Sunday, November 30, 2014

Playing Chicken in the Middle of the Road

            I'm not sure what the Ferguson Police Department's policy is regarding waiting for back-up, but it seems to me that much of where we stand today with regard to Michael brown's untimely death could have been avoided if Darren Wilson had just waited for help to arrive.
            At the time Wilson first encountered Brown and his companion, Dorian Johnson the only crimes Wilson would have been able to observe were jaywalking and possibly obstruction of traffic--neither of which warrants the use of extreme force.
             The ostensible purpose for the stop that Wilson cites was to get the two men out of the middle of residential road of which the two suspects were walking down the middle.  When the two men refused, and began shouting expletives at him, Wilson, who was alone in his vehicle, should have fallen back, followed the suspects from the safety of his vehicle, observed and reported, and waited for more officers to arrive. It is likely that help would have arrived in minutes, and if it didn't, so what? The crime at hand was minor and not worth escalating.
            The probable outcome when back-up arrived would have been that Brown and his companion would have backed down due to a show of superior force and numbers. If back-up took too long, Brown would have exited the center of the roadway and headed for his destination. He had just committed a petty theft ($38 worth of cigarillos) at a local convenience store, and he would have known it was only a matter of time before Wilson put two and two together from the radio calls, and brought considerable weight down upon him. Brown wasn't planning on loitering for too much longer; any hazard he was causing on the roadway was about to be cleared.
            Wilson did, in fact, connect Brown to the robbery, and set about delaying Brown and Johnson until back-up showed up on the scene. This is the key moment in the interaction, and the moment that makes so little sense that it's hard to fathom. Wilson was alone; it was two against one, and at least one the suspects (an exceedingly large one) had already plainly displayed an overt and aggressive disregard for Wilson's authority. By blocking the men with his cruiser in the middle of traffic and getting out to confront the suspects, Wilson was virtually guaranteeing that there was going to be a confrontation wherein his only advantage was the firearm at his side.
            Now, I'm not suggesting that Wilson should have resorted to cowardice, but instead that the John Wayne, cowboy shit that so many of our country's police forces still seem to encourage needs to go the way of...well, the way of the Old West. Caution would have served Wilson better than bravado that day. He should have been weighing risk versus reward. The worst case scenario if back-up didn't arrive in time and the suspects got away would have been that two unarmed black men, guilty of jay-walking and obstructing traffic, might have made off with a whopping $38 worth of stolen cigars. That would have been significantly less expensive than the way things turned out.

The Missouri Compromise

            There are no easy answers in the Michael Brown shooting. Unless some citizen who has been in a coma for the last three months magically appears with actual video footage of the incident, we will never know for sure what happened that hot afternoon last August. The most reliable witness claims that officer Darren Wilson provoked Brown. Wilson says Brown attacked him. And that is all we have: two conflicting accounts, both with the motivation to lie.
            The witness in question, Dorian Johnson was Brown's best friend --as well as his accomplice in the robbery which precipitated the event--and Wilson, for his part, would potentially be found guilty of murder, excessive use of force, and possibly a hate crime if it turned out he had fired twelve rounds at a suspect who was trying to surrender.
            Even the Ferguson DA's office had motive to be less than forthright in choosing the method by which Wilson was to be questioned. A grand jury investigation in cases like this is typically chosen by a prosecutor so that he or she can to some degree control the outcome. That is to say that a grand jury gives the prosecution to cherry-pick the evidence to some degree in order to steer the jury towards the outcome that the prosecutor desires.
            While that system in and of itself appears to be in desperate need of revision, the curious thing in this case is that Missouri prosecutor, Robert McCulloch turned over all the evidence that was available to the jurors. On its surface this fact sounds reasonable, but in reality what McCulloch did was in effect to muddy the waters of due process and make it nearly impossible for any grand jury--let alone this one-- to be effective in fairly making a decision about whether or not to indict. McCulloch didn't even cross-examine Wilson, which is also highly suspicious considering that is an ideal and commonly used tactic in acquiring a grand jury indictment.
            If one didn't know better, one might think that this particular prosecutor didn't want to be the one left holding the bag in a controversial case involving yet another white cop shooting and killing another unarmed black teen. There is little upside for a prosecutor trying a case like this, especially when the evidence at hand is not open and shut. If he wins, he will be treated as a pariah by the police; if he loses, he is the enemy of the minority population and the one to be blamed for the subsequent unrest, looting and rioting. In turning the decision over to a grand jury, manipulating the evidence in ways contrary to his formal training, and giving the jury an unprecedented amount of latitude, McCulloch effectively recused himself from the proceedings.
            Maybe Wilson is in fact innocent. Maybe Michael Brown did attack him without provocation. Maybe a trial would've discovered, at the very least criminal negligence on Wilson's part or, perhaps a surprise witness would've surfaced condemning him as a racist and a cold-blooded murderer. Alas, we will never find that out now; but with cowards like Robert McCulloch overseeing the ways in which we administer justice, is Wilson's guilt or innocence really the point?

Wednesday, November 26, 2014

"Like" if You Plan to Attend a Riot This Weekend!

               My Facebook page is unsurprisingly stuffed to capacity today with posts about the grand jury decision in Ferguson, Missouri. I'm not sure I'm a fan of social media as the best forum for discussions of this kind. Arguments tend to be oversimplified. Quips quickly turn derisive and arrogantly dismissive. The flames fan higher. People are want to have strong opinions--as they should--regarding the topics of institutionalized racism and police brutality, but are Facebook and Twitter really the place for venting our anger?
            I'm torn because, while I see social media as an effective tool for spreading the message and keeping the dialogue alive and vital, I also see my Facebook 'friends' lashing out at one another in ways that can't be productive. These are complex issues which require comprehensive discussions, not memes and 140-character publicity rants. Furthermore, the instantaneity of these modes of media make us all behave like ace reporters all vying to out 'scoop' one another. It's all old news in just a few scant hours so we need to get our opinions in fast. Speed at this kind of frenetic, exponentially accelerating pace rarely mixes well with justice.
            By the look of things, though, justice doesn't seem to be too high a priority. Facebonkers (to steal a Ricky Gervais-ism) and Tweeters chime-in on the Big Issues of the day largely because they have no other outlet or they just want to make sure they remain relevant. Mostly it's just uninformed, reactionary drivel. There is no substantive context, no real content, no self reflection or wisdom. Instead it is just one long, divisive hall of mirrors with your face or my face--and not Michael Brown's face--propped up squarely at the margin of our abbreviated philosophies.

One Nation Under Siege

            It's almost always a bad idea to buy fire insurance right after a fire. At that point you're still dazed and in shock. Your lungs are still clearing themselves of smoke; your head is buzzing; you're frazzled and emotional, and your judgment is profoundly impaired. This is no time to be making long-lasting, weighty decisions with a high price tag attached to them just because you're scared. Unless there is another fire in plain view bearing down on you, it is always advisable to step back, take a deep breath and think carefully about your next move.
            Sadly, in the days immediately following 9/11, our fear got the better of us as a nation and we did just the opposite. When our government--the same government by the way that failed to protect us from the 9/11 attacks--asked us to sign on the dotted line of the insurance policy they had drafted up, we acquiesced, still transfixed through stunned, bleary eyes by the shocking images on our televisions. Civil libertarians warned us that we were signing away our rights, but in those panicky times they were heeded about as much as Cassandra was by her Trojan countrymen. As a result, we bought and paid for a duplicitous little document called the Patriot Act.
            Amongst the new powers granted U.S. law enforcement under this Patriot Act was a tool that came to be known as "sneak and peak". This whimsically titled tactic is essentially a request submitted to a judge for the purpose of conducting searches without notifying the suspect who is to be surveilled. It is also a violation of the Fourth Amendment, but again, the whole country was so petrified that another terrorist attack was imminent that privacy didn't seem important by comparison. "Sneak and peak" was perceived as a temporary and necessary measure during a time of great crisis; and it was only supposed to be used against suspected terrorists.
            Unfortunately, law enforcement didn't see it that way, and it wasn't long before the "sneak and peak" provision was being used to investigate crimes not related to terrorism. An institution who collectively, regularly views the Bill of Rights as an obstacle to their ability to do their jobs will always seize upon and exploit any easing of restraint provided for in those ten amendments that the American public allows. The Bill of Rights wasn't put into place to protect citizens from each other; it was created to protect them from the abuses of government.
            Prior to the American War for Independence, the British government's method of compliance with regards to search and seizure was the issuance of general warrants known as writs of assistance. These warrants allowed British agents to forcefully enter virtually any home at any time and to seize just about any property they saw fit to confiscate in the King's name. The ostensible motivation for the Crown at this time for these invasions of privacy was that the colonists were smuggling and evading taxes. As one might imagine, abuses of this power were commonplace. The drafters of the Constitution who saw fit to include the Fourth Amendment did so to prevent such abuses in the future. They might not understand all the complexities of electronic surveillance in the modern world, but even they would grasp the concept that the War on Drugs should not be waged with a document designed to fight the War on Terror.


Monday, November 10, 2014


            Those bastards in New York and LA always get first dibs on movies, so I had to wait over a month before Laura Poitras'  Edward Snowden documentary, Citizenfour finally made its way to San Jose. In the space of time it took to unceremoniously make its debut here--in a tiny little, run-down theater no less-- I would estimate that I devoured at least 50,000 words from various sources regarding Mr. Snowden and his recent history with the NSA. 

           Turns out all that research that wasn't necessarily a good thing, at least not in terms of enjoying the film. It was a bit like that old cliché that the movie is never as good as the book. While Poitras did an excellent job directing, editing and generally creating an atmosphere of suspense, I knew too much going in. There were no surprises. I had over prepared and there was little in the story that I didn't already know as it unfolded on the screen before my eyes. That said, I will try to extract myself from the process in order to give an honest review.

            One of the things that the film does exceptionally well is convey the sense of urgency and paranoia that Snowden and his journalist allies are experiencing in real time as the story unfolds. We are never far away from the feeling that, regardless of how each of us in the audience might feel about Snowden, we are watching history as it is being made. Remarkably, it is a momentous piece of history that takes place largely in a nondescript, upscale Hong Kong hotel room. As Snowden sits on the bed and calmly unravels his tale of a U.S. government that thinks that it is above the law, suspicious interruptions keep creeping in. Phantom phone calls ring through to his room. Unannounced tests of the fire alarm system buzz every few seconds. If these were just coincidences and not some spy's attempts to subvert Snowden's plans, they couldn't have been scripted better by Hollywood in terms of adding a sense of claustrophobic dread to the already tense mood.

            Poitras intersperses location jumps from Brazil to Berlin, Utah to the U.K. in a story of intrigue and worldwide government collusion that plays on the screen like a real-life John le Carré novel. We see a massive new security supercenter designed to hold all the terabits of data which the NSA is collecting about us being built in Bluffdale, Utah. We see a fair amount of Berlin and Rio de Janeiro, due to the fact that filmmaker Poitras and Snowden's handpicked reporter, Glenn Greenwald have both been forced to live outside of their American homeland as a result of practicing too conspicuously their First Amendment right to political dissent. A good deal of the story also takes place in England due to the fact that the leaks contain a good deal of damning information regarding Britain's GCHQ (roughly the equivalent of the U.S. NSA), and as a result, reporters from London's The Guardian newspaper are brought into Snowden's inner circle.

            An intriguing subplot introduces us to NSA whistleblower William Binney, whose story of a life turned upside down and ruined by the NSA after he exposed their illegal activities serves as a cautionary tale and goes a long way towards illustrating why Snowden felt that he had no choice but to flee his country. Worse yet for Snowden, as his attorney so deftly explains in the film, because the charges the DOJ levied against Snowden under the 1917 Espionage Act don't afford any defense team to mount a 'whistleblower' or public interest defense, Snowden has no legal standing, even if his aims were altruistic. In the eyes of his government, Snowden is an admitted thief and a fugitive traitor; the fair trial they dangle from afar is a sham from the start.
            I found it disappointing, however, that in another segment, Snowden mentions the fact that some of the documents he copied from the NSA database were of an "operational" nature and that the reporters with whom he entrusted them needed to be careful about what they print. That is to say that some of what he took might compromise the safety of boots on the ground. On one hand, this indicates that Snowden is concerned for the safety of those in the field, but on the other it leaves us with the distinct impression that he may have acted irresponsibly in the first place by not being more careful with that information. Poitras would have done well to address the obvious debate concerning human rights versus genuine American security which has been going on in this country for over a year. In not allowing for a counterweight to Snowden or at least giving Snowden a chance to explain himself in that regard, the film sells its thesis short. A hero can have flaws, but not unless his audience is convinced that he has not done more harm than good.