Colo. US District Court judge enjoins DIA to limit restriction of free speech (grants our preliminary injunction!)

Plaintiffs Nazli McDonnell and Eric Verlo
DENVER, COLORADO- If your civil liberties have ever been violated by a cop, over your objections, only to have the officer say “See you in court”, this victory is for YOU! On January 29 we were threatened with arrest for protesting the “Muslim Ban” at Denver International Airport. We argued that our conduct was protected speech and that they were violating our rights. They dismissed our complaints with, in essense: “That’s for a court to decide.” And today IT HAS! On Feb 15 we summoned the cops to federal court and this morning, Feb 22, US District Court Judge William Martinez granted our preliminary injunction, severely triming DIA’s protest permit process. In a nutshell: no restrictions on signs, size of assemblies or their location within the main terminal (so long as the airport’s function is not impeded). Permits are still required but with 24 hours advance notice, not seven days. Below is Judge Martinez’ 46-page court order in full:

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 17-cv-0332-WJM-MJW

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ,
in his individual and official capacity, and?
DENVER POLICE SERGEANT VIRGINIA QUIÑONES,
in her individual and official capacity,

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

Plaintiffs Nazli McDonnell (“McDonnell”) and Eric Verlo (“Verlo”) (together, “Plaintiffs”) sue the City and County of Denver (“Denver”), Denver Police Commander Antonio Lopez (“Lopez”) and Denver Police Sergeant Virginia Quiñones (“Quiñones”) (collectively, “Defendants”) for allegedly violating Plaintiffs’ First and Fourteenth Amendment rights when they prevented Plaintiffs from protesting without a permit in the Jeppesen Terminal at Denver International Airport (“Airport” or “Denver Airport”). (ECF No. 1.) Currently before the Court is Plaintiffs’ Motion for Preliminary Injunction, which seeks to enjoin Denver from enforcing some of its policies regarding demonstrations and protests at the Airport. (ECF No. 2.) This motion has been fully briefed (see ECF Nos. 2, 20, 21, 23) and the Court held an evidentiary hearing on February 15, 2017 (“Preliminary Injunction Hearing”).

For the reasons explained below, Plaintiffs’ Motion is granted to the following limited extent:

• Defendants must issue an expressive activity permit on twenty-four hours’ notice in circumstances where an applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen seven days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the permit applicant prevented timely filing of the application; ?

• Defendants must make all reasonable efforts to accommodate the applicant’s preferred demonstration location, whether inside or outside of the Jeppesen Terminal, so long as the location is a place where the unticketed public is normally allowed to be; ?

• Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Denver Airport Regulation 50.02-8) within the Jeppesen Terminal; and ?

• Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot. ??

Any relief Plaintiffs seek beyond the foregoing is denied at this phase of the case. In particular, the Court will not require the Airport to accommodate truly spontaneous demonstrations (although the Airport remains free to do so); the Court will not require the Airport to allow demonstrators to unilaterally determine the location within the Jeppesen Terminal that they wish to demonstrate; and the Court will not strike down the Airport’s usual seven-day notice-and-permit requirement as unconstitutional in all circumstances.

I. FINDINGS OF FACT

Based on the parties’ filings, and on the documentary and testimonial evidence received at the evidentiary hearing, the Court makes the following findings of fact for purposes of resolving Plaintiffs’ Motion.?

A. Regulation 50

Pursuant to Denver Municipal Code § 5-16(a), Denver’s manager of aviation may “adopt rules and regulations for the management, operation and control of [the] Denver Municipal Airport System, and for the use and occupancy, management, control, operation, care, repair and maintenance of all structures and facilities thereon, and all land on which [the] Denver Municipal Airport System is located and operated.” Under that authority, the manager of aviation has adopted “Rules and Regulations for the Management, Operation, Control, and Use of the Denver Municipal Airport System.” See https://www.flydenver.com/about/administration/rules_regulations (last accessed Feb. 16, 2017). Part 50 of those rules and regulations governs picketing, protesting, soliciting, and similar activities at the Airport. See https://www.flydenver.com/sites/default/files/rules/50_leafleting.pdf (last accessed Feb. 16, 2017). The Court will refer to Part 50 collectively as “Regulation 50.”

The following subdivisions of Regulation 50 are relevant to the parties’ current dispute:

Regulation 50.03: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO [of the Airport] or his or her designee. . . .” ?

Regulation 50.04-1: “Any person or organization desiring to leaflet, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, shall complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought and no earlier than thirty (30) days prior to commencement of the activity. The permit application shall be submitted using the form provided by the Airport. The applicant shall provide the name and address of the person in charge of the activity, the names of the persons engaged in the activity, the nature of the activity, each location at which the activity is proposed to be conducted, the purpose of the activity, the hours during which the activity is proposed to be conducted, and the beginning and end dates of such activity. A labor organization shall also identify the employer who is the target of the proposed activity.”

Regulation 50.04-3: “Upon presentation of a complete permit application ?and all required documentation, the CEO shall issue a permit to the applicant, if there is space available in the Terminal, applying only the limitations and regulations set forth in this Rule and Regulation . . . . Permits shall be issued on a first come-first served basis. No permits shall be issued by the CEO for a period of time in excess of thirty-one (31) days.” ?

Regulation 50.04-5: “In issuing permits or allocating space, the CEO shall not exercise any discretion or judgment regarding the purpose or content of the proposed activity, except as provided in these Rules and Regulations. The issuance of a permit is a strictly ministerial function and does not constitute an endorsement by the City and County of Denver of any organization, cause, religion, political issue, or other matter.” ?

Regulation 50.04-6: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.” ?

Regulation 50.08-12: “Individuals and organizations engaged in leafleting, solicitation, picketing, or other speech related activity shall not: * * * [w]ear or carry a sign or placard larger than one foot by one foot in size . . . .” (underscoring in original).

Regulation 50.09: “Picketing not related to a labor dispute is prohibited in ?all interior areas of the Terminal and concourses, in the Restricted Area, and on all vehicular roadways, and shall not be conducted by more than two (2) persons at any one location upon the Airport.” ?

Regulation 50.02-8: “Picketing shall mean one or more persons marching or stationing themselves in an area in order to communicate their position on a political, charitable, or religious issue, or a labor dispute, by displaying one or more signs, posters or similar devices” (underscoring in original).

The Airport receives about forty-five permit requests a year. No witness at the Preliminary Injunction Hearing (including Airport administrators who directly or indirectly supervise the permit process) could remember an instance in which a permit had been denied.

?Although there is no formal written, prescribed procedure for requesting expedited treatment of permit requests, the Airport not infrequently processes such requests and issues permits in less than seven days. Last November, less than seven days before Election Day, the Airport received a request from “the International Machinists” 1 to stage a demonstration ahead of the election. The Airport was able to process that request in two days and thereby permit the demonstration before Election Day.
?
——————————
1 Presumably, the International Association of Machinists and Aerospace Workers. ?
———————

B. The Executive Order

On Friday, January 27, 2017, President Trump signed Executive Order 13769 (“Executive Order”). See 82 Fed. Reg. 8977. The Executive Order, among other things, established a 90-day ban on individuals from seven Muslim-majority countries from entering the United States, a 120-day suspension of all refugee admissions, and an indefinite suspension of refugee admissions from Syria. Id. §§ 3(c), 5(a), 5(c). “The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.” Washington v. Trump, ___ F.3d. ___, ___, 2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017). As is well known, demonstrators and attorneys quickly began to assemble at certain American airports, both to protest the Executive Order and potentially to offer assistance to travelers being detained upon arrival.?

C. The January 28 Protest at the Denver Airport

Shortly after 1:00 p.m. on the following day—Saturday, January 28, 2017— Airport public information officer Heath Montgomery e-mailed Defendant Lopez, the police commander responsible for Denver’s police district encompassing the Airport. Lopez was off-duty at the time. Montgomery informed Lopez that he had received media inquiries about a protest being planned for the Airport later that day, and that no Regulation 50 permit had been issued for such a protest.

Not knowing any details about the nature or potential size of the protest, and fearing the possibility of “black bloc” and so-called “anarchist activities,” Lopez coordinated with other Denver Police officials to redeploy Denver Police’s gang unit from their normal assignments to the Airport. Denver Police also took uniformed officers out of each of the various other police districts and redeployed them to the Airport. Lopez called for these reinforcements immediately in light of the Airport’s significant distance from any other police station or normal patrol area. Lopez knew that if an unsafe situation developed, he could not rely on additional officers being able to get to the Airport quickly.

Through his efforts, Lopez was eventually able to assemble a force of about fifty officers over “the footprint of the entire airport,” meaning inclusive of all officers already assigned to the Airport who remained on their normal patrol duties. Lopez himself also came out to the Airport.

In the meantime, Montgomery had somehow learned of an organization known as the Colorado Muslim Connection that was organizing protesters through Facebook. Montgomery reached out to this organization through the Airport’s own Facebook account and informed them of Regulation 50’s permit requirement. (Ex. 32.) One of the Colorado Muslim Connection’s principals, Nadeen Ibrahim, then e-mailed Montgomery “to address the permit.” (Ex. 30.) Ibrahim told Montgomery:

The group of people we have will have a peaceful assembly carrying signs saying welcome here along with a choir and lots of flowers. Our goal is to stand in solidarity with our community members that have been detained at the airports since the signing of the executive order, though they do have active, legal visas/green cards. Additionally, we would like to show our physical welcoming presence for any newly arriving Middle Eastern sisters and brothers with visas. We do not intend to block any access to [the Airport].

(Id.) Montgomery apparently did not construe this e-mail as a permit request, or at least not a properly prepared one, and stated that “Denver Police will not allow a protest at the airport tonight. We are willing to work with you like any other group but there is a formal process for that.” (Id.)

Nonetheless, protesters began to assemble in the late afternoon and early evening in the Airport’s Jeppesen Terminal, specifically in the multi-storied central area known as the “Great Hall.” The Great Hall is a very large, rectangular area that runs north and south. The lower level of the Great Hall (level 5) has an enormous amount of floor space, and is ringed with offices and some retail shops, but the floor space itself is largely taken up by security screening facilities for departing passengers. The only relatively unobstructed area on level 5 is the middle third, which is currently designed primarily as a location for “meeters-and-greeters,” i.e., individuals waiting for passengers arriving from domestic flights who come up from the underground train connecting the Jeppesen Terminal with the various concourses. There is a much smaller meeters-and-greeters waiting area at the north end of level 5, where international arrivals exit from customs screening.

The upper level of the Great Hall (level 6) has much less floor space than level 5 given that it is mostly open to level 5 below. It is ringed with retail shops and restaurants. At its north end is a pedestrian bridge to and from the “A” concourse and its separate security screening area.

Given this design, every arriving and departing passenger at the Airport (i.e., all passengers except those only connecting through Denver), and nearly every other person having business at the airport (including employees, delivery persons, meeters-and-greeters, etc.), must pass through some portion of the Great Hall. In 2016, the Airport served 58.3 million passengers, making it the sixth busiest airport in the United States and the eighteenth busiest in the world. Approximately 36,000 people also work at the airport.

The protesters who arrived on the evening of January 28 largely congregated in the middle third of the Great Hall (the domestic-arrivals meeter-and-greeter area). The protesters engaged in singing, chanting, praying, and holding up signs. At least one of them had a megaphone.

The size of the protest at its height is unclear. The witnesses at the evidentiary hearing gave varying estimates ranging from as low as 150 to as high as 1,000. Most estimates, however, centered in the range of about 200. Lopez, who believed that the protest eventually comprised about 300 individuals, did not believe that his fifty officers throughout the Airport were enough to ensure safety and security for that size of protest, even if he could pull all of his officers away from their normal duties.

Most of the details of the January 28 protest are not relevant for present purposes. Suffice it to say that Lopez eventually approached those who appeared to be the protest organizers and warned them multiple times that they could be arrested if they continued to protest without a permit. Airport administration later agreed to allow the protest to continue on “the plaza,” an area just outside the Jeppesen Terminal to its south, between the Terminal itself and the Westin Hotel. Protesters then moved to that location, and the protest dispersed later in the evening. No one was arrested and no illegal activity stemming from the protest (e.g., property damage) was reported, nor was there any report of disruption to travel operations or any impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal.

D. The January 29 Protest at the Denver Airport

Plaintiffs disagree strongly with the Executive Order and likewise wished to protest it, but, due to their schedules, were unable to participate in the January 28 protest. They decided instead to go to the Airport on the following day, Sunday, January 29. They came that afternoon and stationed themselves at a physical barrier just outside the international arrival doors at the north end of the Great Hall, level 5. They each held up a sign of roughly poster board size expressing a message of opposition to the Executive Order and solidarity with those affected by it. (See Exs. 2, 4, M.)

Plaintiffs were soon approached by Defendant Quiñones, who warned them that they could be arrested for demonstrating without a permit. Plaintiffs felt threatened, as well as disheartened that they could not freely exercise their First Amendment rights then and there. Plaintiffs felt it was important to be demonstrating both at that particular time, given the broad news coverage of the effects of the Executive Order, and at that particular place (the international arrivals area), given a desire to express solidarity with those arriving directly from international destinations—whom Plaintiffs apparently assumed would be most likely to be affected by the Executive Order in some way.

Plaintiffs left the Airport later that day without being arrested, and without incident. They have never returned to continue their protest, nor have they applied for a permit to do so.

E. Permits Since Issued

The airport has since issued permits to demonstrators opposed to the Executive Order. At least one of these permits includes permission for four people to demonstrate in the international arrivals area, where Plaintiffs demonstrated on January 29.

II. REQUESTED INJUNCTION

Plaintiffs have never proposed specific injunction language. In their Motion, they asked for “an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.” (ECF No. 2 at 4.) At the Preliminary Injunction Hearing, Plaintiffs’ counsel asked the Court to enjoin Defendants (1) “from arresting people for engaging in behavior that the plaintiffs or people similarly situated were engaging in,” (2) from enforcing Regulation 50.09 (which forbids non- labor demonstrators from holding up signs within the Jeppesen Terminal), and (3) from administering Regulation 50 without an “exigent circumstances exception.” Counsel also argued that requiring a permit application seven days ahead of time is unconstitutionally long in any circumstance, exigent or not.

III. LEGAL STANDARD

A. The Various Standards

In a sense, there are at least three preliminary injunction standards. The first, typically-quoted standard requires: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and (4) that the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).

If, however, the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, a second standard comes into play, one in which the movant must meet a heightened burden. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). Specifically, the proposed injunction “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” and “a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id.

On the other hand, the Tenth Circuit also approves of a

modified . . . preliminary injunction test when the moving party demonstrates that the [irreparable harm], [balance of harms], and [public interest] factors tip strongly in its favor. In such situations, the moving party may meet the requirement for showing [likelihood of] success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.

Verlo v. Martinez, 820 F.3d 1113, 1128 n.5 (10th Cir. 2016). This standard, in other words, permits a weaker showing on likelihood of success when the party’s showing on the other factors is strong. It is not clear how this standard would apply if the second standard also applies.

In any event, “a preliminary injunction is an extraordinary remedy,” and therefore “the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

B. Does Any Modified Standard Apply?

The status quo for preliminary injunction purposes is “the last peaceable uncontested status existing between the parties before the dispute developed.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation marks omitted). By asking that portions of Regulation 50 be invalidated, Plaintiffs are seeking to change the status quo. Therefore they must make a stronger-than-usual showing on likelihood of success and the balance of harms.

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

Under the circumstances, the Court finds it appropriate to begin by discussing the irreparable harm element of the preliminary injunction test as it relates Plaintiffs’ standing to seek an injunction.

Testimony at the Preliminary Injunction Hearing revealed that certain groups wishing to protest the Executive Order have since applied for and obtained permits. Thus, Plaintiffs could get a permit to demonstrate at the airport on seven days’ advance notice—although Regulation 50.09 would still prohibit them from demonstrating by wearing or holding up signs. In addition, as discussed in more detail below (Part IV.B.3.c), Plaintiffs could potentially get a permit to hold a protest parade on public streets in the City and County of Denver with as little as 24 hours’ notice. And as far as the Court is aware, the two Plaintiffs may be able to stand on any public street corner and hold up signs without any prior notice or permit requirement. Thus, Plaintiffs’ alleged irreparable harm must be one or both of the following: (1) the prospect of not being able to demonstrate specifically at the airport on less than seven days’ notice, or (2) the inability to picket in opposition to the government action they oppose—that is, the inability to hold up “signs, posters or similar devices” while engaging in expressive activity at the airport. The Court finds that the second of these options is a fairly traditional allegation of First Amendment injury—even if they do apply for and obtain a permit, by the express terms of Regulation 50.09 Plaintiffs will not be allowed to carry or hold up signs, posters, or the like. The first option, however, requires more extensive discussion and analysis.

The rapidly developing situation that prompted Plaintiffs to go to the Airport on January 29 has since somewhat subsided. The Executive Order remains a newsworthy topic, but a nationwide injunction now prevents its enforcement, see Washington, ___ F.3d at ___, 2017 WL 526497, at *9, and—to the Court’s knowledge—none of the most urgent effects that led to airport-based protests, such as individuals being detained upon arrival, have since repeated themselves. Nonetheless, the circumstances that prompted this lawsuit reveal a number of unassailable truths about “freedom of speech . . . [and] the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I.

One indisputable truth is that the location of expressive activity can have singular First Amendment significance, or as the Tenth Circuit has pithily put it: “Location, location, location. It is cherished by property owners and political demonstrators alike.” Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir. 2013). The ability to convey a message to a particular person is crucial, and that ability often turns entirely on location.

Thus, location has specifically been at issue in a number of First Amendment decisions. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (abortion protesters’ ability to approach abortion clinic patrons within a certain distance); Pahls, 718 F.3d at 1216–17 (protesters’ ability to be in a location where the President could see them as his motorcade drove past); Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218–19 (10th Cir. 2007) (peace activists’ ability to be near a hotel and conference center where a NATO conference was taking place); Tucker v. City of Fairfield, 398 F.3d 457, 460 (6th Cir. 2005) (labor protesters’ ability to demonstrate outside a car dealership); Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 207–08 (D. Conn. 2011) (animal rights protesters’ ability to protest near a circus), aff’d sub nom. Zalaski v. City of Bridgeport Police Dep’t, 475 F. App’x 805 (2d Cir. 2012).

Another paramount truth is that the timing of expressive activity can also have irreplaceable First Amendment value and significance: “simple delay may permanently vitiate the expressive content of a demonstration.” NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984); see also American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”); Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“given that . . . political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“The five-day notice requirement restricts a substantial amount of speech that does not interfere with the city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing inconvenience to the public.”).

This case provides an excellent example of this phenomena given that —whether intentionally or not— the President’s announcement of his Supreme Court nomination on January 31 (four days after signing the Executive Order) permitted the President to shift the media’s attention to a different topic of national significance. Thus, the inability of demonstrators to legally “strike while the iron’s hot” mattered greatly in this instance. Cf. City of Gary, 334 F.3d at 682 (in the context of a 45-day application period for a parade, noting that “[a] group that had wanted to hold a rally to protest the U.S. invasion of Iraq and had applied for a permit from the City of Gary on the first day of the war would have found that the war had ended before the demonstration was authorized”).

These principles are not absolute, however, nor self-applying. The Court must analyze them in the specific context of the Airport. But for present purposes, the Court notes that the Plaintiffs’ alleged harm of being unable to protest at a specific location on short notice states a cognizable First Amendment claim. In addition, by its very nature, this is the sort of claim that is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911). Here, “the challenged action”—enforcement of the seven-day permit requirement during an event of rapidly developing significance —“was in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Further, “there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. More specifically, the Court credits Plaintiffs’ testimony that they intend to return to the Airport for future protests, and, given continuing comments by the Trump Administration that new immigration and travel- related executive orders are forthcoming, the Court agrees with Plaintiffs that it is reasonably likely a similar situation will recur —i.e., government action rapidly creating consequences relevant specifically to the Airport.

Thus, although the prospect of being unable to demonstrate at the Airport on short notice is not, literally speaking, an “irreparable harm” (because the need for such demonstration may never arise again), it is nonetheless a sufficient harm for purposes of standing and seeking a preliminary injunction.

The Court now turns to the heart of this case—whether Plaintiffs are likely to succeed on the merits of their claims. Following that, the Court will reprise the irreparable harm analysis in the specific context of the likelihood-of-success findings.

B. Likelihood of Success on the Merits

Evaluating likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that Regulation 50, or any portion of it, violates their First Amendment rights. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling ?state interest? ?

4. If the location is a nonpublic forum, is the government’s speech restriction ? ?reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985).

The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Expressive Conduct?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest that the sorts of activities Plaintiffs attempted to engage in at the Airport (including holding up signs) are expressive endeavors protected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on this element of the Cornelius analysis.

2. Is the Jeppesen Terminal a Public Forum (Traditional or Designated)?

The Court must next decide whether the Jeppesen Terminal is a public forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum[,] speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

a. Is the Jeppesen Terminal a Traditional Public Forum??

Plaintiffs claim that “[t]he Supreme Court has not definitively decided whether airport terminals . . . are public forums.” (ECF No. 2 at 7.) This is either an intentional misstatement or a difficult-to-understand misreading of the most relevant case (which Plaintiffs repeatedly cite), International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (“Lee”).

The plaintiffs in Lee were disseminating religious literature and soliciting funds at the airports controlled by the Port Authority of New York and New Jersey (JFK, LaGuardia, and Newark). Id. at 674–75. By regulation, however, the Port Authority prohibited “continuous or repetitive” person-to-person solicitation and distribution of literature. Id. at 675–76. The Second Circuit held that the airports were not public fora and that the regulation was reasonable as to solicitation but not as to distribution. Id. at 677. The dispute then went to the Supreme Court, which granted certiorari specifically “to resolve whether airport terminals are public fora,” among other questions. Id.

The Court answered the public forum question in the negative. Relying on the historical use of airport terminals generally, the Court found that “the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.” Id. at 680. “Nor can we say,” the Court continued, “that these particular terminals, or airport terminals generally, have been intentionally opened by their operators to such activity; the frequent and continuing litigation evidencing the operators’ objections belies any such claim.” Id. at 680–81. Then, invoking the reasonableness test that applies to government regulation of nonpublic fora, the Court affirmed the Second Circuit’s holding that the solicitation ban was reasonable. Id. at 683–85.

Five justices (Rehnquist, White, O’Connor, Scalia, and Thomas) joined all of the major rulings regarding the solicitation ban, including the nonpublic forum status of airport terminals and the reasonableness of the ban. The outcome regarding the distribution ban, however, commanded no majority opinion. Justice O’Connor, applying the reasonableness standard for nonpublic fora, agreed with the Second Circuit that the distribution ban was not reasonable. Id. at 690–93 (opn. of O’Connor, J.). Justice Kennedy, joined in relevant part by Justices Blackmun, Stevens, and Souter, agreed that the Second Circuit’s judgment regarding the distribution ban should be affirmed, but on different grounds, namely, under a strict scrutiny test (because these justices believed that the airport terminals should be deemed a public forum). Id. at 708–10 (opn. of Kennedy, J.). The result was that the Second Circuit’s invalidation of the distribution ban was affirmed without any opinion commanding a majority view.

Regardless of the outcome with respect to the distribution ban, it is beyond debate that five Supreme Court justices in Lee agreed that airport terminals are not public fora. Id. at 680–81. The Tenth Circuit has acknowledged this holding. Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015) (“As an initial matter, an airport is a nonpublic forum, where restrictions on expressive activity need only ‘satisfy a requirement of reasonableness.’” (quoting Lee, 505 U.S. at 683)). Notably, Plaintiffs have cited no case in which any court anywhere has deemed an airport to be a public forum.

b. Is the Jeppesen Terminal a Designated Public Forum??

Even though the Jeppesen Terminal is not a traditional public forum, Denver could still designate it as a public forum if Denver “intentionally [opens the Jeppesen Terminal] for public discourse.” Cornelius, 473 U.S. at 802. Denver denies that it has done so, and Plaintiffs’ arguments to the contrary lack merit.

i. Terminal Visitors’ Incidental Expressive Activities

Plaintiffs argue that visitors to the Jeppesen Terminal “engage in First Amendment activity; they wear buttons, shirts, and hats that convey distinct messages to other visitors. They engage in one-on-one conversations.” (ECF No. 21 at 3.) Thus, Plaintiffs say, Denver has designated a public forum within the Jeppesen Terminal.

The Tenth Circuit has already foreclosed this argument. Addressing the public forum status of the Denver Performing Arts Complex, the Court stated the following: “Even if Denver allowed patrons to wear political buttons or shirts with slogans, this would not be sufficient to establish a designated public forum. The First Amendment does not require the government to impose a ‘zone of silence’ on its property to maintain its character as a nonpublic forum.” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999).

Indeed, even if it wanted to, Denver almost certainly could not impose such a “zone of silence,” as illustrated by Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). There, the Los Angeles airport authority adopted a resolution announcing that “the Central Terminal Area at Los Angeles International Airport [LAX] is not open for First Amendment activities.” Id. at 570–71 (internal quotation marks omitted). The Supreme Court found that this provision did not “merely reach the activity of [the religious proselytizers who challenged it],” but also prohibited

even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some “First Amendment activit[y].” We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.

Id. at 574–75. Thus, the evidence at the Preliminary Injunction Hearing established beyond any possible dispute that Denver has shown no intent to designate the Airport as a public forum by allowing speech at that location which it may not disallow in the first instance.

ii. The Effect of Regulation 50 Itself?

Plaintiffs further argue, “Regulation 50 states that free speech activity is proper in the Jeppesen Terminal (pursuant to a restriction). Denver has [thus] designated the Jeppesen Terminal a public forum for leafleting, conducting surveys, displaying signs, gathering signatures, soliciting funds, and other speech related activity for religious, charitable, or political purposes.” (ECF No. 21 at 3–4.) Although clever, this argument cannot be correct. 2

First, the Airport knows from the Supreme Court’s Jews for Jesus decision, just discussed, that it cannot prohibit all behavior that can be characterized as First Amendment-protected expressive activity.

Second, the Airport also knows from the Lee decision that it likely cannot completely ban some forms of intentional First Amendment communication (such as leafleting) given that the Jeppesen T erminal, like the Port Authority terminals at issue in Lee, is a large multipurpose facility that can reasonably accommodate some amount of intentional First Amendment activity. So, again, the Airport’s choice to regulate what it could not prohibit in the first place is not evidence of intent to designate a public forum. See Stanton v. Fort Wayne-Allen Cnty. Airport Auth., 834 F. Supp. 2d 865, 872 (N.D. Ind. 2011) (“[t]he designation of certain free speech zones, along with the permit requirement and limitation of expression to certain times, manners, and places as set forth in the permit, are marks of the Airport Authority’s attempt to restrict public discourse, and are inconsistent with an intent to designate a public forum” (emphasis in original)).

Third, Plaintiffs’ position, if accepted, would likely turn out to chill expressive speech in the long run. If a government will be deemed to have designated a public forum every time it accommodates citizens’ natural desire to engage in expressive activity in a nonpublic forum, governments will likely cut back on such accommodations as far as they are constitutionally allowed. Cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (government may un-designate a designated public forum).

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2 Plaintiffs have unsurprisingly cited no decision from any court adopting their reasoning.
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iii. “Welcome Home” Messages?

Plaintiffs finally argue that “[s]ome individuals (who, importantly, are not airlines passengers) hold signs welcoming home loved ones or those returning from overseas deployment.” (ECF No. 21 at 3.) The Court will address signs welcoming home veterans and active-duty military members in Part IV.B.3.f, below, and for the reasons stated there finds that this practice, to the extent it exists, does not show intent to designate a public forum. As for welcoming home loved ones, the Court sees no greater religious, charitable, political, or labor-related significance in a typical welcome home sign than standing in the meeter-and-greeter area with a pleasant smile.

In any event, to the extent a welcome home sign has greater significance, “[t]he government does not create a public forum by inaction.” Cornelius, 473 U.S. at 802. Thus, simple failure to enforce Regulation 50 against such signholders is not itself sufficient to infer that the Airport intended to designate a public forum. And finally, even if the Court were to find such an intent, the Court would still be required to consider whether the Airport only intended to designate a public forum specifically for, e.g., those wishing to convey welcome home messages: “A public forum may be created for a limited purpose such as use by certain groups, or for the discussion of certain subjects.” Perry, 460 U.S. at 45 n.7 (1983) (citations omitted). Plaintiffs have nowhere addressed this.

For all these reasons, Plaintiffs have failed to demonstrate that the Jeppesen Terminal is a designated public forum. 3

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3 Plaintiffs also attack Regulation 50 as a “prior restraint.” (ECF No. 2 at 6–7.) “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984)) (emphasis in original). Whether or not that definition could fit Regulation 50, it adds nothing to this case because the Supreme Court’s forum analysis provides the governing principles.
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3. Given that the Jeppesen Terminal Is Not a Public Forum, Is Regulation 50 Reasonable in Light of the Purposes Served by the Airport, and Is It Viewpoint-Neutral?

a. Reasonableness of the Need for a Permit Submitted in Advance, Generally

Reasonableness is a fact-intensive inquiry into the “particular nature of the public expression” at issue and “the extent to which it interferes with the designated purposes” of the nonpublic forum. Hawkins, 170 F.3d at 1290. Justice O’Connor’s concurring opinion in Lee is significant here, both because of its reasoning and because it has reached the somewhat paradoxical status of a “controlling concurrence.” See id. at 1289 (“In actuality, [Justice O’Connor’s reasonableness analysis in Lee] constitutes only Justice O’Connor’s view, who provided the swing vote in the highly-fractured Lee decision, but as the narrowest majority holding, we are bound by it.”).

In Lee, Justice O’Connor noted the Port Authority’s airports were not single-purpose facilities (unlike many other locations where the Supreme Court had previously examined speech restrictions). 505 U.S. at 688. Rather, the airports were “huge complex[es] open to travelers and nontravelers alike,” id. at 688, and had essentially become “shopping mall[s] as well as . . . airport[s],” id. at 689. The question, then, was whether Port Authority’s restrictions were “reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id.

Justice O’Connor’s description of the Port Authority Airports aptly describes the Jeppesen Terminal, to an extent. The Great Hall is lined with restaurants and retail establishments, and in that sense is reminiscent of a shopping mall. On the other hand, most of the floor space on level 6 is simply the floor space needed to get from location to location (the equivalent of wide hallways), and most of the floor space on level 5 is dedicated to security screening. The only large area that is usually free of significant obstructions is the central meeter-and-greeter area—and even that area has at times been taken up by art installations or other features. 4

Moreover, despite certain characteristics of the Airport that may resemble a shopping mall, the Airport’s undisputed primary purpose is to facilitate safe and efficient air travel. The need for safety hopefully needs no discussion —for decades, airports and airplanes have been the specific target of terrorists. As for efficiency, the significance of the Great Hall within the Jeppesen Terminal is particularly evident given that it is the node through which every arriving and departing passenger must pass. As noted, the Airport served 58.3 million passengers last year. Even assuming that just 20 million (about a third) were arrivals and departures (the remainder being those who connect through without reaching the Jeppesen Terminal), this still comes to more than 55,000 passengers moving through the Great Hall per day, or about 2,300 per hour. If the Airport could somehow maintain precisely that average over all days and hours of its operation —which of course never happens— it would still be the equivalent of perpetually filling and emptying a large concert hall every hour.

In this light, the Airport’s general purposes for requiring demonstrators to apply for a permit in advance are difficult to question. As stated by the various Airport administrators who testified at the Preliminary Injunction Hearing (Ken Greene, chief operations officer; Patrick Heck, chief commercial officer; and Dave Dalton, assistant director for terminal operations), it is important for the Airport to have advance notice regarding the presence of individuals coming for reasons other than normal airport- related activities, and particularly those who come to the airport intending to attract the attention of passengers and others. The Airport needs an opportunity to determine the appropriate location for a group of the requested size in light of the day(s) and time(s) requested. The permitting requirement also gives the Airport the opportunity to point out Regulation 50’s code of conduct (Regulation 50.08), so that demonstrators know what activities are and are not permissible.

In addition, the Airport fairly desires an opportunity to understand the nature of the expressive activity, which can inform whether additional security is needed. As Lopez’s testimony illustrates, it is not a simple matter to bring additional police officers to the Airport on a moment’s notice. Lopez further pointed out the advantage of understanding the subject matter of the dispute so that he can anticipate whether counter-protesters might arrive and potentially create at least a difficult, if not dangerous, situation.

Importantly, Denver does not need to prove that any particular past event has raised serious congestion or safety concerns: “Although Denver admits that plaintiffs did not cause any congestion problems or major disruption on the particular occasion that they demonstrated . . . , that is not dispositive. ‘[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.’” Hawkins, 170 F.3d at 1290 (quoting Cornelius, 473 U.S. at 810). Thus, the Airport may reasonably require a permit applied for in advance. The Court does not understand Plaintiffs to be arguing to the contrary, i.e., that the Airport is never justified in requiring an advance permit under any circumstances.

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4 Plaintiffs’ Exhibit 15, for example, is a photograph of the meeter-and-greeter area in 2008, and shows that a fountain occupied a significant portion of floor space at the time.
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?b. Reasonableness of the Seven-Day Requirement, Specifically

Plaintiffs do attack Regulation 50.03’s requirement that permit applications be submitted seven days in advance of the desired activity, apparently arguing that this is unconstitutionally unreasonable in all circumstances. Given both Plaintiffs’ testimony at the Preliminary Injunction Hearing, it is not clear that they would be satisfied by a shorter advance-notice period, nor that it would redress their claimed injury —the inability to protest essentially at a moment’s notice on a topical event. But, to the extent Plaintiffs are challenging the seven-day requirement through the overbreadth doctrine (see Part IV.B.4, below), the Court finds that they have not met their higher burden (or even the normal preliminary injunction burden) to show that they are likely to succeed on proving the seven-day requirement unreasonable in all circumstances.

The Airport’s witnesses were not aware of any other airport with a seven-day requirement. The Indiana airport at issue in the Stanton case —which Defendants have relied upon heavily— had a two-day notice requirement, and also a provision by which the airport could accept an application on even shorter notice. 834 F. Supp. 2d at 870. On the other hand, that Airport handled about 40,000 departing and arriving passengers per month, id. at 868, whereas the Denver Airport handles far more than that per day.

The Court’s own research has revealed that airports ahead of the Denver Airport in 2016 passenger statistics have varied requirements:

• O’Hare International Airport (Chicago) — six business days, see Chicago Department of Aviation Amended Rules and Regulations Governing First Amendment Activities at the City of Chicago Airports § 3(A) (Sept. 18, 2015), available at http://www.flychicago.com/SiteCollectionDocuments/ OHare/AboutUs/cdaamendedRulesandRegs.pdf (last accessed Feb. 16, 2017);

• Dallas-Fort Worth International Airport — three business days, see Code of Rules and Regulations of the Dallas-Fort Worth International Airport Board, ch. 3, § 4, art. VI(A) (2006), available at https://www.dfwairport.com/cs/groups/public/documents/webasset/p1_008800.pdf (last accessed Feb. 16, 2017); ?

• John F. Kennedy International Airport (New York City) — twenty-four hours, see Port Authority of New York and New Jersey Airport Rules and Regulations § XV(B)(2)(a) (Aug. 4, 2009), available at http://www.panynj.gov/airports/pdf/Rules_Regs_Revision_8_04_09.pdf (last accessed Feb. 16, 2017). ??

Obviously there is no clear trend. Depending on how these airports define “business day,” some of these time periods may actually be longer than the Denver Airport’s seven-day requirement. ?

In any event, Plaintiffs have never explained how the Airport, in its particular circumstances, cannot reasonably request seven days’ advance notice as a general rule. Indeed, Plaintiffs could not cite to this Court any case holding that any advance notice requirement applicable to a nonpublic forum was unconstitutional in all circumstances. Accordingly, Plaintiffs have not made a strong showing of likelihood of success on this particular theory of relief.

c. Reasonableness of the Regulation 50.03’s Lack of a Formal Process for Handling Permit Application More Quickly in Exigent Circumstances

Plaintiffs would prefer that they be allowed to demonstrate at the Airport without any advance notice in “exigent circumstances.” Given the serious and substantial purposes served by an advance notice requirement, the Court cannot say that Plaintiffs are likely to succeed on this score. Plaintiffs have given the Court no reason to hold that the Airport has a constitutional duty, even in exigent circumstances, to accommodate demonstrators as they show up, without any advance warning whatsoever.

Nonetheless, the Airport’s complete lack of any formal mechanism for at least expediting the permit application process in unusual circumstances raises a substantial and serious question for this Court. As noted in Part IV.A, above, timing and location are cardinal First Amendment considerations, and a number of cases regarding public fora (streets and parks) have held or strongly suggested that an advance notice requirement is unconstitutional if it does not account for the possibility of spontaneous or short-notice demonstrations regarding suddenly relevant issues.

Indeed, as the undersigned pointed out to Defendants’ counsel at the Preliminary Injunction Hearing, Denver itself is willing to accept an application for a street parade on twenty-four hours’ notice (as opposed to its standard requirement of thirty days) “if the proposed parade is for the purpose of spontaneous communication of topical ideas that could not have been foreseen in advance of [the] required application period or when circumstances beyond the control of the applicant prevented timely filing of the application.” Denver Mun. Code § 54-361(d). But again, this governs a public forum (city streets), where time, place, and manner restrictions such as this must satisfy a narrow tailoring analysis and leave open ample alternative channels for communication. See Perry, 460 U.S. at 45. As the above discussion makes clear, under controlling authority the Airport need not satisfy the same legal standards.

The parties have not cited, nor has the Court located, any case specifically discussing the need for a nonpublic forum to accommodate short-notice demonstrations. But the Court likewise has not found any case expressly precluding that consideration when evaluating reasonableness in the context of a nonpublic forum. It is perhaps unsurprising that the specific question has never come up in a nonpublic forum until now. The Court believes it to be an accurate observation that this country has never before experienced a situation in which (a) the motivation to protest developed so rapidly and (b) the most obviously relevant protest locations was a place the Supreme Court had already declared to be a nonpublic forum—the airport terminal.

When evaluating the reasonableness of a First Amendment restriction in a nonpublic forum, the Court concludes that it may appropriately consider the ability to shorten an advance notice requirement in a place like the Airport, given how unique airports are within the category of nonpublic fora. As Justice O’Connor noted in Lee, most of the Supreme Court’s major nonpublic forum cases aside from airport cases have involved

discrete, single-purpose facilities. See, e.g., [United States v.] Kokinda, [497 U.S. 720 (1990)] (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles); Perry, supra (interschool mail system); Postal Service v. Council of Greenburgh Civic Assns., [453 U.S. 114 (1981)] (household mail boxes); Adderley v. Florida, 385 U.S. 39 (1966) (curtilage of jailhouse).

505 U.S. at 688 (parallel citations omitted). As Justice O’Connor observed, however, many airports have become large, multipurpose facilities, see id. at 688–89, and that describes the Denver Airport well. To be sure, the reason for expanding beyond the bare minimum of infrastructure needed to handle travelers and airplanes is to promote air travel—to make the airport a more convenient and welcoming location specifically (although not exclusively) for travelers—but the reasonableness of First Amendment restrictions must nonetheless be judged according to the “multipurpose environment that [airport authorities] ha[ve] deliberately created.” Id. at 689.

Moreover, modern airports are almost always owned and operated by a political body, as well as secured by government employees. Thus, short-notice demonstrations reasonably relevant to an airport are also reasonably likely to be demonstrations about political or otherwise governmental topics, “an area in which the importance of First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (internal quotation marks omitted).

Given all this, and in light of the First Amendment interests in location and timing that this very case has made salient, the Court finds it unreasonable for the Airport to have no formal process by which demonstrators can obtain an expedited permit when -to borrow from the Denver parade ordinance— they seek to communicate topical ideas reasonably relevant to the Airport, the immediate importance of which could not have been foreseen in advance of the usual seven-day period, or when circumstances beyond the control of the applicant prevented timely filing of the application. The Court further finds in the particular circumstances of the Airport that reasonableness requires a process by which an applicant who faces such circumstances can request a permit on twenty-four hours’ notice. If this is all the notice Denver needs to prepare for a street parade, the Court can see no reason why more notice is needed (in exigent circumstances) for a substantially more confined environment like the Airport. 5

Accordingly, the Court finds that Plaintiffs are strongly likely to succeed in their challenge to Regulation 50.03 to this limited extent.

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5 At the Preliminary Injunction Hearing, Defendants’ counsel argued that preparing for a street parade is actually easier than preparing for demonstrations at the airport. The Court cannot fathom how this could possibly be the case, at least when comparing a typical street parade request to the typical Airport demonstration request. Indeed, the normal street parade request window is thirty days, suggesting just the opposite. Denver Mun. Code § 54-361(d). The challenges may be different, but the Court cannot accept—on this record, at least—that Airport demonstrations on average require more preparation time than do public parades or marches.
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d. Reasonableness of the Airport’s Power to Control the Location of Permitted Expressive Activity

At the Preliminary Injunction Hearing, it became clear that Plaintiffs not only wish for a more expansive right to protest in the Jeppesen T erminal, but they also argue for the right to select precisely where in the Terminal they should be allowed to stand. The Court recognizes that, from Plaintiffs’ perspective, their message is diluted if they cannot demonstrate in the international arrivals area, and this is a legitimate concern for all the reasons discussed previously about the power of location when conveying a message. The Court must also account, however, for Airport administrators’ superior knowledge about airport operations, foot traffic patterns, concerns particular to the specific day of the protest, and so forth.

?Regulation 50.04-1 requires permit applicants to specify “each location at which the [expressive] activity is proposed to be conducted,” but nowhere in Regulation 50 is there any limitation on the Airport’s discretion whether to approve the location request. Rather, the only provision addressing this topic is Regulation 50.04-6, which applies to a demonstration already underway: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.”

There is no evidence that Airport administrators are using their discretion when approving a demonstration’s location to suppress or dilute a particular message, but there is also no logical reason to leave Airport administrators’ discretion essentially unfettered at the permitting stage while restricting it once the demonstration is underway. The Court finds Plaintiffs are likely to succeed at least in proving that Regulation 50.04-1 is unreasonable to the extent the Airport’s discretion is not restrained to the same degree as in Regulation 50.04-6. Defendants will therefore be enjoined to follow the same restraints in both settings.

e. Reasonableness of Regulation 50.09’s Prohibition of Signage Within the Jeppesen Terminal, and Regulation 50.08-12’s Limitation of All Signs to One Square Foot

Regulation 50.09 establishes that “picketing” (defined to include “displaying one or more signs, posters or similar devices,” Regulation 50.02-8) is totally prohibited in the Jeppesen Terminal unless as part of a labor protest. And, under Regulation 50.08-12, any permissible sign may be no larger than “one foot by one foot in size.”

?Any argument that the picketing ban is reasonable in the context of the Airport is foreclosed by Justice O’Connor’s analysis of the leafleting band at issue in Lee. See 505 U.S. at 690–93. Leafleting usually involves an individual moving around, at least within a small area, and actively offering literature to passersby. Signholding is usually less obtrusive, given that the signholder often stays within an even smaller area and conveys his or her message passively to those who walk by and notice the sign. The Court simply cannot discern what legitimate or reasonable Airport purpose is served by a complete ban on “picketing” or signholding among permitted demonstrators in the Jeppesen Terminal.

The Court also finds the one-foot-by-one-foot signage restriction unreasonable. The Airport has a legitimate interest in regulating the size of signs, as well as other aspects of their display (such as whether they will be held in the air, as in traditional picketing), but a one-foot-by-one-foot restriction is barely distinguishable, both legally and as a factual matter, from a complete ban. The point of a sign is to make a message readable from a distance. Few messages of substance are readable from any kind of distance if they must be condensed into one foot square. Reasonableness instead requires the Airport to consider the size of the signs that a permit applicant wishes to display as compared to the needs and limitations of the location where the applicant will demonstrate. Any restriction by the Airport which limits the size of a permit applicant’s signage beyond that which may be reasonably required to prevent the restriction or impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal will be preliminarily enjoined.

f. Viewpoint Neutrality

?A nonpublic forum is not required to be content-neutral, but it is required to be viewpoint-neutral with respect to the First Amendment activity it permits. Hawkins, 170 F.3d at 1288. Regulation 50, on its face, is viewpoint neutral, and Plaintiffs do not argue otherwise. Rather, they say that “Regulation 50 is being enforced as a clearly view-point-based restriction.” (ECF No. 2 at 14 (emphasis added).) This appears to be an as-applied challenge:

Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest.

(Id.) Denver responds:

The permit requirement furthers the nonpublic forum purpose by mitigating disruption at the airport by individuals who choose to be at the airport for non-travel related activities. In Stanton, the [Northern District of Indiana] rejected this exact argument challenging a nearly identical permitting rule of the Fort Wayne-Allen County Airport on an as applied basis by distinguishing between incidental expressive activities by members of the traveling public versus those arriving at the airport solely for purposes of engaging in expressive speech. Any messages a traveler or individual picking up a family member conveys by wearing T-shirts or hats are “incidental to the use of the Airport’s facilities” by persons whose “primary purpose for being present at the Airport is a purpose other than expressing free speech rights,” which is different in kind than individuals arriving at an airport whose primary purpose is expressive speech. Id. at 880–882.

(ECF No. 20 at 11 (emphasis added).)?

This argument obviously relies on a particular interpretation of Regulation 50 (given that the Regulation itself makes no explicit distinction between those who arrive at the airport for travel-related purposes and those who do not). Nonetheless, this is how Airport administrators interpret Regulation 50, as they made clear at the Preliminary Injunction Hearing. They also made clear that they have never sought to enforce Regulation 50 against someone wearing a political shirt, for example, while on airport-related business. Plaintiffs’ own arguments support the sincerity of the Airport administrators’ testimony. By Plaintiffs’ own admission, they are unaware of anyone going about his or her typical airport-related business who has been arrested or even threatened with arrest for wearing a political shirt, discussing politics, etc.

At the Preliminary Injunction Hearing, Plaintiffs attempted to present an as- applied viewpoint discrimination case by showing that the Airport regularly allows individuals to hold rallies, display signs, and so forth, for returning servicemembers and veterans, yet without requiring those individuals to obtain a permit under Regulation 50. The Court agrees that pro-military and pro-veteran messages are political statements, at least to the extent being conveyed by someone not at the Airport to welcome home a relative or loved one (and perhaps even by those persons as well). Thus, it would seem that pro-military messages would fall under Regulation 50. However, Plaintiffs have failed at this stage to show that the Airport’s alleged treatment of pro-military and pro-veteran messages amounts to viewpoint discrimination.

At the outset, Plaintiffs fail to note the subjective element of their claim: “viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls, 718 F.3d at 1230. In that light, it is tenuous to suggest that allowing (allegedly) unpermitted pro-military or pro-veteran expression at various times in the past but not allowing these recent unpermitted protests against the Executive Order is evidence of viewpoint discrimination. The question of whether our nation should honor servicemembers and the question of how our nation should treat foreign nationals affected by the Executive Order are not really in the same universe of discourse. To bridge the gap, it takes a number of assumptions about where pro-military attitudes tend to fall in the American political spectrum, and what people with those attitudes might also think about the Executive Order. This would be a fairly tall order of proof even outside the preliminary injunction context.

Moreover, Plaintiffs’ evidence of unpermitted pro-military expression is fairly weak. Plaintiffs’ main example is the activities of the Rocky Mountain Honor Flight, an organization that assists World War II veterans to travel to Washington, D.C., and visit the World War II Memorial, and then welcomes them home with a large and boisterous rally held in the meeter-and-greeter portion of the Great Hall. A former servicemember who helped to organize one of these rallies testified that she inquired of a more-senior organizer whether the Airport required any special procedures, and the answer she received was “no.” However, Airport administrators presented unrebutted testimony that Rocky Mountain Honor Flight rallies are planned far in advance and sponsored by the Airport itself, in connection with TSA and certain airlines. The Airport does not need a Regulation 50 permit for its own expressive activities, and a government entity’s expression about a topic is not a matter of First Amendment concern. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”).

Apart from the Rocky Mountain Honor Flight, Plaintiffs’ evidence comprises photos they gleaned from a Getty Images database showing individuals over the last decade or so being greeted at the Airport by persons holding signs. Some of these signs appear to be simple “welcome home” signs directed at specific returning family members. In the obviously servicemember-related photos, American flags are common. The Court finds that these photos, presented out of context, are not sufficient evidence to make a strong showing of likelihood of success regarding viewpoint discrimination, particularly the subjective intent requirement. Thus, the Court finds no reason for an injunction based on alleged viewpoint-discriminatory conduct. 6

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6 Even if Plaintiffs’ evidence were enough, the Court would find at this stage of this litigation that the only injunctive relief appropriate in light of the balance-of-harms and public interest considerations, below, would be an injunction to enforce Regulation 50 evenhandedly. Such an outcome would not advance Plaintiffs’ interests here.
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4. Is Regulation 50 Overbroad or Vague?

Plaintiffs bring both overbreadth and vagueness challenges to Regulation 50, which, in this case, are really two sides of the same coin. If a speech regulation’s sweep is unclear and may potentially apply to protected conduct, a court may invalidate the regulation as vague; whereas if the regulation actually applies to unprotected as well as protected speech, an individual who violates the regulation through unprotected speech may nonetheless challenge the entire statute as overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 114–15 (1972); 1 Smolla & Nimmer on Freedom of Speech ch. 6 (Oct. 2016 update). Here, Plaintiffs argue either that Regulation 50 is overbroad because it forbids (without a permit) protected conduct such as wearing a political hat while walking to one’s flight (ECF No. 2 at 16–18); or it is vague because it is unclear to what it applies precisely, given that Plaintiffs have seen Regulation 50 enforced against themselves but not against those who wear political hats or buttons, who are welcoming home military veterans, etc., all of whom are “seemingly in violation” of the Regulation (id. at 18–20).

The first task, then, is to determine what Regulation 50 actually encompasses. Again, the Regulation states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.”

The portion about leafleting, conducting surveys, displaying signs, gathering signatures, or soliciting funds is not vague. It does not fail to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108. Nor is it overbroad given that it is not a complete prohibition of leafleting (as in Lee), but simply a prohibition without a permit.

The arguably difficult portion of Regulation 50 is the “or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes” clause. It is grammatically possible to interpret this passage as extending to any religious, charitable, or political “speech related activity” by anyone at the Airport, including travelers wearing political buttons or sharing their religious beliefs with others.

Denver argues that no person of ordinary intelligence would have such a worry: “a person of ordinary intelligence cannot reasonably claim that they are unable to discern the difference between a traveler walking through the airport with a ‘make America great again’ baseball cap or travelers discussing politics as they walk to their intended destination and a gathering of people who have no purpose for being at the airport other than to march or station themselves in order to communicate their position on a political issue.” (ECF No. 20 at 14.) This argument is slightly inapposite. The question is not whether someone can distinguish between a passenger’s pro-Trump hat and a gathering of anti-Trump protesters. The question is whether Regulation 50 contains such a distinction, and particularly a distinction between the incidental activities of those who come to the airport for airport-related purposes and the intentional activities of those who come to the airport to demonstrate.

However, to the extent Denver means to say that Regulation 50 would not be interpreted by a person of ordinary intelligence to encompass, e.g., a traveler choosing to wear a “Make America Great Again” hat, the Court agrees. Regulation 50 is not, as Plaintiffs suggest, just one paragraph from Regulation 50.03. Regulation 50 comprises sixteen major subdivisions, many of which are themselves subdivided. A person of ordinary intelligence who reads Regulation 50 —all of it— cannot avoid the overwhelming impression that its purpose is to regulate the expressive conduct of those who come to the Airport specifically to engage in expressive conduct. Thus, Regulation 50 is not vague.

As for overbreadth, “[t]he first step in [the] analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). For the reasons already stated, the Court finds that the only reasonable construction is one that does not extend to an airline passenger wearing a political T-shirt, or anything of that character. Cf. Jews for Jesus, 482 U.S. at 575. This is, moreover, the Airport’s own interpretation, the sincerity of which is borne out by Plaintiffs’ own experience. Thus, Regulation 50 is not overbroad. 7

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7 Even if Regulation 50 were vague or overbroad, the Court would nonetheless find that an injunction against enforcing Regulation 50 as a whole would be against the public interest. The more appropriate remedy would be an injunction to follow precisely the interpretation that the Airport currently follows, but that would be of no benefit to Plaintiffs.
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?C. Irreparable Harm

Having found that Plaintiffs are strongly likely to succeed in invalidating a narrow subset of Regulation 50, the Court returns to irreparable harm. Given that Plaintiffs First Amendment rights are at stake in those portions of Regulation 50 that the Court finds to be unreasonable, irreparable harm almost inevitably follows: “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted).

?D. Balance of Harms

The injury to a plaintiff deprived of his or her legitimate First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Thus, the Court finds that the harm to Plaintiffs from the Airport’s continued enforcement of the unreasonable portions of Regulation 50 would be greater than the harm to the Airport in refraining from such enforcement, particularly given that the unreasonable portions are quite limited and most of Regulation 50 will remain unchanged.

?E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. Moreover, the Court is not striking down Regulation 50 or even altering it in any significant respect. Thus, the public’s interest in safe and efficient Airport operations remains unaffected.?

F. Bond

A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held, however, that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted); see also 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2016 update) (citing public rights cases where the bond was excused or significantly reduced). Denver has not argued that Plaintiffs should be required to post a bond, and the Court finds that waiver of the bond is appropriate in any event.

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED to the ?limited extent stated in this order and otherwise DENIED; ?

2. The City and County of Denver (including its respective officers, agents, ?servants, employees, attorneys, and other persons who are in active concert or participation with any of them, and further including without limitation Defendants Lopez and Quiñones) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows:

a. Defendants must timely process a permit application under Denver Airport Regulation 50.04-1 that is received less than 7 days but at least 24 hours prior to the commencement of the activity for which the permit is sought, provided that the applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen 7 days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the applicant prevented timely filing of the application; however, circumstances beyond Defendants’ control may excuse strict compliance with this requirement to the extent those circumstances demonstrably interfere with the expedited permitting process; ?

b. So long as a permit applicant seeks to demonstrate in a location where the unticketed public is normally allowed to be, Defendants must make all reasonable efforts to accommodate the applicant’s preferred location, whether inside or outside of the Jeppesen Terminal;

c. Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Regulation 50.02-8) within the Jeppesen Terminal; and

d. Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot.

3. This Preliminary Injunction is effective immediately upon issuance of this Order, and will remain in force for the duration of this action unless otherwise modified by Order of this Court.

Dated this 22nd day of February, 2017, at 8:05 a.m. Mountain Standard Time. BY THE COURT:

__________________________
William J. Martínez?
United States District Judge

Occupy v. Martinez (Plaza Protest Ban) 2015 Order Granting Prelim Injunction


While we await a judge’s response to the complaint and motion for a preliminary injunction against DIA’s free speech permit, I was drawn to reminisce about an earlier federal injunction GRANTED against Denver’s 2nd Judicial District. It was/is (!) also a preliminary injunction curbing police intimidation. This one prevents arrests of Jury Nullification pamphleteers at the Lindsey Flanigan Courthouse in Denver. More broadly, it halts the enforcement of the despotic “Chief Justice Order 1” which attempted to curb free speech in Tully Plaza, between the courthouse and the jail, site of innumerable protest rallies since the facility was erected in 2010. After a protracted legal battle, the case will finally come to trial in April 2017. This case also started with police overreach, then a complaint, a motion, and a hearing. In August 2015, US District Judge William Martinez issued the below court order granting the preliminary injunction.

Document 28 Filed 08/25/15 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 15-cv-1775-WJM-MJW

ERIC VERLO,?
JANET MATZEN, and?
FULLY INFORMED JURY ASSOCIATION,

Plaintiffs, v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality,?ROBERT C. WHITE, in his official capacity as chief of police for Denver, and CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District,

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse (“Courthouse Plaza” or “Plaza”). (ECF Nos. 1, 13-1.) The Lindsey-Flanigan Courthouse is where most criminal proceedings take place for Colorado’s Second Judicial District (which is coterminous with the City and County of Denver).

Plaintiffs have sued the City and County of Denver itself and its police chief, Robert C. White, in his official capacity (jointly, “Denver”). Plaintiffs have also sued the Hon. Michael A. Martinez 1 in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs’ lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as “the Second Judicial District.”

On the same day Plaintiffs filed their complaint, they also moved for a preliminary injunction to restrain Defendants from taking any action to stop them from distributing certain literature regarding, or advocating for, jury nullification on the Courthouse Plaza (“Motion”). (ECF No. 2.) The Second Judicial District, represented by the Colorado Attorney General’s office, filed a response defending its current policy of limiting expressive activities to certain areas away from the main walkways leading to the Courthouse doors. (ECF No. 24.) Denver, represented by the Denver City Attorney’s office, did not file a response, but instead filed a joint stipulation with Plaintiffs regarding the status of the Plaza. (ECF No. 23.) As discussed further below, Denver (a) has no intent to enforce the Second Judicial District’s policy that would otherwise restrict Plaintiffs’ activities, and (b) agrees with Plaintiffs that they have a First Amendment right to distribute and discuss their literature essentially anywhere on the Courthouse Plaza, including in the areas designated as restricted by the Second Judicial District.

This Court held an evidentiary hearing and heard oral argument on August 21, 2015. Having considered all of the filings, evidence, and arguments submitted to date, the Court grants Plaintiffs’ Motion for the reasons explained below.

—————
1 No relation to the undersigned.?
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I. LEGAL STANDARD

To prevail on a motion for preliminary injunctive relief, Plaintiffs have the burden of establishing that four equitable factors weigh in their favor: (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable injury if the injunction is denied; (3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

II. BACKGROUND

A. Facts Alleged in the Original Complaint

Plaintiffs’ original complaint recounts the story of two non-parties, Mark Iannicelli and Eric Brandt, who were passing out pamphlets on the Courthouse Plaza on July 27, 2015. (ECF No. 1 ¶ 14.) The pamphlets were titled “Fresh Air for Justice” and “Your Jury Rights: True or False?” (Id. ¶ 15; ECF No. 1-3; ECF No. 1-4.) Both pamphlets contain some history of jury nullification and various general statements about the jury’s role as envisioned by the Framers. (See generally ECF Nos. 1-3, 1-4.) But the pamphlets also contain certain calls to action which could raise concern. “Fresh Air for Justice,” for example, contains the following:

• “Judges say the law is for them to decide. That’s not true. When you are a juror, you have the right to decide both law and fact.” (ECF No. 1-3?at 3.) ?

• “If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’” (Id. (emphasis in original).) ?

“Fresh Air for Justice” also contains the following, which could be interpreted as encouraging prospective jurors to lie during voir dire:

When you are called for jury duty, you will be one of the few people in the courtroom who wants justice rather than to win or to score career points. For you to defend against corrupt politicians and their corrupt laws, you must get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries. ?

When you’re questioned during jury selection, just say you don’t keep track of political issues. Show an impartial attitude. Don’t let the judge and prosecutor stack the jury by removing all the thinking, honest people!

Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding, or there would be no need for independent thinking jurors like you.?

?(Id. at 4.)

The other pamphlet, “Your Jury Rights: True or False?”, does not contain language quite as direct as the foregoing, but it does declare, “You cannot be forced to obey a ‘juror’s oath.’” (ECF No. 1-4 at 3.) ?

Iannicelli was arrested on the Plaza that day, and Brandt was arrested on a warrant a few days later. (ECF No. 1 ¶ 18.) Both were charged with jury tampering: “A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.” Colo. Rev. Stat. § 18-8-609(1). The affidavit supporting Brandt’s arrest mentions that he and Iannicelli had been on the Courthouse Plaza at a time that jurors “would be expected to be arriving” for the ongoing death penalty prosecution of Dexter Lewis. (ECF No. 1-2 at 4.) 2

Plaintiff Eric Verlo “wishes to pass out the same literature on the Lindsey-Flannigan [sic; ‘Flanigan’] plaza as Eric Brandt and Mark Iannicelli were passing out which caused them to be arrested.” (ECF No. 1 ¶ 9.) Plaintiff Janet Matzen wishes to do the same. (Id. ¶ 10.) Plaintiff FIJA is

an association, based in Montana, who’s [sic] members passionately believe in the concept of jury nullification. FIJA intends to hold an educational campaign in Denver on September 5, 2015 where its members wish to pass out the same brochures on the Lindsey-Flannigan [sic] plaza as Eric Brandt and Mark Iannicelli . . . .

(Id. ¶ 11.) 3 Plaintiffs say that the arrests of Brandt and Iannicelli have caused them to to fear that they too might be arrested and prosecuted. (Id. ¶ 22.)

——————
2 Lewis was charged with murdering five individuals at a Denver bar in 2012. See, e.g., Jordan Steffen & Matthew Nussbaum, “Denver jury hears opening arguments in five Fero’s bar killings,” Denver Post (July 20, 2015), at http://www.denverpost.com/news/ci_28513519/denver-jury-hears-opening-arguments-five-feros-bar (last accessed Aug. 24, 2015).

3 September 5, 2015, is a Saturday —an unlikely day for a jury nullification advocate to reach his or her target audience at a courthouse. When this was pointed out at the preliminary injunction hearing, counsel for Plaintiffs qualified the date with an “on or about.”
——————

?B. Facts Alleged in the Amended Complaint & Supplemental Filings

Two days after filing suit, Plaintiffs filed an amended complaint to insert allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶ 2.) The order, designated “CJO 15-1” and dated August 14, 2015, was titled “Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse.” (ECF No. 24-1.) This order was actually amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and admitted as Exhibit 1 in that hearing. (See ECF No. 25-1.) The Court will refer to the amended order as the “Plaza Order.” In relevant part, it reads as follows:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map [reproduced below], without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; ?

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

(Id. at 1–2 (formatting in original).) The Court will refer to the Plaza Order’s numbered paragraphs by their number, e.g., “Paragraph 1 of the Plaza Order” (referring to the forms of prohibited expressive activity). In their amended complaint, Plaintiffs allege that the Plaza Order was “apparently” entered in response to Brandt’s and Iannicelli’s actions. (ECF No. 13-1 ¶ 2.)

The “attached map” referenced in the Plaza Order is reproduced on the following page:

(Id. at 3.) This map shows an aerial view of the Courthouse. The top of the map is north. The Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the map. Immediately to the left (west) of the Courthouse is Fox Street. Immediately to the north is Colfax Avenue. Immediately to the right (east) of the Courthouse grounds is Elati Street, which is closed to traffic other than police vehicles as it runs past the Courthouse. Elati bisects a circular area paved in a tan color. Just to the right (east) of Elati, and not depicted in the map, is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), which houses pretrial detainees. Thus, the area between the Courthouse and Detention Center is a fairly spacious place suitable for public gatherings.

Immediately to the east and west of the Courthouse are areas that the Second Judicial District highlighted in yellow to indicate where expressive activity is restricted (“Restricted Area”). This matter principally concerns the arc-shaped portion of the Restricted Area to the east of the Courthouse (“East Restricted Area”). The East Restricted Area comprises the following:

• planter boxes and public art (collectively, “Landscaping”); ?

• sidewalks, including a narrow sidewalk beginning at the north of the map ?(just below the blue bus stop icon) and following the arc of the planter boxes until it reaches a much wider sidewalk that completes the arc, which itself connects with the awning-covered steps leading to the Courthouse front doors depicted in approximately the center of the map (collectively, “Sidewalks”); and ?

• a gravel passive security feature between the narrow sidewalk and the Courthouse itself (“Gravel Area”). ?

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

?Plaintiffs called as a witness Commander Antonio Lopez of the Denver Police Department. Lopez oversees the Denver Police district that encompasses the Courthouse and the Detention Center. Lopez testified that the Courthouse opened in 2010 or 2011. During that time, he has seen “more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. At one point w e were averaging about two or three a week, in that area.” On cross-examination, Lopez clarified that most of those protests were nearer to the Detention Center than the Courthouse. Nonetheless, to Lopez’s knowledge, the Denver Police Department has never restricted or interfered with any peaceful First Amendment activity taking place between the Courthouse and the Detention Center.

2. Mr. Steadman

The Second Judicial District called Steven Steadman, who is the Colorado judicial branch’s security administrator. Steadman was closely involved in the discussions leading up to the Plaza Order. Steadman testified that, during those discussions, he was unaware of Brandt and Iannicelli or the distribution of jury nullification literature, and that the Plaza Order actually arose from very different concerns.

According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not. Proactively seeking to avoid such a problem, Steadman gave Chief Judge Martinez a copy of an order entered by the Hon. Carlos A. Samour, Jr., who presided over the Holmes trial in Arapahoe County. Judge Samour’s order apparently was a model for what the Second Judicial District eventually issued as the Plaza Order.

On cross-examination, Steadman confirmed that the Plaza Order was intended specifically to address the protests that might erupt if Holmes and Lewis were treated differently with respect to the death penalty. Steadman admitted, however, that his office could require several hours’ notice between the announcement that the jury had reached a verdict and the actual reading of the verdict, which would permit a police presence to assemble in anticipation of protests. Steadman also admitted that nothing like the Plaza Order had been in place or enforced prior to August 14, 2015, and that passing out jury nullification literature did not present any security risk beyond what the Second Judicial District has tolerated, without incident, since the Courthouse opened.

III. ANALYSIS

A. Article III Standing

As mentioned previously, Denver has stipulated with Plaintiffs that it will not enforce any prohibition on distributing jury nullification literature on the Courthouse Plaza. Specifically, Denver has stipulated that

Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature. The parties stipulate that Plaintiffs’ proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law. . .

***

. . . Denver stipulates that it does not intend to enforce the [Plaza] Order as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.

(ECF No. 23 ¶¶ 2, 4.)

?Given this stipulation, the Second Judicial District argues that Plaintiffs lack Article III standing to bring this lawsuit because no threat of enforcement is imminent. (ECF No. 24 at 6–8.) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the irreducible constitutional minimum of standing” includes, among other things, an “actual or imminent” “invasion of a legally protected interest”); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a “credible threat of future prosecution”). As stated at the preliminary injunction hearing, however, the Court rejects this contention.

The Second Judicial District’s standing argument assumes that the only way an individual could run afoul of the Plaza Order is through Denver’s independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf. Schmidter v. State, 103 So. 3d 263, 265–69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrative order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to arrest the violator —not on the authority of the Plaza Order, but on the authority of the judge’s contempt citation. See id. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver’s stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists, and the Court will move on to the elements Plaintiffs must establish to secure a preliminary injunction. To repeat, those elements are: (1) likelihood of success on the merits; (2) irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. Westar Energy, 552 F.3d at 1224.

?B. Likelihood of Success

Evaluating the likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that the First Amendment grants them a right to discuss and distribute pamphlets about jury nullification with individuals entering and leaving the Courthouse. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling state interest? ?

?4. If the location is a nonpublic forum, is the government’s speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985). The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Pamphlets and Oral Advocacy of the Message Contained in the Pamphlets?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest on this point. The Second Judicial District has raised no argument that any part of the message conveyed by the pamphlets is unprotected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on the question of whether the First Amendment protects their message.

2. Is the Courthouse Plaza a Public Forum?

The Court must next decide whether the Courthouse Plaza—and the Restricted Area specifically—is a public or nonpublic forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

?The public/nonpublic inquiry presents a unique dilemma in this case. On the one hand, Denver’s stipulation with Plaintiffs includes the following: “The Lindsey-Flanigan plaza . . . which is located between the Van Cise-Simonet Detention Center and the Lindsey-Flanigan courthouse is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest . . . .” (ECF No. 23 ¶ 1 (emphasis added).) On the other hand, the Second Judicial District strong ly disagrees:

. . . Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez— and not Denver—is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.

(ECF No. 24 at 8.) Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds.

When asked at the preliminary injunction hearing regarding the “state law” that gives Chief Judge Martinez “responsib[ility] for the oversight of the courthouse and the adjoining grounds,” counsel for the Second Judicial District directed the Court to Colorado Revised Statutes § 13-3-108(1). That subsection reads: “The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.” Neither this language, nor anything else in § 13-3-108, appears to relate to a chief judge’s authority over courthouse policies or courthouse grounds.

?Counsel for the Second Judicial District also pointed this Court to State ex rel. Norton v. Board of County Commissioners of Mesa County, 897 P.2d 788 (Colo. 1995) (“Mesa County”). In Mesa County, the county commissioners defied an order from the Twenty-First Judicial District’s chief judge requiring additional security measures at the county courthouse. See Mesa County, 897 P.2d at 789. The county commissioners further announced their intent to stop providing support of any kind to the Twenty-First Judicial District, arguably in violation of § 13-3-108(1) (quoted above), Colorado Revised Statutes § 13-1-114(2) (requiring county sheriffs to assist the judiciary when the judiciary perceives a “risk of violence in the court”), and Colorado Revised Statutes § 30-11-104(1) (requiring each county to “provide a suitable courthouse”). See id. The county commissioners believed that Colorado’s constitutional Taxpayers’ Bill of Rights allowed the county to disregard the foregoing statutes because they created an impermissible “subsidy” to the court system. Id. at 789–90. The Colorado Supreme Court rejected the county commissioners’ position and held that counties’ statutory duties toward the court system are not “subsidies” under the Taxpayers’ Bill of Rights. Id. at 791.

The Mesa County decision highlights the relationship between counties and the state courts that sit within them. It emphasizes county sheriffs’ duties to assist judges in preventing “violence in the court.” Colo. Rev. Stat. § 13-1-114(2). It does not support the Second Judicial District’s notion that it controls and can speak for the status of the Courthouse grounds.

Finally, counsel for the Second Judicial District cited this Court to In re Court Facilities for Routt County, 107 P.3d 981 (Colo. App. 2004) (“Routt County”). Routt County held that, under certain circumstances, a state judicial district’s chief judge has inherent authority to order the board of county commissioners to design and pay for a new courthouse. Id. at 984. Quoting Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984), Routt County relied on the notion that “courts necessarily possess certain inherent powers, which . . . consist of ‘all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.’” Routt County, 107 P.3d at 984.

Both Routt County and Peña specifically address the Colorado judiciary’s inherent authority to order another state or municipal entity to spend money on the judiciary’s behalf. That power is not at issue here. Nonetheless, the inherent authority described in Routt County and Peña could conceivably also extend to entering orders such as the Plaza Order. The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza. For at least three reasons, the Court concludes that Plaintiffs are likely to prevail against the Second Judicial District on that question.

First, counsel for the Second Judicial District agrees that Denver owns the Courthouse itself and all of its grounds.

Second, counsel for the Second Judicial District further stated that there was no lease agreement of which he was aware between Denver and the Second Judicial District. Rather, the Second Judicial District occupies the Courthouse “as provided by law.”

?Third, it is undisputed that the Second Judicial District is not the Courthouse’s sole occupant. Denver County Court also sits in the Courthouse. Denver County Court is unique among county courts in Colorado because the Colorado Constitution grants Denver the authority to set the “number, manner of selection, qualifications, term of office, tenure, and removal of [its] judges.” Colo. Const. art. VI, § 26. Moreover, a Chief Justice Directive from the chief justice of the Colorado Supreme Court states that “[t]he chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court.” CJD 95-01, Preamble (amended Aug. 17, 2012), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/95-01amended8-17-12.pdf. Thus, there are two distinct judicial bodies operating in the Courthouse, and the Second Judicial District apparently cannot speak for both.

For all these reasons, the Court finds that Plaintiffs are likely to prevail in their contention that Denver controls and speaks for the Courthouse Plaza. 4 Because Denver has stipulated that the Courthouse Plaza is a public forum, Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum. See Cornelius, 473 U.S. at 800. 5

Moreover, the Court notes that the Second Judicial District has not specif ically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that “resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because [the Plaza Order] would satisfy even the strictest test.” (ECF No. 24 at 9.) Thus, the Court turns to the question of whether the Plaza Order can survive a strict scrutiny analysis. 6

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4 Ultimately, a Colorado state court may need to resolve this question. See, e.g., CJD 95-01 ¶ 15 (“Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.”). In this posture, however, the Court need only conclude that Plaintiffs are likely to succeed.

5 If the Courthouse Plaza is indeed a public forum, it would be unique in that respect. The parties have not cited, nor could the Court find, a single case in which courthouse grounds were deemed a public forum. Cf. Huminski v. Corsones, 396 F.3d 53, 90–91 (2d Cir. 2005) (courthouse grounds not a public forum); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (same), abrogated on other grounds by Winter v. NRDC, 555 U.S. 7 (2008); Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006) (same); Schmidter, 103 So. 3d at 270 (same).

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
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3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

“In [a] quintessential public forum[], the government may not prohibit all communicative activity.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also id. at 46 (holding that the government may un-designate a designated public forum, but until it does so, “it is bound by the same standards as apply in a traditional public forum”). The state may, however, “enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Id. The Court will address each element in turn as it applies to the Plaza Order.

a. “Content-Neutral”?

The Plaza Order applies “without regard to the content of any particular message, idea, or form of speech.” (ECF No. 25-1 at 1.) On its face, then, it appears content-neutral. Plaintiffs have not argued otherwise.

b. “Narrowly Tailored to Serve a Significant Government Interest”

The Plaza Order itself asserts several interests:

. . . to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum . . . .

(Id.) However, in response to Plaintiffs’ Motion, the Second Judicial District has only defended the Plaza Order on the bases of preserving “the efficient functioning of the court” (e.g., unhindered ingress and egress to the Courthouse) and “maintain[ing] public safety.” (ECF No. 24 at 12.)

These are potentially “significant” government interests. Legitimate time-place- manner restrictions in a public forum can be motivated by “objectives [such as] public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). But the Court finds on this record that Plaintiffs are likely to succeed in proving that the Plaza Order is not narrowly tailored to these stated objectives. Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect “the efficient functioning of the court” or threaten “public safety.” Courts look dimly on such “First Amendment Free Zones.” See Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); First Unitarian, 308 F.3d at 1132.

Moreover, in the Second Judicial District’s briefing (see ECF No. 24 at 12) and at the preliminary injunction hearing, it became clear that the sole motivating concern behind the Plaza Order was potentially violent protests that could follow if Dexter Lewis receives the death penalty. Steadman, the Second Judicial District’s witness, agreed that other measures could address that concern, e.g., he could arrange for additional security well in advance of any verdict announcement. He also agreed that Plaintiffs’ activities posed no greater threat to the Courthouse than it has faced in the last five years, when expressive activities have been unrestricted. Thus, the Court finds that Plaintiffs will likely demonstrate that at least Paragraph 1 of the Plaza Order is not narrowly tailored to serve the interests of maintaining public safety and the efficient functioning of the court.

c. “Leave Open Ample Alternative Channels of Communication”

Given the foregoing finding, inquiry into the alternative channels of communication is unnecessary. 7 The Court accordingly holds that Plaintiffs are likely to succeed in defeating at least Paragraph 1 of the Plaza Order under the strict scrutiny test applied to public forums.

————
7 The Court nonetheless notes Plaintiffs’ argument at the preliminary injunction hearing that their advocacy requires person-to-person contact because the concept of jury nullification is obscure and does not lend itself well to pithy slogans that can easily be chanted or placed on a placard (and therefore understood from a distance). Plaintiffs’ counsel could not cite this Court to any authority holding that those wishing to advocate complicated or lesser understood concepts receive more solicitude than others when it comes to available channels of communication. To the contrary, the case law suggests that the government can more easily restrict person-to-person interaction because of its potential for harassment. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773–74 (1994). The Court need not resolve the issue at this time, but only raises it as a matter of potential concern as this case progresses.
————

?C. Irreparable Injury

“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted). Moreover, the Second Judicial District offers no response to Plaintiffs’ irreparable injury argument. Accordingly, the Court finds that Plaintiffs will be irreparably injured absent a preliminary injunction.
?
D. Balancing of Interests

The injury to a plaintiff deprived of his or her First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). And again, the Second Judicial District offers no response to Plaintiffs’ argument that the balance of interests tips in their favor. Accordingly, the Court finds that the balance indeed tips in Plaintiffs’ favor, although the Court will issue the narrowest injunction possible so that the Second Judicial District is not unduly restrained in its ability to maintain safety and proper judicial functioning. (See Part III.F, infra.)?

E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. The Second Judicial District does not argue otherwise. The Court therefore finds that a narrowly drawn injunction would be in the public interest.

?F. Scope of Injunctive Relief

The Court will enter a preliminary injunction in favor of Plaintiffs. However, the Court will not grant an injunction as broad as Plaintiffs’ counsel requested at the preliminary injunction hearing. Plaintiffs’ counsel requested an injunction stating that their message and form of advocacy is protected speech, supposedly to protect against any other government agency that might try to silence them. But the Court cannot say (on this record at least) that Plaintiffs’ message and form of advocacy is always protected speech under all circumstances. In addition, an injunction must run against a party—this Court cannot enter an injunction against the world at large. See, e.g., Fed. R. Civ. P. 65(d)(2) (describing persons bound by an injunction). If Plaintiffs believe that a particular government agency is likely to attempt to silence them, they need to join that agency as a party and satisfy the preliminary injunction as against that agency. 8

Further, although Plaintiffs apparently seek to strike down the entire Plaza Order as unconstitutional, the Court will limit its injunction only to certain portions of the Plaza Order. As counsel for the Second Judicial District pointed out at the preliminary injunction hearing, the Plaza Order applies both inside and outside the Courthouse, but Plaintiffs have only challenged its restrictions outside the Courthouse. Accordingly, the Court will not disturb the Plaza Order as it operates inside the Courthouse.

In addition, the Court notes the Landscaping and Gravel Area in the East Restricted Area. Although no party discussed the scope of a potential injunction in these specific areas, the Court assumes for present purposes that Denver did not intend its public forum stipulation to authorize Plaintiffs to tramp through the Landscaping or the Gravel Area, both of which are ultimately designed for the Courthouse’s security. The Court therefore will not enjoin the operation of the Plaza Order as it applies to the Landscaping and Gravel Area.

The Court also notes that Plaintiffs have specifically alleged their intent to distribute and discuss the two pamphlets attached to their original complaint, “Fresh Air for Justice” (ECF No. 1-3) and “Your Jury Rights: True or False?” (ECF No. 1-4). At the preliminary injunction hearing, counsel for Plaintiffs reemphasized that these two pamphlets form the basis of what they wish to discuss. The Court will therefore limit its injunction to distribution of those specific pamphlets and oral advocacy of the message contained in those pamphlets.

Finally, only Paragraph 1 of the Plaza Order is truly at issue here. Plaintiffs have not challenged the Second Judicial District’s authority to prevent obstruction of the entryways (Paragraph 2), to prohibit the erection of structures (Paragraph 3), or to restrict sound amplification equipment (Paragraph 4). Thus, the Court will limit the injunction to Paragraph 1 of the Plaza Order. 9

————
8 Plaintiffs’ counsel expressed some concern that the Denver District Attorney’s office had been involved in the arrest of Brandt and Iannicelli and that the DA’s office might continue to pursue similar prosecutions. But Plaintiffs have not joined the DA’s office as a party, and in any event, in light of Denver’s stipulation with Plaintiffs, it is questionable whether the Denver Police Department would execute any arrest warrant based on Plaintiffs’ activities.

9 A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted). The Second Judicial District has not put forth any evidence of a likelihood of harm, nor has it argued that Plaintiffs should be required to post a bond. Having considered the issue sua sponte, the Court determines that a bond is unnecessary in light of the lack of likely harm to the Second Judicial District, and in light of the nature of the case. Cf. 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2015 update) (citing public rights cases where the bond was excused or significantly reduced).
————

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ and Denver’s Stipulation (ECF No. 23) is ACCEPTED and shall be treated as if an order from this Court; ?

2. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED; and ?

3. The City and County of Denver, its police chief, Robert C. White, in his official capacity, and the Second Judicial District (including their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with any of them) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows (all capitalized terms bear the respective meanings assigned above): ?

a. Save for any Plaintiff physically located on the Landscaping or Gravel Area, Defendants shall not enforce Paragraph 1 of the Plaza Order against any Plaintiff (including any FIJA member) physically located in the Restricted Area to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in the pamphlets titled “Fresh Air for Justice” and/or “Your Jury Rights: True or False?”

b. To the extent consistent with the foregoing prohibition, Defendants remain free to enforce Paragraphs 2–4 of the Plaza Order.

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

The History of Violent Protest in Colorado Springs, in a Nutshell.

JesusGET THIS. I heard a reverend-person yesterday lecturing newish activists about their need for nonviolence training, which she was volunteering to lead. She was also offering rubber wristbands for her graduates to wear at demonstrations, so that police could differentiate between protesters. She told us she’d ask officers to scrutinize those not wearing bands as being the potential troublemakers. This, she assured everyone, would make it more difficult for outside groups to waylay the action. I kid you not. And she’s a church leader praised locally as something of an activist! HA! That’s a RAT!

I recognized the Springs “outsider” buggaboo so I thought I’d relate where it came from in a little piece I’ll call The History of Violent Protest in Colorado Springs. Ready? It won’t take long.

So what violence have I seen in my fairly full-time participation over a dozen years, multiple wars and as many elections? ZERO. That’s right. I’ve seen a lot of brutal handling by police, but by the hands of protesters? Nothing.

Yep. The History of Violent Protest in Colorado Springs. The End.

For as much as local church leaders harp on nonviolence training, which includes, by the way, nonviolence bounderies that forbid even confrontational speech, you’d think they’d seen a need for it. They haven’t. For EVERY preacher and or disciple regurgitating nonviolence edicts, I’ve never seen ONE counterpart advocate for, nor commit, violence. It’s almost a laugh, if the practice wasn’t so damaging to public demonstrations. Colorado Springs street protests have been defanged to nothing, police needn’t bother to show up and they don’t. As a result, neither do protesters.

And it isn’t just that nonviolence dogma declaws the public beast. Religifying activism alienates intellectuals and atheists who woud prefer not to suffer the foolish god-justified claptrap. Monotheism is the engine which has always perpetuated privilege, enslavement, colonization and capitalism. Wtf.

Not satisfied to deputize citizens with the equivalent of TSA pre-boarding approval, clergy want to deprive their charges of the element of surprise. The Springs antiwar community keeps direct contact with law enforcement. I’m guessing protestations, if any, are now simply phoned in.

I JUST WANT TO PUNCH these nonviolence religion freaks for mutilating the impetus of budding activists. A newcomer’s anger is what drew them to protest in the first place. Of course as ministers that is their function. Social injustice is job security to church employees. They are about as likely to remedy inequity as the Pope. Sermons aim to temper their sheep’s natural anger at injustice. But enough about those assholes.

No matter the issue, antiwar, the environment, racism, homelessness, in Colorado Springs I’ve seen absolutely no public demonstration escalate to violence. Why then the ready queue of spiritual nuts so eager to innoculate every next wave of concerned citizen before they can even take to the street? It goes back to something that happened at an antiwar demonstration in 2003, although the lesson being drawn is not based on what really happened. That’s the bugaboo.

Palmer Park, 2003
In 2003 George W. Bush was about to initiate an illegal war against Iraq and public demonstrations were coordinated across the globe. In Colorado Springs nearly 2,000 people assembled in Palmer Park along Academy Boulevard. The Springs rally looked to eclipse the antiwar events planned in Denver, so some people came from Denver, or so it’s believed. In reality, the Springs antiwar community had an average age of 75 and hadn’t seen new faces for decades. The sight of younger participants led many to believe they were from elsewhere. Plus some of the younger protesters wore black, so word spread they were Anarchists. Scary.

For the usual reasons, the CSPD decided to close Academy Boulevard. When rally-goers realized their protest wasn’t being seen because motorists were no longer driving by, some decided to lead the crowds southward toward an intersection where traffic was still passing. Being that Academy Boulevard was cleared of cars, the most obvious route was on the street. There was no sidewalk and the park was congested with the parked cars of the attendees. No matter. The police formed a line and ordered the marchers back.

The police began to spray tear gas as the protesters retreated. Clouds of gas enveloped the crowds as they dispersed and struggled to get in their cars. The cars were gased with families and small children inside them, unable to drive away.

Across the globe that day, only two cities used tear gas against their antiwar protests: Athens and Colorado Springs. That’s how old timers like to tell the story. They’ll add that the police crackdown was prompted by unruly outsiders being violent with police. By which they mean, refusing to get off the street. Being assertive of one’s rights somehow became translated to mean impermissively violent.

Had these Emily Posts ever seen the footage of Selma?! These nonviolence sticklers are MLK idolators, yet just like Selma’s whites, they blame the victim.


Palmer Park, 2003

Protests in Colorado Springs immediately diminished in popularity and never again drew large numbers. Apparently when organizers called their members the apprehension was always “will it be safe?”

And so from that day, nuns and other clergy met regularly with Colorado Springs police to talk to them about protest plans, lest CSPD be surprised and overreact. That hasn’t stopped police from dragging us across streets or assaulting us in parking lots or on sidewalks. Oh to have merited it even once!

NOTE: I have omitted a couple of insider details about the 2003 rally because I wanted to relate the experience of the average participant. Yes, the event was advertized statewide and drew opponents of Bush’s war from along the Front Range. And yes, there was a strategy among frontline protesters to try to block an intersection. Most attendees didn’t know either of these facts. The local peace community was so insular that all new faces were looked upon as interlopers. But my point remains, there was no violence. Our freedom to assemble, wherever two thousand people need to go, is not abriged by congress nor by traffic laws. Rebuffing law enforcement’s attempt to disrespect civil liberties by standing, walking, sitting, or shouting, is not violence.

St Patricks Day, 2007

Nonviolently submitting to state violence is supposed to move onlookers to empathy. In 2007, was the Colorado Springs public moved by the police brutalization of nonviolent 70-yr-old Elizabeth Fineron, who later died of complications of her injuries? No, they cheered the police.

Sacrificing yourself may work in democracies with an empowered populace, but against fascism, as against the Mongols or Manifest Destiny, it’s abrogation of responsibility and suicide.

Nonviolence
Incorporating the dogma of “nonviolence” into what would otherwise be straightforward protest becomes problematic when nonviolence folks want to differentiate themselves. Those who are “othered” are then presumed to be planning violence. That’s a very serious charge. Inciting a riot is a crime. Plotting to overthrow a democracy is sedition.

Non-nonviolence does not equal intending-violence. For example, I do not advocate violence, I advocate solidarity.

I do not oppose people asking for NV training, or undertaking it, though I would prefer that nonviolence wasn’t marketed to newcomers who wouldn’t have thought to have needed it.

Why should “nonviolence” even have to come up, for example, at a discussion about a SIT-IN? Agreeing to sit is already a gesture which has capitulated the option to resist. A crowd can’t charge from the seated position. You can’t even defend yourself. The nonviolence is inherent.

Religious NV training is really about nonviolent communication, a whole other can of rotten worms. There is no evidence that Gandhi, MLK or the Flint factory sit-ins practiced that aberration.

If the challenge is to show public opposition to the sit-lie ordinance because it further oppresses the homeless, public energies need not be exhausted by habitually passive religious leaders and their idea of what direct action needs to be.

Yes, the anticipation of the supremacy of nonviolence over state violence is a religious expectation. Against fascism you’re asking for a miracle.

If preachers were activists they would lead their flocks into the street. Circulating among activists, those church leaders are opportunistic missionaries, looking for recruits among the disenchanted.

To be earnestly inclusive of faiths and non-faiths, leave you diety at home. Show respect for the “others” who don’t need the voodoo rationalizations you require to muster moral courage.

Amanda Knox wishes Italy was like US where a black man in jail means whites go free

Amanda Knox is disappointed with the Italian judicial system. In America of course, if you can pin the crime on a black guy, white perpetrators go free. For the 2007 murder of Meredith Kerchner, African male Rudy Guede is serving 16 years, but Italian judges are convinced he was an accessory. And remember, first Knox tried to give them ANOTHER. Knox is appealing her slander conviction for falsely naming Patrick Lumumba, and now, instead of speaking appreciatively of her two year respite from prison after political pressure muddled an appeals court reversal, Knox says she “expected more”. Not just that, she reminds us “this isn’t going to bring Meredith Kercher back.”

Post-Zimmerman, post Troy Davis, post Goddamn Iraq War, torture and war crimes, it could easily be argued that any nation has better courts than the US. Italy’s in fact convicted CIA agents who kidnapped an unconvicted suspect in Italy and rendered him for torture. In what other Western courts have today’s most grotesque perps been brought to justice? Italy has called for the agents’ extradiction but the US is not complying. Now American yahoos are cheering about resisting Knox’s extradiction. Both Knox and the CIA gents have been convicted and sentenced. Meanwhile the US is insisting that Julian Assange comply with extradiction and he’s not even charged with the crime.

I don’t care if Knox is extradited, or goes to prison. I’d rather no one did, she’s probably learned her lesson. How likely is it she’ll kill another roommate or follow another drunken murderous impulse. A psychotherapist ought to be able to assure us whether know is tapped out. Inequal justice isn’t rectified by punishing one side more.

What upsets me more is the pageant of Knox’s contempt and dishonesty to which the media offers no critique. It’s become the familiar meme of the 21st century, unblinking denial. There were psychopaths before George W. Bush, but I believe he pioneered the role as foil to modern media’s knave. There is no honor, there is no accountability, and on TV it isn’t even missing.

Steve Bass found guilty of camping not occupying, but could jury have ruled otherwise without hearing his defense?


COLORADO SPRINGS, Colo.– You may have underestimated the importance of today’s Camping Ban trial. The local media, social justice community and rights watchdogs missed it. But judging from the police force on hand and the elaborate lock-downs placed on the jury pools, it was evident the City of Colorado Springs thought a lot was at stake. I’ve written already about the draconian motions to prevent defendant Steve Bass from explaining his motives, including a ban of the word “Occupy.” Today the court made audience members remove their “Occupy Colorado Springs” t-shirts, but let the cat out of the bag by the palpable gravitas with which the court officials and police handled jury selection. Except for the absence of TV crews outside, you’d have thought Steve Bass was Hannibal Lector tripped up by an urban camping ordinance at “what happened last year in October at a park downtown.”

Yeah, even mention of “Acacia Park” was giving away too much, the prosecuting attorney preferred to call it “115 W. Platte Ave.” Every so often a prospective juror would stand up and say “I presume you’re referring to OCCUPY WALL STREET?” like he was solving a riddle, but instead of the door prize that volunteer would be dismissed from the pool for knowing too much.

After a trial that lasted one third the length of the jury selection, Steve Bass was found guilty. He offered no testimony, his lawyer, the very capable Patty Perelo, made no closing statement, because what defense could be made? Steve and his council elected not to have him testify, because to begin with, he’d have to swear to tell the whole truth, and if he explained he could only tell part of the truth, he’d be slapped with Contempt of Court.

We thought the jurors might have been curious, after seeing the city’s 8×10 glossy pictures with the circles and arrows telling what each one was and hearing not a peep from Bass, but they didn’t express it, and left after giving their verdict. This is Colorado Springs.

One of the prosecution’s witnesses, the arresting officer, nearly spilled the beans when he identified the defendant as someone he couldn’t have confused for someone else, because he’d said he’d encountered Bass many times in the park and shared many conversations.

“Oh?” the defense attorney Perelo perked her ears and asked, “and WHAT did you talk about?”

“Um… homeless policy, mostly.” That’s all HE could say. He couldn’t explain why he’d encountered the defendant so many times, or what the defendant was doing. Attorney Perelo couldn’t push it, because that would be leading him into forbidden territory. His testimony for the prosecutor was delivered straight from his notes.

There were two police witnesses, a map and several photographs, showing the tent and another showing just the poles. Was this necessary for a conviction? Because it necessitated explaining to the jury that said poles were in their “unerected state”. Not to be confused with the tent which was “fully erected”, which the judge pronounced like expressions which tripped off the tongue in cases of serious crime.

A photo of two sleeping bags required the officer to say he found the defendant sleeping “in the bags in the tent in the park” to prove all the elements of a violation of the camping ban.

The prosecuting attorney summarized it thus: “there was a tent, there was a sleeping bag, looks like camping to me.”

Not according to a dictionary definition of course. But that too had been motioned inadmissible. If you look it up, camping is variously defined as to “Live for a time in a camp, tent, or camper, as when on vacation.” Or as when destitute? Dictionaries don’t go there. That’s more like sheltering.

A couple of other examples: Soldiers sleep in tents. They’re not camping. Mountaineers overnighting on the side of a mountain aren’t camping. Refugees of war and natural disasters stay in refuge camps, but aren’t said to be camping. Anyway.

Steve Bass didn’t get his day in court. Everything he wanted to say he couldn’t. His attorney’s strategy today was to prepare for an appeal, on the grounds that the judge deprived Bass of the ability to defend himself.

Did Bass violate the camping ban as the jury decided? The prosecutor explained that nobody, not the judge, nor police officers or herself or the jury was in the position to decide the law. So Steve Bass has to take his case to someone who can.

Jury Selection
Over four hours were spent on choosing a jury, by far the most interesting part of the day. It took three sets of 25 potential jurors to pick six and one alternate. As the process approached lunch hour, the court was eager to buy pizza for seven instead of twenty five, but they didn’t make it.

As I mentioned, usually a juror familiar with “Occupy Wall Street” was dismissed, whether their opinions were favorable or unfavorable. I saw one juror dismissed because delving further would have meant discussing Occupy too much and would expose the other jurors to more occupy talk than the judge or prosecutor wanted.

On the other hand, many jurors had direct relatives in law enforcement, one juror considered a CSPD officer her “knight in shining armor,” so that was another cause for eliminations.

During the second batch, another juror stood up to say he was a former corrections officer, who wasn’t sure if he might have met Steve Bass “in the course of his duties” which poisoned the entire group by suggesting Steve had spent time in prison. That batch was dismissed. In actuality, Steve recognized him, because they both frequented the Dulcimer Shop.

Though Judge Williams maintained a convivial air of impartiality, he betrayed an awful prejudice. Whenever a juror expressed knowing something of what was in the news in October 2011, the judge would asked them if they could refrain from judging Bass based on the misbehavior of others. If jurors who knew about the protests were let to remain in the running, the assumption the judge offered was that “Occupy” was a taint that the defendant hoped they would overcome.

I don’t doubt that this slant extends well beyond Occupy, because municipal courts are notorious for being rubber stamps of a city’s citation process.

For example, in Judge Williams’ instructions to the jury, he read the sample guilty verdict first, in all its solemnity. When he read the not-guilty sample, he broke character to explain that he was not going to repeat the redundant stuff, etc, etc, and then he told the jury they shouldn’t be swayed by the order in which the two samples were read. The dramatic guilty versus the blah blah not-guilty.

Occupy harassment
Knowing about the prohibition against Steve mentioning Occupy, we thought we’d exercise our right not to be gagged. Could it matter? Should it? How preposterous that Steve was being tried and not permitted to say what he was doing. As if some precedent would be set that a defendant might convince a jury that forbidding a person shelter was a bad law.

So we came to court with t-shirts that read OCCUPY COLORADO SPRINGS. Immediately when we sat down, the judge called the lawyers up and decided we’d have to remove our shirts. We were given a chance to explain who we were, but the choice was invert the shirts, put on new ones, or leave. So we walked out.

I had an extra shirt outside with a peace symbol on it. Admittedly a politically-charged shirt, somewhat iconic locally, because it recalled an event in 2007 when peaceful protesters were forcibly removed from a city parade, one of them dragged across the pavement, an elderly woman who subsequently died of complications. So I knew I might be pushing it.

The point being to give Defendant Bass some context. He’s an activist. Alone without a voice he was a perp. With an audience of protestors he becomes a man of mystery. Every accused person in court is sized up in part based on his relations sitting behind him. Why shouldn’t Steve be allowed to show who his friends are?

As I reemerged from my car, already a police supervisor was yelling across the street to tell me I wouldn’t be allowed to wear that shirt. “Are you kidding?” I asked. I had a bag full of them, prepared for this eventuality if other spectators wanted to show solidarity. He was crossing the street to preempt my bringing the confrontation to the steps of the courthouse.

“Eric, you know the judge won’t let you wear that shirt.”

“I know no such thing. He only forbid things that say Occupy.” I knew this to be true, technically.

But they weren’t budging, they claimed a jury pool was already in the courtroom and they didn’t want to take any chances. Oddly, the officer blocking my way, beside the supervisor, was Good Old Officer Paladino who’d brutalized my friends and me in 2007. So he knew the t-shirt too well. Actually Officer Irwin Paladino’s history of abusing protesters goes back to 2003. I decided to dispense with plan B and invert my black t-shirt so I could go back in.

Did the CSPD make the smart call forbidding my t-shirt? I’ll be the first to admit the CSPD have outwitted the local social justice movement at every turn in Colorado Springs. They’re clever and competent, but they’re in the wrong. The CSPD are stepping on our rights, and overstepping their authority to do it. While it may have been superior gamesmanship, it was wrong.

Have I mentioned that they followed us everywhere? As if we were the accused in need of escort. On the officers’ radios we could hear them narrating our movements throughout the building. When Patrick went to the bathroom, an officer followed him inside and made small talk as Patrick peed. Did they think we were going to Mike Check the men’s room?

At one point we were able to see from a window on the second floor hall that CSPD were conferring with a parking enforcement officer around our cars. She was examining the license plates, getting on her phone, standing by the cars, as if waiting for something. The cars were legally parked, the meters fed, and well within the four hour limit. But who wants to argue with an impound lot? I assure you this intimidation tactic worked very well to send us out of the courthouse to rescue our vehicles.

Meanwhile, another friend came into the courthouse and overheard officers discussing whether to deny us entry again, and by what pretext, but I’m getting ahead of myself.

While watching the jury selection, it was the batch that was being dismissed in full, the court bailiff suddenly bolted from behind where we were sitting and told the judge she’d overheard us whispering about inappropriate subjects, specifically using profanity. This accusation was based on a dear Occupier’s habit of muttering colorful asides. Okay this was true, but in his defense, it was after the jury being spoiled, about the jury being spoiled, but inappropriate none-the-less and he apologized. But to tie all together in the misbehavior was a fabrication. The prosecutor tried to have us evicted, and Officer Paladino chimed in about the confrontation I instigated at the door. That’s when my friend told the judge she’d overheard CSPD officers discussing plans to keep us out, so the bailiff’s actions began to appear a little contrived.

This complaint was finally settled with the judge’s warning that one peep out of us would get us 90 days in jail for Contempt of Court. At this point we knew the pieces of duct tape we’d brought in to use to protest Steve’s gagging were definitely OUT.

Just before lunch recess I was able to clarify with Judge Williams whether the peace t-shirt I had wanted to wear was acceptable to the court. Receiving no objection from the prosecutor, the judge told me it would be okay, and then assured me he’d inform CSPD.

Returning from lunch, once again with the peace shirt, the security screeners nearly didn’t let me pass, but I barreled past with the confidence of someone who knows his rights. This time Officer Paladino came upon me at the courtroom door, swaggering right into my face assuring me he was not going to let me pass. FORTUNATELY before he could wrestle my arms behind my back, another supervisor arrived who’d heard the judge, and I was allowed to proceed. Boring story I know. But the pattern was unsettling.

Then Steve was found guilty, you could feel the city’s giddiness as they discussed sentencing. We’re only talking community service, but Colorado Springs has only one contractor for that, the odious Keep Colorado Springs Beautiful, whose hi profile task is to clean up after the CSPD Homeless Outreach Team scoops up the homeless and puts them in shelters very much in the model of correctional facilities. Steve was able to negotiate a less anti-homeless agency, and that’s the story so far.

Steve Bass to get his day in court, but he can’t say what he was doing or why, & above all he can’t mention “Occupy”


COLORADO SPRINGS, Colo.– Municipal Court Judge Spottswood W. F. Williams heard a final motion today before the AUGUST 10 trial of Occupier Steve Bass, charged with violating the city’s camping ban. The prosecution motioned to forbid from trial, “discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts”, and even “arguments related to the belief that the defendant’s conduct was constitutionally protected”, and in true Colorado Springs fashion, the judge GRANTED the city’s motion! YES THAT’S RIGHT, now if Bass wanted to say he wasn’t “camping,” he can’t say what else you would call it! In effect, Defendant Bass is prevented from explaining WHY he was occupying, or even THAT he was occupying, because saying “OCCUPY” is expressly forbidden. The judge will play it by ear whether to make an exception for himself during “voir dire” if selecting impartial jurors might require asking their opinion of “Occupy”. That’s IF BASS GETS A JURY AT ALL, because next, Judge Williams prompted the city prosecutor to research whether Bass was entitled to a jury of his peers for the infraction of camping…

The issue had already been resolved in an earlier hearing. Unable to find definitive wording on whether a camping ban violation invoked the right to a jury trial, the court ruled to proceed as if it did. But at today’s hearing Judge Williams related that in the interim over a casual dinner conversation, another judge informed him that the law read otherwise. So he put the question again to the prosecution. And again the citations came up inconclusive. This time however, with the clerk advised to continue the search, the decision stands at “pending”.

If Judge Williams opts to eliminate the jury, the forbidding of political or constitutional discussion is a moot point, actually two. There won’t be a jury to confuse, nor a judge either, because Judge Williams decided, by allowing the city’s motion, that the defendant has no arguments to make. Case closed. If the judge gets his way.

The point of today’s hearing was to hear not a judge’s motion but the city’s, a “motion in limine” used to reach agreement about what arguments can be excluded from the trial, often a defendant’s prior convictions which might prejudice a jury.

The core of the city’s motion was this:

…that the Defendant be ordered to refrain from raising the following issues at the Jury Trial…

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

The city is guessing that because defendant Bass has passed on all opportunities to dismiss his case on technicalities, or plead for a deferred sentence, that he’s hanging on to get “his day in court.” Whatever that’s going to look like, the city doesn’t like it.

Points three and four were conceded by the defendant. No proselytizing was intended, and of course plea deals are confidential. But the discussion of #3 was amusing, because the city expanded it to mean absolutely NO MENTION of “Occupy.” Even though the defendant was cited in ACACIA PARK, in OCTOBER, under 24/7 media coverage, the prosecutor argued that mentioning OCCUPY “would be unfairly prejudicial to the City.” Further:

To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology…

Not only did the city fear it would lose a popularity contest with “Occupy”, it worried that the courtroom would be abused by public debate. The point was ceded by the defense because the “primary purpose” would always have been to present defending arguments, not proselytize.

The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums.

The prosecutor raises an incongruous irony: Steve Bass is on trial because the city doesn’t consider Acacia Park to be an appropriate forum either.

Naturally the defense objected to points one and two, though on the three particular defense strategies the city wanted to preempt, “Choice of Evils Defense”, “Defense of Others”, and “Duress”, the defense ceded as irrelevant. Judge Williams then granted points one and two with the proviso that Steve Bass be permitted to draft his own defense argument, to be presented to the court no later than the Wednesday before trial. Did you know that a defendant must have his arguments approved by his accusers before he’s allowed to make them in court?

I’m not sure it’s accurate to say that Steve Bass is going to get his day in court if he’s going to spend it gagged.

Was Steve Bass arrested for “camping” or was the city trying to curtail “Occupy”? Let’s remember that Jack Semple and Amber Hagan were arrested for taping themselves to a tent, and Nic Galetka was arrested for setting his things on the ground.

But Steve Bass won’t be allowed to mention those details.

———-
FOR REFERENCE: The city’s full motion is reprinted below:

MUNICIPAL COURT, CITY OF COLORADO SPRINGS, COLORADO

PEOPLE OF THE CITY OF COLORADO SPRINGS, Plaintiff
v.
Steven Bass, Defendant

Case Number: 11M32022

MOTION IN LIMINE

COMES NOW the Office of the City Attorney, by and through Jamie V. Smith, Prosecuting Attorney, and submits this “Motion in Limine,” moving that the Defendant be ordered to refrain from raising the following issues at the Jury Trial in the above-captioned matter:

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

ARGUMENTS IN SUPPORT OF MOTION

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury.

The Defendant is charges with violating Section 9.6.110 of the Code of the City of Colorado Springs, 2001, as amended (“the City Code”), entitled “Camping on Public Property.” Political, economic, or religious beliefs or ideology are not relevant to any of the elements of an alleged violation of City Code Section 9.6.110, nor are they relevant to any potential defense to that City Code Section.

City Code Section 9.6.110 makes it “unlawful for any person to camp on public property, except as may be specifically authorized by the appropriate governmental authority.” Testimony or arguments irrelevant to the elements contained in that language should be exclude from trial. C.R.E. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” Evidence and argument regarding political, economic or religious beliefs of ideology have no bearing on the offense charged and do not meet the definition of relevant evidence.

Even if some discussion of these issues could be found to be of limited relevance, such discussion would only serve to confuse the issues and waste the court’s and jurors’ time, and would be unfairly prejudicial to the City. C.R.E. Rule 403 allows relevant evidence to be excluded when its admission would cause prejudice, confusion, or waste of time. To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology, as it is not an element that the prosecution must prove. Time and resources of the Court would also be wasted by allowing such testimony.

Furthermore, this Court denied the defendant’s “Motion to Dismiss-First Amendment,” on June 7, 2012, holding that City Code Section 9.6.110 is content-neutral, and that the defendant did not have a Constitutionally protected right to express his views in the manner that he chose on the date of the violation. Therefore, the sole issue before the jury is whether or not Mr. bass was camping on public property without appropriate governmental authority. Any evidence concerning political, economic or religious views that he was attempting to express through his conduct has no relevance whatsoever to any of the elements of the offense.

Discussion of the “Occupy Movement” as a political, economic or religious issue is also irrelevant to any potential defense which could be raised in this matter. Economic, political and religious beliefs or ideology are irrelevant to the following defenses that the Defendant might attempt to raise:

a. Choice of Evils Defense. C.R.S. Section 18-1-702(1) provides, in pertinent part, that “conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur… .” The statute goes on the state in subsection (2) that “the necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.” (Emphasis added.) Subsection (2) also states that:

[w]hen evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

The choose of evils defense “does not arise from a ‘choice’ of several courses of action, but rather is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other that the one take.” People v. Strock, 623 P.2d 42, 44 (Colo.1981). in order to invoke the “choice of evils” defense, the Defendant must show that his conduct was necessitated by a specific and imminent threat of public or private injury under circumstances which left him no reasonable and viable alternative other than the violation of law for which he stand charged. Andrews v. People, 800 P.2d 607 (Colo. 1990).

There has been no allegation by the defense, and no facts in the police reports previously submitted to this Court, that allege a specific and imminent public or private injury would occur if Mr. Bass had not erected a tent on public property. Furthermore, reasonable and potentially viable alternatives were available to Mr. Bass to achieve his goal, such as picketing and handing out literature, on the date of violation. This was accepted as true and ruled upon by this Court at the motions hearing on June 7, 2012. it should also be noted that no state “has enacted legislation that makes the choice of evils defense available as a justification for behavior that attempts to bring about social and political change outside the democratic governmental process.” Id. at 609; see also United States v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985) (mere impatience with the political process does not constitute necessity).

b. Defense of Others. C.R.S. Section 18-1-704 describes the circumstance under which the use of physical force in defense of a person constitutes a justification for a criminal offense. Subsection (1) of that statute states, in part, that “a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person…”. The defense does not apply considering the allegation in this case. There is no allegation that the Defendant was using physical force to protect himself from unlawful force by another at any time during the violation. Furthermore, no unlawful force was used or imminently threatened against any third party that would allow the Defendant to raise the defense.

c. Duress. C.R.S. Section 18-1-708 defines duress as conduct in which a defendant engages in at the direction of another person because use or threatened use of unlawful force upon him or another person. Duress does not apply in this case. There is no evidence that anyone was using or threatening to use unlawful force against Defendant or any third party to cause the Defendant to commit a violation.

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct.

Any claim by the Defendant that his conduct was protected by the First Amendment of the United States Constitution is not a proper issue to be raised before the jury in this case. This is a constitutional defense that was already raised by the Defendant in his “motion to Dismiss-First Amendment,” and which was denied by this Court on June 7, 2012. The Court ruled as a matter of law that the Defendant’s alleged conduct was not a constitutionally protected form of expression.

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum.

It is anticipated that the Defendant will attempt to use this trial as a public forum to assert his political, economic, and religious views on the “Occupy Movement.” Courtrooms are not public forums. People v. Aleem, 149 P.3d 765 (Colo. 2007). This Court has the authority to restrict political speech within the courtroom and preserve its purpose as a forum for adjudication of criminal disputes,m so long as the restriction is reasonable and viewpoint neutral. Id. The restriction requested by the City is both reasonable and viewpoint neutral. The purpose of this Motion is to limit the evidence presented in this matter to the offense charged and potential defenses thereto. The Motion is also viewpoint neutral as the City is not taking a stance on political, economic, or religious issues and would not request that the Court do so either. The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums. To allow Defendant to raise thee issues would be contrary to legal precedent and the rules of evidence.

4. Any reference to settlement negotiations with the Defendant prior to trial.

C.R.E. 408 excludes from permissible evidence compromise or offers to compromise. Plea negotiations fall under this rule and may not be discussed in the presence of the Judge or Jury.

CSPD acquires urban assault vehicle. What line have activist informants been feeding them?

COLO. SPRINGS- This image just in from a reconnoiter of the downtown police garage. The CSPD has mobilized an urban assault vehicle, for, I don’t know what, keeping up with the Jones’s? Ever since Springs police decided that the Pikes Peak Justice & Peace Commission held gravitational pull over all political dissent in El Paso County, the CSPD holds weekly briefings with a PPJPC staffer, and of late they’ve added morning tete-a-tetes with an OCCUPY delegate from Acacia Park. What are those “representatives” telling them? That law enforcement needs bigger ammo? Would now be the time to suggest we call organizers who grease the mechanisms of oppression, however ill-conceived their intention, by a more appropriate term, RATS?

I can understand neighbors with differing opinions about whether cops need more helicopters, or K-9 intimidation duos, but how ever does the ordinary citizen rationalize that their police department needs riot equipment? To protect us from ourselves? We found out a couple years ago that the CSPD has a busload of their own people-suppression gear. Now we have an armored personnel carrier for cops? Because they can’t drag defenseless nonviolent protesters across the pavement without mechanization? The Acacia Park protesters have been happy to seek permits to set up their literature canopies and have organized community service cleanup actions to put a shine on their model compliance, meanwhile the police are arming up…

EPILOG:
Is this a political cheap shot? Yes. It’s trash talk. No argument. Why and when Colorado Springs took delivery of an armored vehicle is entirely conjecture. Maybe it’s the usual cost-plus profiteering scheme. That’s not really the point. The point is, what intelligence is CSPD getting from their de facto adversaries?

The sight of a new armored vehicle to use against civilians should be a major embarrassment to someone who considers themselves tasked with offering assurances to the city that all local protest will be inoffensive and dismissible.

The CSPD needs armor WHY? Not even crime here has ever escalated to a level which would require an armored assault by the police.

I was content to leave it at that, but oh well, some people need it explained.

It is not conceivable that anything public citizen advisers might have whispered at regular meetups would have prompted the CSPD to armor up. But what are the collaborators conferring with police about? We know the why, for a seat at the table, so what goals are they selling out?

It would be false praise to suggest the PPJPC had a role in bringing the armored UAV to town. But the PPJPC cannot escape responsibility for eroding the role and breadth of activism in this city. In particular for playing informant to the CSPD, for being the conduit of intimidation which the police want to push the other way, and for employing an executive director who has a personal resolve against confrontational activism. You won’t see him at protests, organizing protests, or promoting protests. You’ll see him keeping his meetings with other respectable nonprofit heads, and his appointments with the CSPD, and fielding their calls when they catch wind of other dissenters. No surprise that a once energetic PPJPC is now but a social justice knitting circle of communion takers.

Of course it’s worse, because Colorado Springs social circles are small enough that the CSPD only needs one snitch. Not that any illegal activities have been planned, certainly no violence, but the CSPD wants to keep tabs, and the PPJPC is happy enough to believe that if you have nothing to hide, then keeping city authorities informed shouldn’t threaten you.

For those who need this spelled out: civil disobedience is by definition illegal, and benefits incalculably from putting authorities on the spot. Giving them your game plan in exchange for not upsetting the apple cart does not favor those who are protesting the apple cart.

So what is whispered in these regular meetings with the police? Let’s imagine only the most innocent possibilities. Who’s new to town, who’s jumping on this national campaign, who’s retreating from the fallout from that recent action, what’s the scuttlebutt, what’s to these rumors, and what are CSPD’s concerns. It makes me nearly sick to think about. The relationship must be as with a lobbyist. The collaborator is enjoined to take responsibility for keeping the peace. Any surprises and it’s their rapport that suffers. Police embarrassed on the street? No cookie for you.

Occupy Colorado Springs organizers have fallen for the same bait, a quasi permitted stay in Acacia Park in exchange for daily updates with the police. A special relationship is how I believe it’s being billed. You’d probably call it a morning coffee with your boss, with info flowing his way, instructions coming yours.

If you are hoping to reform the system, thinking you have allies among the blimp-necks sworn to uphold it TO THE LETTER is probably wrongheaded.

The ugly arrangement at the PPJPC didn’t begin with Executive Director Steve Saint. The PPJPC sat down in 2003 after an antiwar rally was teargassed, to hash out a code of conduct agreement with the CSPD. Membership balked at such a prospect and the project was abandoned, but left the city with a paper trail with which to claim it believed it had cemented a deal and would consider further trouble to be a breach of the agreement. This came to light after the St Patrick’s Day Parade fiasco of 2007. An event which provoked the larges upsurge in participation in the PPJPC but rapidly dropped off with its failure to capitalize on the visibility.

I know a little about that because I was chairman in that aftermath, fighting an insubordinate staff who only slowly revealed their ulterior motives and stacked the board against me. The rationale? Public protests hurt alliances with other non profits. Being anti-military preempted cooperation with almost all the other social causes in an army town.

It’s of course a long story, but in the end you’ve got a career staff member determined to jettison antiwar efforts for the comfort of taking on the environment, poverty, and whatever causes get a Democratic president elected. Steve Saint very visibly put his name to the letter which invited Van Jones to come speak at Colorado College. Van Jones is as corporate a messenger as Barack Obama, with the same empty promises. This time instead of Hope, he’s selling Green. And it’s just as easy a sugar pill to swallow.

Did you know some disgruntled Dems have set about to form a Green Party? Guess who’s put himself at the center of scuttling that effort by neutering any grassroots platform? I take no pleasure in delivering this punch line.

Of course more than anything the antiwar movement suffered with Obama’s election. Now the hopeful are disillusioned and cynical, and who is the little PPJPC to revive that crowd? But the PPJPC backed Obama, stood in line to see him while their dissenters embarrassed them by protesting outside. Dissenters who ultimately had the police called on them for trying to have a meeting in front of the PPJPC office.

The PPJPC is fully co-opted, fine, but that the organization plays the role of informant to the police is untenable. A historically, unequivocally, uninterruptedly nonviolent activist community provides no grounds for the city police to escalate their crowd-control technologies, and it certainly doesn’t merit full-time paid informants trying to snitch on them.

No evidence to hold Sabar Lal Melma in Guantanamo, but enough to kill him?

Image of Melma undarkened and flipped to shed menacing demeanorHard to imagine we’d come to look at Guantanamo as a lesser evil. Gitmo held terror suspects without charges, indefinitely, secretly, and tortured them, to death sometimes. At least they and their families back home were safe from the pretext of a drone strike or special ops night raid. The targeted assassination of released 5-year Guantanamo alumn ISN 801 Sabar Lal Melma in Afghanistan raises the question: what constitutes enough cause to send a death squad after a suspected illegal combatant? The US didn’t have the evidence to bring charges against Melma, who was finally released in 2007 after an outpouring of Afghan voices vouched for his innocence, yet the US military retained suspicion enough to send NATO commandos into his home this weekend to execute the former detainee in front of his kids. It would seem if Obama has a problem with Guantanamo, it’s that illegal rendition and imprisonment is not extrajudicial enough.

I know where Congressman Lamborn is – because no one is telling OR asking. Re: media blackout on junkets to Israel

Calls to Doug Lamborn’s office inquiring as to his whereabouts produces this charade: “Um, I don’t know. Let me ask. They don’t know. I’m not certain who would know. Could you hold please?” And we never get an answer. That his office won’t say, coupled with the media’s strange incuriosity, points to a self-enforced news moratorium on where a fifth of US congress is spending the August recess: as guests of Israel and the most powerful DC lobby. It’s been reported that a record 81 members are on an all-expense-paid junket to Israel, but their identities are a closely guarded secret. The US TV audience can be let to see their representatives give standing ovations to the Israeli prime minister, but visit Israel? The media blackout would have you think there’s something wrong with that.

Middle East peace groups and Palestinian rights organizations have had to painstakingly gather the information from stray news reports out of Israel, or from congressional offices reluctant to let it be know. So far 45 names are known to be on this year’s junket. Doug Lamborn is not on the list, but his office probably has a lower self-respect threshold for playing dumb.

You’d think with the recent furor about calling Obama a Tar Baby, that the media would want to be calling Lamborn to the hot seat. Apparently not. All that’s said is that he hasn’t surfaced to meet with constituents, or give interviews. Last week Lamborn issued a press release unrelated to his recent trouble, probably preplanned, in collaboration with fellow Colorado Congressman Tipton. Tipton, by the way, is among the officeholders known to be in Israel.

Lamborn vacationing in Israel would not be a far-fetched possibility. He attended the junket in 2007 and since then has acted on Israel’s behest in lobbying to drop charges against an accused Israeli spy, in removing legislation which prevented the US from relocating its Tel Aviv Embassy to Jerusalem, and this Spring Lamborn was made co-chair of the Israel Allies Caucus.

What a damn missed opportunity to press them on contacting Tar Baby Lamborn. It would appear that keeping the congressional Israeli lobbying junket on the QT outweighs making Lamborn squirm on camera to explain his non-racist remark. Never mind complicating the issue. What’s a racist WASP doing in the land of Apartheid racism? Well, of course, they’re absolutely related. Oooh, terrible timing. And Lamborn’s a Christian Zionist, so he “likes” Jews, but come the end times, he won’t touch them either.

How is it American elected officials are allowed to behave as agents of a foreign government would be one question, but the more glaring one would be why it is the media is complicit in keeping citizens in the dark?

Partial list of 81 US congressmembers on Israel junket over August recess, according to MoveOver AIPAC

Gus Bilirakis R-9 FL
Mo Brooks R-5 AL
Anne Marie Buerkle R-25 NY
Eric Cantor R-7 VA
Russ Carnahan D-3 MO
Kathy Castor D-11 FL
Steve Chabot R-1 OH (went last month)
Judy Chu D-32 CA
David Cicilline D-1 RI
Yvette Clarke D-11 NY
Mark Critz D- 12 PA
Scott DesJarlais R- 4 TN
Bob Dold R-10 IL (unconfirmed)
Jeff Duncan R-3 SC
Blake Farenthold R-27 TX
Stephen Fincher R-8 TN
Mike Fitzpatrick R-8 PA
Chuck Fleischman R-3 TN
John Garamendi D-10 CA
Kay Granger R-12 TX
Michael Grimm NY-13
Janice Hahn D-36 CA
Jaime Herrera Buetler R-3 WA
Steny Hoyer D-5 MD
Jesse Jr. Jackson D-2 IL
Hank Johnson D-4 GA
Kevin McCarthy CA-22
Gwen Moore D-4 WI
Bill Owens D-23 NY
Steven Palazzo R-4 MS
Ed Perlmutter D-7 CO
Tom Price R-6 GA
Tom Reed R-29 NY
Peter Roskam R-6 IL
Dennis Ross R-12 FL
Loretta Sanchez D-47 CA
David Schweikert R-5 AZ
Terri Sewell D-7 AL (not confirmed)
Adam Smith D-9 WA
Steve Southerland R-2 FLA
Betty Sutton D-13 OH
Scott Tipton R-3 CO
Allen West R-22 FL
Frederica Wilson D-17 FL
Kevin Yoder R-3 KS

Wikileaks Jacob Appelbaum confounds US customs w Bill of Rights thumbdrive

US-based Wikileaks colleague Jacob Appelbaum has a humorous account of his reentry yesterday to the US. Flying into Newark last July his laptop was searched and his cell phones confiscated. This time Appelbaum tweeted ahead that the ACLU would be his welcoming party, among other measures, recounted through Twitter:

Tweets by ioerror

I am not practically able to transport electronic devices. I will be radio silent before, during, and for some time after my flight.

I think that it is unlikely that there will be any serious trouble. With secret courts and sealed orders… the only way to know is to go.

I’m heading to the airport from Reykjavik and expect to be in the US around 16:40 PST Monday afternoon. Perhaps everything will go smoothly.

I am out of the airport and back in Seattle. Nothing more for now, sleep time.

It’s very frustrating that I have to put so much consideration into talking about the kind of harassment that I am subjected to in airports.

I was detained, searched, and CBP did attempt to question me about the nature of my vacation upon landing in Seattle.

The CBP specifically wanted laptops and cell phones and were visibly unhappy when they discovered nothing of the sort.

I did however have a few USB thumb drives with a copy of the Bill of Rights encoded into the block device. They were unable to copy it.

The forensic specialist (who was friendly) explained that EnCase and FTK, with a write-blocker inline were unable to see the Bill of Rights.

I requested access my lawyer and was again denied. They stated I was I wasn’t under arrest and so I was not able to contact my lawyer.

The CBP (U.S. Customs and Border Protection) agent was waiting for me at the exit gate. Remember when it was our family and loved ones?

When I handed over my customs declaration form, the female agent was initially friendly. After pulling my record, she had a sour face.

She attempted to trick me by putting words into my mouth. She marked my card with a large box with the number 1 inside, sent me on my way.

While waiting for my baggage, I noticed the CBP agent watching me and of course after my bag arrived, I was “randomly” selected for search.

Only US customs has a random number generator worse than a mid-2007 Debian random number generator. Random? Hardly.

During the search, I made it quite clear that I had no laptop and no cell phone. Only USB drives with the Bill of Rights.

The CBP agent stated that I had posted on Twitter before my flight and that slip ended the debate about their random selection process.

The CBP agents in Seattle were nicer than ones in Newark. None of them implied I would be raped in prison for the rest of my life this time.

The CBP agent asked if the ACLU was really waiting. I confirmed the ACLU was waiting and they again denied me contact with legal help.

All in all, the detainment was around thirty minutes long. They all seemed quite distressed that I had no computer and no phone.

They were quite surprised to learn that Iceland had computers and that I didn’t have to bring my own.

There were of course the same lies and threats that I received last time. They even complemented me on work done regarding China and Iran.

I think there’s a major disconnect required to do that job and to also complement me on what they consider to be work against police states.

While it’s true that Communist China has never treated me as badly as CBP, I know this isn’t true for everyone who travels to China.

All in all, if you’re going to be detained, search, and harassed at the border in an extra-legal manner, I guess it’s Seattle over Newark.

It tok a great deal of thought before I posted about my experience because it honestly appears to make things worse for me in the future.

Even if it makes things worse for me, I refuse to be silent about state sponsored systematic detainment, searching, and harassment.

In case it is not abundantly clear: I have not ben arrested, nor charged with any crime, nor indicted in any way. Land of the free? Hardly.

I’m only counting from the time that we opened my luggage until it was closed. The airport was basically empty when I left.

It’s funny that the forensics guy uses EnCase. As it, like CBP, apparently couldn’t find a copy of the Bill of Rights I dd’ed into the disk.

The forensics guy apparently enjoyed the photo with my homeboy Knuth and he was really quite kind. The forensics guy in Newark? Not so much.

The CBP agent asked me for data – was I bringing data into the country? Where was all my data from the trip? Names, numbers, receipts, etc.

The mental environment that this creates for traveling is intense. Nothing is assured, nothing is secure, and nothing provides escape.

I resisted the temptation to give them a disk filled with /dev/random because I knew that reading them the Bill of Rights was enough hassle.

I’m flying to Toronto, Canada for work on Sunday and back through Seattle again a few days later. Should be a joy to meet these guys again.

All of this impacts my ability to work and takes a serious emotional toll on me. It’s absolutely unacceptable.

What happens if I take a device they can’t image? They take it. What about the stuff they give back? Back doored? Who knows?

Does it void a warranty if your government inserts a backdoor into your computer or phone? It certainly voids the trust I have in all of it.

I dread US Customs more than I dreaded walking across the border from Turkey to Iraq in 2005. That’s something worth noting.

I will probably never feel safe about traveling internationally with a computer or phones again.

None the less, safe or not, I won’t stop working on Tor. Nor will I cease traveling. I will adapt and I will win. A hard road worth taking.

A solid argument for free software: To check the integrity of your hardware and your software against tampering. No binary (firmware) blobs.

I’d like to think that when I visit my family in Canada this weekend and attend a work conference that Canada won’t hassle me. Am I dreaming?

Will the Canadian government simply act as an arm of the US policy of detaining, searching, and harassing me? Oh Canada! I hope not.

It’s interesting to note that some media initially reported that I had no trouble because I said nothing at all. Irony abounds.

My border experience reminds me of the old monochrome quote: “Land of the Free? Land of the Free Refill!”

Why do we allow US Customs to lie and to threaten people? It’s a crime to lie to them and they do it as their day job. Why the inequality?

US House Resolution 1553 offers go-ahead for Israel to attack Iran

House Republicans have crafted a resolution to offer US approval for Israel to use “all means necessary” to confront Iran, reviving Holocaust fears and misquoting Mahmoud Ahmadinejad, where “wipe from the map” conflating the “Zionist Regime” with the Jews. Below is the full text of the resolution, supported by Republican congress members including Colorado’s Doug Lamborn.

111TH CONGRESS
2D SESSION

H. RES. 1553

Expressing support for the State of Israel’s right to defend Israeli sovereignty, to protect the lives and safety of the Israeli people, and to use all means necessary to confront and eliminate nuclear threats posed by the Islamic Republic of Iran, including the use of military force if no other peaceful solution can be found within reasonable time to protect against such an immediate and existential threat to the State of Israel.

IN THE HOUSE OF REPRESENTATIVES

JULY 22, 2010

Mr. GOHMERT (for himself, Mr. AKIN, Mrs. BACHMANN, Mr. BARTLETT, Mr. BISHOP of Utah, Mrs. BLACKBURN, Mr. BONNER, Mr. BROUN of Georgia, Mr. BURTON of Indiana, Mr. CAMPBELL, Mr. CHAFFETZ, Mr. CONAWAY, Mr. CULBERSON, Ms. FALLIN, Mr. FLEMING, Mr. FRANKS of Arizona, Mr. GINGREY of Georgia, Ms. GRANGER, Mr. GRIFFITH, Mr. HENSARLING, Mr. HERGER, Mr. KING of Iowa, Mr. LAMBORN, Mr. LATTA, Mr. LOBIONDO, Mrs. LUMMIS, Mr. MARCHANT, Mr. NEUGEBAUER, Mr. PENCE, Mr. PITTS, Mr. POSEY, Mr. PRICE of Georgia, Mr. OLSON, Mr. ROONEY, Mrs. SCHMIDT, Mr. SHADEGG, Mr. SMITH of Texas, Mr. WESTMORELAND, Mr. ROSKAM, Mr. MCCOTTER, Mr. BROWN of South Carolina, Mr. RYAN of Wisconsin, Mr. MCCLINTOCK, Mr. JORDAN of Ohio, Mr. BARTON of Texas, Mr. KINGSTON, and Mr. CARTER) submitted the following resolution; which was referred to the Committee on Foreign Affairs

RESOLUTION

Expressing support for the State of Israel’s right to defend Israeli sovereignty, to protect the lives and safety of the Israeli people, and to use all means necessary to confront and eliminate nuclear threats posed by the Islamic Republic of Iran, including the use of military force if no other peaceful solution can be found within reasonable time to protect against such an immediate and existential threat to the State of Israel.

Whereas with the dawn of modern Zionism, the national liberation movement of the Jewish people, some 150 years ago, the Jewish people determined to return to their homeland in the Land of Israel from the lands of their dispersion;

Whereas in 1922, the League of Nations mandated that the Jewish people were the legal sovereigns over the Land of Israel and that legal mandate has never been superseded;

Whereas in the aftermath of the Nazi-led Holocaust from 1933 to 1945, in which the Germans and their collaborators murdered 6,000,000 Jewish people in a premeditated act of genocide, the international community recognized that the Jewish state, built by Jewish pioneers must gain its independence from Great Britain;

Whereas the United States was the first nation to recognize Israel’s independence in 1948, and the State of Israel has since proven herself to be a faithful ally of the United States in the Middle East;

Whereas the United States and Israel have a special friendship based on shared values, and together share the common goal of peace and security in the Middle East;

Whereas, on October 20, 2009, President Barack Obama rightly noted that the United States–Israel relationship is a ‘‘bond that is much more than a strategic alliance.’’;

Whereas the national security of the United States, Israel, and allies in the Middle East face a clear and present danger from the Government of the Islamic Republic of Iran seeking nuclear weapons and the ballistic missile capability to deliver them;

Whereas Israel would face an existential threat from a nuclear weapons-armed Iran;

Whereas President Barack Obama has been firm and clear in declaring United States opposition to a nuclear-armed Iran, stating on November 7, 2008, ‘‘Let me state—repeat what I stated during the course of the campaign. Iran’s development of a nuclear weapon I believe is unacceptable.’’;

Whereas, on October 26, 2005, at a conference in Tehran called ‘‘World Without Zionism’’, Iranian President Mahmoud Ahmadinejad stated, ‘‘God willing, with the force of God behind it, we shall soon experience a world without the United States and Zionism’’;

Whereas the New York Times reported that during his October 26, 2005, speech, President Ahmadinejad called for ‘‘this occupying regime [Israel] to be wiped off the map’’;

Whereas, on April 14, 2006, Iranian President Ahmadinejad said, ‘‘Like it or not, the Zionist regime [Israel] is heading toward annihilation’’;

Whereas, on June 2, 2008, Iranian President Ahmadinejad said, ‘‘I must announce that the Zionist regime [Israel], with a 60-year record of genocide, plunder, invasion, and betrayal is about to die and will soon be erased from the geographical scene’’;

Whereas, on June 2, 2008, Iranian President Ahmadinejad said, ‘‘Today, the time for the fall of the satanic power of the United States has come, and the countdown to the annihilation of the emperor of power and wealth has started’’;

Whereas, on May 20, 2009, Iran successfully tested a surface-to-surface long range missile with an approximate range of 1,200 miles;

Whereas Iran continues its pursuit of nuclear weapons;

Whereas Iran has been caught building three secret nuclear facilities since 2002;

Whereas Iran continues its support of international terrorism, has ordered its proxy Hizbullah to carry out catastrophic acts of international terrorism such as the bombing of the Jewish AMIA Center in Buenos Aires, Argentina, in 1994, and could give a nuclear weapon to a terrorist organization in the future;

Whereas Iran has refused to provide the International Atomic Energy Agency with full transparency and access to its nuclear program;

Whereas United Nations Security Council Resolution 1803 states that according to the International Atomic Energy Agency, ‘‘Iran has not established full and sustained suspension of all enrichment related and reprocessing activities and heavy-water-related projects as set out in resolution 1696 (2006), 1737 (2006) and 1747 (2007) nor resumed its cooperation with the IAEA under the Additional Protocol, nor taken the other steps required by the IAEA Board of Governors, nor complied with the provisions of Security Council resolution 1696 (2006), 1737 (2006) and 1747 (2007) . . .’’;

Whereas at July 2009’s G-8 Summit in Italy, Iran was given a September 2009 deadline to start negotiations over its nuclear programs and Iran offered a five-page document lamenting the ‘‘ungodly ways of thinking prevailing in global relations’’ and included various subjects, but left out any mention of Iran’s own nuclear program which was the true issue in question;

Whereas the United States has been fully committed to finding a peaceful resolution to the Iranian nuclear threat, and has made boundless efforts seeking such a resolution and to determine if such a resolution is even possible; and

Whereas the United States does not want or seek war with Iran, but it will continue to keep all options open to prevent Iran from obtaining nuclear weapons: Now, therefore, be it

Resolved, That the House of Representatives—

(1) condemns the Government of the Islamic Republic of Iran for its threats of ‘‘annihilating’’ the United States and the State of Israel, for its continued support of international terrorism, and for its incitement of genocide of the Israeli people;

(2) supports using all means of persuading the Government of Iran to stop building and acquiring nuclear weapons;

(3) reaffirms the United States bond with Israel and pledges to continue to work with the Government of Israel and the people of Israel to ensure that their sovereign nation continues to receive critical economic and military assistance, including missile defense capabilities, needed to address the threat of Iran; and

(4) expresses support for Israel’s right to use all means necessary to confront and eliminate nuclear threats posed by Iran, defend Israeli sovereignty, and protect the lives and safety of the Israeli people, including the use of military force if no other peaceful solution can be found within a reasonable time.

West Bank purge of settlement goods: boycotting your own pantry hurts who?

Michelle Malkin urged boycott of Rose O'Donnell advertisersThe Palestinian Authority’s issuing stickers to West Bank houses who’ve destroyed their goods from Israeli settlements reminds me of wingnut hate-mite Michelle Malkin in 2007 instructing her viewers to scour their homes for products to “boycott.” The technique brims with spirit, but misses the point of bringing economic pressure to bear. Foregoing what you’ve already paid for is to boycott what’s yours. How convenient for Fatah to put the burden on Palestinians themselves, meanwhile endorsing no interruption of trade with Israel. IE’s Ali Abunimah suggests Mahmoud Abbas aims to undermine the BDS campaign. Israel is certainly pleased to publicize the settlement businesses placed in jeopardy, as well as divert international energy from the spreading BDS movement.

ACLU defends Freedom of Speech: that of yours, mine, Nazis or corporations

COLORADO SPRINGS- The local Springs ACLU chapter is challenging the national office’s position on the recent Citizens United victory and I’m torn. I am as anti-corporate as the next rabid class-war insurgent, but the longstanding corporate personhood abomination is a separate abuse than the oppression of civil liberties. It’s clear that one impacts the other, but until we clarify who’s a “who,” the ACLU is determined to exclude no one from First Amendment protection. Make sense?

When and if the immortality advantages of corporate trusts can reigned in, the political power of the individual will be more secure. But an opposite Citizens United verdict would have left American individuals with limits on their speech. You don’t pass respiratory restrictions in Pigville just because the Big Bad Wolf is in town. You charge him with threatening illegal acts, etc, before you abridge the rights of all citizens in the name of security.

In social justice type affinity groups, I certainly believe there are times when the grassroots have to wag their dog gone somnolent. More often however, dissension generates from a malignant insurrection against the founding principles with which the provincial members have lost sight. My experience has been that local ACLU groups, Denver included, are exaggeratedly vigilant about asking “is this a civil liberties issue?” for fear of being seen to address a problem that has become politicized.

Defenders of the last administration for example were desperate to prevent activists from getting the support and sponsorship of established advocacy groups like the ACLU.

Lamentably, believe it or not, some ACLU self-obstructionists differentiate human rights abuses from civil liberties. They see the issue as “partisan.” Because critics of the Patriot Act are often Democrats, Republicans find themselves tasked with defending it. Likewise, illegal war, war crimes, rendition, illegal detention, etc, are also too partisan to address, even as they constitute affronts to the civil liberties of all.

It’s become very clear to me that both Denver and Colorado Springs chapters are dominated by conservative voices who restrict local ACLU activities to conducting public discussion groups, as opposed to speaking out about federal and local abuses which are usual targets of the national office.

The upcoming forum on Corporate Personhood, this Thursday night at Shove Chapel at Colorado College, is clearly outside the purview of civil liberties, but may have escaped our local ACLU’s conservative corporatists explicitly because it goes against the ACLU leadership.

To my mind however, the event will serve two goods. One, we take on corporations, and two our action alerts ACLU Washington about the rotten apples in our midst. Obstructionists are perhaps ever present, but headquarters might generate some guidelines about how to further root them out. A simple essay test about “what are civil liberties” would suffice for me. The next member who points to an ACLU talking point and avers “I don’t see how this is a civil liberties issue” gets the boot.

The most pathetic recurring argument is that the ACLU should only concern itself with the Civil Liberties of “Americans.” The National ACLU has of course argued for the rights of foreign nationals, even those living overseas who have been targets of extradition, as well as peoples of foreign lands under the jurisdiction of American authority; leased properties such as oversees bases for example, and entire nations we’ve invaded. Where should borders demarc free-of-liberties-zones?

The same critics of course show no qualms about US military forces subjugating other peoples in the name of “Freedom” without thought that our liberation of capitalist forces should come with some protections. Pax Americana minus the Americana Bill of Rights.

Challenged about its public support of the Citizens United case, the ACLU offered this unapologetic explanation:

“The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again.”

The fallout has been heated, but I’ve enjoyed the parallels drawn to the infamous occasion when the ACLU protected the right of Nazis to march in the predominantly Jewish Chicago suburb of Skokie Illinois. Yes the ACLU will fight for NAMBLA, Nazis and corporations, and no one bats an eye at the affinity of the three.

The 2009 Amicus Brief which the ACLU filed in support of Citizens United is viewable online (PDF), here are the preface sections:

AMICUS CURIAEBRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF APPELLANT

ON SUPPLEMENTAL QUESTION

INTEREST OF AMICUS

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with more than 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws.

For the past three decades, the ACLU has been deeply engaged in the effort to reconcile campaign finance legislation and First Amendment principles, from Buckley v. Valeo, 424 U.S. 1 (1976), where we represented our New York affiliate, to McConnell v. FEC, 540 U.S. 93 (2003), where the ACLU was both co-counsel and plaintiff, to Randall v. Sorrell, 548 U.S. 230 (2006), where we were lead counsel. In addition, the ACLU has appeared as amicus curiae in many of this Court’s campaign finance cases, including FEC v. Wisconsin Right to Life, Inc. (“WRTL”), 551 U.S. 449 (2007).

As framed by the Court’s reargument order, 2009 WL 1841614 (2009), this case presents fundamental questions concerning the constitutionally permissible scope of campaign finance regulation that this Court first confronted in Buckley and subsequently revisited in McConnell and WRTL. The proper resolution of that delicate balance remains an issue of substantial importance to the ACLU and its members.

SUMMARY OF ARGUMENT

The broad prohibition on “electioneering communications” set forth in § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 441b(b)(2), violates the First Amendment, and the limiting construction adopted by this Court in WRTL is insufficient to save it. Accordingly, the Court should strike down § 203 as facially unconstitutional and overrule that portion of McConnell that holds otherwise.

This brief addresses only that question. It does not address the additional question raised by this Court’s reargument order: namely, whether Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), should be overruled. However, if Austin is overruled and the ban on express advocacy by corporations and unions is struck down, then the ban on “electioneering communications” in § 203 would necessarily fall as a consequence.

Even if Austin is not overruled, § 203 is unconstitutional precisely because it extends beyond the express advocacy at issue in Austin. The history of the McConnell litigation, as well as campaign finance litigation before and after McConnell, demonstrates that there is no precise or predictable way to determine whether or not political speech is the “functional equivalent” of express advocacy.

The decision in WRTL correctly recognized that the BCRA’s prophylactic ban on “electioneering communications” threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU. But the reformulated ban crafted by this Court in WRTL continues to threaten core First Amendment speech. Its reliance on the hypothetical response of a reasonable listener still leaves speakers guessing about what speech is lawful and what speech is not. That uncertainty invites arbitrary and discriminatory enforcement. It will also lead many speakers to self-censor rather than risk sanctions or undertake the expense of suing the FEC prior to speaking, especially since most suits will not be resolved until long after the speech is timely and relevant.

In short, § 203 was a poorly conceived effort to restrict political speech and should be struck down.

US inhumanity maxed at Azimuth Limit

WikiLeaks video combat footage of 2007 collateral murder in Iraq“Light ’em all up. Come on, fire!” Watching the leaked combat footage of the helicopter gunships killing unarmed Iraqi civilians in 2007, I’m troubled by my own desensitized response. When I saw earlier leaked videos of an AH-64 vaporizing Iraqi farmers and a C-130 wreaking mayhem in Afghanistan, I remember my real shock at seeing a human life extinguished. This time not even flinch. “Just fuckin’, once you get on ’em just open ’em up.” Not at the brutality, nor the callousness of the play by play –even as the pilots targeted rescuers trying to help the wounded. I fault the Rules of Engagement that allowed the massacre, not the soldiers’ laughing swagger –as I hope they will not begrudge my unguarded satisfaction when eventually spectators will be treated to leaked footage of American soldiers taking some fire.

If you watched the video, perhaps you too were wishing that July 12, 2007 had recorded a massive setback for US troops in Iraq, at the height of the “surge” where a whole shitload of “dismounts” had been ambushed by IED explosions in a Baghdad square in the aftermath of a civilian massacre. Those who watched the 39-minute extended version I know were hoping to see a resolution like that, instead of an additional war crime of disproportional force and the targeting of civilians, a Hellfire missile attack on a building into which armed and unarmed men had entered, surrounded by passing innocents and rescuers scrambling to help.

There it goes! Look at that bitch go!
Patoosh!
Ah, sweet!
Need a little more room.
Nice missile.
Does it look good?
Sweet!

The Army has declared that no further inquiry will be made into the 2007 killing of the two Reuters journalists. Its FOIA requests long thwarted, even Reuters is not expressing outrage at this footage. Civilians and journalists about to be lit up The corporate media is hoping to let this story fade on the fringe. Does this mean that more pilots and gunners might become emboldened to leak other trophy reels? It doesn’t take Nelson Ratings for news outlets to see that viewers are already clamoring for more combat snuff films.

We could grant amnesty in exchange for those who turn in the most degenerate sequences.

And pretend they’ll remain anonymous. Ultimately friends and relatives will be able to place identities with the radio voices. Speaking on one of the clearest channels is the young voiced HOTEL-26, who reported taking fire from the photographers and ID’d the “RPG” with started the whole engagement. Likewise the gunner on CRAZY HORSE-18 who responded “Alright, hahaha, I hit ’em….” is addressed “God damn it, Kyle.”

And then there’s the poor 30mm gunner in CRAZY HORSE-19 who assessed his work thus:

Oh yeah, look at that. Right through the windshield! Ha ha!

While chomping at the bit to fire upon the improvised ambulance, he was momentarily thwarted by a puzzling “Azimuth Limit” which prevented his shooting.

Bloggers are now abuzz to decode the Azimuth Limit which slowed the turkey shoot when none of the gunners were showing restraint. Azimuth is the angular measurement of an object’s distance clockwise from True North. On rifles it expresses the adjustment of a gunsight to its boresight. On aircraft it apparently has something to do with the angle of relation to the axis of the fuselage. Whatever it is, maybe we can ratchet military Azimuth Limits down flat, if that’s what it will take to stop our soldiers from blowing away civilians, journalists, children and their rescuers alike. The shooters can cuss and salivate all they want so long as their trigger mechanisms respect human life or at least balk at excessive carnage.

What doesn’t come across the audio is what the US soldiers on the ground are saying to themselves as they survey “that big pile of [unarmed] bodies,” in their palaver, the “dead bastards.”

UPDATE — the testimonials begin:

From Iraq war veteran Michael Prysner, co-founder of March Forward!

The harrowing Apache footage released by WikiLeaks gives us a stomach-turning glimpse of war. Seventeen minutes of cold-blooded massacre in a war of more than seven years. A brief clip of one Apache video; a quick look at one part of one mission. Hundreds of those missions take place every day.

The video came to light thanks to military whistleblowers who provided it to WikiLeaks together with supporting documents.  Imagine if we had access to all such videos, the things we would see. Imagine all the Iraqis killed who have no one to uncover the truth about their deaths. Had the death of two Reuters news staffers not generated interest in this video, then the destruction of three families by hellfire missiles fired into an apartment building with no provocation, in a separate engagement also featured in the video, would have never been made public.

This massacre is a drop in a sea of blood. Many other such “incidents” will never be known.

Officers claimed there was “no question” that the pilots were responding to enemy fire; the video shows there is no question that they were not responding to enemy fire. They said that they had “no idea” how the journalists were killed; the video shows that they know very well how those journalists were killed. They were gunned down standing in a crowd of unarmed people.
After the slaughter of that group, the pilots beg for permission to kill the innocent passers-by who had come to the aid of one of the wounded, like any of us would have done if we saw our neighbor dying on the ground as we drove down the street. They kill everyone trying to help the dying journalist, and critically wound two children seen sitting in the front seat.

We see a group of unarmed men mowed down by a machine gun designed to destroy armored vehicles. We see a vanload of good Samaritans obliterated for trying to help a dying victim. We see all this with the soundtrack of the pilots mocking the dead, congratulating each other and laughing about the massacre.

No wonder the U.S. military goes to such great lengths to keep such videos from us. They want us to see Iraq and Afghanistan through their lens, through their embedded reporters, filtered by censorship and restrictions. They know that, once the people of this country see the extreme racism and brutality behind these occupations, they will be repulsed by what their tax dollars are paying for.

The military brass and the White House politicians have tried to justify this senseless atrocity. “Cut the pilots some slack. This was in Baghdad. This was a battle zone”—that’s been their line. The pilots had been indoctrinated with the same colonial mentality. “That’s what they get for bringing their kids into battle,” one pilot says.

The father driving that van was not “bringing his kids into battle.” He was bringing them to school, driving down the street where they live. But the U.S. occupation has made all of Iraq a battle zone. To those pilots, to their commanders over the radio and to the generals in the Pentagon, every single person in Baghdad and in Iraq is “fair game.”

The pilots joked about the people they killed, laughed about U.S. military vehicles running over dead bodies, knowing that their commanders were listening and that they were being recorded. They were not acting out of character. This is the culture of the occupation. This is how these wars are being conducted.

Having seen this, one cannot honestly believe that these atrocities are committed day in and day out for the liberation of the Iraqi people.

The Pentagon’s talking heads and media lackeys are hard at work putting their spin on this story. It’s time to tell the truth. For more than seven years, the U.S. has unleashed criminal, unprovoked aggression against the people of Iraq, and they have been doing the same thing in Afghanistan for more than eight years.

The U.S. military presence in Iraq is a colonial occupation force. The only way forward is a complete, immediate and unconditional withdrawal of all U.S. forces from Iraq and Afghanistan. This government will not do that unless all of us who are outraged by these criminal acts stand up and demand it.

Iraq war veteran Josh Stieber, US Army Specialist, 1st ID, Bravo Company 2-16 in Baghdad (Rustamiyah) 2007-2008. Although he was not present at the scene of the video, he knows those who were involved and is familiar with the environment.

A lot of my friends are in that video. After watching the video, I would definitely say that that is, nine times out of ten, the way things ended up. Killing was following military protocol. It was going along with the rules as they are.

If these videos shock and revolt you, they show the reality of what war is like. If you don’t like what you see in them, it means we should be working harder towards alternatives to war.

?

Yeah look at those dead bastards. Nice.


Here’s the Wikileaks decrypted Apache AH-64 combat footage of 2007 collateral murder of Iraqi civilians including two journalists, wounding two children.

Wikileaks is tweeting the ensuing developments. Democracy Now has interviews recorded the day after July 12, 2007 by Big Noise Films.

We have individuals going to the scene, looks like possibly uh picking up bodies and weapons.

Let me engage.

Roger, hey, we need to stop that.

Can I shoot?

Request permission to engage.

Picking up the wounded?

Yeah, we’re trying to get permission to engage.

Come on, let us shoot!

They’re taking him.

We have a Black SUV err, Bongo Truck picking up the bodies.

Fuck.

Request permission to engage.

Engage.

Transcript from the Full video:

00:03 Okay I got it.
00:05 Last conversation Hotel Two-Six.
00:09 Roger Hotel Two-Six [Apache helicopter 1], uh, [this is] Victor Charlie Alpha. Look, do you want your Hotel Two-Two two el-
00:14 I got a black vehicle under target. It’s arriving right to the north of the mosque.
00:17 Yeah, I would like that. Over.
00:21 Moving south by the mosque dome. Down that road.
00:27 Okay we got a target fifteen coming at you. It’s a guy with a weapon.
00:32 Roger [acknowledged].
00:39 There’s a…
00:42 There’s about, ah, four or five…
00:44 Bushmaster Six [ground control] copy [i hear you] One-Six.
00:48 …this location and there’s more that keep walking by and one of them has a weapon.
00:52 Roger received target fifteen.
00:55 K.
00:57 See all those people standing down there.
01:06 Stay firm. And open the courtyard.
01:09 Yeah roger. I just estimate there’s probably about twenty of them.
01:13 There’s one, yeah.
01:15 Oh yeah.
01:18 I don’t know if that’s a…
01:19 Hey Bushmaster element [ground forces control], copy on the one-six.
01:21 Thats a weapon.
01:22 Yeah.
01:23 Hotel Two-Six; Crazy Horse One-Eight [second Apache helicopter].
01:29 Copy on the one-six, Bushmaster Six-Romeo. Roger.
01:32 Fucking prick.
01:33 Hotel Two-Six this is Crazy Horse One-Eight [communication between chopper 1 and chopper 2]. Have individuals with weapons.
01:41 Yup. He’s got a weapon too.
01:43 Hotel Two-Six; Crazy Horse One-Eight. Have five to six individuals with AK47s [automatic rifles]. Request permission to engage [shoot].
01:51 Roger that. Uh, we have no personnel east of our position. So, uh, you are free to engage. Over.
02:00 All right, we’ll be engaging.
02:02 Roger, go ahead.
02:03 I’m gonna… I cant get ’em now because they’re behind that building.
02:09 Um, hey Bushmaster element…
02:10 Is that an RPG [Rocket Propelled Grenade]?
02:11 All right, we got a guy with an RPG.
02:13 I’m gonna fire.
02:14 Okay.
02:15 No hold on. Lets come around. Behind buildings right now from our point of view. … Okay, we’re gonna come around.
02:19 Hotel Two-Six; have eyes on individual with RPG. Getting ready to fire. We won’t…
02:23 Yeah, we had a guy shoot—and now he’s behind the building.
02:26 God damn it.
02:28 Uh, negative, he was, uh, right in front of the Brad [Bradley Fighting Vehicle; an tracked Armored Personal Carrier that looks like a tank]. Uh, ’bout, there, one o’clock. [direction/orientation]
02:34 Haven’t seen anything since then.
02:36 Just fuckin’, once you get on ’em just open ’em up.
02:38 All right.
02:40 I see your element, uh, got about four Humvees [Armored cars], uh, out along…
02:43 You’re clear.
02:44 All right, firing.
02:47 Let me know when you’ve got them.
02:49 Lets shoot.
02:50 Light ’em all up.
02:52 Come on, fire!
02:57 Keep shoot, keep shoot. [keep shooting]
02:59 keep shoot.
03:02 keep shoot.
03:05 Hotel.. Bushmaster Two-Six, Bushmaster Two-Six, we need to move, time now!
03:10 All right, we just engaged all eight individuals.
03:12 Yeah, we see two birds [helicopters] and we’re still fire [not firing].
03:14 Roger.
03:15 I got ’em.
03:16 Two-six, this is Two-Six, we’re mobile.
03:19 Oops, I’m sorry what was going on?
03:20 God damn it, Kyle.
03:23 All right, hahaha, I hit [shot] ’em…
03:28 Uh, you’re clear.
03:30 All right, I’m just trying to find targets again.
03:38 Bushmaster Six, this is Bushmaster Two-Six.
03:40 Got a bunch of bodies layin’ there.
03:42 All right, we got about, uh, eight individuals.
03:46 Yeah, we got one guy crawling around down there, but, uh, you know, we got, definitely got something.
03:51 We’re shooting some more.
03:52 Roger.
03:56 Hey, you shoot, I’ll talk.
03:57 Hotel Two-Six; Crazyhorse One-Eight.
04:01 Crazyhorse One-Eight; this is Hotel Two-Six. Over.
04:03 Roger. Currently engaging [fighting/shooting at] approximately eight individuals, uh KIA [Killed In Action], uh RPGs, and AK-47s.
04:12 Hotel Two-Six, you need to move to that location once Crazyhorse is done and get pictures. Over.
04:20 Six beacon gaia.
04:24 Sergeant Twenty is the location.
04:28 Hotel Two-Six; Crazyhorse One-Eight.
04:31 Oh, yeah, look at those dead bastards.
04:36 Nice.
04:37 Two-Six; Crazyhorse One-Eight.
04:44 Nice.
04:47 Good shoot.
04:48 Thank you.
04:53 Hotel Two-Six.
04:55 Hotel Two-Six; Crazyhorse One-Eight.
05:03 Crazyhorse One-Eight; Bushmaster Seven. Go ahead.
05:06 Bushmaster Seven; Crazyhorse One-Eight. Uh, location of bodies, Mike Bravo five-four-five-eight eight-six-one-seven [military map grid reference].
05:15 Hey, good on the uh…
05:17 Five-four-five-eight eight-six-one-seven [map grid reference]. Over.
05:21 This is Crazyhorse One-Eight, that’s a good copy. They’re on a street in front of an open, uh, courtyard with a bunch of blue uh trucks, bunch of vehicles in the courtyard.
05:30 There’s one guy moving down there but he’s uh, he’s wounded.
05:35 All right, we’ll let ’em know so they can hurry up and get over here.
05:40 One-Eight, we also have one individual, uh, appears to be wounded trying to crawl away.
05:49 Roger, we’re gonna move down there.
05:51 Roger, we’ll cease fire.
05:54 Yeah, we won’t shoot anymore.
06:01 He’s getting up.
06:02 Maybe he has a weapon down in his hand?
06:04 No, I haven’t seen one yet.
06:07 I see you guys got that guy crawling right now on that curb.
06:08 Yeah, I got him. I put two rounds [30mm cannon shells] near him, and you guys were shooting over there too, so uh we’ll see.
06:14 Yeah, roger that.
06:16 Bushmaster Thirty-Six Element; this is uh Hotel Two-Seven over.
06:21 Hotel Two-Seven; Bushmaster Seven go ahead.
06:24 Roger I’m just trying to make sure you guys have my turf [area], over.
06:31 Roger we got your turf.
06:33 Come on, buddy.
06:38 All you gotta do is pick up a weapon.
06:44 Crazyhorse this is Bushmaster Five, Bushmaster Four break. We are right below you right time now can you walk us onto that location over.
06:54 This is Two-Six roger. I’ll pop flares [drop flares]. We also have one individual moving. We’re looking for weapons. If we see a weapon, we’re gonna engage.
07:07 Yeah Bushmaster, we have a van that’s approaching and picking up the bodies.
07:14 Where’s that van at?
07:15 Right down there by the bodies.
07:16 Okay, yeah.
07:18 Bushmaster; Crazyhorse. We have individuals going to the scene, looks like possibly uh picking up bodies and weapons.
07:25 Let me engage.
07:28 Can I shoot?
07:31 Roger. Break. Uh Crazyhorse One-Eight request permission to uh engage.
07:36 Picking up the wounded?
07:38 Yeah, we’re trying to get permission to engage.
07:41 Come on, let us shoot!
07:44 Bushmaster; Crazyhorse One-Eight.
07:49 They’re taking him.
07:51 Bushmaster; Crazyhorse One-Eight.
07:56 This is Bushmaster Seven, go ahead.
07:59 Roger. We have a black SUV-uh Bongo truck [van] picking up the bodies. Request permission to engage.
08:02 Fuck.
08:06 This is Bushmaster Seven, roger. This is Bushmaster Seven, roger. Engage.
08:12 One-Eight, engage.
08:12 Clear.
08:13 Come on!
08:17 Clear.
08:20 Clear.
08:21 We’re engaging.
08:26 Coming around. Clear.
08:27 Roger. Trying to uh…
08:32 Clear.
08:35 I hear ’em co.. I lost ’em in the dust.
08:36 I got ’em.
08:41 I’m firing.
08:42 This is Bushmaster Forty got any BDA [Battle Damage Assessment] on that truck. Over.
08:44 You’re clear.
08:47 This is ah Crazyhorse. Stand by.
08:47 I can’t shoot for some reason.
08:49 Go ahead.
08:50 I think the van’s disabled.
08:53 Go ahead and shoot it.
08:54 I got an azimuth limit for some reason [gunner moved gunsight too far]
09:00 Go left.
09:03 Clear left.
09:15 All right, Bushmaster Crazyhorse One-Eight.
09:20 A vehicle appears to be disabled.
09:22 There were approximately four to five individuals in vehicle moving bodies.
09:28 Your lead Bradley should take the next right.
09:31 That’s cruising east down the road.
09:34 No more shooting.
09:38 Crazyhorse; this is Bushmaster Four. We’re moving a dismounted element [troops] straight south through the Bradleys [tanks].
09:44 I have your Elem- uh, Bradley element turning south down the road where the engagements were.
09:53 Last call on station’s uh Bradley element say again.
09:56 Roger this is Crazyhorse.
09:58 Your lead Bradley just turned south down the road where all the engagements [shooting] happened.
10:03 Should have a van in the middle of the road with about twelve to fifteen bodies.
10:11 Oh yeah, look at that. Right through the windshield!
10:14 Ha ha!
10:16 All right. There were uh approximately four to five individuals in that truck, so I’m counting about twelve to fifteen.
10:24 I would say that’s a fairly accurate assessment so far.
10:27 Roger that.
10:29 I want to just be advised Six, Bushmaster Six are getting mounted up right now.
10:35 Okay, roger. Hey, we can’t flex down that road towards that, uh, where Crazyhorse engaged.
10:43 So, uh, I don’t know if you want us to do so or stay put. Over.
10:46 Why can’t they go down there?
10:56 I think we whacked [killed] ’em all.
10:58 That’s right, good.
10:59 This is Hotel Two-Six.
11:03 Hey you got my dismounted element [troops] right there over to your left.
11:06 Roger, I see ’em.
11:11 Hey yeah, roger, be advised, there were some guys popping out with AKs behind that dirt pile break.
11:19 We also took some RPGs off, uh, earlier, so just uh make sure your men keep your eyes open.
11:26 Roger.
11:27 And, uh, Bushmaster ahead are, uh, Hotel Two-Six; Crazyhorse One-Eight.
11:33 Crazyhorse One-Eight; this is Hotel Two-Six.
11:35 Yeah Two-Six; Crazyhorse One-Eight.
11:37 Uh, location I have about twelve to fifteen dead bodies.
11:42 Uh, where else are we taking fire from?
11:48 Currently we’re not being engaged, ah, but just south of that location. Break.
11:55 You should see dismounted elements with Humvees [armored cars] moving to the east, over.
12:01 This is Crazyhorse One-Eight; we have elements in sight.
12:05 Bushmaster Three-Six.
12:07 I’m gonna get down a little lower.
12:09 All right.
12:10 I’m gonna come down a little lower and take a quick gander.
12:13 Roger that.
12:14 Six; this is four. We’re headed to the area where Crazyhorse engaged.
12:26 Bushmaster Six; this is Hotel Two-Six.
12:28 Request to go to the south to our original BP so if you flushed them to the south we will be there to uh intercept over.
12:39 Hey this is Bushmaster Seven; we’re coming up on B… on the ass end of the Brads [tanks].
12:54 Hey uh, Bushmaster Element; this is Copperhead One-Six break.
13:00 We’re moving in the vicinity of the engagement area and looks like we’ve got some slight movement from ah, the ah van that was engaged.
13:06 Looks like a kid. Over.
13:11 This is Bushmaster Seven, roger. Uh, we’re about a hundred meters behind you.
13:16 Got that big pile, to the right?
13:18 Roger, you gonna pull in here? Do you want me to push stuff so you can, uh, get clear of it?
13:21 Right on the corner?
13:22 What’s that?
13:23 Got that big pile of bodies to the right, on the corner?
13:24 Yeah, right here.
13:25 We got a dismounted infantry and vehicles, over.
13:30 Again, roger.
13:31 And clear.
13:48 There’s the Bradley right there.
13:51 Got ’em.
14:00 Hotel two-six; are you uh at this grid over?
14:05 Yeah I wanted to get you around so didn’t you just get that one dude to scare them all away. It worked out pretty good.
14:11 I didn’t want those fuckers to run away and scatter.
14:12 Yeah.
14:15 Bushmaster Six; Hotel Two-Six. Roger, we linked up with our two element they are all mounted up in our trucks break.
14:23 We moved south so that we could ah possibly intercept personnel being flushed south. So we are vicinity Fifth Street.
14:30 And ah please line Gadins. Over.
14:37 Bring the trucks in, cordon this area off.
14:39 Can we move the Bradley forward so we can bring trucks in and cordon off this area.
14:44 If the Bradleys could take the south cordon, that could help out a lot.
14:53 Bushmaster or element. Which Element called in Crazyhorse to engage the eight-elem- eight-men team on top of a roof.
15:02 Bushmaster Six; this is Hotel Two-Six. Uh, I believe that was me.
15:07 They uh had AK-47s and were to our east, so, where we were taking small arms fire. Over.
15:20 Hotel Crazyhorse One-Eight.
15:26 Crazyhorse One-Eight; this is Hotel Two-Six.
15:28 Yeah Two-Six. One-Eight I just also wanted to make sure you knew that we had a guy with an RPG cropping round the corner getting ready to fire on your location.
15:36 That’s why we ah, requested permission to engage.
15:40 Ok, roger that. Tango mike.
15:46 Hotel Two-Six; do you understand me, over?
15:51 I did not copy last, uh, you got stepped on. Say again please?
16:00 They cordoned off the building that the helicopters killed the personnel on.
16:04 Don’t go anywhere else we need to cordon off that building so we can get on top of the roof and SSC the building. Over.
16:13 Hotel Two-Six; Crazyhorse One-Eight.
16:16 This is Hotel Two-Six.
16:19 Hey, whoever was talking about rooftops, know that all the personnel we engaged were ground level. I say again ground level.
16:27 Roger I copy ground level. Over.
16:30 One-Eight roger.
16:33 Can I get a grid to that one more time please?
16:36 Target twenty.
16:36 Roger.
16:40 You want me to take over talking to them?
16:42 S’alright.
16:46 Seven-Six Romeo Over.
16:49 Roger, I’ve got uh eleven Iraqi KIAs [Killed In Action]. One small child wounded. Over.
16:57 Roger. Ah damn. Oh well.
17:04 Roger, we need, we need a uh to evac [evacuate] this child. Ah, she’s got a uh, she’s got a wound to the belly.
17:10 I can’t do anything here. She needs to get evaced. Over.
17:18 Bushmaster Seven, Bushmaster Seven; this is Bushmaster Six Romeo.
17:20 We need your location over.
17:25 Roger, we’re at the location where Crazyhorse engaged the RPG fire break.
17:37 Grid five-four-five-eight.
17:46 Well it’s their fault for bringing their kids into a battle.
17:48 That’s right.
17:56 Got uh, eleven.
18:01 Yeah uh, roger. We’re monitoring [observing].
18:02 Sorry.
18:04 No problem.
18:07 Correction eight-six-one-six.
18:16 Looking for more individuals-south.
18:18 Bushmaster Six-Bushmaster Seven.
18:29 I think they just drove over a body.
18:31 Hey hey!
18:32 Yeah!
18:37 Maybe it was just a visual illusion, but it looked like it.
18:41 Well, they’re dead, so.
18:44 Bushmaster Six; Hotel Two-Six over.
18:56 Six; this is Four. I got one individual looks like he’s got an RPG round laying underneath him. Break.
19:05 Probably like to get…
19:10 Look at that.
19:12 Bushmaster Six; Hotel Two-Six over.
19:29 Bushmaster Six; Romeo Hotel Two-Six over.
19:44 Bushmaster Six; Hotel Two-Six over.
19:56 Hotel Two-Six; Bushmaster Seven colocated with Six.
20:08 Hotel Two-Six; Bushmaster Seven.
20:10 Bushmaster Seven; Hotel Two-Six over.
20:14 Roger, we got a little girl who needs to be evaced. What’s your location over?
20:22 On route Gadins, I am all the way to the south. So I am Gadins and Fifth Street.
20:28 I say again Gadins and Fifth Street, over.
20:40 Bushmaster Seven; Hotel Two-Six. Do you want us to push to your location?
20:55 Hey, uh, I need to get the Brads to drop rads I got a wounded little girl we need to take her off the maya.
21:04 Bushmaster Seven; Hotel Two-Six. Do you want us to move to your location over?
21:30 Bushmaster Six; Hotel Two-Six over.
21:34 Hotel Two-Six; this is Bushmaster Seven. Roger, come to our location.
21:39 Okay, roger, we’re coming up north on Gadins and then we will push east to your location.
22:06 Bushmaster elements be advised we have friendlies coming from the south to your location. Over.
22:13 All right, got ’em moving up from the south.
22:35 Bushmaster elements be advised we are coming up from the east.
23:49 Hey One-Two; follow me over. I’m going to try and get out of here as quickly as possible.
24:10 You guys all right back there?
24:13 Yeah, we’re with you.
24:35 Lotta guys down there.
24:37 Oh yeah.
24:37 Came out of the woodwork.
24:38 This is Operation, ah, Operation Secure.
25:16 Yeah we have fifty rounds left.
25:17 Yep.
25:19 Two-Six; Six Romeo over.
25:21 Two-Six; Romeo over.
25:23 Hey roger, what’s your current location over?
25:47 Six; speak it’s Romeo.
25:50 Three-Six Romeo; Six Romeo over.
25:52 Roger, at the six once it’s back on this guy.
25:56 Lost him.
26:00 What’s he got for us?
26:01 Stand by.
26:06 Hotel Two-Six; Crazyhorse One-Eight.
26:21 Hey, did you got action on that target yet over?
26:25 Speak to Charlie roger.
26:32 Hotel Two-Six; Crazyhorse One-Eight.
26:55 Bushmaster Six; Crazyhorse One-Eight.
26:59 Roger, you have traffic over.
27:02 Roger. Uh, just wondering if you had anything else you wanted us to drive on?
27:08 Yeah roger keep on, ah, for the time being over.
27:11 Six calls Six Romeo. Can you tell battalion that two civilian children casualties are coming back to SMI in the Bradley over.
27:26 Six calls Six Romeo.
27:29 Bushmaster Six Copper White Six.
27:32 Copperhead White Six; this is Bushmaster Six Romeo over.
27:36 Roger, that’s a negative on the evac of the two, ah, civilian, ah, kids to, ah, rusty they’re going to have the IPs [Iraqi Police] link up. They can put us over here. Break. IPs will take them up to a local hospital over.
27:50 Copy over.
27:54 One six oh.
28:08 … they’re all going to.
28:10 Say again?
28:12 Where all those dismounts [infantry] are going to?
28:18 Going into this hous-. Sorry
29:29 Three Six, Three Six; Bushmaster Six Romeo over.
29:37 Six Romeo, Six Romeo.
29:39 Roger, Bushmaster Seven wants an up on all personnel in your battalion over.
29:44 Roger.
30:08 …friendlies [US troops] on the roof.
30:10 Crazyhorse One-Eight; this is Bushmaster Four over.
30:12 Bushmaster Four; this is Crazyhorse One-Eight.
30:15 Roger, I can ah hear small arms fire from your engagement area at two zero zero zero ah about three hundred meters from that objective over.
30:27 Crazyhorse; from what I understand small arms fire at two zero zero zero degrees about two hundred meters.
30:39 Just to the southwest.
30:41 Yup.
30:49 Right about where we engaged.
30:51 Yeah, One of them with that RPG or whatever.
30:55 He’s got a weapon. Got an RK–AK 47.
30:58 Hotel Two-Six; Crazyhorse One-Eight.
31:02 Gonna lose him.
31:03 Crazyhorse One-Eight this is Hotel Two-Six over.
31:08 Roger, have another individual with a weapon.
31:10 Dammit, they’re in the same building.
31:12 Hey roger that, just make sure that ah, you’re firing from west to east over.
31:16 Just went in the building.
31:18 Crazyhorse Three and Four will be on their way.
31:21 The individual walked into the building previously past grid [map reference]. So there’s at least six individuals in that building with weapons.
31:30 We can put a missile in it.
31:31 If you’d like, ah, Crazyhorse One-Eight could put a missile in that building.
31:46 It’s a triangle building. Appears to be ah, abandoned.
31:51 Yeah, looks like it’s under construction, abandoned.
31:52 Appears to be abandoned, under construction.
31:56 Uh, like I said, six individuals walked in there from our previous engagement.
32:01 Crazyhorse One-Eight; this is Bushmaster Six Romeo. If you’ve PIDed [Positively IDentified] the individuals in the building with weapons, go ahead and engage the building over.
32:08 Crazyhorse One-Eight; will be coming up north to south engaging with Hellfire [missiles].
32:13 All right, I’m going to do manual.
32:17 All right, we’ve been cleared to engage with…
32:18 This is Bushmaster Six Romeo. Crazyhorse One Eight is going to be engaging north to south with Hellfire missiles over.
32:24 This is Hotel Two-Six. Roger.
32:26 All right, you ready?
32:27 No, I’m trying to get over to the November [target]. Trying to find the fucking…
32:33 This is Bushmaster Six. Has that RPG round been extended already or is it still live, over.
32:38 Looks live to me.
32:40 Let me know when you’re going to fire.
32:44 All right, I’m fucking having a brain fart. Where’s the man [manual] advancement?
32:48 You got one on the clutch on the bottom left on your left door.
32:54 Roger let me stand by.
32:57 Got it?
32:59 No.
33:03 All right.
33:09 Let me just put a kilo [Hellfire missile] in there.
33:12 Ok.
33:15 Got it?
33:21 Put a kilo in?
33:22 All right, let me get back.
33:26 I’m gonna come around, get some more distance.
33:27 Roger that, you’re clear.
33:33 Got more individuals in there.
33:36 You wanna hit from north to south or you wanna go from west to east? I don’t wanna fire with the friendlies [US forces] right there, you know.
33:41 Yeah, go north to south.
33:53 Right, come around, right.
33:56 I’m just gonna put one or two in, if they want any more.
34:09 Right.
34:12 Found the missile.
34:15 Roger, I’ll get you in this straight.
34:16 You’re clear.
34:17 I’m firing.
34:26 Target hit.
34:28 It was a missile.
34:29 Left.
34:32 You’re clear. I’m above you.
34:36 Crazyhorse One-Eight; was that explosion you engaging over?
34:38 Crazyhorse One Eight, roger. Engaging building with one hellfire.
34:46 Let’s come around and we’ll clear the smoke. We’ll fire one more.
34:50 Hey uh, we’re going to wait for the smoke to clear.
34:52 Yes Crazyhorse One Eight now. We’re going to put one more missile into the building.
34:57 Yeah, did it ah, go in the building? I see the wall knocked out of the way.
34:59 Yeah, it went in.
35:01 Bushmaster Six Romeo; this is Hotel Two-Six. Yeah roger, that was Crazyhorse engaging with one Hellfire over.
35:10 Yeah roger, I got a November [target] if you want.
35:12 Fire away.
35:13 You want us to fire?
35:18 You ready?
35:19 Yep.
35:20 Bushmaster Six Romeo. They are going to engage ah, with one more Hellfire in that building.
35:24 Uh shit, why I do I have AP flashing on there? [warning on helicopter display]
35:47 We’re not even going to watch this fucking shit?
35:49 Till next one. It won’t come around, I need a little more distance.
35:53 Still want me to shoot?
35:57 You guys, following hot.
35:59 Roger.
36:13 You are clear.
36:14 Roger.
36:16 You going to bring up the missile?
36:18 Roger.
36:19 And firing.
36:20 Come down? There you go.
36:23 Fire.
36:24 All right.
36:28 I’ve got, ah BACKSCATTER [warning on helicopter display].
36:30 All right, come around.
36:32 Roger.
36:34 Coming around left, backscatter.
36:49 Firing.
36:53 There it goes! Look at that bitch go!
36:56 Patoosh!
37:03 Ah, sweet.
37:07 Need a little more room.
37:09 Nice missile.
37:11 Does it look good?
37:12 Sweet!
37:16 Uh, you ready?
37:18 Roger.
37:30 There’s a lot of dust.
37:36 Crazyhorse One-Eight; this is Hotel Two-Six. Was there a BDA [Battle Damage Assessment]?
37:40 This is Crazyhorse One-Eight. Stand by, engaging with another Hellfire.
37:43 All right.
37:45 You’re clear.
37:47 Lemme know when I’m clear.
37:50 Roger that.
37:59 He wasn’t.
38:02 Hotel Two-Six; Crazyhorse One-Eight.
38:07 Crazyhorse One-Eight.
38:09 Roger, building destroyed. Engaged with three hellfire missiles.

CS Indy turns to cruel IFES deceiver to voice cautionary best hope for Haiti

IFESWhen it came to coverage of the Haiti earthquake disaster, the CS Indy left it to their Your Turn column, and by “your” they meant YOUR MASSAH. What caught my eye was the headline “Time for a new Haiti” accompanied by the excerpt blurb “Aristide’s return would be a disaster,” written by a pasty diplomat who had a personal hand in Haiti’s ongoing misery. Here is our allegedly progressive newsweekly giving the podium to IFES criminal Richard Soudriette instead of bundling him off to Port Au Prince for a well deserved drubbing.

Mr. Soudriette presided over the International Foundation for Electoral Systems (IFES) from 1988 to 2007, the period which saw two US coups in Haiti, where twice the democratically elected Bertrand Aristide was removed from office by our hands. Who better to have blown the whistle on the US interference than someone observing, even advising and conducting, the elections? That’s ignoring of course that the IFES is actually a private agency which does the CIA’s work, created in the 80s when Congress moved to limit the CIA’s official role destabilizing democracies. Through the IFES, through the National Endowment for Democracy, the CIA continues its intelligence wars subverting foreign governments who threaten America’s corporate rule.

If you want to believe that enterprises like IFES might be serving some good, consider this: if democratic ideals were really being advanced, the US State Department would be proud to do the work. These aren’t subcontracted jobs that wouldn’t benefit from official diplomatic networks. The IFES and ilk are as disreputable cretins as ever wore stuffed shirts, designed to separate people from legitimate representation.

And don’t think all the pitchfork bearing victims of its election racketeering are overseas. The IFES has been an adversary of the American people as Americans have tried to rescue their elections from Diebold and the stolen votes of 2000, 2002, 2004 and 2006.

When will traitorous, undemocratic Neocons like Richard Soudriette meet the wrath they have so richly courted? The Haitians are suffering, there are countless stories of Americans helping in the effort, instead the Indy gives people of Haiti more of the same malignant spin. How did Soudriette explain his expertise on Aristide? He didn’t:

“Unfortunately Aristide is hinting at a comeback despite his two failed terms. Aristide’s return to Haitian politics would be a disaster for the country. His many political allies in the U.S. and abroad would best serve Haiti’s interests by encouraging Aristide to permanently step aside from politics.”

Rather, Soudriette says, we need to back efforts to amend Haiti’s constitution to allow America’s man Preval serve additional terms. Oh, and give more responsibility to USAID, another CIA arm. Why is Soudriette spinning this message to Colorado Springs I wonder?

It’s not enough that Soudriette lent his villainy to Haiti’s disastrous last decades, now two years removed from the job, on the occasion of its most recent natural calamity, Soudriette resurfaces to damn the Haitian people with the same lies, lest they ever catch a break. That’s what makes this brand of conservative bureaucrat so damnable.

And why is the Indy propagating this venomous neo-liberal drivel? It could be highlighting the truly hopeful opportunities which locals have been taking to help the earthquake victims. Tired of watching the US military bureaucracy monopolize and bungle the aid efforts, a Springs surgical team enlisted a local businessman’s private turboprop to spend a week in Port Au Prince effecting miracles. Let’s hear about that story.

To pick up where we left off with scoundrel Soudriette, he of the many Haitian crony friends in DC, the careerist democracy-thief has moved to Colorado Springs, to lecture for El Pomar, and head the Center for Diplomacy and Democracy, which may be just another shell to which the CIA funnels funding. While stationed in DC for the IFES, Soudriette was also billing from an M Street address for the Conservation International Foundation. The good news is that apart from a CFDD franchise opened in Northern Iraq, no doubt to milk from Iraq reconstruction funds, the headquarters here appears to be merely a residence with a walkout on the golf course of the Country Club of Colorado.

Non profit front on the Country Club of Colorado golf course

William Blum – Anti-Empire Report

Here’s William Blum’s latest essay, on Lincoln Gordon, Brazil, Cuba, and the 2009 Nobel Laureate, reprinted from www.killinghope.org.

THE ANTI-EMPIRE REPORT
By William Blum, January 6, 2009

The American elite

Lincoln Gordon died a few weeks ago at the age of 96. He had graduated summa cum laude from Harvard at the age of 19, received a doctorate from Oxford as a Rhodes Scholar, published his first book at 22, with dozens more to follow on government, economics, and foreign policy in Europe and Latin America. He joined the Harvard faculty at 23. Dr. Gordon was an executive on the War Production Board during World War II, a top administrator of Marshall Plan programs in postwar Europe, ambassador to Brazil, held other high positions at the State Department and the White House, a fellow at the Woodrow Wilson International Center for Scholars, economist at the Brookings Institution, president of Johns Hopkins University. President Lyndon B. Johnson praised Gordon’s diplomatic service as "a rare combination of experience, idealism and practical judgment".

You get the picture? Boy wonder, intellectual shining light, distinguished leader of men, outstanding American patriot.

Abraham Lincoln Gordon was also Washington’s on-site, and very active, director in Brazil of the military coup in 1964 which overthrew the moderately leftist government of João Goulart and condemned the people of Brazil to more than 20 years of an unspeakably brutal dictatorship. Human-rights campaigners have long maintained that Brazil’s military regime originated the idea of the desaparecidos, "the disappeared", and exported torture methods across Latin America. In 2007, the Brazilian government published a 500-page book, "The Right to Memory and the Truth", which outlines the systematic torture, rape and disappearance of nearly 500 left-wing activists, and includes photos of corpses and torture victims. Currently, Brazilian President Luiz Inácio Lula da Silva is proposing a commission to investigate allegations of torture by the military during the 1964-1985 dictatorship. (When will the United States create a commission to investigate its own torture?)

In a cable to Washington after the coup, Gordon stated — in a remark that might have had difficulty getting past the lips of even John Foster Dulles — that without the coup there could have been a "total loss to the West of all South American Republics". (It was actually the beginning of a series of fascistic anti-communist coups that trapped the southern half of South America in a decades-long nightmare, culminating in "Operation Condor", in which the various dictatorships, aided by the CIA, cooperated in hunting down and killing leftists.)

Gordon later testified at a congressional hearing and while denying completely any connection to the coup in Brazil he stated that the coup was "the single most decisive victory of freedom in the mid-twentieth century."

Listen to a phone conversation between President Johnson and Thomas Mann, Assistant Secretary of State for Inter-American Affairs, April 3, 1964, two days after the coup:

MANN: I hope you’re as happy about Brazil as I am.

LBJ: I am.

MANN: I think that’s the most important thing that’s happened in the hemisphere in three years.

LBJ: I hope they give us some credit instead of hell.1

So the next time you’re faced with a boy wonder from Harvard, try to keep your adulation in check no matter what office the man attains, even — oh, just choosing a position at random — the presidency of the United States. Keep your eyes focused not on these "liberal" … "best and brightest" who come and go, but on US foreign policy which remains the same decade after decade. There are dozens of Brazils and Lincoln Gordons in America’s past. In its present. In its future. They’re the diplomatic equivalent of the guys who ran Enron, AIG and Goldman Sachs.

Of course, not all of our foreign policy officials are like that. Some are worse.

And remember the words of convicted spy Alger Hiss: Prison was "a good corrective to three years at Harvard."

Mothers, don’t let your children grow up to be Nobel Peace Prize winners

In November I wrote:

Question: How many countries do you have to be at war with to be disqualified from receiving the Nobel Peace Prize?

Answer: Five. Barack Obama has waged war against only Pakistan, Afghanistan, Iraq and Somalia. He’s holding off on Iran until he actually gets the prize.

Well, on December 10 the president clutched the prize in his blood-stained hands. But then the Nobel Laureate surprised us. On December 17 the United States fired cruise missiles at people in … not Iran, but Yemen, all "terrorists" of course, who were, needless to say, planning "an imminent attack against a U.S. asset".2 A week later the United States carried out another attack against "senior al-Qaeda operatives" in Yemen.3

Reports are that the Nobel Peace Prize Committee in Norway is now in conference to determine whether to raise the maximum number of wars allowed to ten. Given the committee’s ignoble history, I imagine that Obama is taking part in the discussion. As is Henry Kissinger.

The targets of these attacks in Yemen reportedly include fighters coming from Afghanistan and Iraq, confirmation of the warnings long given — even by the CIA and the Pentagon — that those US interventions were creating new anti-American terrorists. (That’s anti-American foreign policy, not necessarily anything else American.) How long before the United States will be waging war in some other god-forsaken land against anti-American terrorists whose numbers include fighters from Yemen? Or Pakistan? Or Somalia? Or Palestine?

Our blessed country is currently involved in so many bloody imperial adventures around the world that one needs a scorecard to keep up. Rick Rozoff of StopNATO has provided this for us in some detail.4

For this entire century, almost all these anti-American terrorists have been typically referred to as "al-Qaeda", as if you have to be a member of something called al-Qaeda to resent bombs falling on your house or wedding party; as if there’s a precise and meaningful distinction between people retaliating against American terrorism while being a member of al-Qaeda and people retaliating against American terrorism while NOT being a member of al-Qaeda. However, there is not necessarily even such an animal as a "member of al-Qaeda", albeit there now exists "al-Qaeda in Iraq" and "al-Qaeda in the Arabian Peninsula". Anti-American terrorists do know how to choose a name that attracts attention in the world media, that appears formidable, that scares Americans. Governments have learned to label their insurgents "al-Qaeda" to start the military aid flowing from Washington, just like they yelled "communist" during the Cold War. And from the perspective of those conducting the War on Terror, the bigger and more threatening the enemy, the better — more funding, greater prestige, enhanced career advancement. Just like with the creation of something called The International Communist Conspiracy.

It’s not just the American bombings, invasions and occupations that spur the terrorists on, but the American torture. Here’s Bowe Robert Bergdahl, US soldier captured in Afghanistan, speaking on a video made by his Taliban captors: He said he had been well-treated, contrasting his fate to that of prisoners held in US military prisons, such as the infamous Abu Ghraib prison in Iraq. "I bear witness I was continuously treated as a human being, with dignity, and I had nobody deprive me of my clothes and take pictures of me naked. I had no dogs barking at me or biting me as my country has done to their Muslim prisoners in the jails that I have mentioned."5

Of course the Taliban provided the script, but what was the script based on? What inspired them to use such words and images, to make such references?

Cuba. Again. Still. Forever.

More than 50 years now it is. The propaganda and hypocrisy of the American mainstream media seems endless and unwavering. They can not accept the fact that Cuban leaders are humane or rational. Here’s the Washington Post of December 13 writing about an American arrested in Cuba:

"The Cuban government has arrested an American citizen working on contract for the U.S. Agency for International Development who was distributing cellphones and laptop computers to Cuban activists. … Under Cuban law … a Cuban citizen or a foreign visitor can be arrested for nearly anything under the claim of ‘dangerousness’."

That sounds just awful, doesn’t it? Imagine being subject to arrest for whatever someone may choose to label "dangerousness". But the exact same thing has happened repeatedly in the United States since the Bolshevik Revolution of 1917. We don’t use the word "dangerousness". We speak of "national security". Or, more recently, "terrorism". Or "providing material support to terrorism".

The arrested American works for Development Alternatives, Inc. (DAI), a US government contractor that provides services to the State Department, the Pentagon and the US Agency for International Development (USAID). In 2008, DAI was funded by the US Congress to "promote transition to democracy" in Cuba. Yes, Oh Happy Day!, we’re bringing democracy to Cuba just as we’re bringing it to Afghanistan and Iraq. In 2002, DAI was contracted by USAID to work in Venezuela and proceeded to fund the same groups that a few months earlier had worked to stage a coup — temporarily successful — against President Hugo Chávez. DAI performed other subversive work in Venezuela and has also been active in Afghanistan, Pakistan, and other hotspots. "Subversive" is what Washington would label an organization like DAI if they behaved in the same way in the United States in behalf of a foreign government.6

The American mainstream media never makes its readers aware of the following (so I do so repeatedly): The United States is to the Cuban government like al-Qaeda is to the government in Washington, only much more powerful and much closer. Since the Cuban revolution, the United States and anti-Castro Cuban exiles in the US have inflicted upon Cuba greater damage and greater loss of life than what happened in New York and Washington on September 11, 2001. Cuban dissidents typically have had very close, indeed intimate, political and financial connections to American government agents. Would the US government ignore a group of Americans receiving funds or communication equipment from al-Qaeda and/or engaging in repeated meetings with known leaders of that organization? In the past few years, the American government has arrested a great many people in the US and abroad solely on the basis of alleged ties to al-Qaeda, with a lot less evidence to go by than Cuba has had with its dissidents’ ties to the United States, evidence usually gathered by Cuban double agents. Virtually all of Cuba’s "political prisoners" are such dissidents.

The Washington Post story continued:

"The Cuban government granted ordinary citizens the right to buy cellphones just last year." Period.

What does one make of such a statement without further information? How could the Cuban government have been so insensitive to people’s needs for so many years? Well, that must be just the way a "totalitarian" state behaves. But the fact is that because of the disintegration of the Soviet bloc, with a major loss to Cuba of its foreign trade, combined with the relentless US economic aggression, the Caribbean island was hit by a great energy shortage beginning in the 1990s, which caused repeated blackouts. Cuban authorities had no choice but to limit the sale of energy-hogging electrical devices such as cell phones; but once the country returned to energy sufficiency the restrictions were revoked.

"Cubans who want to log on [to the Internet] often have to give their names to the government."

What does that mean? Americans, thank God, can log onto the Internet without giving their names to the government. Their Internet Service Provider does it for them, furnishing their names to the government, along with their emails, when requested.

"Access to some Web sites is restricted."

Which ones? Why? More importantly, what information might a Cuban discover on the Internet that the government would not want him to know about? I can’t imagine. Cubans are in constant touch with relatives in the US, by mail and in person. They get US television programs from Miami. International conferences on all manner of political, economic and social subjects are held regularly in Cuba. What does the American media think is the great secret being kept from the Cuban people by the nasty commie government?

"Cuba has a nascent blogging community, led by the popular commentator Yoani Sánchez, who often writes about how she and her husband are followed and harassed by government agents because of her Web posts. Sánchez has repeatedly applied for permission to leave the country to accept journalism awards, so far unsuccessfully."

According to a well-documented account7, Sánchez’s tale of government abuse appears rather exaggerated. Moreover, she moved to Switzerland in 2002, lived there for two years, and then voluntarily returned to Cuba. On the other hand, in January 2006 I was invited to attend a book fair in Cuba, where one of my books, newly translated into Spanish, was being presented. However, the government of the United States would not give me permission to go. My application to travel to Cuba had also been rejected in 1998 by the Clinton administration.

"’Counterrevolutionary activities’, which include mild protests and critical writings, carry the risk of censure or arrest. Anti-government graffiti and speech are considered serious crimes."

Raise your hand if you or someone you know of was ever arrested in the United States for taking part in a protest. And substitute "pro al-Qaeda" for "counterrevolutionary" and for "anti-government" and think of the thousands imprisoned the past eight years by the United States all over the world for … for what? In most cases there’s no clear answer. Or the answer is clear: (a) being in the wrong place at the wrong time, or (b) being turned in to collect a bounty offered by the United States, or (c) thought crimes. And whatever the reason for the imprisonment, they were likely tortured. Even the most fanatical anti-Castroites don’t accuse Cuba of that. In the period of the Cuban revolution, since 1959, Cuba has had one of the very best records on human rights in the hemisphere. See my essay: "The United States, Cuba and this thing called Democracy".8

There’s no case of anyone arrested in Cuba that compares in injustice and cruelty to the arrest in 1998 by the United States government of those who came to be known as the "Cuban Five", sentenced in Florida to exceedingly long prison terms for trying to stem terrorist acts against Cuba emanating from the US.9 It would be lovely if the Cuban government could trade their DAI prisoner for the five. Cuba, on several occasions, has proposed to Washington the exchange of a number of what the US regards as "political prisoners" in Cuba for the five Cubans held in the United States. So far the United States has not agreed to do so.

Notes

  1. Michael Beschloss, Taking Charge: The Johnson White House Tapes 1963-1964 (New York, 1997), p.306. All other sources for this section on Gordon can be found in: Washington Post, December 22, 2009, obituary; The Guardian (London), August 31, 2007; William Blum, "Killing Hope", chapter 27
  2. ABC News, December 17, 2009; Washington Post, December 19, 2009
  3. Washington Post, December 25, 2009
  4. Stop NATO, "2010: U.S. To Wage War Throughout The World", December 30, 2009. To get on the StopNATO mailing list write to r_rozoff@yahoo.com. To see back issues: http://groups.yahoo.com/group/stopnato/
  5. Reuters, December 25, 2009
  6. For more details on DAI, see Eva Golinger, "The Chávez Code: Cracking US Intervention in Venezuela" (2006) and her website, posting for December 31, 2009
  7. Salim Lamrani, professor at Paris Descartes University, "The Contradictions of Cuban Blogger Yoani Sanchez", Monthly Review magazine, November 12, 2009
  8. http://killinghope.org/bblum6/democ.htm
  9. http://killinghope.org/bblum6/polpris.htm

The Cairo Declaration

gaza-freedom-march-cairo-egypt
Ambitions for a greater Gaza Freedom March have been set aside for another decade, but the hopeful delegates thwarted in Cairo issued the following declaration:

End Israeli Apartheid?
Cairo Declaration
?January 1, 2010

We, international delegates meeting in Cairo during the Gaza Freedom March 2009 in collective response to an initiative from the South African delegation, state:

In view of:

* Israel’s ongoing collective punishment of Palestinians through the illegal occupation and siege of Gaza;?

* the illegal occupation of the West Bank, including East Jerusalem, and the continued construction of the illegal Apartheid Wall and settlements;?

* the new Wall under construction by Egypt and the US which will tighten even further the siege of Gaza;?

* the contempt for Palestinian democracy shown by Israel, the US, Canada, the EU and others after the Palestinian elections of 2006;?

* the war crimes committed by Israel during the invasion of Gaza one year ago;?

* the continuing discrimination and repression faced by Palestinians within Israel;?

* and the continuing exile of millions of Palestinian refugees;?

* all of which oppressive acts are based ultimately on the Zionist ideology which underpins Israel;?

* in the knowledge that our own governments have given Israel direct economic, financial, military and diplomatic support and allowed it to behave with impunity;?

* and mindful of the United Nations Declaration on the Rights of Indigenous People (2007)

We reaffirm our commitment to:

Palestinian Self-Determination?Ending the Occupation?Equal Rights for All within historic Palestine?The full Right of Return for Palestinian refugees.

We therefore reaffirm our commitment to the United Palestinian call of July 2005 for Boycott, Divestment and Sanctions (BDS) to compel Israel to comply with international law.

To that end, we call for and wish to help initiate a global mass, democratic anti-apartheid movement to work in full consultation with Palestinian civil society to implement the Palestinian call for BDS.

Mindful of the many strong similarities between apartheid Israel and the former apartheid regime in South Africa, we propose:

1) An international speaking tour in the first 6 months of 2010 by Palestinian and South African trade unionists and civil society activists, to be joined by trade unionists and activists committed to this programme within the countries toured, to take mass education on BDS directly to the trade union membership and wider public internationally;

2) Participation in the Israeli Apartheid Week in March 2010;

3) A systematic unified approach to the boycott of Israeli products, involving consumers, workers and their unions in the retail, warehousing, and transportation sectors;

4) Developing the Academic, Cultural and Sports boycott;

5) Campaigns to encourage divestment of trade union and other pension funds from companies directly implicated in the Occupation and/or the Israeli military industries;

6) Legal actions targeting the external recruitment of soldiers to serve in the Israeli military, and the prosecution of Israeli government war criminals; coordination of Citizen’s Arrest Bureaux to identify, campaign and seek to prosecute Israeli war criminals; support for the Goldstone Report and the implementation of its recommendations;

7) Campaigns against charitable status of the Jewish National Fund (JNF).

We appeal to organisations and individuals committed to this declaration to sign it and work with us to make it a reality.

Signed by:

(* Affiliation for identification purposes only.)

1. Hedy Epstein, Holocaust Survivor/ Women in Black*, USA?
2. Nomthandazo Sikiti, Nehawu, Congress of South African Trade Unions (COSATU), Affiliate International Officer*, South Africa?
3. Zico Tamela, Satawu, Congress of South African Trade Unions (COSATU) Affiliate International Officer*, South Africa?
4. Hlokoza Motau, Numsa, Congress of South African Trade Unions (COSATU) Affiliate International Officer*, South Africa?
5. George Mahlangu, Congress of South African Trade Unions (COSATU) Campaigns Coordinator*, South Africa?
6. Crystal Dicks, Congress of South African Trade Unions (COSATU) Education Secretary*, South Africa?
7. Savera Kalideen, SA Palestinian Solidarity Committee*, South Africa?
8. Suzanne Hotz, SA Palestinian Solidarity Group*, South Africa?
9. Shehnaaz Wadee, SA Palestinian Solidarity Alliance*, South Africa?
10. Haroon Wadee, SA Palestinian Solidarity Alliance*, South Africa?
11. Sayeed Dhansey, South Africa?
12. Faiza Desai, SA Palestinian Solidarity Alliance*, South Africa?
13. Ali Abunimah, Electronic Intifada*, USA?
14. Hilary Minch, Ireland Palestine Solidarity Committee*, Ireland?
15. Anthony Loewenstein, Australia?
16. Sam Perlo-Freeman, United Kingdom?
17. Julie Moentk, Pax Christi*, USA?
18. Ulf Fogelström, Sweden?
19. Ann Polivka, Chico Peace and Justice Center*, USA?
20. Mark Johnson, Fellowship of Reconciliation*, USA?
21. Elfi Padovan, Munich Peace Committee*/Die Linke*, Germany?
22. Elizabeth Barger, Peace Roots Alliance*/Plenty I*, USA?
23. Sarah Roche-Mahdi, CodePink*, USA?
24. Svetlana Gesheva-Anar, Bulgaria?
25. Cristina Ruiz Cortina, Al Quds-Malaga*, Spain?
26. Rachel Wyon, Boston Gaza Freedom March*, USA?
27. Mary Hughes-Thompson, Women in Black*, USA?
28. David Letwin, International Jewish Anti-Zionist Network (IJAN)*, USA?
29. Jean Athey, Peace Action Montgomery*, USA?
30. Gael Murphy, Gaza Freedom March*/CodePink*, USA?
31. Thomas McAfee, Journalist/PC*, USA?
32. Jean Louis Faure, International Jewish Anti-Zionist Network (IJAN)*, France?
33. Timothy A King, Christians for Peace and Justice in the Middle East*, USA?
34. Gail Chalbi, Palestine/Israel Justice Project of the Minnesota United Methodist Church*, USA?
35. Ouahib Chalbi, Palestine/Israel Justice Project of the Minnesota United Methodist Church*, USA?
36. Greg Dropkin, Liverpool Friends of Palestine*, England?
37. Felice Gelman, Wespac Peace and Justice New York*/Gaza Freedom March*, USA?
38. Ron Witton, Australian Academic Union*, Australia?
39. Hayley Wallace, Palestine Solidarity Committee*, USA?
40. Norma Turner, Manchester Palestine Solidarity Campaign*, England?
41. Paula Abrams-Hourani, Women in Black (Vienna)*/ Jewish Voice for Just Peace in the Middle East*, Austria?
42. Mateo Bernal, Industrial Workers of the World*, USA?
43. Mary Mattieu, Collectif Urgence Palestine*, Switzerland?
44. Agneta Zuppinger, Collectif Urgence Palestine*, Switzerland?
45. Ashley Annis, People for Peace*, Canada?
46. Peige Desgarlois, People for Peace*, Canada?
47. Hannah Carter, Canadian Friends of Sabeel*, Canada?
48. Laura Ashfield, Canadian Friends of Sabeel*, Canada?
49. Iman Ghazal, People for Peace*, Canada?
50. Filsam Farah, People for Peace*, Canada?
51. Awa Allin, People for Peace*, Canada?
52. Cleopatra McGovern, USA?
53. Miranda Collet, Spain?
54. Alison Phillips, Scotland?
55. Nicholas Abramson, Middle East Crisis Response Network*/Jews Say No*, USA?
56. Tarak Kauff, Middle East Crisis Response Network*/Veterans for Peace*, USA?
57. Jesse Meisler-Abramson, USA?
58. Hope Mariposa, USA?
59. Ivesa Lübben. Bremer Netzwerk fur Gerechten Frieden in Nahost*, Germany?
60. Sheila Finan, Mid-Hudson Council MERC*, USA?
61. Joanne Lingle, Christians for Peace and Justice in the Middle East (CPJME)*, USA?
62. Barbara Lubin, Middle East Children’s Alliance*, USA?
63. Josie Shields-Stromsness, Middle East Children’s Alliance*, USA?
64. Anna Keuchen, Germany?
65. Judith Mahoney Pasternak, WRL* and Indypendent*, USA?
66. Ellen Davidson, New York City Indymedia*, WRL*, Indypendent*, USA?
67. Ina Kelleher, USA?
68. Lee Gargagliano, International Jewish Anti-Zionist Network (Chicago)*, USA?
69. Brad Taylor, OUT-FM*, USA?
70. Helga Mankovitz, SPHR (Queen’s University)*, Canada?
71. Mick Napier, Scottish Palestine Solidarity Campaign*, Scotland?
72. Agnes Kueng, Paso Basel*, Switzerland?
73. Anne Paxton, Voices of Palestine*, USA?
74. Leila El Abtah, The Netherlands?
75. Richard, Van der Wouden, The Netherlands?
76. Rafiq A. Firis, P.K.R.*/Isra*, The Netherlands?
77. Sandra Tamari, USA?
78. Alice Azzouzi, Way to Jerusalem*, USA?
79. J’Ann Schoonmaker Allen, USA?
80. Ruth F. Hooke, Episcopalian Peace Fellowship*, USA?
81. Jean E. Lee, Holy Land Awareness Action Task Group of United Church of Canada*, Canada?
82. Delphine de Boutray, Association Thèâtre Cine*, France?
83. Sylvia Schwarz, USA?
84. Alexandra Safi, Germany?
85. Abdullah Anar, Green Party – Turkey*, Turkey?
86. Ted Auerbach, USA?
87. Martha Hennessy, Catholic Worker*, USA?
88. Father Louis Vitale, Interfaile Pace e Bene*, USA?
89. Leila Zand, Fellowship of Reconciliation*, USA?
90. Emma Grigore, CodePink*, USA?
91. Sammer Abdelela, New York Community of Muslim Progressives*, USA?
92. Sharat G. Lin, San Jose Peace and Justice Center*, USA?
93. Katherine E. Sheetz, Free Gaza*, USA?
94. Steve Greaves, Free Gaza*, USA?
95. Trevor Baumgartner, Free Gaza*, USA?
96. Hanan Tabbara, USA?
97. Marina Barakatt, CodePink*, USA?
98. Keren Bariyov, USA?
99. Ursula Sagmeister, Women in Black – Vienna*, Austria?
100. Ann Cunningham, Australia?
101. Bill Perry, Delaware Valley Veterans for Peace*, USA?
102. Terry Perry, Delaware Valley Veterans for Peace*, USA?
103. Athena Viscusi, USA?
104. Marco Viscusi, USA?
105. Paki Wieland, Northampton Committee*, USA?
106. Manijeh Saba, New York / New Jersey, USA?
107. Ellen Graves, USA?
108. Zoë Lawlor, Ireland – Palestine Solidarity Campaign*, Ireland?
109. Miguel García Grassot, Al Quds – Málaga*, Spain?
110. Ana Mamora Romero, ASPA-Asociacion Andaluza Solidaridad y Paz*, Spain?
111. Ehab Lotayef, CJPP Canada*, Canada?
112. David Heap, London Anti-War*, Canada?
113. Adie Mormech, Free Gaza* / Action Palestine*, England?
114. Aimee Shalan, UK?
115. Liliane Cordova, International Jewish Anti-Zionist Network (IJAN)*, Spain?
116. Priscilla Lynch, USA?
117. Jenna Bitar, USA?
118. Deborah Mardon, USA?
119. Becky Thompson, USA?
120. Diane Hereford, USA?
121. David Heap, People for Peace London*, Canada?
122. Donah Abdulla, Solidarity for Palestinian Human Rights*, Canada?
123. Wendy Goldsmith, People for Peace London*, Canada?
124. Abdu Mihirig, Solidarity for Palestinian Human Rights-UBC*, Canada?
125. Saldibastami, Solidarity for Palestinian Human Rights-UBC*, Canada?
126. Abdenahmane Bouaffad, CMF*, France?
127. Feroze Mithiborwala, Awami Bharat*, India?
128. John Dear, Pax Christi*, USA?
129. Ziyaad Lunat, Portugal?
130. Michael Letwin, New York City Labor Against the War (NYCLAW)?
131. Labor For Palestine

Original Anti-Zionist jokes in Monty Python’s LIFE OF BRIAN remain cut out of Criterion special edition

monty-python-life-brian-ottoThink you know the saga of the deleted scenes from Monty Python’s LIFE OF BRIAN? Not if you trust Wikipedia. The 1979 comedy didn’t just take the mickey out of Jesus and the feuding Palestinian Liberation fronts, it poked fun at Zionists, as goose-stepping racists led by Eric Idle’s OTTO the NAZIRENE determined to promote Jewish racial purity, carve a Lebensraum from the “traditional Jewish areas of Samaria,” displace the Samaritans into internment camps, and plan an Anschluss of Jordan to “create a great Jewish state that will last a thousand years.” My, my, my. But the defamed parties had the last laugh. They acquired the studio with the rights to the film, obliterated the offending celluloid, reedited the video release, and have rewritten cinematic history.

Maybe you don’t care what Israel has been doing to the Palestinians. Did you know someone is messing with the oeuvre of Monty Python? We had the comedy sketches memorized in college. Who could have imagined the originals would be vulnerable to tampering?

I’m not sure this is an overreaction. Monty Python is not Shakespeare, what is? But it’s not Nicholas Sparks either. For a populist phenom I say Python rivals Swift. This is book burning, is what it is — a sinister effacing of creative work. In a recent British poll, Life of Brian was in contention for England’s greatest film comedy. But for your consideration, instead of a director’s cut, we’ve got a censor’s cut.

Here’s the lowdown in brief: three integral scenes of the theatrical release were removed from the video version. The third scene was recut to make up for the absence of the first two. And a key character was stricken from the credits.

When Criterion later released a collector’s edition, the missing sequences were included in the extras as “deleted scenes.” But these scenes were represented by mangled outtakes of the originals, from which key lines remain excised. Then an official narrative was fabricated to recount how the sequences had been removed from the original version to improve the flow, the crude outtakes testifying to why they didn’t make the cut.

But that’s all bullocks –and the niggling weak spot to this digital book burning is, ironically enough, that BOOKS were published in 1979 to accompany the film’s release: a mass-market paperback of the screenplay, and an oversized Monty Python Scrapbook.

The rewrite runs afoul too of anyone who remembers seeing the film in its first release.

Not My Tribe has suffered its own internal dissension over comparing Israel to the Nazis. Apparently it’s SO not done, not even Monty Python can get away with it.

You may have revisited the video many times, now the DVD, maybe you read about the scandals about the film’s release, maybe you memorized some of the Biggus Dickus dialog; are you curious that you missed the bits about Samaria, Jordan and purified Jewish blood?

When the Catholic church objects to a movie, it declares a boycott. Zionists take a more effective strategy. When pulling funding from the project doesn’t work, they buy the rights and delete the scenes. You’d think a film as celebrated as Life of Brian would be inviolate to culture vandals. And so far the desecration has escaped the legions of Monty Python fans. Wikipedia recounts how Otto’s scenes were deleted from the film, and thankfully resurfaced to be included as outtakes on the 2007 Criterion edition. But the account is untrue.

From restored out-takes we might surmise that Jewish objection were limited to the Star of David embellished as a swastika, but from the un-restored material it seems that the modern censors objected to Zionists depicted as determined to carve their own Lebensraum in Samariaby by means of Anschluss and concentration camps, for the sake of a third Jewish reich. And what have we now happening in the Occupied Territories which Israeli settlers insist on calling their Sumaria and Judea of biblical history, and what of the open air internment of the Palestinians in Gaza. Oh My Goodness.

The Criterion edition of Monty Python’s Life of Brian has some famously restored scenes, alleged to have been cut from the original version. They’re available again, and you can see them on Youtube. But it’s Poppycock. The scenes in question were actually removed from the video release, and “lost” by the studio which took over handmade films. The deleted scenes were actually out-takes of the originals. Fortunately, the screenplay published to accompany the 1979 release has the original lines, which vary quite curiously from what’s being peddled as the restored original. Yes, the deleted scenes have deleted scenes.

If you saw the 1979 film in the theater, you might remember Otto, the Hitleresque Zionist with the curiously non-German accent. Here is the original script made from the final take. The out-take restored as “deleted scenes” stray considerably from these lines. The lines in bold have simply been simply clipped.

BRIAN slips out through the back door and descends some steps into MANDY’S garden where he sits, head in hands.

Suddenly a voice assails him.

life of brian deleted sceneOTTO: Hail, Leader!

BRIAN: What?

OTTO: Oh, I– I’m so sorry. Have you seen the new Leader?

BRIAN: The what?

OTTO: The new Leader. Where is the new leader? I wish to hail him. Hail, Leader. See.

BRIAN: Oh. Who are you?

OTTO: My name. Is. Otto.

BRIAN: Oh.

OTTO: Yes. Otto. It’s time, you know. . .

BRIAN: What?

OTTO: . . . Time that we Jews racially purified ourselves.

BRIAN: Oh.

OTTO: He’s right you know. The new leader. We need more living room. We must move into the traditionally Jewish areas of Samaria.

BRIAN: What about the Samaritans?

OTTO: Well, we can put them in little camps. And after Samaria we must move into Jordan and create a great Jewish state that will last a thousand years.

BRIAN: Yes, I’m not sure, but I . . .

OTTO: Oh, I grow so impatient, you know. To see the Leader that has been promised our people for centuries. The Leader who will save Israel by ridding it of the scum of non-Jewish people, making it pure, no foreigners, no gypsies, no riff-raff.

BRIAN: Shh! Otto!

OTTO: What? The Leader? Hail Leader!

BRIAN: No, no. It’s dangerous.

OTTO: Oh, danger: There’s no danger. (flicks his fingers) Men!

A phalanx of armed, rather sinister, men appear from the shadows and fall in.

OTTO: Impressive, eh?

BRIAN: Yes.

OTTO: Yes, we are a thoroughly trained suicide squad.

BRIAN: Ah-hah.

OTTO: Oh yes, we can commit suicide within twenty seconds.

BRIAN: Twenty seconds?

OTTO: You don’t believe me?

BRIAN: Well . . .Yes . . .

OTTO: I think you question me.

BRIAN: No. No.

OTTO: I can see you do not believe me.

BRIAN: No, no. I do.

OTTO: Enough. I prove it to you. Squad.

SQUAD: Hail Leader.

OTTO: Co-mmit Suicide.

They all pull out their swords with military precision and plunge them into themselves in time, falling in a big heap on the ground. Dead.

OTTO: (with pride) See.

BRIAN: Yes.

OTTO: I think now you believe me. Yes?

BRIAN: Yes.

OTTO: I think now I prove it to you, huh?

BRIAN: Yes, you certainly did.

OTTO: All dead.

BRIAN: Yes.

OTTO: Not one living.

BRIAN: No.

OTTO: You see, they are all of them quite dead. See I kick this one. He’s dead. And this one’s dead, I tread on his head. And he’s dead. And he’s dead. All good Jewish boys, no foreigners. But they died a hero’s death and their names will live forever. Helmut . . . Johnny . . . the little guy . . . er . . . the other fat one . . . their names will be remembered . . . eventually . . . forever. So now I go. Hail Leader.

BRIAN: Wait Otto. You can’t just leave them all here.

OTTO: Why not–they’re all dead.

One oh the ‘corpses’ farts. There is a giggle.

OTTO: Wait a minute. There is somebody here who is not dead. There’s somebody here who is only pretending to be dead. Stand up, you.

One of the bodies stands up sheepishly. As he does so, he stands on someone else who quite clearly says ‘Ow.’

OTTO: Who said ‘ow’? You’re not dead either. Neither are you. Stand up, stand up, all of you. Oh, my heck, is there not even one dead?!

They have all stood up averting their eyes in shame.

HELMUT: No, sir. Not one.

ADOLF: We thought it was a practice, sir.

OTTO: Oh my cock! Tomorrow, as a punishment, you will all eat–pork sausages!

There is a horrified muttering at this suggestion. OTTO turns sharply to BRIAN.

OTTO: OK. Tell the Leader that we are ready to die for him the moment he gives the sign.

BRIAN: What sign?

OTTO: The sign that is the sign, that shall be the sign. Men, forward!

OTTO’S MEN march away singing their exciting song.

OTTO’S MEN’S SONG:
There’s a man we call our Leader.
He’s fine and strong and brave,
And we’ll follow him unquestioning
Towards an early grave. He-e gives us hope of sacrifice
And a chance to die in vain,
And if we’re one of the lucky ones,
We’ll live to die again.

BRIAN: Silly bugger.

A second scene involves Otto and his Nazirenes receiving the sign, as the crucifixion party departs the city gates.

JUDITH now is running through the crowded streets. She reaches some steps and climbs up onto a roof. Quickly, she opens a basket and releases a flock of pigeons.

A very STRANGE MAN is lying on a lonely hilltop. Suddenly he rouses himself, sits up and peers into the distance towards Jerusalem.

A flock of pigeons flies up against the sun.

Seeing this, the STRANGE MAN rouses himself and does an extremely odd but elaborate dance.

Further away, on an even lonelier hilltop, a pile of straw moves to reveal that it is in fact a MAN dressed in straw. He watches the STRANGE MAN’S dance closely.

STRAW LOOK-OUT: It is the sign!

Instantly OTTO appears, with all his men.

OTTO: The sign that is the sign?

LOOK-OUT: Yes!

life of brian deleted scene the signOTTO: Men! Our time has come! Our leader calls! Men forward!

The MEN march into the wall and each other.

OTTO: Oh my cock.

Of course the omission of Otto’s gang created a problem for the film’s final scene, where his men repeat their self-sacrifice beneath the crosses. Here was the original sequence:

Suddenly PARVUS looks up. He has heard something.

OTTO and his MEN appear over the skyline.

BRIAN: Otto! (a new flicker of hope in his eyes)

OTTO: Men, charge!

They charge.

The ROMANS, seeing this formidable army bearing down on them, finger their swords rather nervously and then break and run away back towards the city gate.

BRIAN’S face lights up with renewed hope as he sees OTTO’S army advancing at the double. The army arrives under the cross, swords held aloft. The ROMANS have all run away.

OTTO: (to Brian) Leader! We salute you. Men! Die for your cause!

With immaculate precision they all run themselves through, including OTTO.

OTTO: You see. Every man a hero. They died for their country.

BRIAN: You silly sods.

For the re-edited video and subsequent DVD versions, audio voice-overs were added to explain Otto’s final charge. None of this was in the original.

–[A group of faux oriental-looking warriors come over a hill, led by their leader, King Otto. Care to venture a guess as to who they are? Yes, it’s…]

WORKER
The Judean People’s Front!

PARVUS
The Judean People’s Front!

OTTO
Forward all!

WORKERS
Look out! The Judean People’s Front!

–[The JPF stop in front of Brian’s cross.]

OTTO
Ve are the Judean People’s Front! Crack suicide squad. Suicide Squad! Attack!!!
–[drumroll]
–[They all ceremonially whip out their weapons, open a hatch in their armor, and proceed to kill themselves.]

OTTO
Ungggghhh… that showed ’em, huh?

BRIAN
You silly sods.

11/16
ADDENDUM:

Scan from Monty Python Scrapbook of Brian of Nazareth, (NY: Grosset & Dunlap, 1979) page 5: “Dramatis Personae, in order of appearance” lower ninth tenth of list.

LIFE OF BRIAN cast credits
Note Eric Idle as Otto, the Nazirene, evidently scrubbed from the revised credits too.

US extrajudicial reach extends to assassination of spouses and progeny

In a demonstration that they are closing in on Pakistani Taliban chief Baitullah Mehsud, the US military is claiming success with a drone attack on his father-in-law’s Waziristan home, where a missile killed Mehsud’s second wife, three unidentified civilians, and wounded four children.
drone unmanned

The US has posted a $5 million bounty on the head of Mehsud, based on charges he bore responsibility in Benazir Bhutto’s 2007 assassination, and for other suicide bombings. All charges he denies, but the Taliban leader won’t face his accusers long enough for unmanned drones to launch a missile his way.

Zanghra village had been targeted by US drones before, but no bounty had yet been announced for Mehsud’s extended family members. That proved to be no indication that US drone pilots in Nevada would not be carving notches for them.

While American warriors, by doing their missile targeting from the continental US, have made legitimate military targets of Air Force bases in Nevada, California and Colorado. Now they expand the battlefield to include combatant wives, relatives and progeny. As it should be.

(Imagine the relatives and cronies of our economic-war combatants, of our war criminal leaders, and our war industry profiteers; their folks at home contemplating their own culpability and vulnerability to suffer for the crimes by which their benefactors were able to enrich them. You don’t have to be remote piloting the Predators or Reapers, nor raining the Hellfire missiles upon America’s civilian adversaries to merit responsibility — it’s enough to be hollering along to “Courtesy of the Red White and Blue.”)

And, as in the case of Baitullah Mehsud, the extra-judicial assassinations are acceptable for even non-combatants, suspected-of-crimes-only, and their family and extended family.

No. 1 domestic terrorist Daniel McGowan

The Huffington Post published a letter by ELF/ALF political prisoner Daniel McGowan, who is allowed to send one letter per week from CMU36, the controversial “Communication Management Unit” whose cover-name is USP Marion. According to McGowan, prison guards call it the “I Unit,” which probably does not stand for illegal.

As of May 2009, I have been at USP Marion’s “Communication Management Unit,” or CMU, for roughly nine months and now is a good time to address the misconceptions (and the silence) regarding this unit. I want to offer a snapshot of my day-to-day life here as well as some analysis of what the existence of CMUs in the federal prison system implies. It is my hope that this article will partially fill the void of information that exists concerning the CMU, will help dispel rumors, and will inspire you to support those of us on the inside fighting the existence of these isolation units — in the courts and in the realm of public opinion.

It is best to start from the beginning — or at least where my story and the CMU meet. My transfer here is no different from that of many of the men here who were living at Federal Correctional Institutions (normal prisons) prior to the genesis of the CMUs. On May 12, 2008, on my way back from a decent lunch, I was told to report to “R&D” (receiving and discharge). I was given two boxes and half an hour to pack up my meager possessions. After complying I was placed in the SHU (secure housing unit or “hole”) and put on a bus the next day. There was no hearing and no information given to me or my attorneys — only after a day was I told I was on my way to Marion, Illinois’ CMU.

Hearing the term “CMU” made my knees buckle as it drummed up some memory I had of the infamous “control units” at Marion (closed in 1995 and replaced by Florence ADX: the lone Federal “Supermax” prison). Then it hit me. The lawyers, in challenging the application of the terrorist enhancement in my case, made the prescient argument that if I receive the enhancement, the Bureau of Prisons (BoP) would use that to place me in the CMU at FCI Terre Haute, Indiana (at the time just 5 months old). In fact, on the way to FCI Sandstone in August 2007, I not only saw the CMU but met one of its residents while in transit. Let me back up and offer a brief history of the Communication Management Units.

The CMU I reside in, at USP Marion, received its first prisoner in May 2008 and when I arrived, held about 17 men, the majority of whom were Muslim. Currently, the unit has 25, with a capacity of 52 cells. In April 2009, we received seven new people, all of whom were from the CMU at FCI Terre Haute. The unit is overwhelmingly Muslim with 18 men identifying as such. Most, but not all of the prison, have so-called terrorism cases. According to a BoP spokesperson, the unit “will not be limited to inmates convicted of terrorism-related cases through all of the prisoners fit that description.” Others have prison disciplinary violation or allegations related to communication and the misuse of telephones etc. Here, almost everyone has a terrorism related case — whether it is like my case (destruction of property characterized as “domestic terrorism”) or conspiracy and “providing material aid” cases.

Before the Marion CMU opened, there was the original CMU, opened in December 2006 at the former death row at FCI Terre Haute. According to early articles, the unit was intended for “second tier terrorism inmates, most of them Arab Muslims and a less restrictive version of the Supermax in Florence, Colorado.”

Additionally, BoP Director Harley Lappin, in a July 2008 hearing on the 2009 BoP budget request, said of the CMUs, “A lot of the more serious offenders, terrorists, were housed at ADX Florence. So, we are ramping up two communications management units that are less restrictive but will ensure that all mail and phone calls of the offenders are monitored on a daily basis.”

Terre Haute’s CMU has 36 men (27 of whom are Muslim) and is roughly comparable to Marion’s CMU. The rest of this place focuses on the latter, in which I have resided and of which I have seen firsthand.

You may be curious about just what a CMU actually is. From my correspondence, I can tell that many correspondents do not know much about what goes on here. I hope this can clear up any misperceptions. According to the BoP,

The CMU is [sic] established to house inmates who, due to their current offense of conviction, offense conduct or other verified information, require increased monitoring of communication between inmates and persons in the community in order to protect the safety, security, and orderly operations of Bureau facilities and protect the public…The CMU is a self-contained general population housing unit.

There are, of course, alternate views to the above definition including the belief that the CMUs are Muslim units, a political prisoner unit (similar to the HSU operated by the BoP in the 80’s, and a punishment unit.

The CMUs have an extremely high Muslim population; here at Marion, it is 65-75%. An overrepresentation of any one demographic in a prison raises constitutional issues of equal protection as well as safety issues. Nowhere in the BoP will you find any group represented in such extreme disproportion. To counter these claims, the BoP brought in a small number of non-Muslims to be used as proof that the units are not strictly Muslim (an interesting note is that some of the Muslim men here have cases unrelated to terrorism). Does the inclusion of six people that are non-Muslim really negate the claim of segregation though? What are the criteria for determining who comes to the CMU? The BoP claims there are 211 international terrorists (and 1000 domestic terrorists) in their system. Yet, the CMUs have no more than 60 men at the present time. Where are the rest of these people? How does the BOP determine who of those 1200 are sent to a CMU and who to normal prisons? These are questions that need to be asked — in court and in the media.

Many of the men here (both Muslim and non) are considered political prisoners in their respective movements and have been engaged in social justice, religious organizations, charities and humanitarian efforts. Another conception of the CMU is that it is a location designed to isolate us from our movements and to act as a deterrent for others from those movements (as in “step outside the line and you too will end up there”). The intended effect of long-term housing of this kind is a profound sense of dislocation and alienation. With your mail, email, phones, and visits monitored and no human touch allowed at the visits, it is difficult to feel a connection to “the streets.” There is historical evidence of the BoP utilizing political prisons — despite the fact that the Department of Justice refuses to acknowledge the concept of political prisoners in US prisons, choosing to call us “criminal” instead.

The Lexington High Security Unit (HSU) was one such example. Having opened its 16-bed facilities in 1988 and housing a number of female political prisoners, the HSU functioned as an isolation unit — underground, bathed in fluorescence, and limited interaction with staff. In the opinion of Dr. Richard Korn, speaking on behalf of the American Civil Liberties Union, the unit’s goal was “…to reduce prisoners to a state of submission essential for their ideological conversion. That failing, the next objective is to reduce them as efficient, self-directing antagonists. That failing, the only alternative is to destroy them by making them destroy themselves.”

After an arduous campaign by human rights advocates and supporters, the BoP capitulated, stating it would close its facility (when it did not, it was sued). The judge ruled that the plaintiffs were illegally designated based on their past political affiliations, statements and political beliefs. The unit was closed and the women were transferred to other prisons.

The correlations between the HSU and CMU are many and seem to have some of the same goals as well as methods used to designate us here. Knowing they are dealing with people committed to ideals and the movements they are a part of, we were placed here in order to weaken those connections and harm our relationships. An example is the horrendous strain that the CMU puts on our familial relations — especially our marriages. It was certainly considered by the architects of the CMU that preventing visits that allow human touch for long-term prisoners would have a disastrous impact on our relationships and would lead to weaker inmates.

Finally, the CMU can be viewed as “the stick” — a punitive unit for those who don’t play ball or who continue to express political beliefs anathema to the BoP or the US government. Although I am not aware of the BoP’s criteria for sending people here (due to their refusal to release specific CMU information), it is curious who is and who is not here. Out of roughly 18 codefendants in my criminal case, I am the only one at a CMU (the remainder of them are at low and medium security prisons). The same goes for a member of the SHAC7 campaign, Andrew Stepanian, one of 6 defendants in his case who was sent here for the last 6 months of his sentence. Other men here have codefendants at the Terre Haute CMU while others have codefendants at normal federal prisons. Despite numerous Freedom of Information Requests, the BoP refuses to grant the documents that specify the rules governing transfer to the CMU. Remember, hardly any of the men here have received any disciplinary violations and some have been in general population over 15 years! How can someone be okay in general population for that long and then one day be seen as a communication threat?

So, I have hypothesized about the goals of the CMU. Let me discuss the many problems and injustices associated with the existence of the CMUs.

Due process
More appropriately, a lack thereof. A term I never thought much about before my imprisonment, due process is:

…the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to hearing before a tribunal [my emphasis] with the power to decide the case.

I was moved from FCI Sandstone, against my will and at a moment’s notice, with no hearing and thus no chance to contest the reason for my transfer. A FOIA request recently received states I was redesignated May 6th, my transfer was signed the next day and I was moved on May 13th with the reason given as “program participation”. Since I got here, I have not had a hearing to contest the claims made in the “Notice to Inmate of Transfer to CMU, ” some of which were woefully inaccurate. Instead, I was told I can utilize the administrative remedy process (which I have done to no avail) and request a transfer after 18 months of “clear conduct”.

The irony is that all prisoners who violate prison rules are subject to a series of disciplinary hearings in which they could offer their defense. For legal units such as Florence ADX (Supermax) or the control unit program, there exists a codified set of rules and hearings for transfer to these locations. The BoP has deliberately ignored this process and has instead transferred us to this special, brand-new CMU without due process. My notice of transfer was given to me 12 days after I arrived!

Similar to the callous disregard for due process (and the US Constitution), there is no “step down” process for the CMU. Unlike the ones that exist at Florence ADX, control units or even the gang units, the CMU has no stages, no requisite amount of time we are to spend here before being sent back to a normal prison.

Because these preceding programs are specifically for prison misbehavior, there is a logical and orderly way to finish the program and eventually transfer. For us, the BoP has set up a paradox — if we are here for our offense conduct, which we cannot ever change, how can we reasonably leave the unit? In its “Admissions and Orientation” guide for Marion’s CMU, here is what they say:

Every new commitment to the CMU will be evaluated by his unit team regarding his suitability for incarceration in this institution. If, for some reason, the inmate is deemed not acceptable for confinement in this unit, he will be processed as expeditiously as possible…

[I am still roughly 10 months from my 18-month period in which I must wait before requesting a transfer. Considering the fact that all my remedies have been denied, I am not hopeful about this.]

CMU as Secret
In addition to the due process and transfer issues, there is the secretive and illegal manner that the CMU was created (Note: for historical perspectives, it needs to be stated that the CMU was established roughly halfway through the second term of George W. Bush and his Attorney General Alberto Gonzales.)

In April 2006, the BoP proposed a “Limited Communication for Terrorist Inmates” policy, which suggested new restrictions for “terrorists” and “terrorism related inmates” such as:

1) One 6-page letter per week.

2) One 15-minute phone call a month.

3) One 1-hour visit a month.

A coalition of civil rights organizations signed a letter of protest criticizing the proposed rules and raising numerous constitutional, practical and ethical objectives. The outcry appears to have caused the BoP to reconsider it and just 6 months later, open the CMU at FCI Terre Haute quietly. Since the BoP never sought public comment on the new CMU, it certainly appears to be a violation of the Administrative Procedural Act (APA), an argument a federal judge in Miami raised in response to a prisoner’s legal challenge to transfer to the CMU.

The unit is functionally an open secret. While the BoP circumvented the standard public comment (and feedback process), it has sought to get around this by describing the CMU as a “self-contained general population unit,” implying that the unit is legally and penally no different than a normal unit at an FCI. There is no mention of the CMU on the BoP’s website (ww.bop.gov) or USP Marion’s subpage on the same site. You will not find extensive Congressional hearings on the subject — other than a July 2008 subcommittee hearing in which it appears that the BoP director was not fully forthcoming on the CMU36. Letters here are stamped “USP Marion,” not CMU, and the unit is called “I Unit” by staff. (An interesting anecdote: while on transit in Winter 2009, I met men from the FCI here and asked them what they knew about I Unit. Without hesitation, they said, “That’s where the terrorists are.” They informed me this is what BoP Staff routinely told them.)

Media queries are met with silence or vague information. Requests by the media to interview me by coming to Marion have been denied — due to it “being detrimental to the safety, security and good order of the institution.” There still is no Program Statement on the CMU — a legal requirement, outlining the specific rules of the CMU and its designation criteria.

Because of this, and the general refusal of the BoP to hand over relevant documents through FOIA, it is impossible to determine the specific reasons why one is sent here — and thus, how to contest this process. In effect, the CMU was created on the fly, with no eye toward legality; they are free to operate it in whatever manner they choose.

Communication Management (The Promotion of Isolation and Alienation)
The most painful aspect of this unit, to me, is how the CMU restricts my contact with the world beyond these walls. It is difficult for those who have not known prison to understand what a lifeline contact with our family and friends is to us. It is our link to the world — and our future (for those of us who are fortunate enough to have release dates). Prison authorities and architects are well aware that those with strong family ties and in good communication with their loved ones are well behaved and have significantly lower rates of recidivism. The BoP, in theory, recognizes this by claiming they try to situate us within 500 miles of our homes. Mostly, this is a cruel farce for many prisoners — I have not been within 1000 miles of my family in 2 years.

The most Orwellian aspects of the CMU are in how they manage our communications:

A) Telephones- at my previous prison, I was able to use the phones for 300 minutes a month — days, nights, weekends and holidays — basically at any point I was not in my housing unit (6am-10pm). Here, we receive one 15-minute phone call a week. The call can only take place between 8am and 2:30pm, never on weekends or holidays and must be scheduled one and a half weeks in advance (we can choose a back-up number to call but if neither picks up, we don’t get a call). The call is live-monitored and recorded. Not only do we receive one fifth of the minutes granted to other federal prisoners but the call is also very trying for our families — all of whom have day jobs and many of whom have children in school. The CMU requires calls be made in English only — a difficult demand considering over half of the men here speak English as a second language (this restriction is not present at other federal prisons).

B) Visits- At FCI Sandstone, I received up to eight visiting days a month (56 hours) — contact visits in which I could embrace my wife, play cards with my nieces and share vending machine food with my visitors. These visits were my lifeline. I got about twelve of them in eight months and it aided in my adjustment to prison.

The CMU restricts our visits to one four-hour non-contract visit a month. One short visit through two inches of plate glass with cameras hanging overhead and my visitors stuffed in a four-and-a-half by three-and-a-half-foot stuffy booth — a tight squeeze for two. The visits can only take place on weekdays from 8am-2pm — no more Christmas or Thanksgiving visits — and worse, no physical contact (Consider what it would be like to have no contact with your loved ones. What if you couldn’t hug or kiss your lover, partner, wife, husband? What would that do to you?) I find myself riddled with guilt when I ask friends to spend $500 to fly across the country, drive three hours (and repeat) for a four-hour non-contact visit. I’m lucky though, having people who will do this. Many of the men here can’t afford it or don’t want to subject their children to this reality.

C) Mail- We can only send out mail once a day and we cannot visit the mail room to send out packages. We are one-hundred-percent reliant on the one staff person who deals with our mail to do so and sending a box home is a laborious procedure. We must leave our envelopes unsealed so that staff can read, copy, scan and send to whatever other agency studies our correspondence. A letter to NYC takes roughly seven to nine days (which should take five). Letters sent abroad, especially those not written in English, could take a month or more — a common complaint of some of my fellow prisoners.

Staff here has an interesting reading of the rules governing legal mail leading to the charge that they open our legal mail (this is the subject of an administrative remedy I filed with the BoP Central Office in Washington DC). The rule states that the lawyer’s name must be clearly identified and that the envelope must say “Special Mail- Open only in the presence of inmates” and yet staff has opened my legal mail that said “Law Offices of Jane Doe” stating that it should have said, “Jane Doe, Attorney at Law”! The staff looks for any reason to disqualify our legal mail as protected and gather intelligence this way. In doing so, they violate the sanctity of the attorney-client confidentiality principle.

Most of my violations have been petty — a package has more than twenty pieces of paper or a friend kindly enclosed stamps. A few instances though amount to censorship and a limiting of political expression and dialogue. See Appendix B for a detailed discussion of these instances.

D) Media Contact- Although requests have been made to interview people in the CMU, none have been granted to date. This is a violation of the spirit of the BoP’s own media policy. There is an imperative on the Bureau’s part to control and ultimately suppress information on the CMU from making it to a mass audience.

Daily Life at the CMU
Neither one of the two CMUs were built for long-term habitation. The Marion CMU was the site of the Secure Housing Unit (SHU), the USP that closed here in 2005. Terre Haute’s CMU is in “D-wing” — the site of the former federal death row.

The CMU was seemingly converted to its current use with the addition of televisions, steel tables, and new wiring and yet it is not suitable for long-term use due to its “open cell” design (i.e. with bars). With 25 prisoners, our movements are restricted to two housing ranges (hallways about 100 by 12 feet); a recreation range where we also eat (consisting of seven cells with a computer, typewriter, barber shop, religious library, social library, art room and recreational equipment); and a small rec yard (all concrete, a lap equals one-eighteenth of a mile, four cages with two basketball hoops, one handball court, a weather awning with tables and some sit-up benches). We are lucky to be visited daily by a resident bird population of doves and blackbirds, and overhead, the occasional hawk or falcon (ironically, as I write this, I overhear warnings from staff that if we continue to feed the birds, we will receive violations). The appearance of the yard with its cages, concrete, and excessive barbed wire has earned it nickname “Little Guantanamo” (of course a punitive unit with seventy-five percent Muslims also contributes to the name as well).

The conditions here are not dire — in fact, the horror stories I have heard over the last two years have convinced me it is far worse at many prisons and yet, I believe it is important to be descriptive and accurate — to dispel fears (about violence, for instance) but also to demonstrate just how different life is for us at the CMU.

There are many things we lack here that other prisons in the federal system have to offer:

1- A residential drug/alcohol program- despite at least one person here having completion of it ordered by the court.

2- Enough jobs for the prisoners here- There is not nearly enough jobs for all the men here and most are extremely low paying.

3- UNICOR- This is Federal Prison Industries which has shops at many federal prisons (including this one outside the CMU). These jobs pay much more, allow men to pay their court fees, restitution and child support and, as the BoP brags, teaches people job skills.

4- Adequate educational opportunities- Until recently, we did not have GED or vocational programs. Due to inmate pressure and persistence, we now have both of those as well as a few prisoner-taught classes but no college courses at all.

5- Access to staff on a daily basis- At other federal prisons, you are able to approach staff members at lunch every day, including the Warden. Here, we get (at most) two quick walk-throughs a week, usually taking place early in the morning. You are often left waiting days to resolve a simple question.

6- Law library access- We have a very small law library here with only twenty-five percent of the books required by law. We can only request books twice weekly and those are only delivered if the other nine hundred prisoners at the adjacent Medium are not using them. We lack Federal Court and Supreme Court reports as well as books on Immigration Law (fifty percent or more of the men here face deportation). This lack of access makes for an arduous and ineffective research path.

7- Computers- We have four computers for our email system (two for reading, one for printing and one that we were told would be for legal but it still isn’t working). Unlike my previous prison, where we had forty computers with a robust computer-class program, or like other prisons that teach a vocational computer course, we have no such thing.

8- Access to general population- Being in an isolation unit makes for a situation in which we cannot have organized sports leagues and tournaments due to not having enough people at all. This may not seem crucial but sports are a very useful diversion from the stress of prison life and separation.

After reading the preceding sections, perhaps like me you are wondering what really is the purpose of the CMU. In short, the SMU is Florence ADX-LITE for those men whose security points are low and present no real problems to staff. From my interactions with the men here, I can say with certainty, that people here are remarkably well-behaved and calm — many without any disciplinary violations. If these men, like myself, don’t get in trouble, and have been in the system for some time, why are we here? Consider my case.

My short time in prison prior to coming to the CMU consisted of two months at MDC Brooklyn and eight months at FCI Sandstone. I had never gotten in trouble and spent my days as a clerk in psychology, working toward a Master’s degree, reading, writing and exercising. My goal was to get closer to home and my loved ones. In April 2008, I filed a “hardship transfer” request due to my mother’s illness and her inability to travel to Minnesota to visit me. I had my team meeting, and my security points were lowered. Weeks later, I was moved to the CMU.

The irony is that I was moved to the CMU to have my communication managed, but what changed in that one year to justify this move? If I was a danger, then why did the BoP house me in a low-security prison? The same applies to many of the men here– some have been in general population for twenty years and then suddenly a need to manage their communication is conjured up. During my pre-CMU time, I had used 3500 phone minutes and sent hundreds of letters. If there was a problem with my communication, shouldn’t the BoP have raised this with me? My notice stating their rationale for placing me here attributed it to me “being a member and leader in the ELF and ALF” and “communicating in code.” But if this is true, then shouldn’t I have been sent to the CMU as soon as I self-reported to prison in July 2007?

The CMUs were crafted and opened under the Bush administration as some misguided attempt to be tough on the “war on terror.” This unit contains many prisoners from cases prosecuted during the hyper-paranoid and over-the-top period after 9/11 and the passage of the USA Patriot Act.44 The number of prosecutions categorized as terrorism-related more than doubled to reach 1,200 in 2002. It seemed that every other week, there was some plot uncovered by overzealous FBI agents — in Lackawanna, NY, Miami, FL, Portland, OR, and Virginia and elsewhere (never mind the illegal wiretaps and unscrupulous people used in these cases). These cases may not be headlines anymore but these men did not go away — they were sent to prison and, when it was politically advantageous for Bush, transferred to the CMUs. The non-Muslim populations of these units (although definitely picked judiciously) were sent there to dispel charges that the CMUs were exclusively Muslim units.

The codified rationale for all prisoners being transferred here are “contact with persons in community require heightened control and reviews” and “your transfer to this facility for greater communication management is necessary to the safe, secure, and orderly function of Bureau institutions…” Should an increase in monitoring of communication mean a decrease in privileges? If the goal is to manage our contact with the outside world, shouldn’t the BoP hire enough staff so that we can maintain the same rights and privileges as other prisoners (since the party line is that we are not here for punishment)? The reality is the conditions, segregation, lack of due process and such are punishment regardless of whether the BoP admits it or not.

Forward!
Where to from here, then? Does the new President and his Attorney General take issue with segregation? Will Obama view the CMU, as he did with Guantanamo Bay, as a horrible legacy of his predecessor and close it? Many people are hopeful for an outcome like that. On April 7th, 2009, Mr. Obama, while in Turkey, said, “The United States will not make war on Islam,” and that he wanted to “extend the hand of friendship to the Muslim world.” While that sounds wonderful, what does that look like in concrete terms? Will he actualize that opinion by closing the CMU? Or will he marry the policy of Bush and condone a secret illegal set of political units for Muslims and activists? What of the men here? Will he transfer us back to normal prisons and review the outrageous prosecutions of many of the CMU detainees? If it can be done with (former) Senator Ted Steven’s case, it can be done here.

While lawsuits have been filed in both Illinois and Indiana federal courts, what is needed urgently is for these units to be dragged out into the open. I am asking for your help and advocacy in dealing with this injustice and the mindset that allows a CMU to exist. Please pursue the resource section at the end of this article and consider doing something. I apologize for the length of this piece — it was suggested to me (by people way smarter than myself) that it would be best to start from the beginning and offer as many details as possible. I hope I gave you a clearer idea of what’s going on here. Thank you for all your support and love — your letters are a bright candle in a sea of darkness.

Darfur, the Israeli lobby & US Democrats

hillary-clinton-meets-israelWhat does it mean for Africa when right wing end-of-the- world-is-near evangelical Christians join forces with the Robert F. Kennedy Center For Human Rights? What does it mean for African Americans when Bush, Obama, and nearly all last year’s presidential candidates from both parties encourage the continuation of an African civil war rather than a political settlement between the parties? What does it mean when 21st century PR firms employ FaceBook, slick viral marketing and millions of dollars to create a simple, satisfying, feel-good excuse for military intervention on the African continent? –from Is There a Save Darfur Industrial Complex?

But Save Darfur has gotten into hot water with aid groups helping the refugees of the conflict.

In February it began a high-profile advertising campaign that included full-page newspaper ads, television spots and billboards calling for more aggressive action in Darfur, including the imposition of a no-flight zone over the region.

Aid groups and even some activists say banning flights could do more harm than good, because it could stop aid flights. Many aid groups fly white airplanes and helicopters that may look similar to those used by the Sudanese government, putting their workers at risk in a no-flight zone.

Sam Worthington, the president and chief executive of InterAction, a coalition of aid groups, complained to Mr. Rubenstein by e-mail that Save Darfur’s advertising was confusing the public and damaging the relief effort.

“I am deeply concerned by the inability of Save Darfur to be informed by the realities on the ground and to understand the consequences of your proposed actions,” Mr. Worthington wrote.

He noted that contrary to assertions in its initial ads, Save Darfur did not represent any of the organizations working in Darfur, and he accused it of “misstating facts.” He said its endorsement of plans that included a no-flight zone and the use of multilateral forces “could easily result in the deaths of hundreds of thousands of individuals.”

Another aid group, Action Against Hunger, said in a statement last week that a forced intervention by United Nations troops without the approval of the Sudanese government “could have disastrous consequences that risk triggering a further escalation of violence while jeopardizing the provision of vital humanitarian assistance to millions of people.”

Aid groups also complain that Save Darfur, whose budget last year was $15 million, does not spend that money on aid for the long-suffering citizens of the region.

from the New York Times June 2, 2007 Darfur Advocacy Group Undergoes a Shake-Up

‘The “Save Darfur (Coalition) was created in 2005 by two groups concerned about genocide in the African country – the American Jewish World Service and the U.S. Holocaust Memorial Museum…

‘The coalition has a staff of 30 with expertise in policy and public relations. Its budget was about $15 million in the most recent fiscal year…

from The Washington Post at http://www.overbrook.org/newsletter/06_07/pdfs/AJWS_Washington_Post.pdf

Hillary Clinton on Darfur as she calls for more Pentagon intervention and wars abroad. This is a woman that has no problem with genocide when committed by the US and/ or Israel.

Biden calls for military force in Darfur speaks for itself as he directly calls for a US military assault on Sudan See Joe Biden: Darfur as he calls for US troops to attack Sudan

American barbeque and Fox assholes like Scissor Bills’ O’Reilly

FOX News
Ex-soldier bragged about Iraqi rape, deaths then celebrated at a barbeque from Reuters. “Iraqis were horrified by the crime, one of a series of incidents involving U.S. soldiers that strained relations with the Iraqi government. But the onset of Green’s trial three years later is not resonating with most Iraqis, observers there say. The incident was portrayed in the 2007 movie “Redacted” by director Brian De Palma, who complained the film was censored by the studio. Its graphic images shocked many viewers.”

From wikipedia we read that…

‘Commentator Bill O’Reilly has called for protests of Redacted and against Mark Cuban. O’Reilly claims that the film demeans American soldiers and may incite violence against them, and he has called on ticketholders to bring signs to Dallas Mavericks games and all theaters showing the movie, stating ‘Support the Troops’.[18] Mark Cuban has responded, saying “The movie is fully pro-troops. The hero of the movie is a soldier who stands up for what is right in the face of adversity… I think that the concept that the enemy will see these films and use it as motivation is total nonsense. We have no plans of translating these movies to Arabic or other middle eastern languages…It’s really easy to hate, its really hard to think issues through on their own merits. Anything that makes people think about issues is a good thing.”‘

You can see the film Redacted online for free and it is well worth it. Don’t let these right Wing creeps like Bill O’Reilly get away with what you can see or not see. It never got a chance at your local cinema but most good films never do either. There are just far too many American idiots like O’Reilly out there and unfortunately, many of them get their marching orders from Fox and Murdoch, if not their actual salaries like Master Scissor Bill himself does.

Ground Zero for The Empire’s Collapse- Depository Trust & Clearing Corporation?

DTCCThe Depository Trust & Clearing Corporation or DTCC is possibly Ground Zero for the US Empire’s potential coming economic collapse, because it is the primary and dominant insuring company that guarantees pay outs for those who hold junk stocks, if they go belly up.

‘DTCC’s DTC depository provides custody and asset servicing for 3.5 million securities issues, comprised mostly of stocks and bonds, from the United States and 110 other countries and territories, valued at $40 trillion, more than any other depository in the world. In 2007, DTCC settled the vast majority of securities transactions in the United States, more than $1.86 quadrillion in value.’ Taken from wikipedia’s DTCC entry

Looking to see who is in charge at DTCC? Nice group of pics, right? Nice people I’m sure… lol… Good patriotic Americans and what all.

The DTCC history show 2 events that pushed this corporate outfit to the head. One was Bill Clinton’s deregulation of securities signed into law in 2000 at the end of his presidency, and the other was 9/11.

9/11 effectively was the death blow to paper securities, and DTCC was right there offering electronic securities instead. Here at DTCC’s site one finds this brief explanation of No More Paper: The Problems with Paper …see below

Q. I have heard that many securities were lost on 9/11. Is that true?

A. Yes, although they were eventually all replaced. Some $16 billion worth of certificates disappeared in the collapse of the World Trade Center towers on 9/11, and it took many months and nearly $300 million in industry costs to replace them. During this period, electronic records were used to ensure the owners of the securities could be identified. Meanwhile, shares held electronically were not harmed at all on 9/11.

OK, that’s nice…. And here, written in 1999 about the Clinton Administration’s proposed financial deregulation of that year that then later allowed the rise of even more speculative securities and the eventual domination of DTCC over the securities market, is the following…

***Threat to financial stability***

The proposed deregulation will increase the degree of monopolization in finance and worsen the position of consumers in relation to creditors. Even more significant is its impact on the overall stability of US and world capitalism. The bill ties the banking system and the insurance industry even more directly to the volatile US stock market, virtually guaranteeing that any significant plunge on Wall Street will have an immediate and catastrophic impact throughout the US financial system.

The Glass-Steagall Act of 1933, which the deregulation bill would repeal, was not adopted to protect consumers, although one of its most celebrated provisions was the establishment of the Federal Deposit Insurance Corporation, which guarantees bank deposits of up to $100,000. The law was enacted during the first 100 days of the Roosevelt administration to rescue a banking system which had collapsed, wiping out the life savings of millions of working people, and threatening to bring the profit system to a complete standstill.

As a recent history of that era notes: “The more than five thousand bank failures between the Crash and the New Deal’s rescue operation in March 1933 wiped out some $7 billion in depositors’ money. Accelerating foreclosures on defaulted home mortgages—150,000 homeowners lost their property in 1930, 200,000 in 1931, 250,000 in 1932—stripped millions of people of both shelter and life savings at a single stroke and menaced the balance sheets of thousands of surviving banks” (David Kennedy, Freedom from Fear, Oxford University Press, 1999, pp. 162-63).

The separation of banking and the stock exchange was ordered in response to revelations of the gross corruption and manipulation of the market by giant banking houses, above all the House of Morgan, which organized huge corporate mergers for its own profit and awarded preferential access to share issues to favored politicians and businessmen. Such insider trading played a major role in the speculative boom which preceded the 1929 crash.

Over the past 20 years the restrictions imposed by Glass-Steagall have been gradually relaxed under pressure from the banks, which sought more profitable outlets for their capital, especially in the booming stock market, and which complained that foreign competitors suffered no such limitations to their financial operations. In 1990 the Federal Reserve Board first permitted a bank (J.P. Morgan) to sell stock through a subsidiary, although stock market operations were limited to 10 percent of the company’s total revenue. In 1996 this ceiling was lifted to 25 percent. Now it will be abolished.

The Wall Street Journal celebrated the agreement to end such restrictions with an editorial declaring that the banks had been unfairly scapegoated for the Great Depression. The headline of one Journal article detailing the impact of the proposed law declared, “Finally, 1929 Begins to Fade.”

This comment underscores the greatest irony in the banking deregulation bill. Legislation first adopted to save American capitalism from the consequences of the 1929 Wall Street Crash is being abolished just at the point where the conditions are emerging for an even greater speculative financial collapse. The enormous volatility in the stock exchange in recent months has been accompanied by repeated warnings that stocks are grossly overvalued, with some computer and Internet stocks selling at prices 100 times earnings or even greater.

And there is a much more recent experience than 1929 to serve as a cautionary tale. A financial deregulation bill was passed in the early 1980s under the Reagan administration, lifting many restrictions on the activities of savings and loan associations, which had previously been limited primarily to the home-loan market. The result was an orgy of speculation, profiteering and outright plundering of assets, culminating in collapse and the biggest financial bailout in US history, costing the federal government more than $500 billion. The repetition of such events in the much larger banking and securities markets would be beyond the scope of any federal bailout.

The complete article published back in 1999 at Clinton, Republicans agree to deregulation of US financial system Almost a totally prophetic article, as it turns out. So now we wait and see if all the government money thrown at these financial pirates…YES, financial pirates…’works’? Will it be capable of floating all this junk held insured by DTCC?