."

Sources: "The CIA’s torture teachers," Mark Benjamin, Salon, June 21, 2007; "Rorschach and awe," Katherine Eban, Vanity Fair, July 17, 2007.

OTHER STORIES IN THE TOP 25


11. El Salvador’s Water Privatization and the Global War on Terror

12. Bush Profiteers Collect Billions from No Child Left Behind

13. Tracking Billions of Dollars Lost in Iraq

14. Mainstreaming Nuclear Waste

15. Worldwide Slavery

16. Annual Survey on Trade Union Rights

17. UN’s Empty Declaration of Indigenous Rights

18. Cruelty and Death in Juvenile Detention Centers

19. Indigenous Herders and Small Farmers Fight Livestock Extinction

20. Marijuana Arrests Set New Record

21. NATO Considers "First Strike" Nuclear Option

22. CARE Rejects US Food Aid

23. FDA Complicit in Pushing Pharmaceutical Drugs

24. Japan Questions 9/11 and the Global War on Terror

25. Bush’s Real Problem with Eliot Spitzer

Read them all at projectcensored.org

———————————————————–

CENSORED IN SAN FRANCISCO

Good stories are going untold everywhere, but Project Censored can’t cover it all. The project focuses on national an international news, but in a place politically, environmentally, and socially charged as the Bay Area, there’s plenty going on that major media sources ignore, underplay, black out, or misreport.

We called local activists, politicians, freelance journalists, and media experts to come up with a list of a few Bay Area censored stories. Post a comment and add your own!

>> The truth about Prop. H: Pacific Gas and Electric Company has been spending millions to tell lies about the Clean Energy Act, Proposition H. But the mainstream press has done nothing to counter that misinformation.

>> The dirty secret of the secrecy law: Vioutf8g San Francisco’s local public records law, the Sunshine Ordinance, carries no penalty, so city agencies do it at will. The failure of the district attorney and Ethics Commission to enforce the law has undermined open-government efforts.

>> The military red herring: The real politics of the JROTC ballot measure have little to do with this particular program. Downtown and the Republican party are using the measure as a wedge issue against progressives

>> The mayor’s war on affordable housing: Mayor Gavin Newsom, who touts his record on homelessness, has actually opposed every major affordable-housing measure proposed by the Board of Supervisors in the last five years. And since Newsom became mayor the city homeless population has increased — but shelter closings have cost the city 400 beds.

>> The hidden cost of attacking immigrants: The San Francisco Chronicle and Mayor Gavin Newsom have been demanding a crackdown on undocumented immigrants in the name of law enforcement – but the move has made immigrants less likely to cooperate with the police and thus is hindering criminal-justice

Dreams of Obama

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› news@sfbg.com

Barack Obama, it is true, is a transformational leader. But he needs a transformational movement to become a transformational president.

He is transformational not only by his charisma and brilliance, but by embodying the possibility of an African American being chosen president in the generation following the civil rights movement. Whether he wins or loses, the vast movement inspired by Obama will become the next generation of American social activists.

For many Americans, the possibility of Obama is a deeply personal one. I mean here the mythic Obama who exists in our imaginations, not the literal Obama whose centrist positions will disappoint many progressives.

Myths are all-important, as Obama writes in Dreams from My Father (Three Rivers Press, 2004). Fifty years ago, the mythic Obama existed only as an aspiration, an ideal, in a country where interracial love was taboo and interracial marriage was largely banned. As Obama himself declared on the night of the Iowa primary, "Some said this night would never come."

The early civil rights movement, the jazz musicians, and the Beat poets dreamed up this mythic Obama before the literal Obama could materialize. His African father and white countercultural mother dared to dream and love him into existence, incarnate him, at the creative moment of the historic march on Washington. Only the overthrow of Jim Crow segregation opened space for the dream to rise politically.

In one of his best oratorical moments, Obama summons the spirit of social movements built from the bottom up, from the Revolutionary War to the abolitionist crusade, to the women’s suffrage cause, to the eight-hour day and the rights of labor, ending with the time of his birth when the walls came down in Selma and Montgomery, Ala., and Delano. As he repeats this mantra of movements thousands of times to millions of Americans, a new cultural understanding becomes possible. This is the foundation of a new American story that is badly needed.

Obama’s emerging narrative also includes but supercedes the other major explanation of American specialness, the narrative of the "melting pot," by noting that whatever "melting" did occur was always in the face of massive and entrenched opposition from the privileged.

John McCain represents a very different aspect of the American story. His inability to limit the adventurist appetite for war is the most dangerous element of the McCain, and the Republican, worldview. It is paralleled, of course, by their inability to limit the corporate appetite for an unregulated market economy. In combination, the brew is an economy directed to the needs of the country club rich, the oil companies, and military contractors. A form of crony capitalism slouches forward in place of either competitive markets or state regulation.

Yet McCain has a good chance, the best chance among Republicans, of winning in November. He appeals to those whose idea of the future is more of the past, buying time against the inevitable. And McCain is running against Obama, who threatens our institutions and culture simply by representing the unexpected and unauthorized future.

My prediction: if he continues on course, Obama will win the popular vote by a few percentage points in November, but will be at serious risk in the Electoral College. The institution, rooted in the original slavery compromise, may be a barrier too great to overcome.

The priority for Obama supporters has to be mobilization of new, undecided, and independent voters in up-for-grabs states like Pennsylvania, Ohio, and Michigan, while expanding the Electoral College delegates in places like New Mexico, Colorado, Nevada, and possibly Virginia.

There are many outside the Obama movement who assert that the candidate is "not progressive enough," that Obama will be co-opted as a new face for American interventionism, that in any event real change cannot be achieved from the top down. These criticisms are correct. But in the end, they miss the larger point.

Most of us want President Obama to withdraw troops from Iraq more rapidly than the 16 months promised by his campaign. But it is important that Obama’s position is shared by Iraq’s prime minister and the vast majority of both our peoples. The Iraqi regime, pressured by its own people, has rejected the White House and McCain’s refusal to adopt a timetable.

The real problem with Obama’s position on Iraq is his adherence to the outmoded Baker-Hamilton proposal to leave thousands of American troops behind for training, advising and ill-defined "counterterrorism" operations. Obama should be pressured to reconsider this recipe for a low visibility counterinsurgency quagmire.

On Iran, Obama has usefully emphasized diplomacy as the only path to manage the bilateral crisis and assure the possibility of orderly withdrawal from Iraq. He should be pressed to resist any escalation.

On Afghanistan, Obama has proposed transferring 10,000 American combat troops from Iraq, which means out of the frying pan, into the fire. On Pakistan, and the possibility of a ground invasion by Afghan and US troops, this could be Obama’s Bay of Pigs, a debacle.

On Israel-Palestine, he will pursue diplomacy more aggressively, but little more. Altogether, the counterinsurgencies in Iraq, Afghanistan, and Pakistan are likely to become a spreading global quagmire and a human-rights nightmare, nullifying the funding prospects for health care reform or other domestic initiatives.

In Latin America, Obama has been out of step and out of touch with the winds of democratic change sweeping the continent. His commitment to fulfilling the United Nations anti-poverty goals, or to eradicating sweatshops through a global living wage, is underwhelming and — given his anti-terrorism wars —will be underfinanced.

And so on. The man will disappoint as well as inspire.

Once again, then, why support him by knocking on doors, sending money, monitoring polling places, and getting our hopes up? There are three reasons that stand out in my mind. First, American progressives, radicals, and populists need to be part of the vast Obama coalition, not perceived as negative do-nothings in the minds of the young people and African Americans at the center of the organized campaign.

It is not a "lesser evil" for anyone of my generation’s background to send an African American Democrat to the White House. Pressure from Obama supporters is more effective than pressure from critics who don’t care much if he wins and won’t lift a finger to help him. Second, his court appointments will keep us from a right-wing lock on social, economic, and civil liberties issues during our lifetime. Third, it should be no problem to vote for Obama and picket his White House when justified.

Obama himself says he has solid progressive roots but that he intends to campaign and govern from the center. It is a challenge to rise up, organize, and reshape the center, and build a climate of public opinion so intense that it becomes necessary to redeploy from military quagmires, take on the unregulated corporations and uncontrolled global warming, and devote resources to domestic priorities like health care, the green economy, and inner-city jobs for youth.

What is missing in the current equation is not a capable and enlightened centrist but a progressive social movement on a scale like those of the past.

The refrain is familiar. Without the militant abolitionists, including the Underground Railroad and John Brown, there would have been no pressure on President Lincoln to end slavery. Without the radicals of the 1930s, there would have been no pressure on President Franklin Roosevelt, and therefore no New Deal, no Wagner Act, no Social Security.

The creative tension between large social movements and enlightened Machiavellian leaders is the historical model that has produced the most important reforms in the course of American history.

Mainstream political leaders will not move to the left of their own base. There are no shortcuts to radical change without a powerful and effective constituency organized from the bottom up. The next chapter in Obama’s new American story remains to be written, perhaps by the most visionary of his own supporters.

Progressives need to unite for Obama, but also unite — organically at least, and not in a top-down way — on issues like peace, the environment, the economy, media reform, campaign finance, and equality like never before. The growing conflict today is between democracy and empire, and the battle fronts are many and often confusing. Even the Bush years have failed to unite American progressives as effectively as occurred during Vietnam. There is no reason to expect a President McCain to unify anything more than our manic depression.

But there is the improbable hope that the movement set ablaze by the Obama campaign will be enough to elect Obama and a more progressive Congress in November, creating an explosion of rising expectations for social movements — here and around the world — that President Obama will be compelled to meet in 2009.

That is a moment to live and fight for.

Tom Hayden is a longtime political activist and former California legislator. This article was commissioned by the Association of Alternative Newsweeklies, of which the Guardian is a member, and is being carried in newspapers across the country this week.

We be clubbin’? Just barely

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› a&eletters@sfbg.com

One night around 11 this spring, I stepped out of a cab at Sixth and Mission streets, only to enter a chaotic scene. Enhancing the block’s usual charms — destitute dudes in wheelchairs, crack enthusiasts, an old man in a denim skirt clutching a baguette — was a row of police cruisers parked in the street. Officers roamed the block, herding people around.

Had I stumbled onto a grim tragedy? Nope. I was just trying to catch a hip-hop show. Like the other 150 people waiting outside Club Six, I was hoping to get into KUSH, a party hosted by the Demolition Men. My chances seemed slim. I was on the guest list, but the list was "closed." So I stood in the long but well-behaved line. Security yelled at us to keep on the sidewalk, though the sidewalk ended well before the line did. Finally a guard bellowed at us to leave.

Half the line drifted away. The rest remained, texting friends inside the club and trying to devise a way in. Soon, with a combination of threats and cajolery, police and security began clearing the sidewalk around the club. A short, powerfully built man pleaded with stragglers, the way tough guys plead with you not to force them to kick your ass. Someone addressed him. He was Angel Cruz, Club Six’s owner, whom I’d interviewed for this story by phone. I introduced myself. He signaled a guard, and suddenly I was inside.

If this was New York City or Los Angeles, I might have felt the smugness engendered by such special treatment. But this was San Francisco, and all I felt was weariness. The club had devoted two rooms to the party, yet only one was full. Still, the vibe was friendly, and Jacka tore it up with his radio smash, "All Over Me." Although I heard some dudes got salty over the guest list, there were no arrests.

Sadly, such scenes are typical. Actually, we were lucky: I’ve seen cops shut down shows entirely over trifling incidents, usually ones occurring outside the club. This state of affairs affects more than the club-goers. Owners make less at the bar, promoters make less at the gate, and performers have fewer places to perform. Hip-hop, in its myriad forms, is one of the most popular genres on earth, and San Francisco is a world-class city. Yet this town seems hostile toward this musical nightlife with such revenue-generating potential. Why?

Naturally there’s no simple answer, and even investigating is difficult. Owners don’t want to alienate the police, promoters don’t want to alienate owners, and the San Francisco Entertainment Commission wants cooperation among all concerned. Few people I interviewed would name names or particular events, and some would only speak off the record, due to the delicate web of professional relationships involved. Even so, common issues emerge.

"Hip-hop is synonymous with fights and shootings, to authority figures," said Desi Danganan, whose Poleng Lounge is one of the few venues committed to the music. "The police are very hesitant about any club that plays hip-hop. That was one of the first things that came up, ‘Are you playing hip-hop?’<0x2009>"

The association between hip-hop and violence is nothing new: violence is the theme of many raps. Yet this is hardly the case with all hip-hop. The Bay Area in particular has produced an abundance of progressive, nonviolent lyricists, from veterans Hieroglyphics to up-and-comer Trackademicks. Yet the distinction is lost on the city and the police, according to Fat City general manager Hiroshi Naruta. "They don’t know the difference between hyphy and backpacker," he said.

Unlike the Panhandle-based Polang, Fat City is in the SoMa District, a longtime site of contention between police and clubs. As a result, the venue is shying away from booking hip-hop. "I want to," Naruta said. "But I don’t want pressure from the city or SFPD."

"Pressure," of course, is a nebulous concept and hard to substantiate, but according to John Wood, political director of the SF Late Night Coalition, there are typical tactics. "If the police feel your venue is creating a nuisance, they show up every night, check your permits, walking into your venue, upsetting your customers," he said. "They do frequent inspections with the fire department and the building department, and get you for every little violation. Short of suspending permits and filing lawsuits, there’s lots of ways city bureaucracy can make it difficult to do business."

But just how much of a "nuisance" do hip-hop shows create? Are they really that violent? No more than other genres, according to Robert Kowal, whose Sunset Promotions has brought everyone from Grandmaster Flash to Jurassic 5 to SF. "The city has safety as its primary concern," he acknowledged. "Occasionally some shows have problems the police have to deal with. Almost without exception that label gets thrown at hip-hop, when most events, including hip-hop, are very cool."

"Right now there’s a gun problem in SF," Kowal continued. "Instead of addressing that, the city wants to blame entertainment and specifically hip-hop. But violence is rare inside the venue itself."

Wood concurred with this assessment. "There have been incidents where there were shootings," he said, "not in the clubs, but a block away, that may have possibly involved people who were at the club. Frequently police will blame the club for incidents in the neighborhood."

An SFPD spokesman, Sgt. Steven Mannina, wouldn’t respond to this contention. It’s worth noting that much of SoMa can get rough, even during the day. To the contrary, Kowal believes venues like Club Six have improved the tone of the neighborhood: "Angel Cruz deserves a lot of credit. That Club Six is open four nights a week has enabled other bars and restaurants to open around it. That area has been somewhat revitalized."

Wood suggests an influx of new neighbors may, in fact, be the main issue. "The city’s changing," he explained. "It’s older demographically, wealthier, more harried, and professional. Aside from hip-hop and violence, people are less tolerant about noise young people create." Yet that lack of tolerance among the condo crowd may also be rooted in fear. "Neighbors sometimes freak out when a club is bringing large groups of minorities into the neighborhood," Wood added, "whether they’re behaving or not."

That assessment was echoed, mostly off the record, by many I interviewed. But veteran hip-hop commentator Davey D didn’t pull punches. "They just don’t want black people there," he said. "For a city that prides itself on being progressive, when it comes to nightlife, it has the most reactionary policies that seem based around race, using words like ‘urban’ as cover."

Regardless of hip-hop’s alleged role in violence, this spring the city attempted to deal with the issue via two pieces of legislation: one required a hefty $400 permit per show, and the other was an anti-loitering law, empowering police to clear the area around a club. Both proposals were bad ideas: the former threatened to stifle local entertainment, and in an era of eroding civil liberties, the latter promised to give police discretion to arrest people just for being in the club’s vicinity. Even more disturbing is Sgt. Mannina’s assertion in April that "this is an enforcement strategy around clubs that field operations have already launched." How can this be, if it was not yet a law? "I thought it was already in place," he said.

Clearly the police act as though it is, given what I witnessed outside Club Six. In the meantime, it’s tough to understand why SF hip-hop fans must, for instance, travel to Petaluma to see local acts like Andre Nickatina. "You want to know the solution?" a club owner asked, off the record and out of frustration. "There is no solution."

Real money, false arrest

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› gwschulz@sfbg.com

The false arrest of an elected official in San Francisco for using a $100 bill that police wrongly thought was counterfeit has evolved into a potentially precedent-setting legal struggle over police accountability.

The San Francisco City Attorney’s Office is seeking to appeal the case all the way to the conservative-dominated US Supreme Court, an expensive fight that could overturn what would seem a welcome ruling in liberal San Francisco. The Ninth Circuit Court of Appeals last August affirmed in the case that citizens have the right to sue police officers after being unreasonably arrested for a crime they didn’t commit.

After a federal district judge refused to grant qualified immunity to the officers and throw out the lawsuit, City Attorney Dennis Herrera’s office insisted on repeated appeals argued by deputy city attorney Scott Wiener, rather than settling for a few thousand dollars and accepting that the cops simply screwed up.

"There are some people who would say ‘Why don’t you just pay a little money to settle it?’<0x2009>" Wiener told the Guardian. "But we have to take a broader institutional perspective, because if you start settling cases that don’t have merit, you’re going to wind up with a lot more cases like that than you would have otherwise."

At the center of the story is attorney Rodel Rodis, a Filipino activist and elected trustee of City College of San Francisco, who was arrested in the spring of 2003 and dragged to a police station for supposedly trying to buy a handful of items from a Walgreens with a counterfeit $100 bill. The bill turned out to be real.

But by the time the officers came to that conclusion, Rodis had suffered what he regarded as the terrible embarrassment of being shoved into a squad car with his hands behind his back in front of neighbors and constituents. It also occurred just around the corner from his longtime law practice and the main campus of City College, where he’s been an elected trustee since 1991.

Rodis promptly filed a $250,000 claim against the city, former Police Chief Alex Fagan Sr., and two officers at the scene alleging false arrest, excessive force, and the negligent infliction of emotional stress, among other things. He later offered to settle the suit for $15,000, but the City Attorney’s Office refused to accept the deal.

Five years and innumerable legal bills later, the case just keeps getting worse for the city — even before it lands in front of a jury to determine if indeed the police should compensate Rodis.

"Part of my mind was saying … ‘I’m not going to argue. I’m not going to resist,’<0x2009>" Rodis said of the arrest. "I put my hands behind my back but I’m thinking ‘This has got to be a mistake. Somebody here has to have some sense.’<0x2009>"

Rodis was suffering from minor allergy symptoms on Feb. 17, 2003, when he headed to a Walgreens on Ocean Avenue he’d been going to for 20 years. It was located near his Ingleside home and a law office he’s had in the neighborhood since 1992.

He picked up some cough syrup, Claritin, toothpaste, and a few other things. The total came to $42 and change, so he tried to pay with a $100 bill.

"I just happened to have it in my wallet," Rodis said.

The drugstore clerk used a counterfeit detection pen to be sure the bill was legit. It was, according to the marking, but the bill was printed in the 1980s before watermarks and magnetic strips were used to help stop counterfeiting.

The young clerk was unfamiliar with the bill’s design and called a manager to be sure. He, too, used a counterfeit pen to confirm that it was real. But the manager told Rodis he was still going to call the police, fearing it was fake. That’s when things turned surreal. Two officers showed up and almost immediately placed Rodis in handcuffs before trying to ascertain if he’d actually attempted to defraud Walgreens.

"They made no effort to determine what the situation was … they just assumed," Rodis said. "When she said ‘Put your hands behind your back,’ I thought I was in some Twilight Zone moment."

A third ranking officer on the scene, Sgt. Jeff Barry, had known Rodis for years as a local lawyer and City College trustee. Their sons were classmates. But Barry allegedly failed to step in and question whether Rodis was likely to be a fraud artist.

Another officer, Michelle Liddicoet, told Rodis she knew who he was and that he "should be ashamed of himself," according to the suit.

Feeling humiliated as other Filipinos he knew looked on, Rodis was put into the back of a patrol car and taken to Taraval Station, where he was handcuffed to a bench. There he waited another 30 minutes or so until the police officers were able to reach the Secret Service, which investigates currency for the US Treasury Department. A federal agent confirmed that the bill was likely genuine. The whole ordeal lasted about a couple of hours and Rodis was driven back to the drug store.

"This wasn’t a situation where Mr. Rodis was held in jail overnight or for a week or had to post some large amount in bail," Wiener said.

Fagan sent out a department memo shortly afterward stating that suspects have to know the currency they’re using is counterfeit before being arrested, and in any event, if they insist it’s real, the officer can book the bill as evidence for later examination and give them a receipt without arresting anyone.

But by then the damage was done and the hasty reaction of police would lie at the heart of the case that Rodis subsequently filed.

Rodis is an unlikely champion of police accountability. Known for his cantankerous personality, he all but accused the secretary of the San Francisco Veterans Equity Center last month in his regular column for the Philippine News of supporting a band of communist guerillas in the Philippines known as the New People’s Army, a charge the man angrily denied.

He bitterly responded with a string of e-mails last year when the Guardian reported he was several months late in sending legally required campaign disclosure forms from his 2004 reelection to the Ethics Commission (see "At the crossroads," 07/17/07).

But the city’s police academy also has invited Rodis to lecture recruits about San Francisco’s Filipino community as part of the department’s sensitivity training. A week after the incident involving Rodis, an elderly Filipino man who sold the San Francisco Chronicle downtown was savagely beaten and robbed of $400. He never found a police officer while walking to his Tenderloin home, where he died. The two incidents, one following on the heels of the other, enraged the city’s Filipino population of 36,000, and Rodis believes it proves the police department continues to have trouble with discrimination.

"The fact that it happened to me meant that I was in a position to do something about it," Rodis said of his dust-up. "For many [Filipino immigrants] … they wouldn’t have had the resources or the knowledge of the procedures to fight back. Even up to now, five years later, I still bump into people who appreciate the fact that I filed the action."

The case was assigned to Wiener, who is coincidentally the elected chair of the San Francisco Democratic County Central Committee and a longtime party activist in a city that’s famously wary of any perceived threat to civil liberties.

In his capacity as a lawyer for the city, though, Wiener tried to have Rodis’ suit tossed using a common courtroom maneuver known as summary judgment. Civil defendants request them from a court by arguing that a claim is so lacking in merit that they shouldn’t have to endure a costly, time-consuming jury trial.

He also made the standard claim that city employees — in this case police officers — are shielded by what’s known as qualified immunity, a legal argument designed to allow them room to make honest mistakes without facing an endless barrage of expensive litigation.

In March 2005, federal district judge Maxine Chesney granted the request in part, throwing out Rodis’ claim of liability against the city and county. But she allowed the part of the suit involving the two officers to move forward, arguing the arrest was illegal because they didn’t have probable cause that Rodis intended to defraud the store.

So Herrera’s office turned to the Ninth Circuit Court of Appeals, and in a move that surprised Wiener, the panel ruled 2-1 that public employees are entitled to qualified immunity, but not when they fail to act on their considerable law enforcement powers in a reasonable way and take into account all factors present at the scene.

To put it bluntly, cops sometimes make an error in judgment but they still have to use their brains for establishing probable cause. The panel also argued that even if the bill was counterfeit, Rodis did nothing wrong if he wasn’t aware of it.

"Even without knowledge of Rodis’ identity and local ties," the majority wrote, "based on the totality of the other relevant facts, no reasonable or prudent officer could have concluded that Rodis intentionally and knowingly used a counterfeit bill."

Now Herrera had on his hands published legal precedent that his staff believed imposed a new requirement on police officers to not only conclude that perpetrators passed counterfeit currency but also that they intended to defraud their victims. The decision, city officials claim in their pleading to the Supreme Court, could hamstring local and federal law enforcement investigating counterfeit currency and some other types of fraud.

"They said it was clearly established that probable cause is a fluid concept," Wiener said of the ruling. "Well, that’s a meaningless statement. Of course probable cause is a fluid concept. But the point of qualified immunity is that officers are entitled to rely on the current state of law about what the requirements are and shouldn’t have to predict what a judge is going to do down the road."

Lawrence Fasano, a lawyer for Rodis, counters that Fagan’s memo to the department reinforced the court’s opinion. Considering that the police and people in the neighborhood had known Rodis for years, the officers on the scene should have concluded that it was out-of-character for him to pass a counterfeit bill.

"All the evidence that was looked at by the police officers at the time indicated that he did not intend to pass counterfeit currency, including the fact that he had other $100 bills in his pocket that were genuine," Fasano said.

Fasano argued, too, that case law in California made clear the issue of intent cannot just be set aside by police.

Other cities and counties in California so fear the case’s impact that two interest groups representing them, the League of California Cities and the California State Association of Counties, filed a joint friend-of-the-court brief after the Ninth Circuit’s ruling, arguing that digital counterfeiting was a "threat to the nation’s fiscal health" that could grow in the future, and if allowed to stand, "the panel majority’s decision would eviscerate the doctrine of qualified immunity to the detriment of the public."

Wiener filed the Supreme Court petition in May after a larger panel of Ninth Circuit judges rejected a request for rehearing earlier this year. While the Supreme Court accepts only a fraction of the thousands of cases it receives annually, Wiener believes there’s a chance it will be accepted because of another such case it’s examining from the Tenth Circuit. The city won’t know for sure until the fall.

He adds that it’s extraordinarily dangerous for police to be forced to consider a citizen’s status as an elected official before concluding that probable cause exists for an arrest. The City Attorney’s Office won’t disclose how much has been spent on the case until it’s resolved, but Rodis estimates he’s spent more than $50,000.
The US dollar may be losing value internationally, but a $100 bill from the 1980s could cost San Francisco big bucks.

Wow! Homeless people win for once!

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Snapshot 2008-06-06 13-58-14.jpg
photo courtesy of Indybay

It looks like the city of Fresno will be writing a big fat check to 225 homeless people who sued when city workers trashed their belongings in a series of raids on encampments in 2006.

Homeless people, with the help of the American Civil Liberties Union, the Lawyers Committee for Civil Rights, and the private firm of Heller Ehrman LLP, filed a class action lawsuit against the city of Fresno and the California Department of Transportation, claiming their possessions were seized and destroyed without their notice. Back in 2006, the city was barred from continuing the raids by a preliminary injunction. And today United States District Judge Oliver W. Wanger gave preliminary approval to a $2.35 million dollar settlement for what occurred during those raids.

“It’s completely unprecedented,” LCCR’s, Anayma de Frias, told us, adding that they’d been hoping to get something, but nothing as substantial as this.

The terms are as follows:

Editor’s Notes

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› tredmond@sfbg.com

A couple of decades ago, the American Civil Liberties Union sued San Francisco over the cross on Mount Davidson. The issue was pretty simple — a religious symbol on public land — but the furor was insane: critics attacked the ACLU up, down, and sideways and acted as if the separation of church and state was some form of blasphemy.

Yes: even in this tolerant, secular city, people get amazingly bent out of shape over this stuff. In fact, when I called Mission Police Station this week and asked why churches are allowed to use the middle of Guerrero Street for free parking on Sundays, Sgt. Larry Gray tried to talk me down.

"Tim, Tim, you don’t want to go up this tree," Gray, who is a charming and funny man, told me.

Sorry, Sarge, but I’m going there.

See, if you live in the Mission, it’s pretty hard to ignore. Double parking and parking in the medians is strictly illegal, and people get stiff tickets for it — except on Sunday morning, when churchgoers get a complete pass.

The churches don’t have to get permits or pay the city a fee or anything. According to Gray, there really aren’t any rules. The cops just look the other way.

"It’s a San Francisco tradition that goes back a hundred years," Gray told me. "They used to do the same thing with horses and buggies."

I know, I know, tradition and all. Last Sunday was Easter, for Christ’s sake, and I ought to give the believers a break. And on one level, it’s not that big a deal at all. The streets are still passable, mostly, although it’s a little more dicey for bikes and cars to coexist on a narrower strip of pavement. Traffic isn’t a big deal on Sundays (mostly), and if it is, people shouldn’t be driving so much anyway.

But nobody else gets to do this.

If you go to see the (secular) Mime Troupe in Dolores Park and you stick your car in the middle of the street, you get a ticket. If you drink at a (secular) bar or eat at a (secular) restaurant and you leave your car in the Valencia Street median, you get cited. You can’t double park while you run in for a (secular) cup of coffee at Muddy Waters.

So, with all due apologies to Sgt. Gray and the good people of faith, I have to ask again: Why do the churches get something nobody that else does? Am I the only one who thinks this is a bit sketchy?

I continue to get calls from people who are furious about the state’s plan to spray chemical pheromones from helicopters over San Francisco in August as a way to wipe out the Light Brown Apple Moth. Assemblymember Mark Leno and state Senator Carole Migden both are fighting it. Mayor Gavin Newsom wrote the governor this week to urge a health study before the spraying starts.

An environmental impact report is underway, but the state and the feds are calling this an emergency (the LBAM damages crops) and they’re planning to go forward no matter what.

I fear the only way to stop this is in court, with a challenge to the EIR — its timing, validity, the emergency declaration, etc. City Attorney Dennis Herrera ought to take this on. Thousands of people with young kids in the path of the spray would be immensely grateful.

Buster’s axed: City’s top earners next?

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Anyway you cut it, the city budget deficit is going to be painful

Sup. Chris Daly failed to save Buster’s Place from the budgetary chopping board today—a quest Sup. Tom Ammiano deemed “a Sophie’s Choice,” since it involved disappropriating funds that had been earmarked for making the Board’s Chambers wheelchair accessible.

“But I applaud Daly for trying to do an Immaculate Conception, a Hail Mary to make it work,” said Ammiano, as he joined Sups. Sean Elsbernd, Sophie Maxwell, Jake McGoldrick, Carmen Chu and Bevan Dufty to defeat Daly’s plan.

But by meeting’s end, the homeless weren’t the only ones feeling the city’s budget pain. Hundreds of highly paid city employees were surely chewing their nails, following Board President Aaron Peskin’s announcement that in light of the city’s $338 million deficit, he is drafting an ordinance to eliminate all base salaries over $150,000.

596 city employees make over $150,000 a year, according to the Controller’s Office.

But while the MTA’s Nathaniel Ford tops the list ($297,999), with the Retirement System’s David Kushner ($289,478) and Administrative Services’ Amy Hart ($264,524) in second and third place, followed by the Airport’s John Martin ($256,565), Controller Ed Harrington ($256,553) and DPH’s Dr Mitch Katz ($256,553), don’t expect them to be laid off any time soon.
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You can try dealing with the deficit with lots of little cuts from the bottom up.

As Peskin told the Guardian, the Board is not allowed to tinker with some positions, because of charter mandates.

“Some people are constitutionally protected, such as department heads,” Peskin said, “and Proposition D arguably protects police personnel who make over $150,000. And others are doctors at San Francisco General Hospital.”

But beyond those restrictions, a lot of folks could be standing in Peskin’s potential firing line.

“All of them, regardless of pay, perform an important function in the government,” Peskin observed, “but rather than do what the Mayor is doing and make 8 percent across-the-board cuts, we’re making sure that the most vulnerable people don’t get hurt.”
“And we don’t need public information officers in every department,” Peskin added, noting that their elimination would save the City about $50 million a year.
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Or try attacking the problem from the top down.

Peskin admitted that the police, fire and nurses MOUs, which Mayor Gavin Newsom negotiated last summer in the run up to his 2007 mayoral reelection, explain a large part of the City’s 2007-2008 budgetary woes.

“We are all to blame for that. The Board signed off on them, I’m not going to pretend we didn’t,” Peskin said, observing that this month’s axing of Buster’s Place and the Workers Compensation Clinic are “just the tip of the iceberg.”

“Come the Mayor’s budget, we’ll be crying over much larger things,” Peskin explained. “That’s why we need to take some radical steps now to lessen the impact.”

Monique Zmuda of the Controllers Office told the Guardian that the City will need to determine if the functions performed by folks who make over $150,000 are “mandated”. From the remaining sublist, Peskin will have to decide, “if he is truly intending to delete those jobs,” said Zmuda, noting that many of the remaining positions are lawyers, and that “it’s not Peskin’s intention to stop city departments from being able to do business.”

Pointing to the 8 percent cut that the mayor asked of departmental baseline budgets last November, and the additional 8 percent personnel cut that Newsom just announced, Zmuda said, “Peskin’s request means the Boad has additional options to consider, that it’s not just reacting to the Mayor’s proposal. If we have a $338 million gap, it’s better if the options add up to more than that, so that the Board can pick and choose and decide what is the highest priority to save and to cut.”

Or as Sup. Jake McGoldrick told the Guardian” I think Peskin is trying to invigorate a dynamic dialogue and debate.”

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And then, of course, there’s the Chinese toy axe.

In other Board-related news, the Olympic Torch debate continues to burn.
As protesters chanted ‘Mayor Newsom reject China’s bloody torch” outside City Hall, Sup.Tom Ammiano introduced a resolution urging the Mayor, the Mayor’s Office of Criminal Justice and the San Francisco Police Department to comply with the City’s Sunshine ordinance and immediately release the route of the April 9 torch run, along with other documents that the American Civil Liberties Union of Northern California requested on March 13.

And Board President Aaron Peskin sent Supervisor Chris Daly’s resolution, which proposes to accept the Olympic Torch with “alarm” in light of China’s Tibetan crackdown, to the Rules Committee this Thursday.

The real FISA problem

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EDITORIAL It’s no secret that the nation’s telecommunications companies have been spying on Americans without any sort of legal warrants. The New York Times broke that story in December 2005 — and not long after that a San Francisco man who had worked for AT&T came forward to describe how private calls were routed to a secret building on Folsom Street where the feds could listen in.

The courts are sorting out whether that was a violation of the Foreign Intelligence Surveillance Act of 1978, which contains at least some limited provisions protecting privacy. But in the meantime, the George W. Bush administration wants to update FISA — and include retroactive immunity for the telecom companies. Even if AT&T, Verizon, and others broke the law by allowing federal agents to snoop on their customers, Bush says, they should pay no price.

The American Civil Liberties Union, the Electronic Frontier Foundation, and other public interest groups have been pushing to block immunity; unfortunately, the Senate (with California’s Dianne Feinstein on the wrong side) has gone along with what Bush wants. The House has a better bill, and the two are headed for a conference committee. Activists are demanding Speaker Nancy Pelosi stand firm and refuse to allow passage of any bill that protects the phone companies from past misdeeds.

That’s the right approach, and we agree. But we have to ask: why are the Democrats so willing to support this law in the first place?

FISA was created in response to the Counter Intelligence Program abuses of the 1960s, and it provides some modest protection for citizens. But it created a special secret court that could authorize wiretaps with very little oversight. The government’s warrant requests have almost never been rejected. Sometimes the court has issued them after the fact, retroactively approving wiretaps that have been done with no judicial oversight at all. The current version of FISA is better than what Bush wants — but it could be vastly improved.

We’ve never been fans of secret legal proceedings and special, shadowy courts that operate as an arm of law enforcement. The entire premise of FISA seems awfully shaky: if the FBI or the National Security Agency needs to tap someone’s phone, why can’t it go before a federal judge, using the normal procedures for wiretap and search warrant authorizations, just like everyone else? Is there any evidence that the federal courts are unable to handle that job or that the judiciary is too unwilling to allow the government to use all of the tools it needs to track terrorists?

Is the United States any safer with the authority to spy on Americans almost entirely removed from the oversight process established by the Constitution?

The real threat here is the growing one to privacy and civil liberties — and the best way to address it is to simply refuse to reauthorize FISA, start from scratch, hold hearings, get public testimony, and rewrite the law in a way that protects the public, not just the FBI, the NSA, and telecom companies. That’s what Pelosi ought to be pushing for.

Crime cameras for the defense

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EDITORIAL We’ve always been dubious about San Francisco’s crime cameras. Filming everyone who passes through a public space creates severe civil liberties problems. There are real First Amendment issues. And as far as we can tell, the spy cams don’t work very well: none of the 178 cameras on Housing Authority property have ever led to an arrest in a homicide case. Chief Heather Fong told the Police Commission on Feb. 6 that her officers have requested footage nearly 80 times but only twice was it at all useful.

From the first days when the city began talking about installing the cameras, the American Civil Liberties Union and others pointed out that all the electronic surveillance on high-crime street corners would do was drive crime to other places. The commission has mandated that the cameras be turned off during political demonstrations, and some critics, including commissioner David Campos, are watching very closely to see if all of this intrusive electronic surveillance is making the city any safer.

But if we’re going to have crime cameras, they ought to be used to protect the innocent.

As G.W. Schulz reports on page 16, the San Francisco Public Defender’s Office has an interest in using the footage. Last August two young African American men were arrested and charged with robbing a pair of airline workers at the corner of 14th Street and Mission. The alleged robbers insisted they hadn’t been at that corner; in fact, they said, they were two blocks away, at 16th Street and Mission, the entire time.

That should have been easy to prove: there are cameras at 16th Street and Mission. But the city’s Department of Emergency Management refused to turn over the video footage to the public defender. Only by chance and the intervention of a conscientious police inspector was the lawyer for the two men able to get the tapes — which proved that the young men, who faced long prison sentences, were entirely innocent.

Public Defender Jeff Adachi says there are at least a dozen other examples of incidents when the cameras could have proved one of his clients innocent — but the local law enforcement authorities won’t give up the pictures.

That’s crazy. If the cameras can be used for prosecution, they ought to be available to lawyers for people who want to establish an alibi. There’s little or no risk here: defense lawyers are officers of the court, sworn to protect confidential evidence, and they are routinely given access to sensitive law enforcement information. The entire principle of a fair trial requires that the defense have as much opportunity to prove innocence as the prosecution does to prove guilt — and in most cases all of the state’s evidence has to be turned over to the defense. If cops and prosecutors can see the city’s crime-camera tapes, why can’t the other side?

Sup. Gerardo Sandoval, a former public defender, has introduced legislation that would allow defense lawyers access to the tapes; it’s a sensible, practical measure that ought to win easy approval. But Kevin Ryan, the Republican former United States attorney who runs Mayor Gavin Newsom’s office of criminal justice, is trying to scuttle Sandoval’s bill. This is exactly the sort of thing we were worried about when Newsom gave that job to an old-fashioned law-and-order type.

Newsom needs to show his cards on this issue. Does the mayor really think the cameras should be used only to lock people up and never to set them free? That would be an astonishing stance for a San Francisco mayor. Instead of leaving this to his aides, Newsom needs to come out in support of Sandoval’s bill and give Ryan a little primer on justice, San Francisco–style.

Sharing the Panopticon

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› gwschulz@sfbg.com

When two airline workers were robbed at 14th and Mission streets last August, the victims called 911 and described their attackers to the dispatcher as a pair of African American males.

At the time, several groups of people stood two blocks away at the always manic intersection of 16th and Mission streets, a high-crime area where the city installed four public surveillance cameras as part of an ongoing pilot project that began in 2005.

Police nabbed two suspects there whom they believed fit the description, and the victims later identified the duo as their attackers. Case closed. Except for one problem: the suspects claimed they were standing at 16th and Mission streets the whole time and never ventured two blocks away, to where the robbery occurred.

So a deputy public defender, Eric Quandt, tried to obtain footage from the city’s controversial public safety cameras to confirm their story. He was denied access to it by the San Francisco Department of Emergency Management because, according to the city’s Administrative Code, only police officers with a written request can review the recordings.

Other government agencies must get a court order, and since the recordings are held by the city for no more than seven days, by the time defense attorneys realize crucial evidence might exist, it’s likely to be long gone.

Mayor Gavin Newsom’s expansion of public surveillance cameras across the city has been the subject of regular criticism from privacy advocates who say no substantial evidence exists that they reduce crime or provide valuable evidence to prosecutors. But few imagined Big Brother could serve as an alibi proving someone’s whereabouts when police placed the wrong suspect at the scene of a crime.

Quandt managed to get the footage in time after appealing to a police inspector, and 23-year-old Neil Butler and 21-year-old Robert Dillon, who had served 70 days in jail, were freed. However, the city’s elected public defender, Jeff Adachi, said there have been almost a dozen or so other instances when his office believed surveillance footage from the cameras could refute a prosecutor’s claims, but city officials have barred PDs from accessing it.

"These two men would have faced decades in prison," Adachi told the Guardian, "so I find it shocking that law enforcement would object to the defense obtaining these tapes. It has to be a two-way street."

"[City officials] act as if they have a proprietary right over the footage," added Rebecca Young, the managing attorney for Adachi’s felony unit. "We are officers of the court. We should not have to deal with bureaucratic red tape to access and review the footage."

Few cities in the United States have rules in place reguutf8g the use of surveillance footage to begin with, so determining procedures for how defense attorneys might use the cameras to free innocent people once again puts San Francisco on the cutting edge of public policy.

After learning about the robbery case last August, Sup. Gerardo Sandoval decided defense lawyers need access to the recordings if they could be used as evidence to free people wrongfully charged with crimes.

Sandoval’s legislation would require the city to preserve the footage for 30 days instead of seven, giving defendants more time to access the footage. Their lawyers would only need to submit a written request to the Department of Emergency Management, which controls the tapes.

But Newsom’s newly appointed top criminal-justice aide, Kevin Ryan, and the mayor’s chief of staff, Phil Ginsburg, want to kill the legislation, claiming it would cost the city too much money and could potentially compromise ongoing criminal investigations by exposing witnesses or confidential informants who appear in the footage.

"It’s safe to say that they tried to derail the legislation," Sandoval told the Guardian.

Ryan, you may recall, is the former US attorney for the Northern District of California who attempted to define his law enforcement career by prosecuting the steroids scandal in major-legal baseball and later the stock options backdating imbroglio that consumed Silicon Valley.

His last major imprint on the public, however, came when the White House ousted him from the Justice Department along with seven other chief federal prosecutors. While his colleagues were said to be let go because they weren’t fully cooperative with the GOP’s political agenda, it was reported that Ryan was asked to resign because of mounting criticism that he’d poorly managed his office and alienated staffers, despite being an eager loyalist of President George W. Bush.

After that, Ryan worked briefly in the private sector before Newsom surprised the city at the beginning of the year by making him director of the Mayor’s Office of Criminal Justice. While a prominent San Francisco Democrat making a Republican devotee his top aide on issues related to crime raised eyebrows, Ryan’s inaugural act in that capacity epitomizes the outlook of a conservative law enforcement official.

Sandoval has attached to his ordinance a string of amendments to satisfy law enforcement, such as instituting punishments for defense lawyers who publicly disclose videos and allowing the district attorney and the Police Department 180 days to review footage and block its release if it’s deemed too sensitive for any reason.

However, the supervisor says he’s still not sure that Newsom, through his new conservative crime-fighting proxy, will accept making a traditional tool of law enforcement the new weapon of public defenders who serve indigent criminal suspects.

"I got the impression from Ryan that he outright opposed it," Adachi said. "But I’m not sure where the mayor stands on it."

Ryan and mayoral chief of staff Ginsburg did not return calls for this story, nor did the mayor’s press spokesperson, Nathan Ballard, respond to a detailed e-mail.

But Ryan has already shown a willingness to flout Newsom’s caution on the cameras. After the Feb. 6 Police Commission meeting, Ryan told the San Francisco Chronicle that police should be permitted to monitor the city’s surveillance cameras in real time to identify crimes about to occur or already in progress.

When the safety cameras were first launched, however, Newsom made a major concession to privacy advocates, the American Civil Liberties Union of Northern California most notable among them, by prohibiting law enforcement officials from watching the cameras live, in part to protect against potential voyeurism or racial profiling.

Ryan’s desire to expand the camera program is "all the more reason to make sure there’s a process in place," Adachi said, for defense lawyers to obtain the footage.

The Police Commission, meanwhile, has made it clear that the footage should not be widely available as public records and the cameras ought to be shut off during political demonstrations to protect First Amendment rights and keep federal agents from using them to target undocumented immigrants.

"If the public defender or a defense lawyer needs it, to me that’s an appropriate use of the information," police commissioner David Campos told the Guardian. "The concern should be: is there any way to keep the feds from getting this footage? We don’t have a way of doing that right now."

San Francisco launched its surveillance program in mid-2005 with two cameras outside public housing tracts in the Western Addition. Two and a half years later, 74 cameras are spread across the city in 25 locations, even though city officials were still calling this a pilot project as recently as this month.

The city was supposed to provide the Board of Supervisors and the Police Commission with a report by last year that evaluated how well the cameras were performing, but city administrator Ed Lee has missed several deadlines, and now it’s not due until March.

Jennifer King, a research analyst for the University of California at Berkeley’s Samuelson Law, Technology and Public Policy Clinic, is leading the study and says it’s one of only two that she’s aware of taking place in the US at this time.

A preliminary report done by the Berkeley team will only include an analysis of crime statistics, but a second study will involve comparing camera locations with control sites that are the same size and have similar demographics and crime profiles, because "there could have been changes in the background crime rate citywide that had nothing to do with the cameras," King told the Guardian.

In the meantime, Police Chief Heather Fong told the commission Feb. 6 that inspectors had requested footage nearly 80 times but in only two instances was it "useful in a prosecution."

At another public meeting last year, an official acknowledged that of the 178 cameras controlled by the federally subsidized San Francisco Housing Authority, none has ever led to an arrest in a homicide case, despite the fact that a large percentage of the city’s violent crime occurs in public housing developments.

Even Sandoval’s not convinced of the cameras’ efficacy: "We have to do everything we can to make sure everyone has fair access to the cameras…. But I’m fairly certain that the cameras really are just an intrusion into our privacy and the risk greatly outweighs any benefit."

Life of the party

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› amanda@sfbg.com

GREEN CITY Amid the much-hyped speculation about whom Democratic and Republican party voters will choose as their respective presidential nominees this year, California members of the Green Party will vote for their representative Feb. 5.

Candidates Jared Ball, Kent Hesplay, Jesse Johnson Jr., Cynthia McKinney, and Kat Swift met for their only planned debate Jan. 13 at Herbst Theatre in San Francisco, addressing a near-capacity crowd and laying out platforms that are decidedly more aggressive in tackling environmental and social problems than any proposed by the major-party candidates.

The candidates echoed one another on plans for immediate withdrawal from Iraq and shifting funding from the Pentagon into domestic programs for education, health care, and jobs. All professed grave concern about the environment, with Johnson calling the coal-mining method of mountaintop removal "ground zero for climate change."

By the end of the debate, Ball, a Baltimore hip-hop artist and professor in communications studies, fully endorsed McKinney, a former Democratic congressperson from Georgia. He emphasized that his greatest desire was for a strong national movement of people of all races, places, and income levels to continue what he called "incomplete revolutions" in the civil, labor, and women’s rights movements.

McKinney received the longest, most sustained standing ovation of the evening when she said, "Please unite the party. We can’t do it divided." She said the Greens represent the best hope of bringing together the large percentage of the country that’s spurned membership in both the Democratic and Republican parties. "I’ve never seen anything like I’ve seen in the Green Party," she said. "Please come together."

Also on hand — not participating in the debate but taking questions afterward — was Ralph Nader, a presidential candidate in 1996, 2000, and 2004, who hasn’t yet ruled out another run this year. Some Greens and other high-profile figures are urging him not to run and expressing concern that he’s become a polarizing figure who could hurt the party. Nader addressed the issue of party unity by saying, "I have very little to offer about how to unite the Green Party internally."

But he told the Guardian that if powerful institutional forces collude to limit his or the Green Party nominee’s access to the ballot, as he charges they did in 2004, he might run to highlight the need for greater political participation, saying, "I’ll be deciding within the next month." Nader has sued the Democratic Party, the John Kerry–John Edwards campaign, the Service Employees International Union, and a number of law firms and political action committees for allegedly conspiring to prevent him from running for president in 2004.

"Ballot access is a major civil liberties issue," Nader said. "Without voters’ rights, candidates’ rights don’t mean anything."

Yet the five announced candidates and Green Party activists on hand all seemed ready to rally around a new nominee for 2008, even as questions remain about whether the party should pool its energy and resources for national races or focus on state and municipal elections. Greens represent less than 3 percent of San Francisco’s registered voters and are outnumbered by Republicans four to one. Statewide, Greens amount to less than 1 percent. However, nearly 20 percent of California voters and 30 percent in San Francisco decline to state any party affiliation.

"I’m not sure yet that running a presidential candidate helps to grow the party, based on the experiences of the last several presidential attempts, especially in contrast to us focusing on races that can be won locally," Sup. Ross Mirkarimi, a Green who helped found the party in California, told the Guardian outside the debate. When asked if a national Green Party candidate trickles down attention and funding to the grassroots races, he said, "The theory is that it does. There isn’t any concrete evidence that it has coattails."

Since the Nader runs, Greens are wary of being tagged as presidential spoilers, but when that question was posed to this year’s prospects, they denied that it accurately portrays the voting landscape. As McKinney said, "When you’ve got a million black people who go to the polls … and nobody counts their votes … then don’t you dare call the Green Party spoilers."

Editors note: An earlier version of this story erroneously reported that Ralph Nader was the Green Party candidate for president in 2004. Nader ran as an independent. The Greens nominated David Cobb.

The Ron Paul phenomenon

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› news@sfbg.com

San Franciscans rarely get excited about Republican presidential candidates, and it’s rarer still to see GOP campaign signs in Mission District windows, beat-up old cars, or crowds of enthusiastic supporters flooding the city’s streets. But that’s what Ron Paul has been inspiring.

"I would give my entire net worth to see Ron Paul elected president," a man holding a "Ron Paul ’08" sign on the corner of Powell and Geary on Dec. 16 said. "I’ve never contributed to a candidate’s campaign in my life, but in the past months I’ve given about $600 or $700."

Paul’s frank assessment of the United States as an overreaching empire got his campaign rolling, and it has gathered serious momentum in the past couple of months, as evidenced by an increasing online presence and record-breaking fundraising for November and December. Paul’s essentially libertarian platform is attracting support from a surprisingly diverse range of people, from lifelong members of the National Rifle Association to medical marijuana activists to disenchanted college students.

Perhaps even more surprising, this Republican from Texas is generating significant support among Bay Area voters. "Ron Paul" signs are now visible at antiwar protests, on lawns, and in apartment windows. People who have never been politically active or have never felt excited by a candidate before are spending their free time tabling at weekend farmers markets and walking precincts after work in support of the candidate.

A recent recruit of the San Francisco Ron Paul meetup.com group, which is attracting new members daily, captured the fervor of Paul supporters with this posting: "I can’t believe my new hero is a politician. Never in my life have I encountered any political leader who actually represented me. This country needs Ron Paul desperately."

Despite their demographic diversity, one unifying theme among all Paul supporters is their absolute belief in their candidate’s integrity. He is perceived as a man who says what he thinks and takes action according to what he says; he is seen as a rare breed among politicians, especially those who, like Paul, have served several terms in Washington DC. "My gut tells me Ron Paul is different," said John Harvan, one of about 60 radiant Paul supporters gathered amid Union Square holiday shoppers Dec. 16.

Bay Area supporters — organized through online meet-up groups — were congregated on the chilly Sunday in solidarity with a national Paul fundraising push, or what the campaign dubbed "a moneybomb." Staged to coincide with the anniversary of the 1773 Boston Tea Party, the Ron Paul Tea Party was, as one Web site put it, "a symbolic dumping of these tyrannical systems that thwart our true destiny of Freedom & Liberty!"

The Dec. 16 fundraising push was an unquestionable success, raising more than $6 million in a 24-hour period. Paul’s campaign had already received national attention when it received $4.2 million in donations Nov. 5, which precipitated his much-needed boost in the polls. But $6 million broke the record for funds raised in one day, a record previously held by the John Kerry campaign for raising $5.7 million in 2004.

Most of the donations to the Paul campaign are small contributions from committed individuals. Proving the grassroots nature of Paul’s support, the average size of each donation is consistently around $100.

Yet there is no political mystery to Paul; he has been articuutf8g the same message — one of limited constitutional government, low taxes (if any), and free markets — since he was first elected to the House of Representatives in 1976 from his home state of Texas. And his dependability is starting to gain traction with libertarians, Republicans, Democrats, and independents.

"A real mix of people are brought together by Ron Paul’s message because we sense the danger in the country," Gerald Cullen of San Francisco told the Guardian. "I think the [George W.] Bush administration has just about destroyed the country. Nothing in the Constitution provides for a president to attack another country that hasn’t attacked us."

Paul is a self-proclaimed noninterventionist and has opposed the war in Iraq from the start. He is by no means liberal or progressive; he’s more a classic conservative who opposes government regulation. "A lot of people are frustrated by the different regulations and infringements on our liberty day in and day out," said Ralph Crowder, who lives in Berkeley. "Ron Paul’s not trying to sell you on himself; he’s just selling you the message of freedom."

And while there are varying definitions of freedom, Paul’s fundamental noninterventionist belief translates into a variety of positions that appeal to voters on both ends of the political spectrum. He sees the USA PATRIOT Act as a breech of civil liberties; wants to stop US involvement in the World Trade Organization, the North American Free Trade Agreement, and other free trade agreements; and supports bringing American troops home from Iraq posthaste.

Appealing to the opposite end of the spectrum, he is also staunchly antichoice, introduced legislation in 2004 to repeal bans on assault weapons, and wants to beef up the US’s borders.

Adrian Bankhead, who also lives in Berkeley, wants Paul to be the Republican nominee but disagrees with his social policies too heartily to vote for him in the general election. "His social views against immigration, abortion, affirmative action, and women make me nervous," Bankhead told the Guardian. But Bankhead respects what he sees as Paul’s fundamental honesty: "He is the only Republican nominee who would not steal the election in November."

However, Bankhead’s position is a minority one among Paul supporters. Crowder and Cullen, for instance, agree with almost everything Paul says. "There’s not much difference between where he stands and where I stand," Crowder said. And Cullen, who worked for Paul during his 1988 bid for the presidency as a Libertarian candidate, sees the candidate’s principles as "very much in line with the old Republican Party principles … before the madness took over the country."

Stephanie Burns, one of the main organizers of online Bay Area meet-up groups, says she agrees with Paul "all the time."

There are more than 80,000 Ron Paul online meet-up members around the country — 452 in the San Francisco group as of the writing of this article — and most of them find themselves in complete agreement with Paul’s perspectives.

Scott Loughmiller sees the Paul campaign as being in a prime position to steal the nomination, with his polling numbers rising, his momentum building, and plenty of money in the coffers. "We’re right where Kerry was in 2004 going into the primaries, when [Howard] Dean had already been crowned winner by the media," Loughmiller said.

No compromise on ENDA

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EDITORIAL The move by US Rep. Barney Frank (D-Mass.) to remove protections for transgender people from a landmark antidiscrimination bill has set off a remarkable furor in the queer community nationwide. The condemnation of the Frank move by even fairly mainstream lesbian and gay organizations is a sign of how far trans people have come — and the fact that Frank, the first openly gay man to serve in Congress, isn’t budging is a sign of how far the political establishment still has to go.

But the full bill, without the cuts, is still very much alive, and House Speaker Nancy Pelosi (D–San Francisco) needs to move it to the floor and bring it to a vote.

HR 2015 has been a priority of the Human Rights Campaign and other national LGBT groups for years. The bill, also known as the Employment Non-Discrimination Act, or ENDA, in its original version would have outlawed employment discrimination based on sexual orientation or gender identity. The second part of that phrase is critical, not just to transgender people but to queer workers in general: as the American Civil Liberties Union points out in a legal analysis of the changes, the gay and lesbian people most likely to face discrimination in the workplace are those who don’t hew to traditional male and female roles. Effeminate men and butch women are far more at risk than, say, a gay man who can easily pass as straight. "The more masculine a gay man is or the more feminine a lesbian is, the less the likelihood of discrimination," the ACLU notes. As the Lambda Legal Defense Fund writes, "This new bill also leaves out a key element to protect any employee, including lesbians, gay men and bisexuals who may not conform to their employer’s idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit."

But the politics are more difficult. Frank argues that Congress might pass a stripped-down version of the bill, but the votes aren’t there for anything that can be described as protecting transgender people. Some protection for some lesbians and gays, he argues, is better than none at all.

That ignores the reality, which is that George W. Bush is going to veto any bill that protects queer people from discrimination anyway. The fight over HR 2015 is largely symbolic; the bill won’t become law until there’s a Democrat in the White House. And if the gender-identity language isn’t in the bill this time, it will be much harder to add it in later.

All civil rights advances seem hopeless at first. The first marriage-equality bill in the California Legislature faced strong opposition, but Assemblymember Mark Leno (D–San Francisco) kept bringing it back — and every time it came up, it got more votes. ENDA’s got the same prospects.

Of course, there’s a larger issue here: compromising on civil rights is always unacceptable. And as writer Wayne Besen puts it, "A minority as small as the trans community will never have the political clout to go it alone, nor will they have the funds to wage a credible fight in Congress unless Bill Gates wakes up tomorrow and decides to have a sex change. To put it bluntly, their only chance at legal protection is under the gay and lesbian banner."

The HRC has been awfully weak, refusing to pull its support for the watered-down bill, but most other LGBT groups nationwide are urging Congress not to accept the Frank proposal. We agree. The fate of HR 2015 is in the hands of Pelosi, who can simply bring the original bill to the floor. That’s what activists should push her to do.

Injunction dysfunction

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When seven people were shot in the span of 12 hours in June at the Friendship Village and Yerba Buena Plaza East housing complexes in the Western Addition, city and community leaders decided immediate action was necessary to remedy the increasing level of gang violence.

Sup. Ross Mirkarimi, who represents the area, demanded 24-hour police patrols as a temporary measure. Rev. Regnaldo Woods of Bethel AME had a broader vision — get the gangs to call a truce. But City Attorney Dennis Herrera already had his own plan well in the works, a controversial approach that has nonetheless been embraced at City Hall by leaders desperate for solutions to the intractable and escautf8g problem of gun violence.

Herrera and his staff in July announced they were seeking civil gang injunctions in the Western Addition and the Mission District modeled on a similar effort last year against the Oakdale Mob in Bayview–Hunters Point. He went after alleged members of the Norteña gang in the Mission and targeted three gangs in the Western Addition, all centered on Eddy Street and the public housing complexes that stretch from Gough to Divisadero: Eddy Rock, Chopper City, and Knock Out Posse.

Two Superior Court judges, Patrick Mahoney and Peter Busch, heard arguments for and against the injunctions Sept. 18 and are expected to issue rulings at any time. The injunctions would prevent the alleged gang members they name from associating with one another within a prescribed area, among other restrictions.

The injunctions have pitted Herrera and his allies against Public Defender Jeff Adachi, civil liberties advocates, and some community groups, who have rallied to stop the injunctions and criticize them as a "criminalization of people of color," a charge Herrera stridently rejects and has publicly condemned as "race-baiting."

But beyond the emotional politics of this controversial tactic, there are some practical problems with the injunctions, particularly in the Western Addition, where they may stifle community-based solutions to the problem of gang violence.

"[The injunctions] slowed us down considerably," Woods, a life-long Fillmore resident, told the Guardian. "It’s going to impact the movement if it stays as it is. I think there needs to be changes."

Woods and other leaders from Bethel and from his nonprofit, Up from Darkness, met with the gang members a total of 43 times throughout the summer. When word of the injunctions spread, Woods said he had to restart from square one. Rather than bring people together for a dialogue, he had to explain why this was happening, what the injunctions meant, and how the injunctions would affect those included.

Woods planned to hold a summit, which "shot callers" from each of the gangs would attend and at which they would call a truce as well as receive access to employment guidance and mental health services. The summit never happened, but gang violence in the Western Addition nevertheless decreased rapidly in the following months. Northern Police District Capt. Croce Casciato said there hasn’t been a gang-related homicide in the district since May.

The American Civil Liberties Union says the injunctions will strip alleged gang members of due-process rights and give police a roving warrant to harass whomever they deem a gang member. Adachi and Kendra Fox-Davis, of the Lawyer’s Committee for Civil Rights, said their offices have received numerous complaints from youths in the Mission and the Western Addition that police are already using the injunctions to hassle people even before they’ve been approved.

"There’s been a tremendous amount of misinformation about the injunctions," Adachi said. He questions the effectiveness of injunctions and said these give police carte blanche to harass anyone they suspect of being affiliated with gangs. His biggest issue, though, is the fact that the alleged members don’t have the necessary resources to contest the label.

Herrera derided the racial implications levied by Adachi, and in an e-mail to us, press secretary Matt Dorsey wrote, "The fact is, the debate over these proposed injunctions — most especially the one in the Mission — has been characterized by increasingly dishonest and inflammatory rhetoric. This isn’t just someone’s innocent misunderstanding, either: ‘the criminalization of people of color’ is wildly misrepresentative, and it’s deliberate."

Herrera acknowledges people’s concerns, but he stands by his decision.

"I really wish it wasn’t necessary that it has come to this point where I say, ‘Hey, this is a tool we have to pursue,’" Herrera told us. "But the facts are the facts. We have a gang problem in San Francisco. I think I’d be neglecting my responsibility if I didn’t bring another tool to the table to help address the issue."

Woods doesn’t raise the same racial concerns that Adachi does, and he isn’t too animated about the civil liberties issues. To him, the injunctions are just too broad and counterproductive to the community-based approaches that have the best chance of addressing the problem. He thinks the gang members themselves must help solve the problems they’ve created.

"It’s us getting together every day and doing something positive," said Steve Johnson, a 27-year-old targeted member of Eddy Rock, which claims the Plaza East housing complex as its turf. "It has nothing to do with the injunction. We’re trying to get all the different complexes in the Western Addition together."

Paris Moffet, the alleged leader of Eddy Rock, added, "We’re the only ones stopping the violence. We needed to. We are going to stop this."

It may come as a surprise that reputed gang members might be helping to stop the violence that was once a part of their daily lives, and several members of Eddy Rock acknowledged they have a long way to go in reshaping their images.

But, they say, they are committed to reforming themselves, and they recently held a barbecue at the complex parking lot to display some of their positive work. In the small community center at Plaza East — locally known as the OC, for "Outta Control" — Eddy Rock, with the help of Woods and others, has created Open Arms, a nonprofit geared toward educating the younger kids in the complex about staying in school and computer literacy.

Asked about the sudden turnabout by Eddy Rock, Marquez Shaw, a 26-year-old alleged member of the gang, explained that the level of violence at Plaza East had taken its toll on everyone, not just uninvolved residents. "[The violence] affected me, very much so," he said. "There’s been more bloodshed here than anywhere else in the community. We’re the only ones man enough to do something."

But Herrera said the recent relative quiet in the area doesn’t make up for more than five years of chaos. "Has there been a lull? Yeah," he said. "But earlier in the summer there were some brazen shootings. June isn’t that long ago."

Woods acknowledged that the members shouldn’t be given a free pass, considering their troubled past. "They’re not angels," he said. "But let’s try to help them before they go to prison. That way you might save the old lady’s life. You might save a youngster’s life. If they had something to do, they wouldn’t do the shootings."

At the Aug. 14 Eddy Rock barbecue, about 50 or so people from the Plaza East complex snacked on ribs, chicken, hot links, and spaghetti. Two beat officers from the Northern Station stood in the distance and oversaw an impromptu football game between juveniles and alleged gang members.

A clipping of a newspaper article hangs on the wall in the community center; it’s about how director Spike Lee is urging inner-city youths to make films about their experience growing up with violence and to use the Internet to broadcast them to others.

Given a camera, Shaw has done just that. During a recent visit to Plaza East, he was using iMovie to edit a video that he planned to post on YouTube. On the video, an older black man says, "Now it’s time to look at what’s going on, not what’s happened in the past."

Nas’s "I Know I Can" plays on Hannibal Thompson’s video as he flatly explains how the area is deprived of proper resources and lacks preventative measures. Thompson, a 20-year-old named in one of the injunctions as a member of Eddy Rock, says six of his friends have been murdered since 2005 — three of them less than a block away, at Eddy and Laguna, where cameras affixed to streetlights are meant to deter criminal activity. He said increased police presence and the work of Woods have led to the decrease in violence, something he embraces.

"The best thing that ever happened to this community was the 24-hour police patrol. That’s way better than the injunction," he said. "They should have done that years ago."

Casciato doesn’t doubt that Eddy Rock, which has terrorized residents for years, might have turned the corner. But he calls the injunctions one additional tool to fight the long-term battle against gang violence. Casciato said it was too soon to tell how an injunction would affect regular police procedure. Like others in the community, though, he emphasized the effectiveness of outreach work.

"There has been a great collaborative effort on the community’s part," Casciato said. On gang members reforming themselves, he said, "I’m sure they did. Success is going to come from within, not from the outside. All our efforts are for naught if there’s no buy-in."

Under the current terms of the injunctions, the aforementioned barbecue would be prohibited, since it involved literally the whole gang. The targeted individuals could freely associate with one another inside the community center but would need to go in and out separately, which critics say is not a realistic scenario. If targeted members violate the injunctions, they can be charged with misdemeanors and put in jail for up to five days.

The injunction tactic "undermines antiviolence efforts of community advocates and organizations working in the Western Addition, like Woods, by effectively preventing the individuals most in need of support services from participating in them," Fox-Davis wrote in an e-mail.

Herrera and his deputies submitted more than 4,000 pages of evidence, including expert declarations from the gang task force, which detailed the reign of terror of the three gangs. He said they’ve been careful to name only shot callers in the injunctions and to carefully detail the case against them.

Fox-Davis and other critics contend the Western Addition injunction is too broad, unlike the first one in Oakdale, which only covered four square blocks. A total of 15 blocks are designated as the "safety zone" in the Western Addition, stretching from Eddy and Gough in the east to Eddy and Webster in the west, bordered by Turk and Ellis to the north and south, for Eddy Rock.

For Chopper City and KOP — which had in the past aligned themselves against Eddy Rock — the safety zone is a six-block area north of Turk to Ellis, between Divisadero and Steiner, which includes the Marcus Garvey and Martin Luther King housing complexes. In Bayview, only one of 22 targeted members lived in the housing complex, whereas a total of seven of 19 identified members of Eddy Rock live within that purposed safety zone, according to the City Attorney’s Office.

"The restrictions that are proposed in this injunction go far beyond what is necessary to address the nuisance the city attorney claims is being caused by gang violence," Fox-Davis said.

But Herrera says the "nuisance" amounts to communities being terrorized by violence and his office would be remiss to not address the problem. A total of 11 homicides in three years have been linked to the three Western Addition gangs, according to court documents.

"I’ve never been one to say we should be dissuading communities from being involved and trying find solutions and making contributions to solving the problem. To me it’s not mutually exclusive. It’s not an either-or proposition. I think it’s important that we get the community to be a vital stakeholder in trying to stem the tide of violence," Herrera said. "But there has to be accountability."

To quell critics’ concerns, Herrera said his office has included numerous safeguards, including training cops to properly enforce the injunctions. Targeted members also have a "buyout option," meaning if they can prove that they are no longer involved in gang activity, they can appeal to have their names removed from the list.

Herrera points to the perceived success of the injunction in Bayview as proof that the tactic is effective in restoring calm and peace to neighborhoods once plagued with murder. Herrera also notes that the Board of Supervisors passed a resolution almost unanimously that supported injunctions by the city attorney.

Mirkarimi, however, said his support of the current injunctions being sought was "tentative at best" and said he considered them "an act of desperation." He too said community work and traditional police enforcement — like the 24-hour patrols — are better ways of addressing the root causes of gang violence.

The alleged members of Eddy Rock agree.

"We just need something to do," said Maurice Carter, 32. "We did the crime, we did the time. Now we just want a second chance."

Something worth fighting for

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› tredmond@sfbg.com

REVIEW If you want a guide to the players who are trying to refashion the Democratic Party in America, Matt Bai’s The Argument: Billionaires, Bloggers, and the Battle to Remake Democratic Politics is a nice handbook. It’s easy to read, brings the characters to life, and reveals how big chunks of money from a few very rich liberals are going to a handful of organizations and think tanks most people have never heard of. Not everything Bai says is true, but even where he’s wrong, it’s an interesting read.

Bai, a writer for the New York Times Magazine, offers a lot of interesting and useful history about the Howard Dean phenomenon and the rise of bloggers and online politics in the Democratic Party. His portrayals of some key bloggers, like Markos Moulitsas of Daily Kos, as people who lack ideology but demand respect is a bit off base, though. I think Moulitsas, for one, could easily outline an ideology, and if you read his stuff regularly, you get a pretty good sense of it.

Bai gives some credit to Dean and his supporters for creating a successful "50 state" strategy — investing party resources throughout the country, not just in targeted swing districts — and then claims (not entirely inaccurately) that the battle within the organization has been more about empowering the grassroots than about any specific policy prescription. But he doesn’t seem to recognize the inherent politics in community organizing: Saul Alinsky argued half a century before Dean that teaching marginalized groups how to exercise power was in itself a radical act, whether or not it was driven by a specific political analysis or ideology. (The Marxists have typically disagreed, and that battle has raged on the left for a long, long time, but Bai, who rarely writes about anything outside the mainstream of political thought, pays that history no heed.)

Still, Bai’s overall point — that the reformers in the party, particularly the ones with the big money, lack a coherent ideological vision for the country’s future — is both accurate and alarming. Nobody, Bai says, is making "the Argument" — the case for electing Democrats. In the 2006 congressional elections, "what voters had not done was endorse any Democratic argument — because, of course, there wasn’t one." All the party under the likes of Rep. Nancy Pelosi has been able to do is point out that Democrats aren’t Republicans (and aren’t quite as bad on the Iraq war) — and that, he notes, will never be a recipe for long-term success.

Anyone interested in the future of the Democratic Party and progressive politics ought to read this book, if only to get the discussion started. Bai makes a powerful statement: that transformational political change has typically come when there is a set of issues and governing philosophies that can be presented to the voting public. But he leaves the reader deeply dissatisfied — because he doesn’t offer any answers. It’s all fine and good to bash the reformers in the party, and I agree with a lot of his criticisms. But if you want to whine about the lack of an argument, you ought to spend some time thinking about what that argument might look like and putting it on paper.

A couple of years ago I was on a right-wing talk show arguing that Pelosi wasn’t exactly a "San Francisco liberal," and one of the hosts asked what that term mean. I gave it a try, on the fly, in the few seconds they allowed me. A San Francisco liberal, I said, believes that we should tax the rich to feed the poor, that we should protect the environment, including the urban environment, from the attack of greedy developers. A San Francisco liberal believes in civil liberties and civil rights, including same-sex marriage, and isn’t afraid to say so.

A San Francisco liberal, I would have added if they hadn’t cut me off, thinks the invasion of Iraq was wrong, the occupation is a disaster, and the only sane approach now is to get the US troops out of there. A San Francisco liberal believes that money has ruined politics and that the answer is not for the Democrats to try to raise more than the Republicans. A San Francisco liberal believes this city can and should be a force for progressive thought and set the standard for the rest of the country.

A San Francisco liberal isn’t afraid to lose.

There’s a lot more I could say, but that’s the start of an Argument. That wasn’t so hard, Matt, was it?

THE ARGUMENT: BILLIONAIRES, BLOGGERS, AND THE BATTLE TO REMAKE DEMOCRATIC POLITICS

By Matt Bai

Penguin Press

336 pages

$25.95

Letters as leverage

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It’s a thin, seemingly innocuous letter. The Social Security Administration mails it when names and Social Security numbers don’t match on an employee’s I-9 form. The intent is to make sure workers receive their benefits.

But unions and immigrants have long charged that unscrupulous employers use SSA "no match" letters to harass undocumented workers and squelch union organizing efforts. Now, after a failed immigration debate in Congress, the George W. Bush administration wants to pass a regulation that would explicitly turn the letter into an immigration enforcement tool.

Activists fear this could result in massive firings and retaliation against workers organizing with unions. Employers complain it could lead to an economic slump in industries dependent on undocumented labor. A temporary injunction granted by a San Francisco judge is the only thing holding back letters across the country; it ends Oct. 1.

Bay Area activists have been national leaders at the intersection of immigrant rights and labor movements. They are now shaping national policy on this new regulation in the courts and promise wide-scale street action and workplace walkouts if it goes into effect.

A look at past and present related Bay Area organizing may shed light on the future of the national issue.

BAY AREA ORGANIZING


US companies file hundreds of millions of W-2 forms with the SSA every year. The SSA uses them to calculate how much it owes workers at retirement. When the name and the Social Security number do not match, the SSA sends a "no match" letter to the employee to clear up the discrepancy. The letters are also sent to employers who have more than 10 employees with no match. These letters have nothing to do with immigration law, and employers are not required to take any adverse action against these employees.

But under the new Department of Homeland Security regulation, no-match letters may be seen as evidence that an employer knowingly employed an undocumented worker. The letters would include a leaflet from US Immigration and Customs Enforcement informing employers that they must fire workers who cannot resolve no matches with the SSA or reverify their work authorization within 93 days. If the companies do not, they may be subject to fines or criminal charges.

The rule was drafted more than a year ago but was not announced by Homeland Security secretary Michael Chertoff until Aug 10. "The magnet that brings most economic migrants into this country is work," he explained. "And if we have worksite enforcement directed at illegal employment, we strike at that magnet."

Brooke Anderson, an organizer with the East Bay Alliance for a Sustainable Economy, told the Guardian that this is an unlikely scenario. Workers will not leave the country; they will simply be forced into underground economies, rotate through different jobs, and become even more vulnerable.

Anderson was among a delegation of more than 30 labor, faith, and community leaders that presented a letter Aug. 30 at the regional SSA office in Richmond. The letter outlined their concerns and asked that the SSA send out no-match letters only to employees, not employers.

"DHS is using an incomplete, hodgepodge system intended to ensure our economic security to implement a regressive immigration policy that Bush failed to pass in Congress," Anderson told us. "The SSA as an agency should have a spine and say no to DHS and no to the Bush administration."

If the ICE inserts do go out with no-match letters, she predicts walkouts and massive street actions.

The regulation is also being challenged in a lawsuit filed by the Central Labor Council of Alameda County. The AFL-CIO, the American Civil Liberties Union, and the San Francisco Central Labor Council have joined it. The plaintiffs claim that because the SSA’s database is full of errors, many citizens and legal immigrants could end up losing their jobs. They also argue that the DHS has exceeded its authority by seeking to use the SSA to enforce immigration laws.

US District Judge Maxine Chesney in San Francisco granted a nationwide temporary restraining order Aug. 31, blocking the SSA from sending letters with ICE inserts. The order is in effect until Oct. 1, when another federal judge here, Charles Breyer, will decide whether to grant another injunction.

"DHS is trying to create a huge terror, to give the illusion that they are doing something," Bill Sokol, a lawyer with Weinberg, Roger, and Rosenfeld, the firm representing the Central Labor Council of Alameda County, told us. "Workers are afraid, but we must dial down people’s fear and terror under our new gestapo."

He said the law will have little impact if employers understand it and do not abuse it. If employers overreact, however, the result could be disastrous. Sokol said employers are already firing employees immediately after receiving the letters.

HISTORY


Unions and immigrant workers across the country have charged that no-match letters have been used to stifle workers’ rights since the SSA began sending them to employers in 1994. Activists in the Bay Area have played a key role in resisting these efforts, setting national precedents upholding worker rights.

When a San Francisco Travelodge fired workers after they began organizing with a union in 1999, allegedly due to Social Security no matches, the terminated employees took it to court. The next year they won an arbitrator’s decision that the firing, based solely on no-match letters, was a violation of their union contract.

Local community pressure on the SSA also resulted in the inclusion of cautionary text in the letter. The no-match letter now states that employers "should not use this letter to take any adverse action against an employee…. Doing so could, in fact, violate state or federal law and subject you to legal consequences."

Activists at Oakland’s Labor Immigrant Organizers Network wrote a resolution in 1999 asking the AFL-CIO to renounce its support of the employer-sanctions provisions of the 1986 Immigration Reform and Control Act, the federal law that for the first time made it illegal for an undocumented worker to hold a job. Their agitation is credited in part for a resolution the AFL-CIO passed in 2000 calling for the repeal of sanctions and for a legalization program for undocumented workers.

The letters remained a potent tool for antiunion activity. A 2003 survey by the Center for Urban Economic Development at the University of Illinois at Chicago found that 25 percent of workers listed in no-match letters reported that their employers fired them in retaliation for complaining about inadequate worksite conditions. More than one in five workers reported that their employer fired them in retaliation for union activity.

San Francisco opposed the DHS no-match regulation when it was proposed last year. An August 2006 resolution by the Board of Supervisors said it may lead to employers "using it as a device to fire, intimidate, harass, or underpay employees." It promised that the city would defy the regulation if it received a no-match letter for a city employee.

The San Francisco Chamber of Commerce and the US Chamber of Commerce also came out against the regulation.

But some employers embraced the proposed regulation. Uniform manufacturer Cintas fired hundreds of employees across the country, allegedly responding to the proposed guidelines after receiving no-match letters during a union organizing drive. Organizers said the company targeted employees involved in the union and jumped the gun on new regulations.

The Woodfin Suite Hotel in Emeryville fired 21 housekeepers in December 2006, also allegedly due to no-match letters. The workers claim the Woodfin retaliated against them for organizing with the East Bay Alliance for a Sustainable Economy, a labor-affiliated think tank, to enforce the living-wage law (see "Calling in the Feds," 6/13/07).

A yearlong campaign targeting the Woodfin has brought the issue to a national audience.

FALSE INFORMATION


Organizers say the regulations are far less strict than the news media has portrayed them, adding to an atmosphere of hysteria and fear among employers and workers. Francisco Ugarte, a lawyer with the Oakland firm of Leonard Carder, held up several San Francisco Chronicle articles at a Sept. 13 workshop for union organizers as examples of media inaccuracies.

An employer is not required to fire an employee after 90 days, as news accounts have stated. The employer has 90 days to fix discrepancies, and the worker has three days after that to fill out another I-9 form with a new Social Security number. If it appears credible, employers must accept the new I-9, Ugarte said.

The ICE insert in the SSA letter will terrify employers, he predicted, but the rule does not create any new information sharing between the SSA and other governmental agencies. The SSA is actually prohibited by law from sharing private data with any other governmental agencies.

There are also no automatic fines assessed to employers, as news accounts have implied. ICE will only levy fines if it raids employers and finds that they did not address no-match discrepancies. It is unlikely that the DHS will be able to enforce the regulations; in announcing them, Chertoff said the agency would rely largely on self-policing.

Even if this is the case, organizers fear that the DHS’s no-match regulation will provide employers with another tool to squelch immigrant workers’ rights. Comprehensive immigration reform is still needed to reconcile employers’ demands for workers, immigrants’ needs for employment, and US immigration policy.*

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